[Federal Register Volume 82, Number 158 (Thursday, August 17, 2017)]
[Proposed Rules]
[Pages 39090-39097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17346]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0104; FRL-9966-18-Region 4]


Air Plan Approval; Alabama; Regional Haze Plan and Prong 4 
(Visibility) for the 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to take 
the following four actions regarding the Alabama State Implementation 
Plan (SIP), contingent upon a final determination from the Agency that 
a state's participation in the Cross-State Air Pollution Rule (CSAPR) 
continues to meet the Regional Haze Rule (RHR)'s criteria to qualify as 
an alternative to the application of Best Available Retrofit Technology 
(BART): Approve the portion of Alabama's October 26, 2015, SIP 
submittal seeking to change reliance from the Clean Air Interstate Rule 
(CAIR) to CSAPR for certain regional haze requirements; convert EPA's 
limited approval/limited disapproval of Alabama's July 15, 2008, 
regional haze SIP to a full approval; approve the visibility prong of 
Alabama's infrastructure SIP submittals for the 2012 Fine Particulate 
Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), and 
2010 Sulfur Dioxide (SO2) National Ambient Air Quality 
Standards (NAAQS); and convert EPA's disapproval of the visibility 
portion of Alabama's infrastructure SIP submittal for the 2008 Ozone 
NAAQS to an approval.

DATES: Comments must be received on or before September 18, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2017-0104 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

[[Page 39091]]

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, 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 by telephone 
at (404) 562-9031 or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR

    Section 169A(b)(2)(A) of the Clean Air Act (CAA or Act) requires 
states to submit regional haze SIPs that 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 RHR, 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. Rather than requiring source-
specific BART controls, states also have the flexibility to adopt an 
emissions trading program or other alternative program as long as the 
alternative provides greater reasonable progress towards improving 
visibility than BART. See 40 CFR 51.308(e)(2). EPA provided states with 
this flexibility in the RHR, adopted in 1999, and further refined the 
criteria for assessing whether an alternative program provides for 
greater reasonable progress in two subsequent rulemakings. See 64 FR 
35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 
13, 2006).
    EPA demonstrated that CAIR would achieve greater reasonable 
progress than BART in revisions to the regional haze program made in 
2005.\1\ See 70 FR 39104. In those revisions, EPA amended its 
regulations to provide that states participating in the CAIR cap-and-
trade programs pursuant to an EPA-approved CAIR SIP or states that 
remain subject to a CAIR Federal Implementation Plan (FIP) need not 
require affected BART-eligible electric generating units (EGUs) to 
install, operate, and maintain BART for emissions of SO2 and 
nitrogen oxides (NOX). As a result of EPA's determination 
that CAIR was ``better-than-BART,'' a number of states in the CAIR 
region, including Alabama, relied on the CAIR cap-and-trade programs as 
an alternative to BART for EGU emissions of SO2 and 
NOX in designing their regional haze SIPs. These states also 
relied on CAIR as an element of a long-term strategy (LTS) for 
achieving their reasonable progress goals (RPGs) for their regional 
haze programs. However, in 2008, the United States Court of Appeals for 
the District of Columbia Circuit (D.C. Circuit) remanded CAIR to EPA 
without vacatur to preserve the environmental benefits provided by 
CAIR. North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On 
August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA 
promulgated CSAPR to replace CAIR and issued FIPs to implement the rule 
in CSAPR-subject states.\2\ Implementation of CSAPR was scheduled to 
begin on January 1, 2012, when CSAPR would have superseded the CAIR 
program.
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    \1\ CAIR created regional cap-and-trade programs to reduce 
SO2 and NOX emissions in 27 eastern states 
(and the District of Columbia), including Alabama, that contributed 
to downwind nonattainment or interfered with maintenance of the 1997 
8-hour ozone NAAQS or the 1997 PM2.5 NAAQS.
    \2\ CSAPR requires 28 eastern states to limit their statewide 
emissions of SO2 and/or NOX in order to 
mitigate transported air pollution unlawfully impacting other 
states' ability to attain or maintain four NAAQS: The 1997 ozone 
NAAQS, the 1997 annual PM2.5 NAAQS, the 2006 24-hour 
PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR 
emissions limitations are defined in terms of maximum statewide 
``budgets'' for emissions of annual SO2, annual 
NOX, and/or ozone-season NOX by each covered 
state's large EGUs. The CSAPR state budgets are implemented in two 
phases of generally increasing stringency, with the Phase 1 budgets 
applying to emissions in 2015 and 2016 and the Phase 2 budgets 
applying to emissions in 2017 and later years.
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    Due to the D.C. Circuit's 2008 ruling that CAIR was ``fatally 
flawed'' and its resulting status as a temporary measure following that 
ruling, EPA could not fully approve regional haze SIPs to the extent 
that they relied on CAIR to satisfy the BART requirement and the 
requirement for a LTS sufficient to achieve the state-adopted RPGs. On 
these grounds, EPA finalized a limited disapproval of Alabama's 
regional haze SIP on June 7, 2012, triggering the requirement for EPA 
to promulgate a FIP unless Alabama submitted and EPA approved a SIP 
revision that corrected the deficiency. See 77 FR 33642. EPA finalized 
a limited approval of Alabama's regional haze SIP on June 28, 2012, as 
meeting the remaining applicable regional haze requirements set forth 
in the CAA and the RHR. See 77 FR 38515.
    In the June 7, 2012, limited disapproval action, EPA also amended 
the RHR to provide that participation by a state's EGUs in a CSAPR 
trading program for a given pollutant--either a CSAPR federal trading 
program implemented through a CSAPR FIP or an integrated CSAPR state 
trading program implemented through an approved CSAPR SIP revision--
qualifies as a BART alternative for those EGUs for that pollutant.\3\ 
See 40 CFR 51.308(e)(4). Since EPA promulgated this amendment, numerous 
states covered by CSAPR have come to rely on the provision through 
either SIPs or FIPs.\4\
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    \3\ Legal challenges to the CSAPR-Better-than-BART rule from 
state, industry, and other petitioners are pending. Utility Air 
Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 
2012).
    \4\ EPA has promulgated FIPs relying on CSAPR participation for 
BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, 
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, 
and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 
(July 6, 2012). EPA has approved Minnesota's and Wisconsin's SIPs 
relying on CSAPR participation for BART purposes. See 77 FR 34801, 
34806 (June 12, 2012) for Minnesota and 77 FR 46952, 46959 (August 
7, 2012) for Wisconsin.
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    Numerous parties filed petitions for review of CSAPR in the D.C. 
Circuit, and on August 21, 2012, the court issued its ruling, vacating 
and remanding CSAPR to EPA and ordering continued implementation of 
CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 
2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United 
States Supreme Court on April 29, 2014, and the case was remanded to 
the D.C. Circuit to resolve remaining issues in accordance with the 
high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 
1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most 
respects, but invalidated without vacating some of the CSAPR budgets as 
to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 
118 (D.C. Cir. 2015). The remanded budgets include the Phase 2 
SO2 emissions budgets for Alabama, Georgia, South Carolina, 
and Texas and the Phase 2 ozone-season NOX budgets for 11 
states. This litigation ultimately delayed implementation of CSAPR for 
three years, from January 1, 2012, when CSAPR's cap-and-trade programs 
were originally scheduled to replace the CAIR cap-and-trade programs, 
to January 1, 2015. Thus, the rule's Phase 2 budgets that were 
originally promulgated to begin on January 1, 2014, began on January 1, 
2017.

[[Page 39092]]

    On November 10, 2016, EPA published a notice of proposed rulemaking 
(NPRM) explaining the Agency's belief that the potentially material 
changes to the scope of CSAPR coverage resulting from the D.C. 
Circuit's remand will be limited to the withdrawal of the FIP 
provisions providing SO2 and annual NOX budgets 
for Texas and ozone-season NOX budgets for Florida. This is 
due, in part, to EPA's approval of the portion of Alabama's October 26, 
2015, SIP submittal adopting Phase 2 annual NOX and 
SO2 budgets equivalent to the federally-developed budgets 
and to commitments from Georgia and South Carolina to submit SIP 
revisions adopting Phase 2 annual NOX and SO2 
budgets equal to or more stringent than the federally-developed 
budgets. See 81 FR 78954. Since publication of the NPRM, Georgia and 
South Carolina have submitted these SIP revisions to EPA.\5\ In the 
NPRM, EPA also proposed to determine that the limited changes to the 
scope of CSAPR coverage do not alter EPA's conclusion that CSAPR 
remains ``better-than-BART;'' that is, that participation in CSAPR 
remains available as an alternative to BART for EGUs covered by the 
trading program. At this time, EPA has not finalized this proposed 
determination.
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    \5\ Georgia's rulemaking to adopt the Phase 2 annual 
NOX and SO2 budgets became state effective on 
July 20, 2017, and the State will submit a SIP revision to EPA in 
the near future. South Carolina submitted a SIP revision to EPA for 
parallel processing on May 26, 2017, to adopt the Phase 2 annual 
NOX and SO2 budgets.
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    Alabama's October 26, 2015, SIP submittal also seeks to correct the 
deficiencies identified in the June 7, 2012, limited disapproval of its 
regional haze SIP by replacing reliance on CAIR with reliance on 
CSAPR.\6\ Specifically, Alabama requests that EPA amend the State's 
regional haze SIP by replacing its reliance on CAIR with CSAPR to 
satisfy SO2 and NOX BART requirements and 
SO2 reasonable progress requirements for EGUs formerly 
subject to CAIR,\7\ and to support the RPGs for the Sipsey Wilderness 
Area in Alabama for the first planning period. EPA is proposing to take 
these actions in this action.
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    \6\ On August 31, 2016 (81 FR 59869), EPA approved portions of 
the October 26, 2015, SIP submission incorporating into Alabama's 
SIP the State's regulations requiring Alabama EGUs to participate in 
CSAPR state trading programs for annual NOX and 
SO2 emissions integrated with the CSAPR federal trading 
programs and thus replacing the corresponding FIP requirements. In 
the August 31, 2016, action, EPA did not take any action regarding 
Alabama's request in this October 26, 2015, SIP submission to revise 
the State's regional haze SIP nor regarding the prong 4 for the 2008 
lead, 2008 8-hour ozone, 2010 1-hour NO2, and 2010 1-hour 
SO2 NAAQS.
    \7\ In its regional haze SIP, Alabama concluded and EPA found 
acceptable the State's determination that no additional controls 
beyond CAIR are reasonable for SO2 for affected Alabama 
EGUs for the first implementation period. See 77 FR 11949 (February 
28, 2012).
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B. Infrastructure SIPs

    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 (or 
less, if the Administrator so prescribes) 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), 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) or 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 this action, EPA is proposing to approve the prong 4 
portion of Alabama's infrastructure SIP submissions for the 2010 1-hour 
NO2, 2010 1-hour SO2, and 2012 annual 
PM2.5 NAAQS, and to convert EPA's disapproval of the prong 4 
portion of Alabama's infrastructure SIP submission for the 2008 8-hour 
Ozone NAAQS to an approval, as discussed in section IV of this 
notice.\8\ All other applicable infrastructure SIP requirements for 
these SIP submissions have been or will be addressed in separate 
rulemakings. A brief background regarding the NAAQS relevant to this 
proposal is provided below. For comprehensive information on these 
NAAQS, please refer to the Federal Register notices cited in the 
following subsections.
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    \8\ See 82 FR 9512 (February 7, 2017).
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1. 2010 1-Hour SO2 NAAQS
    On June 2, 2010, EPA revised the 1-hour 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. See 75 FR 35520 (June 22, 2010). States were required 
to submit infrastructure SIP submissions for the 2010 1-hour 
SO2 NAAQS to EPA no later than June 2, 2013. Alabama 
submitted an infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS on April 23, 2013. This proposed action only 
addresses the prong 4 element of that submission.\9\
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    \9\ The other portions of Alabama's April 23 2013, 
SO2 infrastructure submission have been addressed in a 
previous EPA action. See 82 FR 3637 (January 12, 2017).
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2. 2010 1-Hour NO2 NAAQS
    On January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for 
NO2 at a level of 100 ppb, 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). States were required 
to submit infrastructure SIP submissions for the 2010 1-hour 
NO2 NAAQS to EPA no later than January 22, 2013. Alabama 
submitted infrastructure SIP submissions for the 2010 1-hour 
NO2 NAAQS on April 23, 2013, and December 9, 2015. This 
proposed action only addresses the prong 4 element of those 
submissions.\10\
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    \10\ The other portions for Alabama's April 23 2013, and 
December 9, 2015, NO2 infrastructure submissions have 
been addressed in previous EPA actions. See 81 FR 83142 (November 
21, 2016); 80 FR 14019 (March 18, 2015).

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3. 2012 PM2.5 NAAQS
    On December 14, 2012, EPA revised the annual primary 
PM2.5 NAAQS to 12 micrograms per cubic meter ([mu]g/m\3\). 
See 78 FR 3086 (January 15, 2013). States were required to submit 
infrastructure SIP submissions for the 2012 PM2.5 NAAQS to 
EPA no later than December 14, 2015. Alabama submitted an 
infrastructure SIP submission for the 2012 PM2.5 NAAQS on 
December 9, 2015. This proposed action only addresses the prong 4 
element of that submission.\11\
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    \11\ The other portions of Alabama's December 9, 2015, 
PM2.5 infrastructure submission are being addressed in 
separate actions.
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4. 2008 8-Hour Ozone NAAQS
    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. Alabama submitted an 
infrastructure SIP for the 2008 8-hour Ozone NAAQS on August 20, 2012. 
On February 7, 2017, EPA disapproved the prong 4 element of Alabama's 
2008 8-hour Ozone infrastructure submission. See 82 FR 9512. This 
proposed action addresses that disapproval and proposes to convert it 
to a full approval for prong 4.\12\
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    \12\ The other portions of Alabama's March 12, 2008, ozone 
infrastructure SIP submission have been addressed in previous EPA 
actions. See 80 FR 14019 (March 3, 2015); 80 FR 17689 (April 2, 
2015).
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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 (NSR) 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.\13\ 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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    \13\ 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.\14\ 
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.\15\ 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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    \14\ 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)).
    \15\ 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.\16\ Similarly, EPA

[[Page 39094]]

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.\17\
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    \16\ 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).
    \17\ 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.\18\
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    \18\ 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 
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.\19\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\20\ 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.\21\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). EPA interprets sections 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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    \19\ 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.
    \20\ ``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.
    \21\ 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.
---------------------------------------------------------------------------

    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). Regardless of how 
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

[[Page 39095]]

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 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 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; \22\ (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.\23\ 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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    \22\ 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.
    \23\ 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.
---------------------------------------------------------------------------

    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 implementation 
plan is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\24\ 
Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\25\ 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

[[Page 39096]]

such deficiency in a subsequent action.\26\
---------------------------------------------------------------------------

    \24\ 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).
    \25\ 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).
    \26\ 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?

    CAA section 110(a)(2)(D)(i)(II) requires a state's implementation 
plan 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 how a state's infrastructure SIP may 
satisfy prong 4. One way that a state can meet the requirements is via 
confirmation in its infrastructure SIP submission that the state has an 
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 measures required to be included 
in other air agencies' plans to protect visibility.
    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 RPGs 
for mandatory Class I areas in other states.

IV. What is EPA's analysis of how Alabama addressed Prong 4 and 
regional haze?

    Alabama's August 20, 2012, 2008 8-hour Ozone infrastructure SIP 
submission; April 23, 2013, and December 9, 2015, 2010 1-hour 
NO2 submissions; April 23, 2013, 2010 1-hour SO2 
submission; and December 9, 2015, 2012 annual PM2.5 
submission rely on the State having a fully approved regional haze SIP 
to satisfy its prong 4 requirements. However, EPA has not fully 
approved Alabama's regional haze SIP, as the Agency issued a limited 
disapproval of the State's original regional haze plan on June 7, 2012, 
due to its reliance on CAIR. To correct the deficiencies in its 
regional haze SIP and obtain approval of the aforementioned 
infrastructure SIPs that rely on the regional haze SIP, the State 
submitted a SIP revision on October 26, 2015, to replace reliance on 
CAIR with reliance on CSAPR. \27\
---------------------------------------------------------------------------

    \27\ See Alabama's October 26, 2015, SIP submittal, Part H--
Proposed Revisions to Alabama Regional Haze State Implementation 
Plan (SIP).
---------------------------------------------------------------------------

    EPA is proposing to approve the regional haze portion of the 
State's October 26, 2015, SIP revision and convert EPA's previous 
action on Alabama's regional haze SIP from a limited approval/limited 
disapproval to a full approval because final approval of this portion 
of the SIP revision would correct the deficiencies that led to EPA's 
limited approval/limited disapproval of the State's regional haze SIP. 
Specifically, EPA's approval of this portion of Alabama's October 26, 
2015, SIP revision would satisfy the SO2 and NOx BART 
requirements and SO2 reasonable progress requirements for 
EGUs formerly subject to CAIR and the requirement that a LTS include 
measures as necessary to achieve the State-adopted RPGs. Because a 
state may satisfy prong 4 requirements through a fully approved 
regional haze SIP, EPA is therefore also proposing to approve the prong 
4 portion of Alabama's April 23, 2013, and December 9, 2015, 2010 1-
hour NO2 infrastructure submissions; the April 23, 2013, 
2010 1-hour SO2 infrastructure submission; and the December 
9, 2015, 2012 annual PM2.5 submission; and to convert EPA's 
February 7, 2017, disapproval of the prong 4 portions of Alabama's 
August 20, 2012, 2008 8-hour Ozone infrastructure submission to an 
approval. However, as noted above, EPA proposed in November 2016 to 
find that CSAPR remains ``better than BART'' given the changes to 
CSAPR's scope in response to the D.C. Circuit's remand, but the Agency 
has not finalized this national rulemaking. Therefore, EPA will not 
finalize the proposed approvals of Alabama's regional haze and prong 4 
submissions described above unless it has finalized the CSAPR remains 
``better-than-BART'' rulemaking or otherwise determined that 
participation in CSAPR remains a viable alternative to BART.

V. Proposed Action

    As described above, EPA is proposing to take the following actions, 
contingent upon a final determination that CSAPR continues to qualify 
as an alternative to the application of BART under the RHR: (1) Approve 
the regional haze portion of Alabama's October 26, 2015, SIP submission 
to change reliance from CAIR to CSAPR; (2) convert EPA's limited 
approval/limited disapproval of Alabama's July 15, 2008, regional haze 
SIP to a full approval; (3) approve the prong 4 portion of Alabama's 
April 23, 2013, and December 9, 2015, 2010 1-hour NO2 
submissions; April 23, 2013, 2010 1-hour SO2 submission; and 
December 9, 2015, 2012 annual PM2.5 submission; and (4) 
convert EPA's February 7, 2017, disapproval of the prong 4 portion of 
Alabama's August 20, 2012, 2008 8-hour Ozone submission to an approval. 
All other applicable infrastructure requirements for the infrastructure 
SIP submissions have been or will be 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, 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.);

[[Page 39097]]

     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 (Pub. L. 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 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, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

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

    Dated: August 4, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017-17346 Filed 8-16-17; 8:45 am]
 BILLING CODE 6560-50-P