[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Proposed Rules]
[Pages 87503-87509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28871]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R04-OAR-2012-0689; FRL-9955-95-Region 4]


Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour 
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove the visibility transport (prong 4) portion of a revision to 
the Alabama State Implementation Plan (SIP), submitted by the Alabama 
Department of Environmental Management (ADEM), addressing the Clean Air 
Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour 
ozone National Ambient Air Quality Standards (NAAQS). The CAA requires 
that each state adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by EPA, commonly 
referred to as an ``infrastructure SIP.'' Specifically, EPA is 
proposing to disapprove the prong 4 portion of Alabama's August 20, 
2012, 2008 8-hour ozone infrastructure SIP submission. All other 
applicable infrastructure requirements for this SIP submission have 
been addressed in separate rulemakings.

DATES: Comments must be received on or before December 27, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2012-0689 at http://www.regulations.gov. Follow the online 
instructions for submitting comments.

[[Page 87504]]

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 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), 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), prohibit any source or other type of emissions 
activity in one state from interfering with measures required to 
prevent significant deterioration of air quality in another state 
(prong 3) or from interfering with measures to protect visibility in 
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to international and interstate pollution abatement, 
respectively.
    On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075 
parts per million. See 73 FR 16436 (March 27, 2008). States were 
required to submit infrastructure SIP submissions for the 2008 8-hour 
ozone NAAQS to EPA no later than March 12, 2011. For the 2008 8-hour 
ozone NAAQS, this proposed action only addresses the prong 4 element of 
Alabama's infrastructure SIP submission that EPA received on August 20, 
2012. Through this action, EPA is proposing to disapprove the prong 4 
portion of Alabama's infrastructure SIP submission for the 2008 8-hour 
ozone NAAQS. All other applicable infrastructure SIP requirements for 
this SIP submission have been addressed in separate rulemakings.

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'' 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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[[Page 87505]]

    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 submission.
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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 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 portion 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

[[Page 87506]]

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 SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of Section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in 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 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 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 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 
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

[[Page 87507]]

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 prong 4 requirements?

    Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain 
provisions prohibiting sources in that state from emitting pollutants 
in amounts that interfere with any other state's efforts to protect 
visibility under part C of the CAA (which includes sections 169A and 
169B). The 2013 Guidance states that these prong 4 requirements can be 
satisfied by approved SIP provisions that EPA has found to adequately 
address any contribution of that state's sources that impacts the 
visibility program requirements in other states. The 2013 Guidance also 
states that EPA interprets this prong to be pollutant-specific, such 
that the infrastructure SIP submission need only address the potential 
for interference with protection of visibility caused by the pollutant 
(including precursors) to which the new or revised NAAQS applies.
    The 2013 Guidance lays out two ways in which a state's 
infrastructure SIP may satisfy prong 4. The first way is through an air 
agency's confirmation in its infrastructure SIP submission that it has 
an EPA-approved regional haze SIP that fully meets the requirements of 
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require 
that a state participating in a regional planning process include all 
measures needed to achieve its apportionment of emission reduction 
obligations agreed upon through that process. A fully approved regional 
haze SIP will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with visibility protection in other 
air agencies' jurisdiction.
    Alternatively, in the absence of a fully approved regional haze 
SIP, a state may meet the requirements of prong 4 through a 
demonstration in its infrastructure SIP submission that emissions 
within its jurisdiction do not interfere with other air agencies' plans 
to protect visibility. Such an infrastructure SIP submission would need 
to include measures to limit visibility-impairing pollutants and ensure 
that the reductions conform with any mutually agreed regional haze 
reasonable progress goals for mandatory Class I areas in other states.

IV. What is EPA's analysis of how Alabama addressed prong 4?

    Alabama's August 20, 2012, 2008 8-hour ozone infrastructure 
submission cites to the State's regional haze SIP alone to satisfy 
prong 4 requirements.\15\ Alabama's regional haze SIP relies on the 
Clean Air Interstate Rule (CAIR) \16\ as an alternative to the best 
available retrofit technology (BART) requirements for its CAIR-subject 
electricity generating units (EGUs).\17\ Although this reliance on CAIR 
was consistent with the CAA at the time the State submitted its 
regional haze SIP, CAIR has since been replaced by the Cross-State Air

[[Page 87508]]

Pollution Rule (CSAPR) \18\ and can no longer be relied upon as an 
alternative to BART or as part of a long-term strategy (LTS) for 
addressing regional haze. Therefore, EPA finalized a limited 
disapproval of Alabama's 2008 regional haze SIP submission to the 
extent that it relied on CAIR to satisfy the BART and LTS 
requirements.\19\ See 77 FR 33642 (June 7, 2012).
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    \15\ As mentioned above, a state may meet the requirements of 
prong 4 without a fully approved regional haze SIP by showing that 
its SIP contains adequate provisions to prevent emissions from 
within the state from interfering with other states' measures to 
protect visibility. Alabama did not, however, provide a 
demonstration in the infrastructure SIP submission subject to this 
proposed action that emissions within its jurisdiction do not 
interfere with other states' plans to protect visibility.
    \16\ CAIR created regional cap-and-trade programs to reduce 
sulfur dioxide (SO2) and nitrogen oxides (NOX) 
emissions in 28 eastern states, including Alabama, that contributed 
to downwind nonattainment and maintenance of the 1997 8-hour ozone 
NAAQS and the 1997 PM2.5 NAAQS.
    \17\ Section 169A of the CAA and EPA's implementing regulations 
require states to establish long-term strategies for making 
reasonable progress towards the national goal of achieving natural 
visibility conditions in certain Class I areas. The 156 mandatory 
Class I federal areas in which visibility has been determined to be 
an important value are listed at subpart D of 40 CFR part 81. For 
brevity, these areas are referred to here simply as ``Class I 
areas.''
     Implementation plans must give specific attention to certain 
stationary sources. Specifically, section 169A(b)(2)(A) of the CAA 
requires states to revise their SIPs to contain such measures as may 
be necessary to make reasonable progress towards the natural 
visibility goal, including a requirement that certain categories of 
existing major stationary sources built between 1962 and 1977 
procure, install, and operate BART as determined by the state. Under 
the Regional Haze Rule, states are directed to conduct BART 
determinations for such ``BART-eligible'' sources that may be 
anticipated to cause or contribute to any visibility impairment in a 
Class I area.
    \18\ CSAPR addresses the interstate transport of emissions 
contributing to nonattainment and interfering with maintenance of 
the two air quality standards covered by CAIR as well as the 2006 
PM2.5 NAAQS. CSAPR requires substantial reductions of 
SO2 and NOX emissions from electric generating 
units (EGUs) in 28 states in the eastern United States.
    \19\ EPA finalized a limited approval of Alabama's regional haze 
SIP on March 30, 2012. See 77 FR 19098.
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    In that limited disapproval action, EPA also amended the Regional 
Haze Rule to provide that CSAPR can serve as an alternative to BART, 
i.e., that participation by a state's EGUs in a CSAPR trading program 
for a given pollutant achieves greater reasonable progress toward the 
national goal of achieving natural visibility conditions in Class I 
areas than source-specific BART for those EGUs for that pollutant.\20\ 
See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the 
trading program through either a federal implementation plan (FIP) 
implementing CSAPR or an integrated CSAPR state trading program 
implemented through an approved SIP revision. In promulgating this 
amendment to the Regional Haze Rule, EPA relied on an analytic 
demonstration of visibility improvement from CSAPR implementation 
relative to BART based on an air quality modeling study.
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    \20\ Legal challenges from state, industry, and other 
petitioners to EPA's determination that CSAPR can be an alternative 
to BART are pending. Utility Air Regulatory Group v. EPA, No. 12-
1342 (D.C. Cir. filed August 6, 2012).
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    At the time of the rule amendment, questions regarding the legality 
of CSAPR were pending before the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) and the court had stayed 
implementation of the rule. The D.C. Circuit subsequently vacated and 
remanded CSAPR in August 2012, leaving CAIR in place temporarily.\21\ 
However, in April 2014, the Supreme Court reversed the vacatur and 
remanded to the D.C. Circuit for resolution of the remaining 
claims.\22\ The D.C. Circuit then granted EPA's motion to lift the stay 
and to toll the rule's deadlines by three years.\23\ Consequently, 
implementation of CSAPR Phase 1 began in January 2015 and 
implementation of Phase 2 is scheduled to begin in January 2017.
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    \21\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012).
    \22\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
    \23\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 
(D.C. Cir. issued October 23, 2014).
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    Following the Supreme Court remand, the D.C. Circuit conducted 
further proceedings to address the remaining claims. In July 2015, the 
court issued a decision denying most of the claims but remanding the 
Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama, 
Georgia, South Carolina, and Texas and the Phase 2 ozone-season 
nitrogen oxides (NOX) budgets for eleven states to EPA for 
reconsideration.\24\ Since receipt of the D.C. Circuit's 2015 decision, 
EPA has engaged the affected states to determine appropriate next steps 
to address the decision with regard to each state.\25\ In a November 
10, 2016 proposed rulemaking, EPA stated that it expects that 
potentially material changes to the scope of CSAPR coverage resulting 
from the remand will be limited to withdrawal of the CSAPR FIP 
requiring Texas to participate in the Phase 2 trading programs for 
annual emissions of SO2 and NOX and withdrawal of 
Florida's CSAPR FIP requirements for ozone-season NOX, which 
EPA recently finalized in another action.\26\
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    \24\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 
(D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone 
season NOX budgets for Alabama.
    \25\ As discussed below, Alabama submitted a SIP revision to EPA 
on October 26, 2015, to incorporate the Phase 2 annual 
NOX and annual SO2 CSAPR budgets for the State 
into the SIP. EPA approved this SIP revision in a final action 
published on August 31, 2016. See 81 FR 59869.
    \26\ See 81 FR 78954 (November 10, 2016) for further discussion 
regarding EPA's expectations and the proposed withdrawal of the 
CSAPR FIP for Texas.
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    Due to these expected changes to CSAPR's scope, EPA conducted a 
sensitivity analysis to the 2012 analytic CSAPR ``alternative to BART'' 
demonstration showing that the analysis would have supported the same 
conclusion if the actions that EPA has proposed to take or has already 
taken in response to the D.C. Circuit's remand of various CSAPR Phase 2 
budgets--specifically, the proposed withdrawal of PM2.5-
related CSAPR Phase 2 FIP requirements for Texas EGUs and the recently 
finalized withdrawal of ozone-related CSAPR Phase 2 FIP requirements 
for Florida EGUs--were reflected in that analysis. EPA's November 10, 
2016 notice of proposed rulemaking seeks comment on this analysis. See 
81 FR 78954.
    Alabama sought to convert the 2012 limited approval/limited 
disapproval of the State's regional haze SIP to a full approval through 
a SIP revision submitted on October 26, 2015. This SIP revision 
intended to adopt the CSAPR trading program into the SIP, including the 
Phase 2 annual NOx and annual SO2 CSAPR budgets for the 
State, and to use this adoption to replace reliance on CAIR with 
reliance on CSAPR to satisfy the BART and LTS requirements. Although 
EPA has approved the CSAPR trading program into the Alabama SIP,\27\ 
EPA is currently seeking comment on its proposal that CSAPR continue to 
be available as an alternative to BART. EPA thus cannot approve the 
portion of Alabama's 2015 SIP submission seeking to replace reliance on 
CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at 
this time. Because Alabama's prong 4 SIP submission relies solely on 
the State having a fully approved regional haze SIP, EPA is not 
currently in a position to approve the prong 4 element of Alabama's 
August 20, 2012, 2008 8-hour ozone infrastructure SIP revision.
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    \27\ See 81 FR 59869 (August 31, 2016).
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    EPA is therefore proposing to disapprove the prong 4 element of 
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP 
submission. Alabama did not submit this infrastructure SIP to meet 
requirements for Part D or a SIP call; therefore, if EPA takes final 
action to disapprove the prong 4 portion of this submission, no 
sanctions will be triggered. However, if EPA finalizes this proposed 
disapproval, 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 EPA 
approves a SIP revision satisfying prong 4 requirements before EPA 
promulgates such a FIP.

V. Proposed Action

    As described above, EPA is proposing to disapprove the prong 4 
portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure 
SIP submission. All other applicable infrastructure requirements for 
this SIP submission have been addressed in separate rulemakings.

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,

[[Page 87509]]

EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. EPA is proposing to determine that the prong 4 
portion of the aforementioned SIP submission does not meet Federal 
requirements. Therefore, this proposed action does not impose 
additional requirements on the state 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 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).
    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, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: November 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-28871 Filed 12-2-16; 8:45 am]
 BILLING CODE 6560-50-P