[Federal Register Volume 80, Number 13 (Wednesday, January 21, 2015)]
[Proposed Rules]
[Pages 2851-2860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00870]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0689; FRL-9921-88-Region 4]


Approval and Promulgation of Implementation Plans; Alabama; 
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part and disapprove in part the State Implementation Plan 
(SIP) revision, submitted by the State of Alabama, through the Alabama 
Department of Environmental Management (ADEM), for inclusion into the 
Alabama SIP. This proposal pertains to the Clean Air Act (CAA or the 
Act) infrastructure requirements for the 2008 8-hour ozone national 
ambient air quality standards (NAAQS). The CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. ADEM certified that the 
Alabama SIP contains provisions that ensure the 2008 8-hour ozone NAAQS 
is implemented, enforced, and maintained in Alabama. With the exception 
of provisions pertaining to prevention of significant deterioration 
(PSD) permitting, interstate transport, and visibility protection 
requirements for which EPA is proposing no action through this notice, 
and with the exception of the provisions respecting state boards, for 
which EPA is proposing disapproval, EPA is proposing to approve 
Alabama's infrastructure SIP submission provided to EPA on August 20, 
2012, as satisfying the required infrastructure elements for the 2008 
8-hour ozone NAAQS.

DATES: Written comments must be received on or before February 20, 
2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0689, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0689,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0689. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of

[[Page 2852]]

encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9140. Ms. Ward can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background and Overview
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how Alabama addressed the elements of 
sections 110(a)(1) and (2) ``Infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On March 27, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. EPA revised the level of the 8-hour 
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. Pursuant to 
section 110(a)(1) of the CAA, states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. States were required to 
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than 
March 2011.\1\ ADEM made this submission and certified that the Alabama 
SIP contains provisions that ensure the 2008 8-hour ozone NAAQS is 
implemented, enforced, and maintained in Alabama (hereafter referred to 
as an ``infrastructure SIP submission'').
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``ADEM Admin. Code r.'' indicates that the cited 
regulation has been approved into Alabama's federally-approved SIP. 
The term ``Ala. Code'' refers to Alabama state statutes, which, 
unless otherwise indicated, are not a part of the federally-approved 
SIP.
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    Today's action is proposing to approve Alabama's infrastructure SIP 
submission for the applicable requirements of the 2008 8-hour ozone 
NAAQS, with the exception of the PSD permitting requirements for major 
sources of section 110(a)(2)(C) and (J), the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 
4), the state board requirements of section 110(a)(2)(E)(ii) and the 
visibility requirements of 110(a)(2)(J). With respect to Alabama's 
infrastructure SIP submission related to the provisions pertaining to 
the PSD permitting requirements for major sources of section 
110(a)(2)(C) and (J), the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and (II), and the visibility requirements of 
110(a)(2)(J), EPA is not proposing any action today regarding these 
requirements. EPA will act on these portions of Alabama's submission in 
a separate action. With respect to Alabama's infrastructure SIP 
submission related to section 110(a)(2)(E)(ii) requirements respecting 
the section 128 state board requirements, EPA is proposing to 
disapprove this element of Alabama's submission in today's rulemaking. 
Finally, EPA notes that this action is not approving any specific rule, 
but rather proposing that Alabama's already approved SIP meets certain 
CAA requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2008 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with the 1997 8-hour 
ozone NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements of section 110(a)(2) are summarized below and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System

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 110(a)2(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources
 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \3\
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    \3\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from Alabama that address the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 8-hour ozone NAAQS. The requirement for states to make a SIP 
submission of this type arises out of CAA section 110(a)(1). Pursuant 
to section 110(a)(1), states must make SIP submissions ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\4\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \4\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\5\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\6\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \5\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \6\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\7\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a

[[Page 2854]]

given NAAQS without concurrent action on the entire submission. For 
example, EPA has sometimes elected to act at different times on various 
elements and sub-elements of the same infrastructure SIP submission.\8\
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    \7\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \8\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\9\
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    \9\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\10\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\11\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\12\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \10\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \11\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \12\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
GHGs. By contrast, structural PSD program requirements do not include 
provisions that are not required under EPA's regulations at 40

[[Page 2855]]

CFR 51.166 but are merely available as an option for the state, such as 
the option to provide grandfathering of complete permit applications 
with respect to the 2012 PM2.5 NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, among other things, the requirement that states 
have a program to regulate minor new sources. Thus, EPA evaluates 
whether the state has an EPA-approved minor new source review program 
and whether the program addresses the pollutants relevant to that 
NAAQS. In the context of acting on an infrastructure SIP submission, 
however, EPA does not think it is necessary to conduct a review of each 
and every provision of a state's existing minor source program (i.e., 
already in the existing SIP) for compliance with the requirements of 
the CAA and EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\13\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \13\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\14\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\15\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\16\
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    \14\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \15\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \16\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how Alabama addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Alabama's infrastructure SIP submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A) Emission limits and other control measures: Several

[[Page 2856]]

regulations within Alabama's SIP are relevant to air quality control 
regulations. The regulations described below have been federally 
approved in the Alabama SIP and include enforceable emission 
limitations and other control measures. ADEM Admin. Code r. 335-3-
1-.03--Ambient Air Quality Standards, authorizes ADEM to adopt rules 
for the control of air pollution in order to comply with NAAQS, 
including those necessary to obtain EPA approval under section 110 of 
the CAA. This regulation along with ADEM Admin. Code r. 335-3-1-.06--
Compliance Schedule, set the schedule for compliance with the State's 
Air Pollution Control rules and regulations to be consistent with the 
requirements of the CAA. ADEM Admin. Code r. 335-3-1-.05--Sampling and 
Testing Methods, details the authority and means with which ADEM can 
require testing and emissions verification. EPA has made the 
preliminary determination that the provisions contained in these 
regulations and Alabama's practices are adequate to protect the 2008 8-
hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in a separate 
action.\17\ In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
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    \17\ On February 22, 2013, EPA published a proposed action in 
the Federal Register entitled, ``State Implementation Plans: 
Response to Petition for Rulemaking; Findings of Substantial 
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 
Emissions During Periods of Startup, Shutdown, and Malfunction; 
Proposed Rule.'' See 78 FR 12460.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: ADEM 
Admin. Code r. 335-3-1-.04--Monitoring, Records, and Reporting, 
requires sources to submit emissions monitoring reports as prescribed 
by the Director of ADEM. Pursuant to this regulation, these sources 
collect air monitoring data, quality assure the results, and report the 
data to EPA. ADEM Admin. Code r. 335-3-1-.05--Sampling and Testing 
Methods, details the authority and means with which ADEM can require 
testing and emissions verification. ADEM Admin. Code r. 335-3-14-.04--
Air Permits Authorizing Construction in Clean Air: Prevention of 
Significant Deterioration Permitting (PSD), describes the State's use 
of ambient air quality monitoring data for purposes of permitting new 
facilities and assessing major modifications to existing facilities. 
Annually, States develop and submit to EPA for approval statewide 
ambient monitoring network plans consistent with the requirements of 40 
CFR parts 50, 53, and 58. The annual network plan involves an 
evaluation of any proposed changes to the monitoring network, includes 
the annual ambient monitoring network design plan and a certified 
evaluation of the agency's ambient monitors and auxiliary support 
equipment.\18\ On June 4, 2013, Alabama submitted its plan to EPA. On 
November 22, 2013, EPA approved Alabama's monitoring network plan. 
Alabama's approved monitoring network plan can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0689. EPA has 
made the preliminary determination that Alabama's SIP and practices are 
adequate for the ambient air quality monitoring and data systems 
related to the 2008 8-hour ozone NAAQS.
---------------------------------------------------------------------------

    \18\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: This element consists of 
three sub-elements; enforcement, state-wide regulation of new and 
modified minor sources and minor modifications of major sources; and 
preconstruction permitting of major sources and major modifications in 
areas designated attainment or unclassifiable for the subject NAAQS as 
required by CAA title I part C (i.e., the major source PSD program). 
ADEM's 2008 8-hour ozone NAAQS infrastructure SIP submission cited a 
number of SIP provisions to address these requirements. Specifically, 
the submission cited ADEM Admin. Code r. 335-3-14-.04--Air Permits 
Authorizing Construction in Clean Air Areas: Prevention of Significant 
Deterioration Permitting (PSD) and ADEM Admin. Code r. 335-3-14-.05--
Air Permits Authorizing Construction in or Near Nonattainment Areas. 
Collectively, these provisions of Alabama's SIP regulate the 
construction of any new major stationary source or any modification at 
an existing major stationary source in an area designated as 
nonattainment, attainment or unclassifiable. As discussed further 
below, in this action EPA is only proposing to approve the enforcement, 
and the regulation of minor sources and minor modifications aspects of 
Alabama's section 110(a)(2)(C) infrastructure SIP submission.
    Enforcement: ADEM's above-described, SIP-approved regulations 
provide for enforcement of ozone precursor (VOC and NOX) 
emission limits and control measures and construction permitting for 
new or modified stationary sources.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Alabama's infrastructure SIP submission related to the preconstruction 
PSD permitting requirements for major sources of section 110(a)(2)(C), 
EPA is not proposing any action today regarding these requirements and 
instead will act on this portion of the submission in a separate 
action.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2008 8-hour ozone NAAQS. 
ADEM Admin. Code r. 334-3-14-.03--Standards for Granting Permits, 
governs the preconstruction permitting of modifications and 
construction of minor stationary sources.
    EPA has made the preliminary determination that Alabama's SIP and 
practices are adequate for program enforcement of control measures and 
regulation of minor sources and modifications related to the 2008 8-
hour ozone NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from

[[Page 2857]]

contributing significantly to nonattainment of the NAAQS in another 
state (``prong 1''), and interfering with maintenance of the NAAQS in 
another state (``prong 2''). The third and fourth prongs, which are 
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit 
emissions activity in one state from interfering with measures required 
to prevent significant deterioration of air quality in another state 
(``prong 3''), or to protect visibility in another state (``prong 4''). 
With respect to Alabama's infrastructure SIP submission related to the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II) (prongs 1 through 4), EPA is not proposing any 
action today regarding these requirements and instead will act on these 
portions of the submission in a separate action.
    5. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions insuring compliance with sections 115 and 126 of the Act, 
relating to interstate and international pollution abatement. ADEM 
Admin. Code r. 335-3-14-.04--Prevention of Significant Deterioration in 
Permitting describes how Alabama notifies neighboring states of 
potential emission impacts from new or modified sources applying for 
PSD permits. This regulation requires ADEM to provide an opportunity 
for a public hearing to the public, which includes State or local air 
pollution control agencies, ``whose lands may be affected by emissions 
from the source or modification'' in Alabama. Additionally, Alabama 
does not have any pending obligation under sections 115 and 126 of the 
CAA. Accordingly, EPA has made the preliminary determination that 
Alabama's SIP and practices are adequate for insuring compliance with 
the applicable requirements relating to interstate and international 
pollution abatement for the 2008 8-hour ozone NAAQS.
    6. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires 
that each implementation plan provide (i) necessary assurances that the 
State will have adequate personnel, funding, and authority under state 
law to carry out its implementation plan, (ii) that the State comply 
with the requirements respecting State Boards pursuant to section 128 
of the Act, and (iii) necessary assurances that, where the State has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any plan provision, the State has 
responsibility for ensuring adequate implementation of such plan 
provisions. EPA is proposing to approve Alabama's infrastructure SIP 
submission as meeting the requirements of sub-elements 110(a)(2)(E)(i) 
and (iii). With respect to sub-element 110(a)(2)(E)(ii) (regarding 
state boards), EPA is proposing to disapprove this sub-element. EPA's 
rationale respecting each sub-element is described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submission demonstrate 
that it is responsible for promulgating rules and regulations for the 
NAAQS, emissions standards general policies, a system of permits, fee 
schedules for the review of plans, and other planning needs. As 
evidence of the adequacy of ADEM's resources with respect to sub-
elements (i) and (iii), EPA submitted a letter to ADEM on April 24, 
2014, outlining 105 grant commitments and current status of these 
commitments for fiscal year 2013. The letter EPA submitted to Alabama 
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0689. Annually, states update these grant commitments based on 
current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS. There were no outstanding issues in 
relation to the SIP for fiscal year 2013, therefore, Alabama's grants 
were finalized and closed out. EPA has made the preliminary 
determination that Alabama has adequate resources for implementation of 
the 2008 8-hour ozone NAAQS. In addition, the requirements of 
110(a)(2)(E)(i) and (iii) are met when EPA performs a completeness 
determination for each SIP submittal. This determination ensures that 
each submittal provides evidence that adequate personnel, funding, and 
legal authority under state law has been used to carry out the state's 
implementation plan and related issues. Alabama's authority is included 
in all prehearings and final SIP submittal packages for approval by 
EPA. EPA has made the preliminary determination that Alabama has 
adequate resources for implementation of the 2008 8-hour ozone NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that the SIP provide: (1) 
The majority of members of the state board or body which approves 
permits or enforcement orders represent the public interest and do not 
derive any significant portion of their income from persons subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such board or body, or the head of an 
executive agency with similar powers be adequately disclosed. After 
reviewing Alabama's SIP, EPA has made the preliminary determination 
that the State's implementation plan does not contain provisions to 
comply with section 128 of the Act, and thus Alabama's August 20, 2012, 
infrastructure SIP submission does not meet the requirements of the 
Act. While Alabama has state statutes that may address, in whole or in 
part, requirements related to state boards at the state level, these 
provisions are not included in the SIP as required by the CAA. Based on 
an evaluation of the federally-approved Alabama SIP, EPA is proposing 
to disapprove Alabama's infrastructure SIP submission as meeting the 
requirements of 110(a)(2)(E)(ii) of the CAA for the 2008 8-hour ozone 
NAAQS. The submitted provisions which purport to address 
110(a)(2)(E)(ii) are severable from the other portions of ADEM's 
infrastructure SIP submission, therefore, EPA is proposing to 
disapprove those provisions which relate only to sub-element 
110(a)(2)(E)(ii).
    7. 110(a)(2)(F) Stationary source monitoring system: ADEM's 
infrastructure SIP submission describes the establishment of 
requirements for compliance testing by emissions sampling and analysis, 
and for emissions and operation monitoring to ensure the quality of 
data in the State. The Alabama infrastructure SIP submission also 
describes how the major source and minor source emission inventory 
programs collect emission data throughout the State and ensure the 
quality of such data. Alabama meets these requirements through ADEM 
Admin. Code r. 335-3-1-.04--Monitoring, Records, and Reporting, and 
335-3-12--Continuous Monitoring Requirements for Existing Sources. ADEM 
Admin. Code r. 335-3-1-.04, details how sources are required as 
appropriate to establish and maintain records; make reports; install, 
use, and maintain such monitoring equipment or methods and provide 
periodic emission reports as the regulation requires. These reports and 
records are required to be compiled, and submitted on forms furnished 
by the State. Additionally, ADEM Admin. Code r. 335-3-12-.02 requires 
owners and operators of emissions sources to ``install, calibrate, 
operate and maintain all monitoring equipment necessary for 
continuously monitoring the pollutants.'' \19\ ADEM

[[Page 2858]]

Admin. Code r. 335-3-1-.13--Credible Evidence, makes allowances for 
owners and/or operators to utilize ``any credible evidence or 
information relevant'' to demonstrate compliance with applicable 
requirements if the appropriate performance or compliance test had been 
performed, for the purpose of submitting compliance certification and 
can be used to establish whether or not an owner or operator has 
violated or is in violation of any rule or standard. Accordingly, EPA 
is unaware of any provision preventing the use of credible evidence in 
the Alabama SIP.
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    \19\ ADEM Admin. Code r. 335-3-12-.02 establishes that data 
reporting requirements for sources required to conduct continuous 
monitoring in the state should comply with data reporting 
requirements set forth at 40 CFR part 51, Appendix P. Section 40 CFR 
part 51, Appendix P includes that the averaging period used for data 
reporting should be established by the state to correspond to the 
averaging period specified in the emission test method used to 
determine compliance with an emission standard for the pollutant/
source category in question.
---------------------------------------------------------------------------

    Additionally, Alabama is required to submit emissions data to EPA 
for purposes of the National Emissions Inventory (NEI). The NEI is 
EPA's central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, SO2, 
ammonia, lead, carbon monoxide, particulate matter, and VOC. Many 
states also voluntarily report emissions of hazardous air pollutants. 
Alabama made its latest update to the 2011 NEI on May 7, 2013. EPA 
compiles the emissions data, supplementing it where necessary, and 
releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary 
determination that Alabama's SIP and practices are adequate for the 
stationary source monitoring systems related to the 2008 8-hour ozone 
NAAQS.
    8. 110(a)(2)(G) Emergency Powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. ADEM Admin. 
Code r. 335-3-2--Air Pollution Emergency, provides for the 
identification of air pollution emergency episodes, episode criteria, 
and emissions reduction plans. Alabama's compliance with section 303 of 
the CAA and adequate contingency plans to implement such authority is 
also met by Ala. Code section 22-28-21 Air Pollution Emergencies. Ala. 
Code Section 22-28-21 provides ADEM the authority to order the ``person 
or persons responsible for the operation or operations of one or more 
air contaminants sources'' causing ``imminent danger to human health or 
safety in question to reduce or discontinue emissions immediately.'' 
The order triggers a hearing no later than 24-hours after issuance 
before the Environmental Management Commission which can affirm, modify 
or set aside the Director's order. Additionally, the Governor can, by 
proclamation, declare, as to all or any part of said area, that an air 
pollution emergency exists and exercise certain powers in whole or in 
part, by the issuance of an order or orders to protect the public 
health. EPA has made the preliminary determination that Alabama's SIP, 
state laws and practices are adequate to satisfy the infrastructure SIP 
obligations for emergency powers related to the 2008 8-hour ozone 
NAAQS. Accordingly, EPA is proposing to approve Alabama's 
infrastructure SIP submission with respect to section 110(a)(2)(G).
    9. 110(a)(2)(H) Future SIP revisions: As previously discussed, ADEM 
is responsible for adopting air quality rules and revising SIPs as 
needed to attain or maintain the NAAQS. Alabama has the ability and 
authority to respond to calls for SIP revisions, and has provided a 
number of SIP revisions over the years for implementation of the NAAQS. 
ADEM Admin. Code r. 335-1-1-.03--Organization and Duties of the 
Commission,\20\ provides ADEM with the authority to establish, adopt, 
promulgate, modify, repeal and suspend rules, regulations, or 
environmental standards which may be applicable to Alabama or ``any of 
its geographic parts.'' Admin. Code r. 335-1-1-.03--Ambient Air Quality 
Standards, provides ADEM the authority to amend, revise, and 
incorporate the NAAQS into its SIP. EPA has made the preliminary 
determination that Alabama adequately demonstrates a commitment to 
provide future SIP revisions related to the 2008 8-hour ozone NAAQS 
when necessary. Accordingly, EPA is proposing to approve Alabama's 
infrastructure SIP submission with respect to section 110(a)(2)(H).
---------------------------------------------------------------------------

    \20\ This regulation has not been incorporated into the 
federally-approved SIP.
---------------------------------------------------------------------------

    10. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: EPA is proposing to approve Alabama's infrastructure SIP 
submission for the 2008 8-hour ozone NAAQS with respect to the general 
requirement in section 110(a)(2)(J) to include a program in the SIP 
that complies with the applicable consultation requirements of section 
121 and the public notification requirements of section 127. With 
respect to Alabama's infrastructure SIP submission related to the 
preconstruction PSD permitting and visibility protection requirements, 
EPA is not proposing any action today regarding these requirements and 
instead will act on these portions of the submission in a separate 
action. EPA's rationale for applicable consultation requirements of 
section 121 and the public notification requirements of section 127 is 
described below.
    110(a)(2)(J) (121 consultation) Consultation with government 
officials: ADEM Admin. Code r. 335-3-1-.03--Ambient Air Quality 
Standards, as well as its Regional Haze Implementation Plan (which 
allows for continued consultation with appropriate state, local, and 
tribal air pollution control agencies as well as the corresponding 
Federal Land Managers), provide for consultation with government 
officials whose jurisdictions might be affected by SIP development 
activities. Specifically, Alabama adopted state-wide consultation 
procedures for the implementation of transportation conformity which 
includes the development of mobile inventories for SIP development. 
These consultation procedures were developed in coordination with the 
transportation partners in the State and are consistent with the 
approaches used for development of mobile inventories for SIPs. 
Required partners covered by Alabama's consultation procedures include 
federal, state and local transportation and air quality agency 
officials. EPA has made the preliminary determination that Alabama's 
SIP and practices adequately demonstrate consultation with government 
officials related to the 2008 8-hour ozone NAAQS when necessary.
    110(a)(2)(J) (127 public notification) Public notification: ADEM 
Admin. Code r. 335-3-14-.01(7)--Public Participation, and 335-3-
14-.05(13)--Public Participation, and Ala. Code section 22-28-21--Air 
Pollution Emergencies, provides for public notification when air 
pollution episodes occur. Furthermore, ADEM has several public notice 
mechanisms in place to notify the public of ozone and other pollutant 
forecasting. Alabama maintains a public Web site on which daily air 
quality index forecasts are posted for the Birmingham, Huntsville,

[[Page 2859]]

and Mobile areas. This Web site can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt. Accordingly, EPA is 
proposing to approve Alabama's infrastructure SIP submission with 
respect to section 110(a)(2)(J) public notification.
    11. 110(a)(2)(K) Air quality and modeling/data: ADEM Admin. Code r 
335-3-14-.04--Prevention of Significant Deterioration Permitting, of 
the Alabama SIP specifies that required air modeling be conducted in 
accordance with 40 CFR part 51, Appendix W ``Guideline on Air Quality 
Models.'' This regulation provides Alabama with the authority to 
conduct air quality modeling and report the results of such modeling to 
EPA. These regulations also demonstrate that Alabama has the authority 
to provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 2008 8-hour ozone NAAQS. Additionally, 
Alabama supports a regional effort to coordinate the development of 
emissions inventories and conduct regional modeling for several NAAQS, 
including the 2008 8-hour ozone NAAQS, for the southeastern states. 
ADEM Admin. Code r 335-3-1-.04--Monitoring, Records, and Reporting 
details how sources are required as appropriate to establish and 
maintain records; make reports; install, use, and maintain such 
monitoring equipment or methods and provide periodic emission reports 
as the regulation requires. These reports and records are required to 
be compiled, and submitted on forms furnished by the State. Taken as a 
whole, Alabama's air quality regulations and practices demonstrate that 
ADEM has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
pollutant for which a NAAQS had been promulgated, and to provide such 
information to the EPA Administrator upon request. EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate the State's ability to provide for air quality modeling, 
along with analysis of the associated data, related to the 2008 8-hour 
ozone NAAQS. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submission with respect to section 110(a)(2)(K).
    12. 110(a)(2)(L) Permitting fees: This section requires the owner 
or operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under the CAA, a fee 
sufficient to cover (i) the reasonable costs of reviewing and acting 
upon any application for such a permit, and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V.
    ADEM Admin. Code r. 335-1-6--Application Fees \21\ requires ADEM to 
charge permit-specific fees to the applicant/source as authorized by 
State legislation and Ala. Code section 22-22A-5. ADEM thus assures its 
permitting fee structure is sufficient for the reasonable cost of 
reviewing and acting upon PSD and NNSR permits. Additionally, Alabama 
has a fully-approved title V operating permit program--ADEM Admin. Code 
r. 335-1-7--``Air Division Operating Permit Fees'' \22\--that covers 
the cost of implementation and enforcement of PSD and NNSR permits 
after they have been issued. EPA has made the preliminary determination 
that Alabama's state rules and practices adequately provide for 
permitting fees related to the 2008 8-hour ozone NAAQS, when necessary. 
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP 
submission with respect to section 110(a)(2)(L).
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    \21\ This regulation has not been incorporated into the 
federally-approved SIP.
    \22\ Title V program regulations are federally approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/participation by affected local 
entities: ADEM coordinates with local governments affected by the SIP. 
Alabama's SIP also includes a description of the public participation 
process for SIP development. Alabama has consulted with local entities 
for the development of transportation conformity and has worked with 
the Federal Land Managers as a requirement of its regional haze rule. 
More specifically, Alabama adopted State-wide consultation procedures 
for the implementation of transportation conformity which includes the 
development of mobile inventories for SIP development and the 
requirements that link transportation planning and air quality planning 
in nonattainment and maintenance areas. These consultation and 
participation procedures have been approved in the Alabama SIP as the 
non-regulatory provisions: ``Alabama Interagency Transportation 
Conformity Memorandum of Agreement'' and ``Conformity SIP for 
Birmingham and Jackson County.'' These provisions were approved on May 
11, 2000, and March 26, 2009, respectively. See 65 FR 30362 and 74 FR 
13118. Required partners covered by Alabama's consultation procedures 
include federal, state and local transportation and air quality agency 
officials. The state and local transportation agency officials are most 
directly impacted by transportation conformity requirements and are 
required to provide public involvement for their activities including 
the analysis demonstrating how they meet transportation conformity 
requirements. EPA has made the preliminary determination that Alabama's 
SIP and practices adequately demonstrate consultation with affected 
local entities related to the 2008 8-hour ozone NAAQS when necessary.

V. Proposed Action

    As described above, with the exception of the PSD permitting 
requirements for major sources of section 110(a)(2)(C) and (J), the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II) (prongs 1 through 4), the state board requirements of section 
110(a)(2)(E)(ii) and the visibility requirements of 110(a)(2)(J), EPA 
is proposing to approve Alabama's August 20, 2012, SIP submission for 
the 2008 8-hour ozone NAAQS for the above described infrastructure SIP 
requirements. EPA is proposing to disapprove section 110(a)(2)(E)(ii) 
of Alabama's infrastructure submission because the State's 
implementation plan does not contain provisions to comply with section 
128 of the Act, and thus Alabama's August 20, 2012, infrastructure SIP 
submission does not meet the requirements of the Act. This proposed 
approval in part and disapproval in part, however, does not include the 
PSD permitting requirements for major sources of section 110(a)(2)(C) 
and (J), the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the visibility 
requirements of section 110(a)(2)(J) and will be addressed by EPA in a 
separate action.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a CAA Part D Plan or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP call) starts a sanctions clock. The portion of 
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for 
disapproval in today's notice) were not submitted to meet requirements 
for Part D or a SIP call, and therefore, if EPA takes final action

[[Page 2860]]

to disapprove this submittal, no sanctions will be triggered. However, 
if this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the State corrects 
the deficiency, and EPA approves the plan or plan revision before EPA 
promulgates such FIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 
impose substantial direct costs on tribal governments or preempt tribal 
law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Particulate Matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: January 6, 2015.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2015-00870 Filed 1-20-15; 8:45 am]
BILLING CODE 6560-50-P