[Federal Register Volume 81, Number 135 (Thursday, July 14, 2016)]
[Proposed Rules]
[Pages 45428-45438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16577]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0431; FRL- 9948-98-Region 4]


Air Plan Approval/Disapproval; Alabama; Infrastructure 
Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality 
Standard

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 portions of the April 23, 2013, 
State Implementation Plan (SIP) submission, 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 infrastructure requirements of the Clean Air Act (CAA or Act) for 
the 2010 1-hour sulfur dioxide (SO2) national ambient air 
quality standard (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 2010 1-hour SO2 NAAQS is 
implemented, enforced, and maintained in Alabama. With the exception of 
provisions respecting state boards, which EPA is proposing to 
disapprove, and interstate transport, which EPA is not proposing any 
action at this time, EPA is proposing to determine that portions of 
Alabama's infrastructure SIP submission provided to EPA on April 23, 
2013, satisfy the required infrastructure elements for the 2010 1-hour 
SO2 NAAQS.

DATES: Written comments must be received on or before August 15, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0431 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be

[[Page 45429]]

edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
[email protected] or via telephone at (404) 562-9031.

SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On June 22, 2010 (75 FR 35520), EPA revised the primary 
SO2 NAAQS to an hourly standard of 75 parts per billion 
(ppb) based on a 3-year average of the annual 99th percentile of 1-hour 
daily maximum concentrations. 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 2010 1-hour 
SO2 NAAQS to EPA no later than June 2, 2013.\1\
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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 Administrative Code (Admin. Code r).'' 
indicates that the cited regulation has either been approved, or 
submitted for approval into Alabama's federally-approved SIP. The 
term ``Alabama Code'' (Ala. Code) indicates cited Alabama state 
statutes, which are not a part of the SIP unless otherwise 
indicated.
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    This action is proposing to approve Alabama's infrastructure SIP 
submission for the applicable requirements of the 2010 1-hour 
SO2 NAAQS, with the exception of interstate transport 
provisions pertaining to the contribution to nonattainment or 
interference with maintenance in other states and visibility protection 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 
4) and the state board requirements of section 110(a)(2)(E)(ii). With 
respect to the interstate transport provisions of section 
110(a)(2)(D)(i)(I) (prongs 1 and 2) and the visibility protection 
requirements of section 110(a)(2)(D)(i)(II) (prong 4), EPA is not 
proposing any action at this time regarding these requirements. 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 this rulemaking. For the aspects of Alabama's submittal 
proposed for approval today, EPA notes that the Agency 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.
    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 previously, 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 later on 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. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)2(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 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 \4\
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    \4\ As mentioned previously, this element is not relevant to 
this proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and Prevention of Significant Deterioration (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

[[Page 45430]]

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

    EPA is acting upon the SIP submission from Alabama that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 1-hour SO2 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.\5\ 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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    \5\ 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.\6\ 
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.\7\ 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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    \6\ 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)).
    \7\ 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.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a 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.\9\
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    \8\ 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).
    \9\ 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

[[Page 45431]]

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.\10\
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    \10\ 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.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ 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.\13\ 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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    \11\ 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.
    \12\ ``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.
    \13\ 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 United States (U.S.) Supreme Court agreed to review the 
D.C. Circuit decision in EME Homer City, 696 F.3d7 (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 
implementation plan 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 new source review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 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 
fine particulate matter (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 implementation plan 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 NSR 
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

[[Page 45432]]

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.\14\ 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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    \14\ 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 implementation 
plan is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\15\ 
Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\16\ 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.\17\
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    \15\ 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).
    \16\ 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).
    \17\ 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 the 
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 later on.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. Several regulations within Alabama's SIP 
are relevant to air quality control regulations. The regulations 
described later on 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. ADEM Admin. Code r. 335-3-
1-.06--Compliance Schedule, sets the schedule for compliance with the 
State's Air Pollution Control rules and

[[Page 45433]]

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. Also, the following ADEM Administrative Code rules 
regulate stack height: 335-3-14-03(2)--Stack Heights, subparagraphs (d) 
and (e), 335-3-15-02(9)--Stack Heights, subparagraphs (d) and (e), and 
335-3-16-.02(10)--General Provisions, subparagraphs (d) and (e). EPA 
has made the preliminary determination that Alabama's SIP satisfies 
Section 110(a)(2)(A) for the 2010 1-hour SO2 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 is addressing such state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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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: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to 
(i) monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. 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 through 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, and 
includes the annual ambient monitoring network design plan and a 
certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\19\ On July 22, 2015, Alabama submitted its plan to 
EPA. On November 19, 2015, 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-2014-0431. EPA has 
made the preliminary determination that Alabama's SIP and practices are 
adequate for the ambient air quality monitoring and data system related 
to the 2010 1-hour SO2 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary 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 2010 1-hour SO2 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-.01--General Provisions, 335-3-14-.02,--Permit Procedure, 335-
3-14-.03--Standards for Granting Permits, 335-3-14-.04--Prevention of 
Significant Deterioration in Permitting and 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.
    Enforcement: ADEM's above-described, SIP-approved regulations 
provide for enforcement of SO2 emission limits and control 
measures through construction permitting for new or modified stationary 
sources. Note also that ADEM has authority to issue enforcement orders 
and assess penalties (see Ala. Code sections 22-22A-5, 22-28-10 and 22-
28-22).
    PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has a complete PSD 
permitting program in place covering the structural PSD requirements 
for all regulated NSR pollutants. A state's PSD permitting program is 
complete for this sub-element (and prong 3 of D(i) and J related to 
PSD) if EPA has already approved or is simultaneously approving the 
state's implementation plan with respect to all structural PSD 
requirements that are due under the EPA regulations or the CAA on or 
before the date of the EPA's proposed action on the infrastructure SIP 
submission.
    For the 2010 1-hour SO2 NAAQS, Alabama's authority to 
regulate new and modified sources to assist in the protection of air 
quality in Alabama is established in the Alabama Administrative Code 
Chapters 335-3-14-.01--General Provisions, 335-3-14-.02--Permit 
Procedure, 335-3-14-.03--Standards for Granting Permits, 335-3-14-.04--
Prevention of Significant Deterioration in Permitting, and 335-3-
14-.05--Air Permits Authorizing Construction in or Near Nonattainment 
Areas. Alabama's SIP contains the current structural requirements of 
part C of title I of the CAA to satisfy the infrastructure SIP PSD 
elements.\20\
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    \20\ For more information on EPA's analysis of Alabama's 
infrastructure SIP in connection with the current PSD-related 
infrastructure requirements, see the Technical Support Document in 
the docket for this rulemaking.
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    As such, EPA has made the preliminary determination that Alabama's 
SIP satisfies this PSD element for the 2010 1-hour SO2 
NAAQS.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program

[[Page 45434]]

that regulates emissions of the 2010 1-hour SO2 NAAQS. ADEM 
Admin. Code r. 335-3-14-.01 General Provisions, 335-3-14-.02 Permit 
Procedure, and 335-3-14-.03--Standards for Granting Permits govern 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, and preconstruction 
permitting of modifications and construction of minor stationary 
sources, and minor modifications of major stationary sources related to 
the 2010 1-hour SO2 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 has 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 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'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because Alabama's 2010 1-hour SO2 NAAQS infrastructure 
submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With regard to section 
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to: A PSD program meeting current structural 
requirements of part C of title I of the CAA, or (if the state contains 
a nonattainment area that has the potential to impact PSD in another 
state) a NNSR program. As discussed in more detail previously under 
section 110(a)(2)(C), Alabama's SIP contains provisions for the State's 
PSD program that reflect the required structural PSD requirements to 
satisfy the requirement of prong 3. EPA has made the preliminary 
determination that Alabama's SIP satisfies section 110(a)(2)(D)(i)(II) 
(prong 3) for PSD permitting of major sources and major modifications 
related to interstate transport for the 2010 1-hour SO2 
NAAQS.
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4) 
and will consider these requirements in relation to Alabama's 2010 1-
hour SO2 NAAQS infrastructure submission in a separate 
rulemaking.
    5. 110(a)(2)(D)(ii) Interstate and International Transport 
Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions ensuring 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. EPA has made the preliminary determination that Alabama's SIP and 
practices are adequate for ensuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2010 1-hour SO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
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 later on.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), ADEM's infrastructure submission 
demonstrates 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 authorized at Ala. Code section 22-28-11 and section 
22-28-9. As evidence of the adequacy of ADEM's resources with respect 
to sub-elements (i) and (iii), EPA submitted a letter to Alabama on 
April 19, 2016, outlining 105 grant commitments and current status of 
these commitments for fiscal year 2015. The letter EPA submitted to 
Alabama can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0431. 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 2015, therefore, Alabama's grants 
were finalized and closed out. Alabama's funding is also met through 
the state's title V fee program at ADEM Admin. Code r. 335-1-7--Air 
Division Operating Permit Fees \21\ and ADEM Admin. Code r. 335-1-6--
Application Fees.\22\ 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 to implement provisions of 
the State's implementation plan is included in all prehearings and 
final SIP submittal packages for approval by EPA. EPA has made the 
preliminary determination that Alabama has

[[Page 45435]]

adequate authority and resources for implementation of the 2010 1-hour 
SO2 NAAQS.
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    \21\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
    \22\ This regulation has not been incorporated into the 
federally-approved SIP.
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    Section 110(a)(2)(E)(ii) requires that SIPs comply with section 128 
of the CAA. Section 128 requires that SIPs contain provisions to 
provide that: (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 
April 23, 2013, infrastructure SIP submission does not meet the 
requirements of the Act. While Alabama has state statutes that may 
address, in whole or 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 certification that its 
SIP meets the requirements of 110(a)(2)(E)(ii) of the CAA for the 2010 
1-hour SO2 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 and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing: 
(i) The installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. 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. 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.'' \23\ ADEM 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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    \23\ 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.
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    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--NOX, SO2, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. 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 2010 1-hour 
SO2 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. Ala. Code 
sections 22-28-22, 22-28-14 and 22-28-21 grant ADEM authority to adopt 
regulations for the purpose of protecting human health, welfare and the 
environment as required by section 303 of the CAA. 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. Under Ala. Code sections 22-28-3(a) and 22-28-10(2), ADEM also 
has the authority to issue such orders as may be necessary to 
effectuate the purposes of the Alabama Pollution Control Act, which 
includes achieving and maintaining such levels of air quality as will 
protect human health and safety and, to the greatest

[[Page 45436]]

degree practicable, prevent injury to plant and animal life and 
property, foster the comfort and convenience of the people, promote the 
social development of this state and facilitate the enjoyment of the 
natural attractions of the state. 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 2010 1-hour SO2 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) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan: (i) As may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. 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,\24\ 
provides the Alabama Environmental Management Commission 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. 335-3-
1-.03--Ambient Air Quality Standards, incorporate NAAQS, as amended or 
revised, and provides that the NAAQS apply throughout the State. EPA 
has made the preliminary determination that Alabama adequately 
demonstrates a commitment to provide future SIP revisions related to 
the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA 
is proposing to approve Alabama's infrastructure SIP submission with 
respect to section 110(a)(2)(H).
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    \24\ This regulation has not been incorporated into the 
federally-approved SIP.
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    10. 110(a)(2)(J) Consultation with government officials, public 
notification, and PSD and visibility protection: EPA is proposing to 
approve Alabama's infrastructure SIP for the 2010 1-hour SO2 
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, the public notification 
requirements of section 127, PSD and visibility protection. EPA's 
rationale for each sub-element is described later on.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
Federal Land Managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 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 FLMs), provide for 
consultation with government officials whose jurisdictions might be 
affected by SIP development activities. In addition, 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 2010 1-hour 
SO2 NAAQS when necessary.
    Public notification (127 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, provide for public notification when air pollution 
episodes occur. Furthermore, ADEM has several public notice mechanisms 
in place to notify the public of ozone and PM2.5 
forecasting. Alabama maintains a public Web site on which daily air 
quality index forecasts are posted for the Birmingham, Huntsville, and 
Mobile areas. This Web site can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt. Although specific air 
quality forecasts for SO2 are not provided, they are 
provided for PM2.5 for which SO2 is a precursor. 
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP 
submission with respect to section 110(a)(2)(J) public notification.
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement may be met by the state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a PSD program meeting current structural 
requirements of part C of title I of the CAA. As discussed in more 
detail previously under the section discussing 110(a)(2)(C), Alabama's 
SIP contains the required structural PSD requirements to satisfy the 
PSD element of section 110(a)(2)(J). Thus, EPA has made the preliminary 
determination that Alabama's SIP satisfies the PSD element of section 
110(a)(2)(J) for the 2010 1-hour SO2 NAAQS .
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. 
ADEM referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so ADEM does 
not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that Alabama's submission is approvable for 
the visibility protection element of section 110(a)(2)(J) and that 
Alabama does not need to rely on its regional haze program to address 
this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. ADEM Admin. Code r. 335-3-14-.04--
Prevention of Significant Deterioration Permitting, specifically sub-
paragraph (11)--Air Quality Models, specifies that required air 
modeling be conducted in accordance with 40 CFR part 51, Appendix W 
``Guideline on Air Quality Models''. ADEM Admin. Code r. 335-3-1-.04--
Monitoring, Records, and

[[Page 45437]]

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. 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 2010 1-hour SO2 NAAQS. Additionally, Alabama 
participates in a regional effort to coordinate the development of 
emissions inventories and conduct regional modeling for several NAAQS, 
including the 2010 1-hour SO2 NAAQS, for the southeastern 
states. 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 has 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 2010-1-hour SO2 NAAQS. Accordingly, EPA is proposing 
to approve Alabama'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 
\25\ requires ADEM to charge permit-specific fees to the applicant/
source as authorized by Ala. Code section 22-22A-5. ADEM relies on 
these State requirements to demonstrate that 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\26\--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 2010 1-hour SO2 NAAQS, when necessary. 
Accordingly, EPA is proposing to approve Alabama's infrastructure SIP 
submission with respect to section 110(a)(2)(L).
---------------------------------------------------------------------------

    \25\ This regulation has not been incorporated into the 
federally-approved SIP.
    \26\ Title V program regulations are federally approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. ADEM coordinates with local 
governments affected by the SIP. ADEM Administrative Code 335-3-
17-.01--Transportation Conformity is one way that Alabama provides for 
consultation with affected local entities. 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. Required partners covered by Alabama's consultation 
procedures include Federal, state and local transportation and air 
quality agency officials. Furthermore, ADEM has worked with the Federal 
Land Managers as a requirement of the regional haze rule. EPA has made 
the preliminary determination that Alabama's SIP and practices 
adequately demonstrate consultation with affected local entities 
related to the 2010 1-hour SO2 NAAQS when necessary.

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
visibility protection requirements of section 110(a)(2)(D)(i)(II) 
(prong 4), and the state board requirements of section 
110(a)(2)(E)(ii), EPA is proposing to approve Alabama's April 23, 2013, 
SIP submission for the 2010 1-hour SO2 NAAQS for the 
previously 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 
April 23, 2013, infrastructure SIP submission does not meet the 
requirements of the Act. The interstate transport requirements of 
section 110(a)(2)(D)(i)(I) (prongs 1 and 2) will not be addressed by 
EPA at this time.
    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 this notice) were not submitted to meet requirements for 
Part D or a SIP call, and therefore, if EPA takes final action 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 Federal 
Implementation Plan (FIP) no later than two 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

[[Page 45438]]

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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-16577 Filed 7-13-16; 8:45 am]
 BILLING CODE 6560-50-P