47124 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2015–0015; A–1–FRL– 

9949–16–Region 1] 

Air Plan Approval; RI; Regional Haze 

Five Year Progress Report 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of Rhode 

Island on January 7, 2015. This SIP 

revision includes Rhode Island’s 

regional haze progress report and 

adequacy determination for the first 

regional haze implementation period. 

This action is being taken under the 

Clean Air Act. 

DATES: Written comments must be 

received on or before August 19, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R01–OAR–2015–0015 at http://

www.regulations.gov, or via email to 

arnold.anne@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, the 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. The 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, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For 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: 

Anne K. McWilliams, Air Quality 

Planning Unit, U.S. Environmental 

Protection Agency, New England 

Regional Office, 5 Post Office Square— 

Suite 100, (Mail code OEP05–2), Boston, 

MA 02109–3912, telephone (617) 918– 

1697, facsimile (617) 918–0697, email 

mcwilliams.anne@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Final Rules Section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this rule, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

For additional information, see the 

direct final rule which is located in the 

Rules Section of this Federal Register. 

Dated: July 5, 2016. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2016–16940 Filed 7–19–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2014–0756; FRL–9949–27– 

Region 4] 

Air Plan Approval/Disapproval; 

Alabama Infrastructure Requirements 

for the 2010 Nitrogen Dioxide National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

in part and disapprove in part portions 

of the April 23, 2013, and December 9, 

2015, update State Implementation Plan 

(SIP) submissions, submitted by the 

State of Alabama, through the Alabama 

Department of Environmental 

Management (ADEM), for inclusion into 

the Alabama SIP. This proposal pertains 

to the infrastructure requirements of the 

Clean Air Act (CAA or Act) for the 2010 

1-hour nitrogen dioxide (NO2) national 

ambient air quality standard (NAAQS). 

The CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. ADEM certified 

that the Alabama SIP contains 

provisions that ensure the 2010 1-hour 

NO2 NAAQS is implemented, enforced, 

and maintained in Alabama. With the 

exception of provisions pertaining to 

prevention of significant deterioration 

(PSD) permitting, and visibility in other 

states, for which EPA is proposing no 

action through this notice, and with the 

exception of the provisions respecting 

state boards, for which EPA is proposing 

disapproval, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submissions provided to EPA on April 

23, 2013, and updated on December 9, 

2015, as satisfying the required 

infrastructure elements for the 2010 NO2

NAAQS. 

DATES: Written comments must be 

received on or before August 19, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2014–0756 at http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wong, 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., 

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Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47125 

1 In these infrastructure SIP submissions states 

generally certify evidence of compliance with 

sections 110(a)(1) and (2) of the CAA through a 

combination of state regulations and statutes, some 

of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be 

appropriate for demonstrating compliance with 

sections 110(a)(1) and (2). Throughout this 

rulemaking, unless otherwise indicated, the term 

‘‘ADEM Admin. Code r.’’ indicates that the cited 

regulation has been approved into Alabama’s 

federally-approved SIP. The term ‘‘Ala. Code’’ refers 

to Alabama state statutes, which, unless otherwise 

indicated, are not a part of the federally-approved 

SIP. 

2ADEM clarified that its December 9, 2015, 

submission was not intended to address the PSD 

requirements that were approved by EPA on March 

18, 2015. See www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2014–0756. 

3Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D Title I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. Today’s proposed 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) or the 

nonattainment planning requirements of 

110(a)(2)(C). 

4This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

5As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–8726. 

Mr. Wong can be reached via electronic 

mail at wong.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On February 9, 2010, EPA published 

a new 1-hour primary NAAQS for NO2

at a level of 100 parts per billion (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. Pursuant to section 

110(a)(1) of the CAA, states are required 

to submit SIPs meeting the requirements 

of section 110(a)(2) within three years 

after promulgation of a new or revised 

NAAQS. Sections 110(a)(2) require 

states to address basic SIP requirements, 

including emissions inventories, 

monitoring, and modeling to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 2010 NO2 NAAQS to 

EPA no later than January 22, 2013.1

This action is proposing to approve 

Alabama’s infrastructure SIP 

submissions for the applicable 

requirements of the 2010 1-hour NO2

NAAQS, with the exception of the 

preconstruction PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), prong 3 of (D)(i), 

and (J), the interstate transport 

provisions of section 110(a)(2)(D)(i), 

(prongs 1, 2 and 4), and the state board 

requirements of section 110(a)(2)(E)(ii). 

On March 18, 2015, EPA approved 

Alabama’s April 23, 2013, infrastructure 

SIP submission regarding the PSD 

permitting requirements for major 

sources of sections 110(a)(2)(C), prong 3 

of D(i) and (J) for the 2010 1-hour NO2

NAAQS. See 80 FR 14019.2 Therefore, 

EPA is not proposing any action today 

pertaining to sections 110(a)(2)(C), 

prong 3 of D(i) and (J). Additionally, 

today, EPA is not taking action related 

to the interstate transport provisions 

pertaining to the contribution to 

nonattainment or interference with 

maintenance in other states of prongs 1 

and 2 of section 110(a)(2)(D)(i), and 

prong 4 of (D)(i). With respect to 

Alabama’s infrastructure SIP 

submissions related to section 

110(a)(2)(E)(ii) requirements respecting 

the section 128 state board 

requirements, EPA is proposing to 

disapprove this element of Alabama’s 

submissions in this rulemaking. For the 

aspects of Alabama’s submittals 

proposed for approval today, EPA notes 

that the Agency is not approving any 

specific rule, but rather proposing that 

Alabama’s already approved SIP meets 

certain CAA requirements. 

II. What elements are required under 

sections 110(a)(1) and (2)? 

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 2010 NO2 NAAQS, states 

typically have met the basic program 

elements required in section 110(a)(2) 

through earlier SIP submissions in 

connection with previous NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include SIP infrastructure elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are listed below 3 and in EPA’s 

September 13, 2013, memorandum 

entitled ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and (2).’’ 

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 4

• 110(a)(2)(D)(i)(I) and (II): Interstate 

Pollution Transport 

• 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution 

• 110(a)(2)(E): Adequate Resources and 

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 5

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submissions from Alabama that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 NO2 NAAQS. 

The requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

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47126 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 

6For 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. 

7See, 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)). 

8EPA 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. 

9See, 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). 

10On 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. 

11For 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. 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.6 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. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.7 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.8 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. 

Another example of ambiguity within 

sections 110(a)(1) and 110(a)(2) with 

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.9

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.10

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.11

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 

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12EPA 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. 

13 ‘‘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. 

14EPA’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. 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

section 110(a)(1) and section 110(a)(2) 

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.12 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).13 EPA developed 

this document to provide states with upto-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.14 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s 

implementation plan meets basic 

structural requirements. For example, 

section 110(a)(2)(C) includes, 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 that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

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15By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

16For 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). 

17EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

18See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (Jan. 26, 2011) 

(final disapproval of such provisions). 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.15 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. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s 

implementation plan is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or to otherwise comply with the CAA.16

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.17

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.18

IV. What is EPA’s analysis of how 

Alabama addressed the elements of the 

sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

Alabama’s infrastructure submissions 

address the provisions of sections 

110(a)(1) and (2) as described below. 

1. 110(a)(2)(A) Emission Limits and 

Other Control Measures: Section 

110(a)(2)(A) requires that each 

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. Several 

regulations within Alabama’s SIP are 

relevant to air quality control. The 

regulations described below have been 

federally approved in the Alabama SIP 

and include enforceable emission 

limitations and other control measures 

for activities that contribute to NO2

concentrations in the ambient air and 

provide ADEM the authority to establish 

such limits and measures as well as 

schedules for compliance to meet the 

applicable requirements of the CAA. 

ADEM Admin. Code r. 335–3–1–.03— 

Ambient Air Quality Standards, 

authorizes ADEM to adopt rules for the 

control of air pollution in order to 

comply with NAAQS, including those 

necessary to obtain EPA approval under 

section 110 of the CAA. ADEM Admin. 

Code r. 335–3–1–.06—Compliance 

Schedule, sets the schedule for the 

State’s Air Pollution Control rules and 

regulations to be consistent with the 

requirements of the CAA. ADEM 

Admin. Code r. 335–3–1–.05—Sampling 

and Testing Methods, details the 

authority and means with which ADEM 

can require testing and emissions 

verification. EPA has made the 

preliminary determination that the 

provisions contained in these 

regulations satisfy section 110(a)(2)(A) 

for the 2010 1-hour NO2 NAAQS in the 

State. 

In this action, EPA is not proposing to 

approve or disapprove any existing 

State provisions with regard to excess 

emissions during SSM operations at a 

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19On June 12, 2015, EPA published a final action 

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

20On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR part 58. 

facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency is addressing such state 

regulations in a separate action.19

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing State rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient Air Quality 

Monitoring/Data System: SIPs are 

required to provide for the 

establishment and operation of ambient 

air quality monitors; the compilation 

and analysis of ambient air quality data; 

and the submission of these data to EPA 

upon request. These requirements are 

met through ADEM Admin. Code r. 

335–3–1–.03—Ambient Air Quality 

Standards, ADEM Admin. Code r. 335– 

3–1–.05—Sampling and Testing 

Methods, and ADEM Admin. Code r. 

335–3–1–.04—Monitoring, Records, and 

Reporting. These SIP-approved rules 

along with Alabama’s Ambient Air 

Monitoring Network Plan, provide for 

the establishment and operation of 

ambient air quality monitors, the 

compilation and analysis of ambient air 

quality data, and the submission of 

these data to EPA upon request. 

Annually, states develop and submit to 

EPA for approval statewide ambient 

monitoring network plans consistent 

with the requirements of 40 CFR parts 

50, 53, and 58. The annual network plan 

involves an evaluation of any proposed 

changes to the monitoring network, 

includes the annual ambient monitoring 

network design plan and a certified 

evaluation of the state’s ambient 

monitors and auxiliary support 

equipment.20 The latest monitoring 

network plan for Alabama was 

submitted to EPA on July 22, 2015, and 

on November 19, 2015, EPA approved 

this plan. Alabama’s approved 2015 

monitoring network plan can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2014– 

0756. EPA has made the preliminary 

determination that Alabama’s SIP and 

practices are adequate for the ambient 

air quality monitoring and data system 

related to the 2010 1-hour NO2 NAAQS. 

3. 110(a)(2)(C) Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources: This element 

consists of three sub-elements; 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

unclassifiable for the subject NAAQS as 

required by CAA title I part C (i.e., the 

major source PSD program). ADEM’s 

2010 1-hour NO2 NAAQS infrastructure 

SIP submissions cited SIP provisions to 

address these requirements. 

Specifically, the submissions cited 

ADEM Admin. Code r 335–3–14–.01— 

‘‘General Provisions,’’ 335–3–14–.02,— 

‘‘Permit Procedure’’, 334–3–14–.03— 

‘‘Standards for Granting Permits’’, 335– 

3–14–.04—‘‘Prevention of Significant 

Deterioration in Permitting’’ and 335–3– 

14–.05—‘‘Air Permits Authorizing 

Construction in or Near Nonattainment 

Areas’’. As discussed further below, in 

this action EPA is only proposing to 

approve the enforcement, and the 

regulation of minor sources and minor 

modifications aspects of Alabama’s 

section 110(a)(2)(C) infrastructure SIP 

submissions. 

Enforcement: ADEM’s abovedescribed, SIP-approved regulations 

provide for enforcement of NO2

emission limits and control measures 

through enforceable permits for new or 

modified stationary sources. Note also 

that ADEM has authority to issue 

enforcement orders and assess penalties 

(see Code sections 22–22A–5, 22–28–10 

and 22–28–22). 

PSD Permitting for Major Sources: 

With respect to Alabama’s April 23, 

2013, infrastructure SIP submission 

related to the PSD permitting 

requirements of major sources for 

section 110(a)(2)(C), EPA took final 

action to approve these provisions for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source 

preconstruction program that regulates 

emissions of the 2010 1-hour NO2

NAAQS. ADEM Admin. Code r 334–3– 

14–.03—‘‘Standards for Granting 

Permits’’ governs the preconstruction 

permitting of minor modifications and 

construction of minor stationary 

sources. EPA has made the preliminary 

determination that Alabama’s SIP and 

practices are adequate for program 

enforcement of control measures and 

regulation of minor sources and 

modifications related to the 2010 1-hour 

NO2 NAAQS. 

4. 110(a)(2)(D) Interstate Pollution 

Transport: Section 110(a)(2)(D)(i) has 

two components; 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II). Each of these 

components have two subparts resulting 

in four distinct components, commonly 

referred to as ‘‘prongs,’’ that must be 

addressed in infrastructure SIP 

submissions. The first two prongs, 

which are codified in section 

110(a)(2)(D)(i)(I), are provisions that 

prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). 

110(a)(2)(D)(i)(I)—prongs 1 through 2: 

EPA is not proposing any action in this 

rulemaking related to the interstate 

transport provisions pertaining to the 

contribution to nonattainment or 

interference with maintenance in other 

states of section 110(a)(2)(D)(i)(I) 

(prongs 1 and 2) because Alabama’s 

2010 1-hour NO2 NAAQS infrastructure 

submissions did not address prongs 1 

and 2. 

110(a)(2)(D)(i)(II)—prong 3: With 

respect to Alabama’s infrastructure SIP 

submission related to the interstate 

transport requirements for PSD of 

section 110(a)(2)(D)(i)(II) (prong 3), EPA 

took final action to approve Alabama’s 

April 23, 2013, infrastructure SIP 

submission regarding prong 3 of D(i) for 

the 2010 1-hour NO2 NAAQS on March 

18, 2015. See 80 FR 14019. 

110(a)(2)(D)(i)(II)—prong 4: EPA is not 

proposing any action in this rulemaking 

related to the interstate transport 

provisions pertaining to visibility 

protection in other states of section 

110(a)(2)(D)(i)(II) (prong 4) and will 

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21Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

22This regulation has not been incorporated into 

the federally-approved SIP. 

23ADEM Admin. Code r. 335–3–12–.02 

establishes that data reporting requirements for 

sources required to conduct continuous monitoring 

in the state should comply with data reporting 

requirements set forth at 40 CFR 51, Appendix P. 

Section 40 CFR 51, Appendix P includes that the 

averaging period used for data reporting should be 

established by the state to correspond to the 

averaging period specified in the emission test 

consider these requirements in relation 

to Alabama’s 2010 1-hour NO2 NAAQS 

infrastructure submissions in a separate 

rulemaking. 

5. 110(a)(2)(D)(ii) Interstate Pollution 

Abatement and International Air 

Pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

insuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

ADEM Admin. Code r. 335–3–14–.04— 

Prevention of Significant Deterioration 

in Permitting describes how Alabama 

notifies neighboring states of potential 

emission impacts from new or modified 

sources applying for PSD permits. This 

regulation requires ADEM to provide an 

opportunity for a public hearing to the 

public, which includes State or local air 

pollution control agencies, ‘‘whose 

lands may be affected by emissions from 

the source or modification’’ in Alabama. 

Additionally, Alabama does not have 

any pending obligation under sections 

115 and 126 of the CAA. EPA has made 

the preliminary determination that 

Alabama’s SIP and practices are 

adequate for insuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

abatement for the 2010 1-hour NO2

NAAQS. 

6. 110(a)(2)(E) Adequate Resources 

and Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies: Section 110(a)(2)(E) 

requires that each implementation plan 

provide: (i) Necessary assurances that 

the State will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the State comply with the 

requirements respecting State Boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provisions. 

EPA is proposing to approve Alabama’s 

SIP as meeting the requirements of subelements 110(a)(2)(E)(i) and (iii). With 

respect to 110(a)(2)(E)(ii) (regarding 

state boards), EPA is proposing 

disapproval of this sub-element. EPA’s 

rationale respecting each sub-element is 

described in turn below. 

In support of EPA’s proposal to 

approve sub-elements 110(a)(2)(E)(i) and 

(iii), ADEM’s infrastructure submissions 

demonstrate that it is responsible for 

promulgating rules and regulations for 

the NAAQS, emissions standards, 

general policies, a system of permits, fee 

schedules for the review of plans, and 

other planning needs as authorized at 

Ala. Code section 22–28–11 and section 

22–28–9. Ala. Code section 22–28–23 

does not allow the local programs to be 

less strict than the Alabama SIP/ 

regulations and allows for oversight 

from the State. As evidence of the 

adequacy of ADEM’s resources with 

respect to sub-elements (i) and (iii), EPA 

submitted a letter to Alabama on April 

19, 2016, outlining 105 grant 

commitments and current status of these 

commitments for fiscal year 2015. The 

letter EPA submitted to Alabama can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2014– 

0431. Annually, states update these 

grant commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. There were no outstanding 

issues in relation to the SIP for fiscal 

year 2015, therefore, Alabama’s grants 

were finalized and closed out. 

Alabama’s funding is also met through 

the state’s title V fee program at ADEM 

Admin. Code r. 335–1–7—Air Division 

Operating Permit Fees 21 and ADEM 

Admin. Code r. 335–1–6—Application 

Fees.22 EPA has made the preliminary 

determination that Alabama has 

adequate resources for implementation 

of the 2010 1-hour NO2 NAAQS. 

Section 110(a)(2)(E)(ii) requires that 

the state comply with section 128 of the 

CAA. Section 128 requires that: (1) The 

majority of members of the state board 

or body which approves permits or 

enforcement orders represent the public 

interest and do not derive any 

significant portion of their income from 

persons subject to permitting or 

enforcement orders under the CAA; and 

(2) any potential conflicts of interest by 

such board or body, or the head of an 

executive agency with similar powers be 

adequately disclosed. After reviewing 

Alabama’s SIP, EPA has made the 

preliminary determination that the 

State’s implementation plan does not 

contain provisions to comply with 

section 128 of the Act, and thus 

Alabama’s April 23, 2013, and 

December 9, 2015, infrastructure SIP 

submissions do not meet the 

requirements of the Act. While Alabama 

has state statutes that may address, in 

whole or part, requirements related to 

state boards at the state level, these 

provisions are not included in the SIP 

as required by the CAA. Based on an 

evaluation of the federally-approved 

Alabama SIP, EPA is proposing to 

disapprove Alabama’s certification that 

its SIP meets the requirements of 

110(a)(2)(E)(ii) of the CAA for the 2010 

1-hour NO2 NAAQS. The submitted 

provisions which purport to address 

110(a)(2)(E)(ii) are severable from the 

other infrastructure elements. Therefore, 

EPA is proposing to disapprove those 

provisions which relate only to subelement 110(a)(2)(E)(ii). 

7. 110(a)(2)(F) Stationary Source 

Monitoring System and Reporting: 

Section 110(a)(2)(F) requires SIPs to 

meet applicable requirements 

addressing: (i) The installation, 

maintenance, and replacement of 

equipment, and the implementation of 

other necessary steps, by owners or 

operators of stationary sources to 

monitor emissions from such sources, 

(ii) periodic reports on the nature and 

amounts of emissions and emissions 

related data from such sources, and (iii) 

correlation of such reports by the state 

agency with any emission limitations or 

standards established pursuant to this 

section, which reports shall be available 

at reasonable times for public 

inspection. ADEM’s infrastructure SIP 

submissions describe the establishment 

of requirements for compliance testing 

by emissions sampling and analysis, 

and for emissions and operation 

monitoring to ensure the quality of data 

in the State. The Alabama infrastructure 

submissions also describe how the 

major source and minor source emission 

inventory programs collect emission 

data throughout the State and ensure the 

quality of such data. Alabama meets 

these requirements through ADEM 

Admin. Code r. 335–3–1–.04— 

Monitoring, Records, and Reporting, and 

335–3–12—Continuous Monitoring 

Requirements for Existing Sources. 

ADEM Admin. Code r. 335–3–1–.04, 

details how sources are required as 

appropriate to establish and maintain 

records; make reports; install, use, and 

maintain such monitoring equipment or 

methods and provide periodic emission 

reports as the regulation requires. These 

reports and records are required to be 

compiled, and submitted on forms 

furnished by the State. Additionally, 

ADEM Admin. Code r. 335–3–12–.02 

requires owners and operators of 

emissions sources to ‘‘install, calibrate, 

operate and maintain all monitoring 

equipment necessary for continuously 

monitoring the pollutants.’’ 23

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method used to determine compliance with an 

emission standard for the pollutant/source category 

in question. 

24This regulation has not been incorporated into 

the federally-approved SIP. 

ADEM Admin. Code r. 335–3–1–.13— 

Credible Evidence, makes allowances for 

owners and/or operators to utilize ‘‘any 

credible evidence or information 

relevant’’ to demonstrate compliance 

with applicable requirements if the 

appropriate performance or compliance 

test had been performed, for the purpose 

of submitting compliance certification 

and can be used to establish whether or 

not an owner or operator has violated or 

is in violation of any rule or standard. 

Accordingly, EPA is unaware of any 

provision preventing the use of credible 

evidence in the Alabama SIP. 

Additionally, Alabama is required to 

submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the Air Emissions 

Reporting Rule (AERR) on December 5, 

2008, which modified the requirements 

for collecting and reporting air 

emissions data (73 FR 76539). The 

AERR shortened the time states had to 

report emissions data from 17 to 12 

months, giving states one calendar year 

to submit emissions data. All states are 

required to submit a comprehensive 

emissions inventory every three years 

and report emissions for certain larger 

sources annually through EPA’s online 

Emissions Inventory System. States 

report emissions data for the six criteria 

pollutants and the precursors that form 

them—nitrogen oxides, SO2, ammonia, 

lead, carbon monoxide, particulate 

matter, and volatile organic compounds. 

Many states also voluntarily report 

emissions of hazardous air pollutants. 

Alabama made its latest update to the 

2011 NEI on January 7, 2013. EPA 

compiles the emissions data, 

supplementing it where necessary, and 

releases it to the general public through 

the Web site http://www.epa.gov/ttn/ 

chief/eiinformation.html. EPA has made 

the preliminary determination that 

Alabama’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 1-hour 

NO2 NAAQS. 

8. 110(a)(2)(G) Emergency Powers: 

This section requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. ADEM Admin. Code r. 335– 

3–2—Air Pollution Emergency, provides 

for the identification of air pollution 

emergency episodes, episode criteria, 

and emissions reduction plans. 

Alabama’s compliance with section 303 

of the CAA and adequate contingency 

plans to implement such authority is 

also met at Ala. Code section 22–28–21 

Air Pollution Emergencies. Ala. Code 

section 22–28–21 provides ADEM the 

authority to order ‘‘person or persons 

responsible for the operation or 

operations of one or more air 

contaminants sources’’ causing 

‘‘imminent danger to human health or 

safety in question to reduce or 

discontinue emissions immediately.’’ 

The order establishes a hearing no later 

than 24-hours after issuance before the 

Environmental Management 

Commission which can affirm, modify 

or set aside the Director’s order. 

Additionally, the Governor can, by 

proclamation, declare, as to all or any 

part of said area, that an air pollution 

emergency exists and exercise certain 

powers in whole or in part, by the 

issuance of an order or orders to protect 

the public health. Under Ala. Code 

sections 22–28–3(a) and 22–28–10(2), 

ADEM also has the authority to issue 

such orders as may be necessary to 

effectuate the purposes of the Alabama 

Pollution Control Act, which includes 

achieving and maintaining such levels 

of air quality as will protect human 

health and safety and, to the greatest 

degree practicable, prevent injury to 

plant and animal life and property, 

foster the comfort and convenience of 

the people, promote the social 

development of this state and facilitate 

the enjoyment of the natural attractions 

of the state. EPA has made the 

preliminary determination that 

Alabama’s SIP and state laws are 

adequate for emergency powers related 

to the 2010 1-hour NO2 NAAQS. 

Accordingly, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submissions with respect to section 

110(a)(2)(G). 

9. 110(a)(2)(H) SIP Revisions: Section 

110(a)(2)(H), in summary, requires each 

SIP to provide for revisions of such 

plan: (i) As may be necessary to take 

account of revisions of such national 

primary or secondary ambient air 

quality standard or the availability of 

improved or more expeditious methods 

of attaining such standard, and (ii) 

whenever the Administrator finds that 

the plan is substantially inadequate to 

attain the NAAQS or to otherwise 

comply with any additional applicable 

requirements. ADEM is responsible for 

adopting air quality rules and revising 

SIPs as needed to attain or maintain the 

NAAQS. Alabama has the ability and 

authority to respond to calls for SIP 

revisions, and has provided a number of 

SIP revisions over the years for 

implementation of the NAAQS. ADEM 

Admin. Code r. 335–1–1–.03— 

Organization and Duties of the 

Commission,24 provides ADEM with the 

authority to establish, adopt, 

promulgate, modify, repeal and suspend 

rules, regulations, or environmental 

standards which may be applicable to 

Alabama or ‘‘any of its geographic 

parts.’’ Admin. Code r. 335–3–1–.03— 

Ambient Air Quality Standards, 

provides ADEM the authority to amend, 

revise, and incorporate the NAAQS into 

its SIP. EPA has made the preliminary 

determination that Alabama adequately 

demonstrates a commitment to provide 

future SIP revisions related to the 2010 

1-hour NO2 NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submissions with respect to section 

110(a)(2)(H). 

10. 110(a)(2)(J) Consultation with 

Government Officials, Public 

Notification, and PSD and visibility 

Protection: EPA is proposing to approve 

Alabama’s infrastructure SIP for the 

2010 1-hour NO2 NAAQS with respect 

to the general requirement in section 

110(a)(2)(J) to include a program in the 

SIP that provides for meeting the 

applicable consultation requirements of 

section 121, the public notification 

requirements of section 127; and 

visibility protection requirements of 

part C of the Act. With respect to 

Alabama’s infrastructure SIP submission 

related to the preconstruction PSD 

permitting requirements of section 

110(a)(2)(J), EPA took final action to 

approve Alabama’s April 23, 2013, 2010 

1-hour NO2 NAAQS infrastructure SIP 

for these requirements on March 18, 

2015. See 80 FR 14019. EPA’s rationale 

for its proposed action regarding 

applicable consultation requirements of 

section 121, the public notification 

requirements of section 127, and 

visibility protection requirements is 

described below. 

Consultation with government 

officials (121 consultation): Section 

110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with 

local governments, designated 

organizations and federal land managers 

(FLMs) carrying out NAAQS 

implementation requirements pursuant 

to section 121 relative to consultation. 

ADEM Admin. Code r. 335–3–1–.03— 

Ambient Air Quality Standards, as well 

as its Regional Haze Implementation 

Plan (which allows for continued 

consultation with appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

FLMs), provide for consultation with 

government officials whose jurisdictions 

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25This regulation has not been incorporated into 

the federally-approved SIP. 

26Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

might be affected by SIP development 

activities. Specifically, Alabama 

adopted state-wide consultation 

procedures for the implementation of 

transportation conformity, which are 

used for development of mobile 

inventories for SIPs. Required partners 

covered by Alabama’s consultation 

procedures include federal, state and 

local transportation and air quality 

agency officials. EPA has made the 

preliminary determination that 

Alabama’s SIP and practices adequately 

demonstrate consultation with 

government officials related to the 2010 

1-hour NO2 NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submissions with respect to section 

110(a)(2)(J) consultation with 

government officials. 

Public notification (127 public 

notification): ADEM Admin. Code r. 

335–3–14–.01(7)—Public Participation, 

ADEM Admin. Code r. 335–3–14– 

.05(13)—Public Participation, and Ala. 

Code section 22–28–21—Air Pollution 

Emergencies provides for public 

notification and resolution when air 

pollution episodes occur. Furthermore, 

ADEM has several public notice 

mechanisms in place to provide daily 

air quality forecasts for ozone and fine 

particulate matter to the public, 

including: EPA AirNow, ADEM Web 

site postings and customized emails 

through Enviroflash for registered 

individuals. When air quality is 

expected to be poor, an air quality alert 

is issued for a city, the local National 

Weather Service (NWS) office is alerted 

and the forecast is posted on the NWS 

Web site. Additionally, for some cities 

in Alabama (e.g., Birmingham), the 

county planning organizations are 

alerted and the forecast is distributed to 

the media, and other interested groups. 

EPA has made the preliminary 

determination that Alabama’s SIP and 

practices adequately demonstrate the 

State’s ability to provide public 

notification related to the 2010 1-hour 

NO2 NAAQS when necessary. 

Visibility protection: EPA’s 2013 

Guidance notes that it does not treat the 

visibility protection aspects of section 

110(a)(2)(J) as applicable for purposes of 

the infrastructure SIP approval process. 

ADEM referenced its regional haze 

program as germane to the visibility 

component of section 110(a)(2)(J). EPA 

recognizes that states are subject to 

visibility protection and regional haze 

program requirements under Part C of 

the Act (which includes sections 169A 

and 169B). However, there are no newly 

applicable visibility protection 

obligations after the promulgation of a 

new or revised NAAQS. Thus, EPA has 

determined that states do not need to 

address the visibility component of 

110(a)(2)(J) in infrastructure SIP 

submittals so ADEM does not need to 

rely on its regional haze program to 

fulfill its obligations under section 

110(a)(2)(J). As such, EPA has made the 

preliminary determination that 

Alabama’s infrastructure SIP 

submissions are approvable for the 

visibility protection element of section 

110(a)(2)(J) in related to the 2010 1-hour 

NO2 NAAQS and that Alabama does not 

need to rely on its regional haze 

program to address this element. 

11. 110(a)(2)(K) Air Quality and 

Modeling and Submission of Modeling 

Data: Section 110(a)(2)(K) of the CAA 

requires that SIPs provide for 

performing air quality modeling so that 

effects on air quality of emissions from 

NAAQS pollutants can be predicted and 

submission of such data to the EPA can 

be made. ADEM Admin. Code r 335–3– 

1–.04—Monitoring, Records, and 

Reporting and 335–3–14–.04— 

Prevention of Significant Deterioration 

Permitting, specifically sub-paragraph 

(11)—Air Quality Models specify that 

required air modeling be conducted in 

accordance with 40 CFR part 51, 

Appendix W ‘‘Guideline on Air Quality 

Models’’. ADEM Admin. Code r 335–3– 

1–.04—Monitoring, Records, and 

Reporting details how sources are 

required as appropriate to establish and 

maintain records; make reports; install, 

use, and maintain such monitoring 

equipment or methods and provide 

periodic emission reports as the 

regulation requires. These reports and 

records are required to be compiled, and 

submitted on forms furnished by the 

State. These provisions demonstrate that 

Alabama has the authority to provide 

relevant data for the purpose of 

predicting the effect of pollutants on 

ambient air quality of the 2010 1-hour 

NO2 NAAQS. Additionally, Alabama 

participates in a regional effort to 

coordinate the development of 

emissions inventories and conduct 

regional modeling for several NAAQS, 

including the 2010 1-hour NO2 NAAQS, 

for the southeastern states. Taken as a 

whole, Alabama’s air quality regulations 

and practices demonstrate that ADEM 

has the authority to provide relevant 

data for the purpose of predicting the 

effect on ambient air quality of any 

emissions of any pollutant for which a 

NAAQS had been promulgated, and to 

provide such information to the EPA 

Administrator upon request. EPA has 

made the preliminary determination 

that Alabama’s SIP and practices 

adequately demonstrate the State’s 

ability to provide for air quality and 

modeling, along with analysis of the 

associated data, related to the 2010 1- 

hour NO2 NAAQS. Accordingly, EPA is 

proposing to approve Alabama’s 

infrastructure SIP submissions with 

respect to section 110(a)(2)(K). 

12. 110(a)(2)(L) Permitting Fees: This 

element necessitates that the SIP require 

the owner or operator of each major 

stationary source to pay to the 

permitting authority, as a condition of 

any permit required under the CAA, a 

fee sufficient to cover: (i) The reasonable 

costs of reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

ADEM Admin. Code r. 335–1–6— 

Application Fees 25 requires ADEM to 

charge permit-specific fees to the 

applicant/source as authorized by State 

legislation and Ala. Code section 22– 

22A–5. ADEM assures its permitting fee 

structure is sufficient for the reasonable 

cost of reviewing and acting upon PSD 

and nonattainment new source review 

(NNSR) permits. Additionally, Alabama 

has a fully approved title V operating 

permit program at ADEM Admin. Code 

r. 335–1–7—Air Division Operating 

Permit Fees,26 that covers the cost of 

implementation and enforcement of 

PSD and NNSR permits after they have 

been issued. EPA has made the 

preliminary determination that 

Alabama’s SIP and practices adequately 

provide for permitting fees related to the 

2010 1-hour NO2 NAAQS, when 

necessary. Accordingly, EPA is 

proposing to approve Alabama’s 

infrastructure SIP submissions with 

respect to section 110(a)(2)(L). 

13. 110(a)(2)(M) Consultation and 

Participation by Affected Local Entities: 

This element requires states to provide 

for consultation and participation in SIP 

development by local political 

subdivisions affected by the SIP. ADEM 

Administrative Code 335–3–17–.01— 

Transportation Conformity and the 

interagency consultation process as 

directed by Alabama’s approved 

Conformity SIP and 40 CFR 93.112 

provide for consultation with local 

groups. More specifically, Alabama 

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Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47133 

adopted consultation procedures for the 

implementation of transportation 

conformity which includes the 

development of mobile inventories for 

SIP development and the requirements 

that link transportation planning and air 

quality planning in nonattainment and 

maintenance areas. These consultation 

and participation procedures have been 

approved in the Alabama SIP as the 

non-regulatory provisions: ‘‘Alabama 

Interagency Transportation Conformity 

Memorandum of Agreement’’ and 

‘‘Conformity SIP for Birmingham and 

Jackson County.’’ These provisions were 

approved on May 11, 2000, and March 

26, 2009, respectively. See 65 FR 30362 

and 74 FR 13118. Required partners 

covered by Alabama’s consultation 

procedures include federal, state and 

local transportation and air quality 

agency officials. The state and local 

transportation agency officials are most 

directly impacted by transportation 

conformity requirements and are 

required to provide public involvement 

for their activities including the analysis 

demonstrating how they meet 

transportation conformity requirements. 

Additionally, Alabama has consulted 

with FLMs as a requirement of its 

regional haze SIP. EPA has made the 

preliminary determination that 

Alabama’s SIP and practices adequately 

demonstrate consultation with affected 

local entities related to the 2010 1-hour 

NO2 NAAQS when necessary. 

V. Proposed Action 

With the exception of interstate 

transport provisions pertaining to 

visibility protection requirements of 

section 110(a)(2)(D)(i)(II) (prong 4), and 

the state board requirements of section 

110(a)(2)(E)(ii), EPA is proposing to 

approve that certain elements in 

Alabama’s April 23, 2013, and 

December 9, 2015, SIP submissions for 

the 2010 1-hour NO2 NAAQS have met 

the above-described infrastructure SIP 

requirements. EPA is proposing to 

disapprove section 110(a)(2)(E)(ii) of 

Alabama’s infrastructure submissions 

because the State’s implementation plan 

does not contain provisions to comply 

with section 128 of the Act, and thus 

Alabama’s April 23, 2013, and 

December 9, 2015, infrastructure SIP 

submissions do not meet the 

requirements of the Act. The interstate 

transport requirements of section 

110(a)(2)(D)(i)(II) (prong 4) will be 

addressed by EPA in a future action. 

Under section 179(a) of the CAA, final 

disapproval of a submittal (or portion 

thereof) that addresses a requirement of 

a CAA Part D Plan or is required in 

response to a finding of substantial 

inadequacy as described in CAA section 

110(k)(5) (SIP call) starts a sanctions 

clock. The section 110(a)(2)(E)(ii) 

provisions (the provisions being 

proposed for disapproval in today’s 

notice) were not submitted to meet 

requirements for Part D or a SIP call, 

and therefore, if EPA takes final action 

to disapprove this submittal, no 

sanctions will be triggered. However, if 

this disapproval action is finalized, that 

final action will trigger the requirement 

under section 110(c) that EPA 

promulgate a federal implementation 

plan (FIP) no later than 2 years from the 

date of the disapproval unless the State 

corrects the deficiency, and EPA 

approves the plan or plan revision 

before EPA promulgates such FIP. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive 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, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: July 8, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–17053 Filed 7–19–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2014–0720; FRL–9949–29– 

Region 1] 

Air Plan Approval; Massachusetts; 

Infrastructure State Implementation 

Plan Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

most elements of State Implementation 

Plan (SIP) submissions from 

Massachusetts regarding the 

infrastructure requirements of the Clean 

Air Act (CAA or Act) for the 1997 

ozone, 2008 lead (Pb), 2008 ozone, 2010 

nitrogen dioxide (NO2), and 2010 sulfur 

dioxide (SO2) National Ambient Air 

Quality Standards (NAAQS). EPA is 

also proposing to conditionally approve 

three aspects of the Commonwealth’s 

submittals. In addition, we are also 

proposing findings of failure to submit 

pertaining to various aspects of the 

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