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Citation: 79 Fed. Reg. 69796 2014

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-- The search text of this PDF is generated from uncorrected OCR text.Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

EPA's role isto approve state choices, provided that theymeet the criteria of the CAA. Accordingly, this proposed actionmerely approves state law as meeting Federal requirements and does
not impose additional requirements beyond those imposedby state law. For that reason, this proposed action:

* is not a "significant regulatory action" subject to reviewby the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 etseq.);

* 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 etseq.);

* does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (PublicLaw 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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* is not subject to requirements of Section 12(d) ofthe National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the CAA; and

* does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition,the SIP isnot approved
to apply on any Indian reservation land

orin any other area where EPA or an Indian tribehas demonstrated that a tribe hasjurisdiction. In those areas of Indian country, therule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will itimpose substantial direct costs on tribal governments or preempt tribal law.

List ofSubjects in 40 CFRPart 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: November 3, 2014. V. Anne Heard, ActingRegionalAdministrator, Region4. [FRDoe. 2014-27808 Filed 11-21-14; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52
[EPA-R09-OAR-2014-0258; FRL-9919-50- Region 9]
Approval and Promulgation of State Implementation Plans; Arizona; Infrastructure Requirements forthe 2008 Lead (Pb) and the 20088-Hour Ozone National Ambient AirQuality Standards (NAAQS)

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 Arizona to address the requirements of section 110(a)(1) and (2)ofthe Clean Air Act (CAA) for the 2008 Lead (Pb) and 2008 ozone national ambient air quality standards (NAAQS). Section 110(a) of the CAArequires that each State adopt and submit a SIP for the implementation, maintenance, and enforcement ofeach NAAQS promulgated by EPA. We refer to such SIP revisions as "infrastructure" SIPs because they are intended to address basic structural SIP requirements for

new or revised NAAQS including,but
not limited to, legal authority, regulatory structure, resources, permit
programs, monitoring, and modeling necessary to assure attainment and maintenance ofthe standards. In addition, we are proposing to approve several state provisions addressing CAA conflict ofinterest and monitoring requirements into the Arizona SIP. We

are taking comments on this proposal and plan to followwith a final action.
DATES: Written comments must be received on orbefore December 24, 2014.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R09- OAR-2014-0258, by one ofthe following methods: 1.Federal RulemakingPortal: http:// www.regulations.gov. Follow the on-line instructions for submitting comments. 2. Email:Jeffrey Buss at buss.jeffrey@
epa.gov.

3.Fax:Jeffrey Buss, Air Planning Office (AIR-2), at fax number 415-947- 3579.

4. Mail:Jeffrey Buss, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne, San Francisco, California 94105.

5. HandorCourier Delivery:Jeffrey Buss, Air Planning Section (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne, San Francisco, California 94105. Such deliveries are only accepted during the Regional Office's normal hours of operation. Special arrangements should be made for deliveries ofboxed information.

Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-2014- 0258. EPA's policy isthat all comments received will be included in the public docketwithout change and maybe made available online at www.regulations.gov,including any personal information provided, unless the comment includes information claimed tobe Confidential Business Information (CBI) or other information the disclosure ofwhich is restricted by
statute. Do not submit information through www.regulations.govor email that you consider tobe CBI or otherwise protected from disclosure. The www.regulations.govWeb site is an anonymous access system, which means EPA will not knowyour identity or contact information unless you provide it in the body ofyourcomment. Ifyou send an email comment directly to EPA without going through www.regulations.gov,your email address will be automatically captured andincluded as part ofthe comment that isplaced in the public docket and made available on theInternet. Ifyou submit an electronic comment, EPA recommends thatyou include your

name and othercontact information in the body ofyour comment andwith any disk orCD-ROM you submit. IfEPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may notbe able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, andbe free ofany defects or viruses.

Docket:All documents in the docket

are listed in the www.regulations.gov index. Although listed in the index,

someinformation isnot publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly 

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available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.govorin hard copy at the Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California 94105. EPA requests thatifat all possible,you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to schedule your inspection during normal business hours.

FOR FURTHER INFORMATION CONTACT: Jeffrey Buss, Office ofAir Planning,U.S. Environmental Protection Agency, Region 9, (415) 947-4152, email: buss.jeffrey@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms "we," "us," and "our" refer to EPA.

Table ofContents

I. EPA's approach to the Review of Infrastructure SIP Submittals II. Background III. Arizona's Submittals IV. EPA's Evaluation and Proposed Action V. Statutory and Executive Order Reviews
I. EPA's Approach tothe Review of Infrastructure SIP Submittals

EPA isacting upon several SIP submittals from Arizona that address the infrastructure requirements ofCAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone and 2008 Pb NAAQS. The requirement for states tomake a SIP submittal ofthis type arises out ofCAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submittals "within 3years (or such shorter period as the Administrator may prescribe) after the promulgation ofa national primary ambient air quality standard (or any revision thereof)," and these SIP submittals are to provide for the "implementation, maintenance, and enforcement" of such NAAQS. The
statute directly imposes on states the duty to make these SIP submittals, and the requirement to make the submittals is not conditioned upon EPA's taking any action other than promulgating a

new orrevised NAAQS. Section 110(a)(2) includes a list ofspecific elements that "[e]ach suchplan" submittal must address.

EPA hashistorically referred to these SIP submittals made for the purpose of satisfying the requirements ofCAA sections 110(a)(1) and 110(a)(2) as "infrastructure SIP" submittals. Although theterm "infrastructure SIP" does not appear in the CAA, EPA uses the term to distinguish this particular type ofSIP submittal from submittals that are intended to satisfy other SIP requirements under the CAA, such as "nonattainment SIP" or "attainment SIP" submittals to address the nonattainment planning requirements of part D oftitle Iofthe CAA, "regional haze SIP" submittals required byEPA rule to address the visibility protection requirements ofCAA section 169A, and nonattainment new source review (NSR) permit program submittals to address the permit requirements ofCAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submittals, and section 110(a)(2) provides more details concerning the required contents of these submittals. The listofrequired elements provided in section 110(a)(2) contains a widevariety ofdisparate provisions, some ofwhich pertain to required legal authority, some ofwhich pertain to required substantive program provisions, and some ofwhich pertain
to requirements forboth authority and substantive program provisions.1 EPA therefore believes thatwhile the timing requirement in section 110(a)(1) is unambiguous, some ofthe other statutory provisions are ambiguous. In particular, EPAbelieves thatthe list of required elements for infrastructure SIP submittals provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submittal.

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 submittals for a given new or revised NAAQS. One example ofambiguity is that section 110(a)(2) requires that "each" SIP submittal must meetthe list of requirements therein, while EPAhas long noted thatthis literal reading ofthe
statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I ofthe Act,which specifically address nonattainment SIP requirements. 2 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses

'For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authorityunder stateand local law
to carry outthe SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part Cof title I ofthe 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 ofsuch emergencies.

2 See, e.g., "Rule To Reduce Interstate Transport
ofFine ParticulateMatter and Ozone (CleanAir Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIPCall; FinalRule," 70 FR 25162, at 25163-25165, May 12, 2005 (explaining relationship between timingrequirement ofsection 110(a)(2)(D) versus section 110(a)(2)(I)). when attainment plan SIP submittals to address nonattainment area requirements are due. Forexample, section 172(b) requires EPAto establish

a schedule for submittal of such plans for certain pollutants when the Administrator promulgates the designation ofan area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for suchdesignations tobe promulgated. 3This ambiguity illustrates that rather than apply allthe stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions ofsection 110(a)(2)

are applicable for aparticular infrastructure SIP submittal.

Another example ofambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all ofthe infrastructure SIP requirements in a single SIP submittal, andwhether EPA
must act upon such SIP submittal 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 submittals separately addressing infrastructure SIP elements for the same NAAQS. Ifstates elect to make such multiple SIP submittals to meetthe infrastructure SIP requirements, EPA

canelect to act on such submittals either individually or in a larger combined action.4 Similarly, EPA interprets the CAA to allow ittotake action on the individual parts ofone larger, comprehensive infrastructure SIP submittal for a givenNAAQS without
concurrent action on the entire submittal. For example, EPAhas sometimes elected to act at different times on various elements and sub3EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of partD set specific dates forsubmittal ofcertain typesof SIPsubmittals in designated nonattainment areas forvarious pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submittal ofemissions inventories for the ozone NAAQS. Some ofthese specific dates are necessarily later than three years after promulgation ofthe new orrevised NAAQS.

4 See, e.g., "Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting," 78 FR 4339, January 22, 2013 (EPA's final action approving the structural PSDelements ofthe New Mexico SIP submitted by the State separately to
meet therequirements ofEPA's 2008 PM2.5NSR rule), and "Approval and Promulgation ofAir Quality Implementation Plans; NewMexico; Infrastructure and Interstate Transport Requirements for the 2006 PM25 NAAQS," 78 FR 4337, January 22, 2013 (EPA's final action onthe infrastructure SIP for the 2006 PM2. NAAQS). 

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elements ofthe same infrastructure SIP submittal. 5

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submittal requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) wouldbe relevant,

or as relevant, or relevant inthe same way, for each new orrevised NAAQS. The states' attendant infrastructure SIP submittals for each NAAQS therefore could be different. Forexample, the monitoring requirements that a state might need to meetin itsinfrastructure SIP submittal for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope ofa state's infrastructure SIP submittal to meet this element mightbe very different for an entirely new NAAQS than for a minorrevision to an existing NAAQS. 6

EPA notes that interpretation of section 110(a)(2) is alsonecessary when EPA reviews other types ofSIP submittals required under the CAA. Therefore, as with infrastructure SIP submittals, EPA alsohas to identify and interpret the relevant elements of section 110(a)(2) that logically applyto these other types ofSIP submittals. For example, section 172(c)(7) requires that attainment plan SIP submittals required by part D have tomeetthe "applicable requirements" ofsection 110(a)(2). Thus, for example, attainment plan SIP submittals must meetthe 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, itis clear that attainment plan SIP submittals required by part D wouldnot need tomeet the portion of section 110(a)(2)(C) that pertains to the air quality prevention of significant deterioration (PSD)program required in part C oftitleI ofthe CAA, because PSD does not applyto a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements.

5On December 14, 2007, the State ofTennessee, through the Tennessee Department ofEnvironment
and Conservation, made a SIPrevision to EPA demonstrating that the State meets the requirements ofsections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) andtook final action

on March 14, 2012 (77 FR 14976). OnApril 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 SIPelements ofTennessee's December 14, 2007 submittal.

6For example, implementation ofthe 1997 PM2.5 NAAQS required the deployment ofa system of

new monitors to measure ambient levels ofthat new indicator species for the newNAAQS. As this example illustrates, each type of SIP submittal may implicate some elements ofsection 110(a)(2) but not others.

Given the potential for ambiguity in

some ofthe statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that itis appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context ofacting on aparticular SIP submittal. In other words, EPA

assumes that Congress could not have intended thateach and every SIP submittal, regardless ofthe NAAQS in question or the history ofSIP development for therelevant pollutant, would meet each oftherequirements, or meet each ofthem in the same way. Therefore, EPA has adopted an approach under which itreviews infrastructure SIP submittals against the list ofelements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPAhas elected touse 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 thathave already been developed and applied to individual SIP submittals forparticular elements. 7EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Infrastructure SIP Guidance).8 EPA developed this document to provide states with up-todate guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of
states tomake infrastructure SIP submittals tomeetbasic structural SIP requirements within three years of promulgation ofa new or revised NAAQS. EPA also made recommendations about many specific subsections ofsection 110(a)(2) that are relevant in the context ofinfrastructure SIP submittals.9 The guidance also

7EPA notes, however, thatnothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submittals. The CAA directly applies to states andrequires the submittal of infrastructure SIPsubmittals, regardless ofwhether ornot EPA provides guidance

or regulations pertainingto such submittals. EPA elects to issue such guidance inorder to assist states, as appropriate.

8 "Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)," Memorandum from Stephen D. Page, September 13, 2013.

9EPA's September 13, 2013, guidance did not make recommendations withrespect to infrastructure SIP submittals 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 inEMEHomerCity,696F.3d7 discusses the substantively important issues that are germane tocertain subsections ofsection 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submittals need to address certain issues and neednot address others. Accordingly, EPA reviews each infrastructure SIP submittal 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 ofsection 110(a)(2) for infrastructure SIP submittals. Under this element, a state must meet the substantive requirements of section 128, whichpertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submittals to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Infrastructure SIP Guidance explains EPA's interpretation thatthere maybe a variety ofways by which states can appropriately address these substantive statutory requirements, depending on the structure ofan individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board orby a head ofan executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation ofinfrastructure SIP submittals because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions ofsection 128.

As another example, EPA'sreview of infrastructure SIP submittals with respect to thePSD program requirements in sections 110(a)(2)(C), (D)(i)(ll), and (J)focuses upon the structural PSD program requirements contained in part C, title Iofthe Act and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and regulated NSR pollutants, including greenhouse gases (GHGs). Bycontrast, structural PSD program requirements do
not include provisions that are not required under EPA's regulations at 40

(D.C.Cir. 2012) which had interpreted the requirements ofsection 110(a)(2)(D)(i)(I). Inlight of the uncertainty created by ongoing litigation, EPA elected not to provide additionalguidance on the requirements ofsection 110(a)(2)(D)(i)() atthat time. As the guidance is neitherbinding nor required by statute, whether EPA elects to provide guidance on aparticular section has noimpact on

a state's CAA obligations. 

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Code ofFederal Regulations (CFR) 51.166 but are merely available as an option for the state, such as the option
to provide grandfathering ofcomplete permit applications withrespect tothe 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context ofan infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review ofa state's infrastructure SIP submittal focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, interalia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has a SIP-approved minor NSRprogram andwhether theprogram addresses the pollutants relevant to that NAAQS. In the context ofacting on an infrastructure SIP submittal, however, EPA does not think itisnecessary to conduct a review ofeach and every provision ofa state's existing minor

source program (i.e.,already in the existing SIP) for compliance with the requirements ofthe CAA andEPA's regulations thatpertain to such
programs.

With respect to certain otherissues, EPA does not believe that an action on

a state's infrastructure SIP submittal is necessarily the appropriate type of actionin 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 thatmay be contrary to the CAA and EPA'spolicies addressing such excess emissions ("SSM"); (ii)existing provisions related
to "director's variance" or "director's discretion" that maybe contrary to the CAA because theypurport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii)existing provisions forPSD
programs that maybe inconsistent with
current requirements ofEPA's "Final NSR Improvement Rule," 67 FR 80186, December 31, 2002, as amended by 72 FR 32526, June 13, 2007 ("NSR Reform"). Thus, EPAbelieves itmay approve an infrastructure SIP submittal without scrutinizing the totality ofthe existing SIP for suchpotentially deficient provisions and may approve the submittal even ifit is aware ofsuch existing provisions. 1 0 It isimportant to

10Bycontrast,EPA notes that ifa statewere to include a new provisionin an infrastructure SIP submittal that contained a legal deficiency, such as

a newexemption for excess emissions during SSM note thatEPA's approval ofa state's infrastructure SIP submittal should not be construed as explicit or implicit reapproval ofany existing potentially deficient provisions that relate to the three specific issues justdescribed.

EPA's approach to review of infrastructure SIP submittals is to identify the CAA requirements that are logically applicable to that submittal. EPAbelieves thatthis approach tothe review ofaparticular infrastructure SIP submittal is appropriate, because it would not be reasonable to read the general requirements ofsection 110(a)(1) and the listofelements in 110(a)(2) as requiring review ofeach and every provision ofa state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes ofassuring thatthe 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, theymay include some outmoded provisions and historical artifacts. These provisions, while not fully up todate, nevertheless
may not pose a significant problem for the purposes of"implementation, maintenance, and enforcement" ofa

new or revised NAAQS when EPA evaluates adequacy ofthe infrastructure SIP submittal. EPAbelieves that abetter approach is for states and EPAto focus attention on those elements ofsection 110(a)(2) ofthe CAA mostlikely to warrant a specific SIP revision dueto the promulgation ofa new orrevised NAAQS or otherfactors.

For example, EPA's 2013 Infrastructure SIP Guidance gives simpler recommendations withrespect to carbon monoxide than other NAAQS pollutants tomeet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As

a result, an infrastructure SIP submittal for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility
prong ofsection 110(a)(2)(D)(i)(I).

Finally, EPAbelieves that its approach with respect toinfrastructure SIP requirements isbased 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

events, then EPA would need to evaluate that provision for compliance against therubric of applicable CAArequirements in the context ofthe action onthe infrastructure SIP. tailored action, depending uponthe
nature and severity ofthe alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a "SIP call" whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA." Section 110(k)(6) authorizes EPA to correct

errors in pastactions, such aspast approvals ofSIP submittals.12 Significantly, EPA's determination that

an action on a state's infrastructure SIP submittal isnot 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 thebasis for action tocorrect those deficiencies at a later time. For example, although it may notbe appropriate to require astate toeliminate all existing inappropriate director's discretion provisions in the course ofacting on an infrastructure SIP submittal, EPA believes that section 110(a)(2)(A) maybe
among the statutory bases that EPA relies upon in the course ofaddressing such deficiency in a subsequent action.' 3

II. Background

A. Statutory Framework
As discussed in section Iofthis proposed rule, CAA section 110(a)(1) requires each state to submit to EPA, within three years after the promulgation ofa primary or secondary NAAQS or any revision thereof, an infrastructure SIP revisionthat provides

"1

Forexample, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment ofexcess emissions during SSM
events. See "Finding ofSubstantial Inadequacy of Implementation Plan; Call forUtah State Implementation Plan Revisions," 76 FR 21639, April 18, 2011.

12EPA has used this authority to correct errors in past actions on SIPsubmittals related to PSD
programs. See "Limitation ofApproval of Prevention ofSignificant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; FinalRule," 75 FR 82536, December 30, 2010. EPA haspreviously used its authorityunder 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).

13See, e.g., EPA's disapproval ofa SIP submittal from Colorado onthe grounds that itwould have included a director's discretion provision inconsistent with CAArequirements, 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 FR4540, January 26, 2011 (final disapproval ofsuch provisions). 

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for the implementation, maintenance, andenforcement of such NAAQS. Section 110(a)(2) sets the content requirements of such a plan, which generally relate to the information and authorities, compliance assurances, procedural requirements, and control

measures that constitute the "infrastructure" ofa state's air quality management program. These infrastructure SIP elements required by section 110(a)(2) are as follows:

* Section 110(a)(2)(A): Emission limits and other control measures.

* Section 110(a)(2)(B): Ambient air quality monitoring/data system.

* Section 110(a)(2)(C): Program for enforcement ofcontrol measures and regulation ofnew and modified stationary sources.

* Section 110(a)(2)(D)(i): Interstate pollution transport.

* Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.

* Section 110(a)(2)(E): Adequate

resources and authority, conflict of interest, and oversight oflocal and regional government agencies.

* Section 110(a)(2)(F): Stationary

source monitoring and reporting.

* Section 110(a)(2)(G): Emergency episodes.

* Section 110(a)(2)(H): SIP revisions. * Section 110(a)(2)(J): Consultation with government officials, public notification, PSD, andvisibility protection.

* Section 110(a)(2)(K): Air quality modeling and submittal ofmodeling data.

* Section 110(a)(2)(L): Permitting fees.

* Section 110(a)(2)(M): Consultation/ participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the threeyear submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are: (i) Section 110(a)(2)(C) to the extent itrefers to permit programs required under part D (nonattainment NSR), and (ii)section 110(a)(2)(I), pertaining to thenonattainment planning requirements ofpart D. As a result, this action does not address infrastructure for the nonattainment NSR portion of section 110(a)(2)(C) or the whole ofsection 110(a)(2)(I).

B.RegulatoryHistory

2008 Pb NAAQS

On November 12, 2008, the U.S. Environmental Protection Agency (EPA) issued a revised NAAQS forPb. 14 This

14 73 FR 66964 (November 12, 2008). The 1978 Pb standard (1.5 pg/m 3 as a quarterly average) was modified to a rolling 3 month average notto be action triggered a requirement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within three years of issuance ofthe revised NAAQS. On October 14, 2011, EPA issued "Guidance on Section 110 Infrastructure SIPs for the 2008Pb NAAQS", referred
to herein as EPA's 2011 Pb Guidance.1 5 Depending on the timing ofa given submittal, some states relied on the earlier draftversion ofthis guidance, referred to herein as EPA's 2011 Draft Pb Guidance.16 EPA issued additional guidance on infrastructure SIPs on September 13, 2013.17

2008 Ozone NAAQS

OnMarch 27, 2008, EPA issued a revised NAAQS for 8-hour Ozone.' 8
This action triggered a requirement for
states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) within three years of issuance ofthe revised NAAQS. EPA did not,however, prepare guidance at this time for states in submitting I-SIP revisions for the 2008 Ozone NAAQS.19 On September 13, 2013, EPA issued "Guidance ofInfrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)," whichprovides advice

on the development ofinfrastructure SIPs for the 2008 ozone NAAQS (among other pollutants) as well as infrastructure SIPs for new or revised NAAQS promulgated in the future.20

III. The State's Submittals

The Arizona Department of Environmental Quality (ADEQ)has

exceeded of 0.15 pg/m 3

.EPA also revisedthe secondary NAAQS to 0.15 pg/m 3and madeit identicalto therevised primary standard.Id.

15 See Memorandum from Stephen D. Page, Director, Office ofAir Quality Planning and Standards, to Regional Air DivisionDirectors, Regions 1-10 (October 14, 2011).

16 DRAFT Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 2008 Lead (Pb) National AmbientAir Quality Standards (NAAQS)," June 17, 2011 version.

17 SeeMemorandum dated September 13, 2013 from StephenD. Page, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Directors, EPA Regions 1-10, "Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean AirAct Sections 110(a)(1) and 110(a)(2)" (referredto herein as "2013 Infrastructure SIP Guidance").

18 73 FR 16436 (March 27, 2008). 19Preparation ofguidance for the 2008 Ozone NAAQS was postponed givenEPA's reconsideration ofthe standard. See 78 FR 34183 (June 6, 2013).

20 See Memorandum dated September 13, 2013 from StephenD. Page, Director, EPA Office of Air Quality Planning and Standards, to Regional Air Directors, EPA Regions 1-10, "Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean AirAct Sections 110(a)(1) and 110(a)(2)" (referredto herein as "2013 Infrastructure SIP Guidance"). submitted several infrastructure SIP revisions pursuant toEPA's promulgation ofthe NAAQS addressed by this proposed rule, including the following:

* October 14, 2011-"Arizona State Implementation Plan Revision under Clean Air Act Section 110(a)(2) and (2); 2008 LeadNAAQS," to address all of the CAA section 110(a)(2) requirements, except for section 110(a)(2)(G) 21 for the 2008 Pb NAAQS (2011 Pb I-SIP Submittal).

* December 27, 2012-"Arizona State Implementation Plan Revision under Clean Air Act Section 110(a)(2) and (2); 2008 8-hour Ozone NAAQS," to address all ofthe CAA section 110(a)(2) requirements for the 2008 8-hour Ozone NAAQS (2012 Ozone I-SIP Submittal).

* December 6, 2013-"Submittal of Maricopa County Rule 100 revising the Maricopa County Portion ofthe Arizona State Implementation Plan for Section 110(a)(2) Infrastructure" from Eric Massey, Director ofADEQ (2013 Maricopa County Submittal). Maricopa County Rule 100 was submitted to address a deficiency in section 110(a)(2)(E)(ii) ofthe SIP for Maricopa County concerning conflict ofinterest requirements for hearing boards.

* December 19, 2013-"Submittal of Pima County Rules revising the Pima County Portion ofthe Arizona State Implementation Plan for Section 110(a)(2) Infrastructure" from Eric Massey, Director ofADEQ (2013 Pima County Submittal). This submittal included PimaCounty Rule 17.04.190 "Composition," adopted September 28, 1993; Pima County Rule 17.12.040 "Reporting for Compliance Evaluations," adopted September 28, 1993; andPima County Rule 17.24.040 "Reporting Requirements," adopted April 19, 2005 for inclusion into the Arizona SIP. These rules were submitted to address deficiencies in section 110(a)(2)(E)(ii) ofthe SIP concerning conflict ofinterest requirements for hearing boards and section 110(a)(2)(F) ofthe SIP concerning stationary source monitoring and reporting.

* September 4, 2014-"Submittal of Pinal County Rule 1-3-140 Revising the Pinal County Portion ofthe Arizona State Implementation Plan for Section 110(a)(2) Infrastructure" from Eric Massey, Director ofADEQ (2014 Pinal

21In a separate rulemaking, EPA fully approved
Arizona's SIP to address the requirements regarding air pollution emergency episodes inCAA section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS. 77 FR 62452 (October 15,2012). Although ADEQ did
not submit ananalysis ofSection 110(a)(2)(G) requirements, we discuss them inour TSD, which is inthe docket for this rulemaking. 69800Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

County Submittal). This submittal included Pinal County Rule 1-3-140 "Definitions," adopted July 23, 2014for inclusion into theArizona SIP.Pinal County Rule 1-3-140 was submitted to address a deficiency in section 110(a)(2)(E)(ii) ofthe SIP for Pinal County concerning conflict ofinterest requirements for hearing boards.

We find thatthese submittals meet the procedural requirements for public participation under CAA section 110(a)(2) and 40 CFR 51.102.

In addition to the above infrastructure submittals, on October 29, 2012, ADEQ submitted "New Source Review State Implementation Plan Submission" as well as "Supplemental Information to 2012 New Source Review State Implementation Plan Submission" on July 2, 2014. In addition to addressing revisions to Arizona's New Source Review (NSR)program, these submissions also relate to I-SIP elements in CAA sections 110(a)(2)(C), (D), (J)and (K), which EPAis not acting

onin today's rulemaking. The I-SIP elements in CAA sections 110(a)(2)(C), (D), (J)and (K)will be addressed in a future rulemaking.

IV. EPA's Evaluation and Proposed Action

EPA has evaluated the 2011 Pb I-SIP Submittal, the 2012 Ozone I-SIP Submittal, the 2013 Maricopa County Submittal, the 2013 PimaCounty Submittal, and the 2014 Pinal County Submittal, as well as the existing provisions ofthe Arizona SIP for compliance with the CAA section 110(a) requirements for the 2008 Pb and 2008

ozone NAAQS. Our Technical Support Document (TSD) contains more detailed evaluations andis available in the public docket for this rulemaking, which maybe accessed online at http:// www.regulations.gov,docket number EPA-R09-OAR-2014-0258.

Based upon this analysis, EPA
proposes to approve the 2011 Pb I-SIP Submittal, the 2012 Ozone I-SIP Submittal, the 2013 Maricopa County Submittal, the 2013 PimaCounty Submittal and the 2013 Pinal County Submittal with respect to the following infrastructure SIP requirements:

* Section 110(a)(2)(A): Emission limits and other control measures.

* Section 110(a)(2)(B): Ambient air quality monitoring/data system.

* Section 110(a)(2)(E): Adequate

resources and authority, conflict of interest, and oversight oflocal and regional government agencies.

* Section 110(a)(2)(F): Stationary

source monitoring and reporting.

* Section 110(a)(2)(G): Emergency episodes. * Section 110(a)(2)(H): SIP revisions. * Section 110(a)(2)(K): Air quality modeling and submission ofmodeling data. * Section 110(a)(2)(L): Permitting fees. * Section 110(a)(2)(M): Consultation/ participation by affected local entities.

In addition, we are proposing to approve into the SIP certain regulatory provisions included in the 2013 Pima County and Maricopa County Submittals, and in the 2014 Pinal County Submittal, as discussed in the TSD.22 OnNovember 5, 2012, EPA approved in part and disapproved in part State Implementation Plan (SIP) revisions submitted by the state ofArizona pursuant to the requirements ofthe Clean Air Act (CAA) for the 1997 8-hour

ozone NAAQS and the 1997 and 2006 NAAQS for fine particulate matter (PM2.5). 23 In today's action, we propose to approve certain portions ofthe previously disapproved infrastructure SIP action. Specifically, today's proposed action will correct the previous deficiencies with respect to CAA section 110(a)(2)(E)(ii) for Maricopa, Pima, and Pinal Counties and section 110(a)(2)(F) for Pima County. If finalized before the end ofthe two-year FIP deadline established by our 2012 action on Arizona's I-SIP forthe 1997 8-hour ozone NAAQS and 1997 and 2006 PM 2. 5 NAAQS, approval ofthese infrastructure SIP elements would relieve EPA of the obligation to promulgate a FIP, as required under CAA Section 110(c)(1).

We are not proposing to act today on those elements of the infrastructure SIP that address the requirements of sections 110(a)(2)(C), (D), (J)and (K) of the Act. On October 29, 2012, ADEQ submitted "New Source Review State Implementation Plan Submission" and

on July 2, 2014 submitted "Supplemental Information to 2012 New Source Review State Implementation Plan Submission". These submissions address the permitting portions of I-SIP elements in CAA sections 110(a)(2)(C), (D), (J)and (K) and will be addressed in a subsequent rulemaking.

Section 110(l) of the Act prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any

22Copies ofthese Arizona countyregulations are included inthe 2013 PimaCounty andMaricopa County Submittals, and 2014 PinalCounty Submittal, which areavailable in the docket for this action and online athttp://regulations.gov, docket number EPA-R09-OAR-2014-0258.

2377 FR 66398 (November 5, 2012). other applicable requirement ofthe Act. All ofthe elements ofthe infrastructure SIP thatwe are proposing to approve, as explained in theTSD, would improve the SIP by replacing obsolete statutes or regulations andby updating the state andlocal agencies' SIP implementation andenforcement authorities. We propose todetermine that our approval ofthe elements discussed above would comply with CAA section 110(l) because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment ofthe NAAQS

are met, and the SIP revision clarifies andupdates the SIP. Our TSD contains

amore detailed discussion of our evaluation.

V. Statutoryand Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role isto approve state choices, provided thattheymeet the criteria ofthe CleanAir Act. Accordingly, this action merely
proposes to approve state law as meeting Federal requirements and does
not impose additional requirements beyond those imposedby state law. For that reason, this proposed action:

* Is not a "significant regulatory action" subject to review by the Office ofManagement and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

* does not impose an information collection burden under the provisions ofthePaperwork Reduction Act (44 U.S.C. 3501 etseq.);

* 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 etseq.);

* does not contain any unfunded mandate orsignificantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (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 actionbased onhealth 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 (66FR 28355, May 22, 2001);

* is not subject to requirements of Section 12(d) ofthe National 

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Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistent with the Clean Air Act; and

* does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition,this proposed rule does
not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is
not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFRPart52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Lead, Reporting and recordkeeping requirements.

Dated: September 30, 2014. Jared Blumenfeld, RegionalAdministrator, RegionIX. [FRDoe. 2014-27752 Filed 11-21-14; 8:45 am]
BILLING CODE 6560-50-P

OFFICE OF PERSONNEL

MANAGEMENT

45 CFR Part 800
RIN3206-AN12

Patient Protection and Affordable Care Act; Establishment ofthe Multi-State Plan Program forthe Affordable Insurance Exchanges

AGENCY: Office of Personnel Management. ACTION: Proposed rule.

SUMMARY: The U.S. Office ofPersonnel Management (OPM) is issuing a proposed rule to implement modifications tothe Multi-State Plan (MSP)Program based on the experience oftheProgram to date. OPM established the MSP Program pursuant to section 1334 ofthe Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of2010, referred to collectively as theAffordable Care Act. This proposed rule clarifies the approach used to enforce the applicable requirements oftheAffordable Care Act with respect tohealth insurance issuers that contract with OPM to offer MSP options. This proposed rule amends MSP standards related tocoverage area, benefits, and certain contracting provisions under section 1334 ofthe Affordable Care Act.This document also makes non-substantive technical changes.
DATES: Comments are due on orbefore December 24, 2014.
ADDRESSES: You may submit comments, identified by Regulation Identifier Number (RIN) 3206-AN12 using any of the following methods:

FederaleRulemakingPortal: http:// www.regulations.gov. Followthe instructions for submitting comments.

Mail,HandDeliveryorCourier: National Healthcare Operations, Healthcare andInsurance, U.S. Office of Personnel Management, 1900 E Street NW., Room 3468, Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT: Cameron Stokes by telephone at (202) 606-2128, by FAXat (202) 606-4430, or by email at mspp@opm.gov.
SUPPLEMENTARY INFORMATION: The Patient Protection and Affordable Care Act (Pub.L. 111-148), as amended by the Health Care andEducation Reconciliation Act of2010 (Pub. L. 111- 152), together known as the Affordable Care Act, provides for the establishment ofAffordable Insurance Exchanges, or "Exchanges" (alsocalled Health Insurance Marketplaces, or "Marketplaces"), where individuals and small businesses can purchase qualified coverage. The Exchanges provide competitive marketplaces for individuals and small employers to compare available private health insurance options based on price, quality, and other factors. The Exchanges enhance competition in the health insurance market, improve choice ofaffordable health insurance, and give individuals and small businesses purchasing power comparable tothat oflarge businesses. The Multi-State Plan (MSP) Program

was created pursuant to section 1334 of the Affordable Care Act to increase competition by offering high-quality health insurance coverage sold in multiple States on the Exchanges. The U.S. Office ofPersonnel Management (OPM) isproposing this regulation to modify the standards set forth for the MSP Program under 45 CFR part 800 that was published as final rule on March 11, 2013 (78 FR 15560). This proposed rule will clarify OPM's intent in administering the Program as well as make regulatory changes in order to expand issuer participation and offerings in the Program to meetthe goal ofincreasing competition. Abbreviations

EHB Essential Health Benefits FEHBA Federal Employees Health Benefits

Act FEHB Program Federal Employees Health

Benefits Program HHS U.S. Department ofHealth and Human

Services MSP Multi-State Plan NAIC National Association ofInsurance

Commissioners OPM U.S. Office ofPersonnel Management PHS Act Public Health Service Act QHP Qualified Health Plan SHOP Small Business Health Options

Program

Table ofContents

I. Background

A. Affordable Insurance Exchanges B. Objectives ofthe Multi-State Plan

Program C. Review ofU.S. Office ofPersonnel

Management's Role in Contracting Under the Federal Employees Health Benefits Program
D. Overview ofthe Multi-State Plan

Program's Statutory Requirements E. Stakeholder Interaction II. Proposed Regulatory Approach

A. Overview ofRegulatory Approach
B. Governing Law III. Provisions ofthe Proposed Regulation

A. General Provisions and Definitions B. Multi-State Plan Issuer Requirements C. Application and Contracting Procedures D. Compliance
E. Miscellaneous IV. Regulatory Impact Analysis V. Paperwork Reduction Act
VI. Regulatory Flexibility Act VII. Unfunded Mandates VIII. Federalism

I. Background

Section 1334 of the Affordable Care Act created the Multi-State Plan (MSP) Program to foster competition in the individual and small group health insurance markets on the Exchanges (also called Health Insurance Exchanges

orMarketplaces) based on price, quality, and benefit delivery. The Affordable Care Act directs the U.S. Office of Personnel Management (OPM) to
contract with private health insurance issuers to offer at least two MSP options

on each ofthe Exchanges in the States and the District ofColumbia. 1 2 The law

1 Multi-State Plan option orMSP option means a discretepairing ofa package ofbenefits with particular costsharing (which does not include premium rates orpremium rate quotes) that is offered under a contract with OPM.

2Note that the U.S. Department ofHealth &
Human Services (HHS) determined that Statespecific requirements in the ACA donot apply to U.S. territories, and thus territories are notrequired
to establish Exchanges. See Letterto Commissioner Gregory R. Francis, Division ofBanking & Insurance, St. Croix, Virgin Islands, from Marilyn Tavenner, Administrator, Centers for Medicare and Medicaid Services, July 16, 2014. 

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