[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Proposed Rules]
[Pages 50409-50415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18151]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2016-0209; FRL-9950-00-Region 4]


Air Plan Approval; Alabama and North Carolina; Interstate 
Transport--2010 NO2 Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the North Carolina SIP, submitted by the North 
Carolina Department of Environmental Quality (NC DEQ) on March 24, 
2016, and the portions of a revision to the Alabama State 
Implementation Plan (SIP),

[[Page 50410]]

submitted by the Alabama Department of Environmental Management (ADEM) 
on December 9, 2015, addressing the Clean Air Act (CAA or Act) 
interstate transport (prongs 1 and 2) infrastructure SIP requirements 
for the 2010 1-hour Nitrogen Dioxide (NO2) 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, commonly referred to as an 
``infrastructure SIP.'' Specifically, EPA is proposing to approve North 
Carolina's March 24, 2016, SIP submission and the portions of Alabama's 
December 9, 2015, SIP submission addressing interstate transport 
requirements for the 2010 NO2 NAAQS.

DATES: Comments must be received on or before August 31, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2016-0209 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be 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: Sean Lakeman of the 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 
or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years after 
promulgation of a new or revised NAAQS to provide for the 
implementation, maintenance, and enforcement of the new or revised 
NAAQS. EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and 
(2) require 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 newly 
established or revised NAAQS. More specifically, section 110(a)(1) 
provides the procedural and timing requirements for infrastructure 
SIPs. Section 110(a)(2) lists specific elements that states must meet 
for the infrastructure SIP requirements related to a newly established 
or revised NAAQS. The contents of an infrastructure SIP submission may 
vary depending upon the data and analytical tools available to the 
state, as well as the provisions already contained in the state's 
implementation plan at the time in which the state develops and submits 
the submission for a new or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes 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 from 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) and from interfering with measures to protect visibility in 
another state (prong 4). 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.
    Through these proposed actions, EPA is proposing to approve North 
Carolina's March 24, 2016, SIP submission and the portions of Alabama's 
December 9, 2015, SIP submission addressing interstate transport 
requirements for the 2010 NO2 NAAQS. All other applicable 
infrastructure SIP requirements for Alabama and North Carolina for the 
2010 1-hour NO2 NAAQS will be addressed in separate 
rulemakings. A brief background regarding the 2010 1-hour 
NO2 NAAQS is provided below.
    On January 22, 2010, EPA established a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion, based on a 3-year 
average of the 98th percentile of the yearly distribution of 1-hour 
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This 
NAAQS is designed to protect against exposure to the entire group of 
nitrogen oxides (NOX). NO2 is the component of 
greatest concern and is used as the indicator for the larger group of 
NOX. Emissions that lead to the formation of NO2 
generally also lead to the formation of other NOX. 
Therefore, control measures that reduce NO2 can generally be 
expected to reduce population exposures to all gaseous NOX 
which may have the co-benefit of reducing the formation of ozone and 
fine particles both of which pose significant public health threats.
    States were required to submit infrastructure SIP submissions for 
the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 
2013. For comprehensive information on 2010 1-hour NO2 
NAAQS, please refer to the Federal Register notice cited above.

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

    The requirement for states to make a SIP submission of this type 
arises out of 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 ``each such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
``infrastructure SIP''

[[Page 50411]]

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 section 169A of the CAA, 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.\1\ 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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    \1\ 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 
CAA, which specifically address nonattainment SIP requirements.\2\ 
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.\3\ 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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    \2\ 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)).
    \3\ 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 section 110(a)(1) and (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.\4\ 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.\5\
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    \4\ 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).
    \5\ 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 section 110(a)(1) and (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.\6\
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    \6\ 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 attainment plan SIP submissions 
required by part D to meet the ``applicable requirements'' of section 
110(a)(2); thus, 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

[[Page 50412]]

Prevention of Significant Deterioration (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.\7\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\8\ 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.\9\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). EPA interprets section 110(a)(1) and (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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    \7\ 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.
    \8\ ``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.
    \9\ 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 
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 section 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. 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 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, inter alia, 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 (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; \10\ (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

[[Page 50413]]

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 that 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.\11\ 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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    \10\ Subsequent to issuing the 2013 Guidance, EPA's 
interpretation of the CAA with respect to the approvability of 
affirmative defense provisions in SIPs has changed. See ``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,'' 80 FR 33839 (June 12, 2015). As a 
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the 
EPA's view concerning the validity of affirmative defense 
provisions, in light of the requirements of section 113 and section 
304.
    \11\ 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 or affirmative defense 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 section 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 
section 110(a)(1) and (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.\12\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\13\ 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.\14\
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    \12\ 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).
    \13\ 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 section 110(k)(6) of the CAA 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).
    \14\ 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 (January 26, 2011) (final disapproval of such provisions).
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III. What are the prongs 1 and 2 requirements?

    For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires 
each state to submit a SIP revision that contains adequate provisions 
prohibiting emissions activity in the state from contributing 
significantly to nonattainment, or interfering with maintenance, of the 
NAAQS in any downwind state. EPA sometimes refers to these requirements 
as prong 1 (significant contribution to nonattainment) and prong 2 
(interference with maintenance), or conjointly as the ``good neighbor'' 
provision of the CAA. Section 110(a)(2)(D)(i)(I) requires the 
elimination of upwind state emissions that significantly contribute to 
nonattainment or interference with maintenance of the NAAQS in another 
state.

IV. What is EPA's analysis of how Alabama and North Carolina addressed 
prongs 1 and 2?

A. Prong 1 (Significant Contribution to Nonattainment) for Alabama

    Alabama has concluded that it does not contribute significantly to 
nonattainment of the 2010 1-hour NO2 NAAQS in any other 
state for the following reasons: (1) There are no areas in Alabama or 
in the surrounding states that are designated as nonattainment for the 
2010 NO2 NAAQS; (2) monitored ambient NO2 
concentrations in the State and surrounding states are well below the 
1-hour 2010 NO2 NAAQS; (3) there are federal and SIP-
approved state regulations in place to control NOX emissions 
in the State. EPA agrees with the State's conclusion based on the 
rationale discussed below.
    First, there are no designated nonattainment areas for the 1-hr 
NO2 NAAQS. On February 17, 2012, EPA designated the entire 
country as ``unclassifiable/attainment'' for the 2010 1-hour 
NO2 NAAQS, stating that ``available information does not 
indicate that the air quality in these areas exceeds the 2010 1-hour 
NO2 NAAQS'' (77 FR 9532).
    Second, as part of its December 9, 2015 submittal, Alabama examined 
NO2 monitoring data from 2012-2014 in the

[[Page 50414]]

State and surrounding states. According to this data, the design values 
during this period are well below the 100 ppb standard with Georgia and 
Tennessee having the highest design values (49 ppb).
    Third, in its submittal, Alabama identifies SIP-approved 
regulations at Alabama Administrative Code 335-3-8 that require 
controls and emission limits for certain NOX emitting 
sources in the State. These regulations include the SIP-approved 
portion of the NOX SIP call that requires certain 
NOX emitting sources to comply with a capped NOX 
emission budget.\15\ Alabama also notes that it has implemented several 
federal programs that, while not relied upon to address its ``good 
neighbor'' obligations for the NO2 NAAQS, have reduced 
NOX emissions within the State.\16\ Alabama also controls 
NOX emissions at certain sources through source-specific 
measures pursuant to its SIP-approved permitting regulations at Alabama 
Administrative Code 335-3-14. These permitting requirements help ensure 
that no new or modified NOX sources in the State subject to 
these permitting regulations will significantly contribute to 
nonattainment or interfere with maintenance of the 2010 NO2 
NAAQS.
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    \15\ On October 27, 1998 (63 FR 57356), EPA issued the 
NOX SIP Call requiring the District of Columbia and 22 
states to reduce emissions of NOX and providing a 
mechanism (the NOX Budget Trading Program) that states 
could use to achieve those reductions. Affected states were required 
to comply with Phase I of the SIP Call beginning in 2004 and Phase 
II beginning in 2007.
    \16\ The federal programs identified by the State include New 
Source Performance Standards (40 CFR part 60), National Emission 
Standards for Hazardous Air Pollutants (40 CFR parts 61 and 63), and 
the Cross-State Air Pollution Rule (CSAPR).
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    For all the reasons discussed above, EPA has preliminarily 
determined that Alabama does not contribute significantly to 
nonattainment of the 2010 1-hour NO2 NAAQS in any other 
state and that Alabama's SIP includes adequate provisions to prevent 
emissions sources within the State from significantly contributing to 
nonattainment of this standard in any other state.

B. Prong 2 (Interference With Maintenance) for Alabama

    Alabama has concluded that it does not interfere with maintenance 
of the 2010 1-hour NO2 NAAQS in any other state. As noted 
above, NO2 design values in the State and in surrounding 
states are well below the standard, Alabama's SIP contains provisions 
to control NOX emissions, and Alabama has implemented a 
number of federal programs that have reduced NOX emissions 
within the State. For these reasons, EPA has preliminarily determined 
that Alabama is not interfering with maintenance of the 2010 1-hour 
NO2 NAAQS in any other state and that Alabama's SIP includes 
adequate provisions to prevent emissions sources within the state from 
interfering with maintenance of this standard in any other state.

C. Prong 1 (Significant Contribution to Nonattainment) for North 
Carolina

    North Carolina has concluded that it does not contribute 
significantly to nonattainment of the 2010 1-hour NO2 NAAQS 
in any other state for several reasons, including the following: (1) 
There are no areas in the country designated as nonattainment for the 
2010 NO2 NAAQS; (2) monitored ambient NO2 
concentrations in the State and in the surrounding states are well 
below the 1-hour 2010 NO2 NAAQS; (3) NOX 
emissions have declined significantly and are expected to continue to 
decline through 2017 and beyond; and 4) there are federal and SIP-
approved state regulations in place to control NOX 
emissions. EPA agrees with the State's conclusion based on the 
rationale discussed below.
    First, as noted above, there are no designated nonattainment areas 
for the 1-hr NO2 NAAQS.
    Second, North Carolina examined 1-hour NO2 design values 
based on monitoring data collected between 2012-2014 from 
NO2 monitors within North Carolina and surrounding 
states.\17\ The design values during this period are well below the 100 
ppb standard with Georgia and Tennessee having the highest design 
values (49 ppb).
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    \17\ North Carolina notes that two new near-road NO2 
monitors deployed in the State in 2014 show measured concentrations 
well below the 1-hour standard. The State believes that this data 
indicates that NOX emissions from mobile sources in North 
Carolina are unlikely to contribute to nonattainment or interfere 
with maintenance of the NO2 NAAQS in a downwind state. 
These monitors were required as part of a modified NO2 
monitoring network to site monitors in locations where maximum 
NO2 concentrations are expected to occur, including 
within 50 meters of major roadways.
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    Third, North Carolina reviewed 1996-2011 annual NOX 
emissions data for the State from EPA's National Emissions Inventory 
and determined that the State's NOX emissions have declined 
by approximately 50 percent during this time. North Carolina projects 
that NOX emissions from 2011-2017 in the State will decline 
by an additional 39 percent. The State also notes that NOX 
emissions from EGUs in North Carolina have declined between 2002-2011 
primarily due to the State's 2002 Clean Smokestack Act (CSA).\18\ The 
CSA establishes entity-wide caps on total annual NOX 
emissions from investor-owned coal-fired electric generating units 
(EGUs) in the State.\19\
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    \18\ EPA approved the CSA emissions caps into North Carolina's 
SIP on September 26, 2011. See 76 FR 59250.
    \19\ The CSA limits NOX emissions from Duke Energy 
Progress, LLC EGUs and Duke Energy Carolinas, LLC EGUs to 35,000 
tons and 25,000 tons, respectively, beginning on January 1, 2007, 
and tightens the emissions cap on Duke Energy Carolinas, LLC EGUs to 
31,000 tons as of January 1, 2009.
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    Fourth, in addition to the CSA, North Carolina cites to a number of 
State regulations that address additional control measures, means, and 
techniques to reduce NOX emissions in North Carolina. 
Several of these regulations are SIP-approved, such as 15A NCAC 2D 
.0519 (controlling NO2 and NOX emissions from 
sulfuric acid manufacturing plants) and 15A NCAC 2D .1409 (addressing 
NOX emissions from certain stationary internal combustion 
engines).\20\ North Carolina also identifies a number of federal 
programs such as CSAPR that, while not relied upon to address its 
``good neighbor'' obligations for the NO2 NAAQS, reduce 
NOX emissions.\21\
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    \20\ North Carolina identifies a number of SIP-approved state 
regulations that control NOX emissions within the state 
as well as some state regulations that are not part of the 
federally-approved SIP.
    \21\ CSAPR currently caps EGUs in the State at specific 
NOX and SO2 emission budgets through a federal 
implementation plan (FIP). According to North Carolina, the State is 
on track to comply with the Phase I emission budgets established 
under the CSAPR FIP.
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    For all of the reasons discussed above, EPA has preliminarily 
determined that North Carolina does not contribute significantly to 
nonattainment of the 2010 1-hour NO2 NAAQS in any other 
state and that North Carolina's SIP includes adequate provisions to 
prevent emissions sources within the State from significantly 
contributing to nonattainment of this standard in any other state.

D. Prong 2 (Interference With Maintenance) for North Carolina

    North Carolina has concluded that it does not interfere with 
maintenance of the 2010 1-hour NO2 NAAQS in any other state. 
As stated above, NO2 design values in the State and in 
surrounding states are well below the standard; NOX 
emissions have decreased in the State and are projected to decrease 
further through 2017 and beyond; and NOX emissions are 
controlled through federal and SIP-approved state regulations. For 
these reasons, EPA has preliminarily determined that North Carolina is 
not interfering with maintenance of the

[[Page 50415]]

2010 1-hour NO2 NAAQS in any other state and that North 
Carolina's SIP includes adequate provisions to prevent emissions 
sources within the state from interfering with maintenance of this 
standard in any other state.

V. Proposed Actions

    As described above, EPA is proposing to approve North Carolina's 
March 24, 2016, SIP revision and the portions of Alabama's December 9, 
2015, SIP revision addressing prongs 1 and 2 of CAA section 
110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS.

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, these 
proposed actions merely propose to approve state law as meeting federal 
requirements and do not impose additional requirements beyond those 
imposed by state law. For that reason, these proposed actions:
     Are not ``significant regulatory actions'' 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);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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).
    The SIPs are 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 rules 
do not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), nor will they 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.

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

    Dated: July 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-18151 Filed 7-29-16; 8:45 am]
 BILLING CODE 6560-50-P