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Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

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 Order 12866 (58 FR 51735,

October 4, 1993);

* 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 (Public Law 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).

In addition, 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: November 3, 2014.

V. Anne Heard,

Acting Regional Administrator, Region 4.

[FR Doe. 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 for the

2008 Lead (Pb) and the 2008 8-Hour

Ozone National Ambient Air Quality

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) of the Clean Air

Act (CAA) for the 2008 Lead (Pb) and

2008 ozone national ambient air quality

standards (NAAQS). Section 110(a) of

the CAA requires that each State adopt

and submit a SIP for the

implementation, maintenance, and

enforcement of each 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 of the standards. In

addition, we are proposing to approve

several state provisions addressing CAA

conflict of interest and monitoring

requirements into the Arizona SIP. We

are taking comments on this proposal

and plan to follow with a final action.

DATES: Written comments must be

received on or before December 24,

2014.

ADDRESSES: Submit your comments,

identified by Docket No. EPA-R09-

OAR-2014-0258, by one of the

following methods:

1. Federal Rulemaking Portal: 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. Hand or Courier 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 of boxed

information.

Instructions: Direct your comments to

Docket ID No. EPA-R09-OAR-2014-

0258. EPA's policy is that all comments

received will be included in the public

docket without change and may be

made available online at

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be Confidential Business

Information (CBI) or other information

the disclosure of which is restricted by

statute. Do not submit information

through www.regulations.gov or email

that you consider to be CBI or otherwise

protected from disclosure. The

www.regulations.gov Web site is an

anonymous access system, which means

EPA will not know your identity or

contact information unless you provide

it in the body of your comment. If you

send an email comment directly to EPA

without going through

www.regulations.gov, your email

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses.

Docket: All documents in the docket

are listed in the www.regulations.gov

index. Although listed in the index,

some information is not publicly

available, e.g., CBI or other information

whose disclosure is restricted by statute.

Certain other material, such as

copyrighted material, will be publicly

69796
Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

available only in hard copy. Publicly

available docket materials are available

either electronically in

www.regulations.gov or in 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 that if at 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 of Air 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 of Contents

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 to the Review of

Infrastructure SIP Submittals

EPA is acting upon several SIP

submittals from Arizona that address

the infrastructure requirements of CAA

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

2008 ozone and 2008 Pb NAAQS. The

requirement for states to make a SIP

submittal of this type arises out of CAA

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

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

submittals "within 3 years (or such

shorter period as the Administrator may

prescribe) after the promulgation of a

national primary ambient air quality

standard (or any revision thereof)," and

these SIP 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 or revised NAAQS. Section

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

elements that "[e]ach such plan"

submittal must address.

EPA has historically referred to these

SIP submittals made for the purpose of

satisfying the requirements of CAA

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

"infrastructure SIP" submittals.

Although the term "infrastructure SIP"

does not appear in the CAA, EPA uses

the term to distinguish this particular

type of SIP 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 of title I of the CAA, "regional

haze SIP" submittals required by EPA

rule to address the visibility protection

requirements of CAA section 169A, and

nonattainment new source review (NSR)

permit program submittals to address

the permit requirements of CAA, 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 list of required

elements provided in section 110(a)(2)

contains a wide variety of disparate

provisions, some of which pertain to

required legal authority, some of which

pertain to required substantive program

provisions, and some of which pertain

to requirements for both authority and

substantive program provisions.1 EPA

therefore believes that while the timing

requirement in section 110(a)(1) is

unambiguous, some of the other

statutory provisions are ambiguous. In

particular, EPA believes that the list of

required elements for infrastructure SIP

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 of ambiguity is that section

110(a)(2) requires that "each" SIP

submittal 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. 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 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.

2 See, e.g., "Rule To Reduce Interstate Transport

of Fine Particulate Matter and Ozone (Clean Air

Interstate Rule); Revisions to Acid Rain Program;

Revisions to the NOx SIP Call; Final Rule," 70 FR

25162, at 25163-25165, May 12, 2005 (explaining

relationship between timing requirement of section

110(a)(2)(D) versus section 110(a)(2)(I)).

when attainment plan SIP submittals to

address nonattainment area

requirements are due. For example,

section 172(b) requires EPA to establish

a schedule for submittal of such plans

for certain pollutants when the

Administrator promulgates the

designation of an area as nonattainment,

and section 107(d)(1)(B) allows up to

two years, or in some cases three years,

for such designations to be

promulgated. 3 This ambiguity illustrates

that rather than apply all the stated

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

strict literal sense, EPA must determine

which provisions of section 110(a)(2)

are applicable for a particular

infrastructure SIP submittal.

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 submittal, and whether 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. If states elect to make such

multiple SIP submittals to meet the

infrastructure SIP requirements, EPA

can elect to act on such submittals

either individually or in a larger

combined action. 4 Similarly, EPA

interprets the CAA to allow it to take

action on the individual parts of one

larger, comprehensive infrastructure SIP

submittal for a given NAAQS without

concurrent action on the entire

submittal. For example, EPA has

sometimes elected to act at different

times on various elements and sub3 EPA notes that this ambiguity within section

110(a)(2) is heightened by the fact that various

subparts of part D set specific dates for submittal

of certain types of SIP submittals in designated

nonattainment areas for various pollutants. Note,

e.g., that section 182(a)(1) provides specific dates

for submittal 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.

4 See, e.g., "Approval and Promulgation of

Implementation Plans; New Mexico; Revisions to

the New Source Review (NSR) State

Implementation Plan (SIP); Prevention of

Significant Deterioration (PSD) and Nonattainment

New Source Review (NNSR) Permitting," 78 FR

4339, January 22, 2013 (EPA's final action

approving the structural PSD elements of the New

Mexico SIP submitted by the State separately to

meet the requirements of EPA's 2008 PM2.5 NSR

rule), and "Approval and Promulgation of Air

Quality Implementation Plans; New Mexico;

Infrastructure and Interstate Transport

Requirements for the 2006 PM25 NAAQS," 78 FR

4337, January 22, 2013 (EPA's final action on the

infrastructure SIP for the 2006 PM2. NAAQS).

69797
Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

elements of the 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) would be relevant,

or as relevant, or relevant in the same

way, for each new or revised NAAQS.

The states' attendant infrastructure SIP

submittals for each NAAQS therefore

could be different. For example, the

monitoring requirements that a state

might need to meet in its infrastructure

SIP submittal for purposes of section

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

different pollutants, for example

because the content and scope of a

state's infrastructure SIP submittal to

meet this element might be very

different for an entirely new NAAQS

than for a minor revision to an existing

NAAQS. 6

EPA notes that interpretation of

section 110(a)(2) is also necessary when

EPA reviews other types of SIP

submittals required under the CAA.

Therefore, as with infrastructure SIP

submittals, EPA also has to identify and

interpret the relevant elements of

section 110(a)(2) that logically apply to

these other types of SIP submittals. For

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

attainment plan SIP submittals required

by part D have to meet the "applicable

requirements" of section 110(a)(2).

Thus, for example, attainment plan SIP

submittals 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 submittals required

by part D would not need to meet the

portion of section 110(a)(2)(C) that

pertains to the air quality prevention of

significant deterioration (PSD) program

required in part C of title I of the CAA,

because PSD does not apply to a

pollutant for which an area is

designated nonattainment and thus

subject to part D planning requirements.

5 On December 14, 2007, the State of Tennessee,

through the Tennessee Department of Environment

and Conservation, made a SIP revision to EPA

demonstrating that the State meets the requirements

of sections 110(a)(1) and (2). EPA proposed action

for infrastructure SIP elements (C) and (J) on

January 23, 2012 (77 FR 3213) and took final action

on March 14, 2012 (77 FR 14976). On April 16,

2012 (77 FR 22533) and July 23, 2012 (77 FR

42997), EPA took separate proposed and final

actions on all other section 110(a)(2) infrastructure

SIP elements of Tennessee's December 14, 2007

submittal.

6 For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of

new monitors to measure ambient levels of that new

indicator species for the new NAAQS.

As this example illustrates, each type of

SIP submittal 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 submittal. In other words, EPA

assumes that Congress could not have

intended that each and every SIP

submittal, 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 submittals 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 submittals for particular

elements. 7 EPA 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 to make infrastructure SIP

submittals 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 submittals. 9 The guidance also

7 EPA notes, however, that nothing in the CAA

requires EPA to provide guidance or to promulgate

regulations for infrastructure SIP submittals. The

CAA directly applies to states and requires the

submittal of infrastructure SIP submittals,

regardless of whether or not EPA provides guidance

or regulations pertaining to such submittals. EPA

elects to issue such guidance in order to assist

states, as appropriate.

8 "Guidance on Infrastructure State

Implementation Plan (SIP) Elements under Clean

Air Act Sections 110(a)(1) and 110(a)(2),"

Memorandum from Stephen D. Page, September 13,

2013.

9 EPA's September 13, 2013, guidance did not

make recommendations with respect to

infrastructure SIP 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 in EME Homer City, 696 F.3d7

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 submittals need to

address certain issues and need not

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 of section

110(a)(2) for infrastructure SIP

submittals. 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

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 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

submittals 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 submittals with

respect to the PSD 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 I of the 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). By contrast,

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 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)() at that

time. As the guidance is neither binding nor

required by statute, whether EPA elects to provide

guidance on a particular section has no impact on

a state's CAA obligations.

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Federal Register/Vol. 79, No. 226/Monday, November 24, 2014/Proposed Rules

Code of Federal Regulations (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 PM 2.5 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 submittal focuses on

assuring that the state's SIP meets basic

structural requirements. For example,

section 110(a)(2)(C) includes, inter alia,

the requirement that states have a

program to regulate minor new sources.

Thus, EPA evaluates whether the state

has a SIP-approved minor NSR program

and whether the program addresses the

pollutants relevant to that NAAQS. In

the context of acting on an

infrastructure SIP submittal, 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 submittal 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

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 submittal

without scrutinizing the totality of the

existing SIP for such potentially

deficient provisions and may approve

the submittal even if it is aware of such

existing provisions. 10 It is important to

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

include a new provision in an infrastructure SIP

submittal that contained a legal deficiency, such as

a new exemption for excess emissions during SSM

note that EPA's approval of a state's

infrastructure SIP submittal should not

be construed as explicit or implicit reapproval of any existing potentially

deficient provisions that relate to the

three specific issues just described.

EPA's approach to review of

infrastructure SIP submittals is to

identify the CAA requirements that are

logically applicable to that submittal.

EPA believes that this approach to the

review of a particular infrastructure SIP

submittal 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 submittal. 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

Infrastructure SIP 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 submittal

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)(I).

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

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.

tailored action, depending upon the

nature and severity of the alleged SIP

deficiency. Section 110(k)(5) authorizes

EPA to issue a "SIP call" whenever the

Agency determines that a state's SIP is

substantially inadequate to attain or

maintain the NAAQS, to mitigate

interstate transport, or to otherwise

comply with the CAA." Section

110(k)(6) authorizes EPA to correct

errors in past actions, such as past

approvals of SIP submittals.12

Significantly, EPA's determination that

an action on a state's infrastructure SIP

submittal 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 submittal, 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.' 3

II. Background

A. Statutory Framework

As discussed in section I of this

proposed rule, CAA section 110(a)(1)

requires each state to submit to EPA,

within three years after the

promulgation of a primary or secondary

NAAQS or any revision thereof, an

infrastructure SIP revision that provides

"1 For example, EPA issued a SIP call to Utah to

address specific existing SIP deficiencies related to

the treatment of excess emissions during SSM

events. See "Finding of Substantial Inadequacy of

Implementation Plan; Call for Utah State

Implementation Plan Revisions," 76 FR 21639,

April 18, 2011.

12 EPA has used this authority to correct errors in

past actions on SIP submittals 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).

13 See, e.g., EPA's disapproval of a SIP submittal

from Colorado on the grounds that it would have

included a director's discretion provision

inconsistent with CAA requirements, including

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

42344, July 21, 2010 (proposed disapproval of

director's discretion provisions); 76 FR 4540,

January 26, 2011 (final disapproval of such

provisions).

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for the implementation, maintenance,

and enforcement 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" of a 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 of control measures and

regulation of new 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 of local 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, and visibility

protection.

* Section 110(a)(2)(K): Air quality

modeling and submittal of modeling

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 it refers to permit programs

required under part D (nonattainment

NSR), and (ii) section 110(a)(2)(I),

pertaining to the nonattainment

planning requirements of part D. As a

result, this action does not address

infrastructure for the nonattainment

NSR portion of section 110(a)(2)(C) or

the whole of section 110(a)(2)(I).

B. Regulatory History

2008 Pb NAAQS

On November 12, 2008, the U.S.

Environmental Protection Agency (EPA)

issued a revised NAAQS for Pb. 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 not to 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 of the revised NAAQS. On

October 14, 2011, EPA issued

"Guidance on Section 110 Infrastructure

SIPs for the 2008 Pb NAAQS", referred

to herein as EPA's 2011 Pb Guidance.15

Depending on the timing of a given

submittal, some states relied on the

earlier draft version of this 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

On March 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 of the 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 of Infrastructure State

Implementation Plan (SIP) Elements

under Clean Air Act Sections 110(a)(1)

and 110(a)(2)," which provides advice

on the development of infrastructure

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 revised the

secondary NAAQS to 0.15 pg/m 3 and made it

identical to the revised primary standard. Id.

15 See Memorandum from Stephen D. Page,

Director, Office of Air Quality Planning and

Standards, to Regional Air Division Directors,

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 Ambient Air Quality Standards

(NAAQS)," June 17, 2011 version.

17 See Memorandum dated September 13, 2013

from Stephen D. 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 Air Act Sections 110(a)(1)

and 110(a)(2)" (referred to herein as "2013

Infrastructure SIP Guidance").

18 73 FR 16436 (March 27, 2008).

19 Preparation of guidance for the 2008 Ozone

NAAQS was postponed given EPA's

reconsideration of the standard. See 78 FR 34183

(June 6, 2013).

20 See Memorandum dated September 13, 2013

from Stephen D. 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 Air Act Sections 110(a)(1)

and 110(a)(2)" (referred to herein as "2013

Infrastructure SIP Guidance").

submitted several infrastructure SIP

revisions pursuant to EPA's

promulgation of the 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 Lead NAAQS," 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 of the 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 of the Arizona

State Implementation Plan for Section

110(a)(2) Infrastructure" from Eric

Massey, Director of ADEQ (2013

Maricopa County Submittal). Maricopa

County Rule 100 was submitted to

address a deficiency in section

110(a)(2)(E)(ii) of the SIP for Maricopa

County concerning conflict of interest

requirements for hearing boards.

* December 19, 2013-"Submittal of

Pima County Rules revising the Pima

County Portion of the Arizona State

Implementation Plan for Section

110(a)(2) Infrastructure" from Eric

Massey, Director of ADEQ (2013 Pima

County Submittal). This submittal

included Pima County Rule 17.04.190

"Composition," adopted September 28,

1993; Pima County Rule 17.12.040

"Reporting for Compliance

Evaluations," adopted September 28,

1993; and Pima 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) of the SIP

concerning conflict of interest

requirements for hearing boards and

section 110(a)(2)(F) of the SIP

concerning stationary source monitoring

and reporting.

* September 4, 2014-"Submittal of

Pinal County Rule 1-3-140 Revising the

Pinal County Portion of the Arizona

State Implementation Plan for Section

110(a)(2) Infrastructure" from Eric

Massey, Director of ADEQ (2014 Pinal

21 In a separate rulemaking, EPA fully approved

Arizona's SIP to address the requirements regarding

air pollution emergency episodes in CAA section

110(a)(2)(G) for the 1997 8-hour ozone NAAQS. 77

FR 62452 (October 15, 2012). Although ADEQ did

not submit an analysis of Section 110(a)(2)(G)

requirements, we discuss them in our TSD, which

is in the docket for this rulemaking.

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County Submittal). This submittal

included Pinal County Rule 1-3-140

"Definitions," adopted July 23, 2014 for

inclusion into the Arizona SIP. Pinal

County Rule 1-3-140 was submitted to

address a deficiency in section

110(a)(2)(E)(ii) of the SIP for Pinal

County concerning conflict of interest

requirements for hearing boards.

We find that these 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 EPA is not acting

on in 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 Pima County

Submittal, and the 2014 Pinal County

Submittal, as well as the existing

provisions of the 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 and is available in the

public docket for this rulemaking,

which may be 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 Pima County

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 of local 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 of modeling

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

On November 5, 2012, EPA approved

in part and disapproved in part State

Implementation Plan (SIP) revisions

submitted by the state of Arizona

pursuant to the requirements of the

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 of the

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 of the two-year

FIP deadline established by our 2012

action on Arizona's I-SIP for the 1997

8-hour ozone NAAQS and 1997 and

2006 PM 2 .

5 NAAQS, approval of these

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

22 Copies of these Arizona county regulations are

included in the 2013 Pima County and Maricopa

County Submittals, and 2014 Pinal County

Submittal, which are available in the docket for this

action and online at http://regulations.gov, docket

number EPA-R09-OAR-2014-0258.

2377 FR 66398 (November 5, 2012).

other applicable requirement of the Act.

All of the elements of the infrastructure

SIP that we are proposing to approve, as

explained in the TSD, would improve

the SIP by replacing obsolete statutes or

regulations and by updating the state

and local agencies' SIP implementation

and enforcement authorities. We

propose to determine that our approval

of the 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 of the NAAQS

are met, and the SIP revision clarifies

and updates the SIP. Our TSD contains

a more detailed discussion of our

evaluation.

V. Statutory and Executive Order

Reviews

Under the Clean Air Act, the

Administrator is required to approve a

SIP submission that complies with the

provisions of the Act and applicable

Federal regulations. 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 Clean Air Act.

Accordingly, this action merely

proposes to approve 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 Order 12866 (58 FR 51735,

October 4, 1993);

* 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

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Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) because

application of those 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 CFR Part 52

Environmental protection, Air

pollution control, Incorporation by

reference, Intergovernmental relations,

Ozone, Lead, Reporting and

recordkeeping requirements.

Dated: September 30, 2014.

Jared Blumenfeld,

Regional Administrator, Region IX.

[FR Doe. 2014-27752 Filed 11-21-14; 8:45 am]

BILLING CODE 6560-50-P

OFFICE OF PERSONNEL

MANAGEMENT

45 CFR Part 800

RIN 3206-AN12

Patient Protection and Affordable Care

Act; Establishment of the Multi-State

Plan Program for the Affordable

Insurance Exchanges

AGENCY: Office of Personnel

Management.

ACTION: Proposed rule.

SUMMARY: The U.S. Office of Personnel

Management (OPM) is issuing a

proposed rule to implement

modifications to the Multi-State Plan

(MSP) Program based on the experience

of the Program to date. OPM established

the MSP Program pursuant to section

1334 of the Patient Protection and

Affordable Care Act, as amended by the

Health Care and Education

Reconciliation Act of 2010, referred to

collectively as the Affordable Care Act.

This proposed rule clarifies the

approach used to enforce the applicable

requirements of the Affordable Care Act

with respect to health insurance issuers

that contract with OPM to offer MSP

options. This proposed rule amends

MSP standards related to coverage area,

benefits, and certain contracting

provisions under section 1334 of the

Affordable Care Act. This document

also makes non-substantive technical

changes.

DATES: Comments are due on or before

December 24, 2014.

ADDRESSES: You may submit comments,

identified by Regulation Identifier

Number (RIN) 3206-AN12 using any of

the following methods:

Federal eRulemaking Portal: http://

www.regulations.gov. Follow the

instructions for submitting comments.

Mail, Hand Delivery or Courier:

National Healthcare Operations,

Healthcare and Insurance, 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 FAX at (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 and Education

Reconciliation Act of 2010 (Pub. L. 111-

152), together known as the Affordable

Care Act, provides for the establishment

of Affordable Insurance Exchanges, or

"Exchanges" (also called 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 of affordable health insurance,

and give individuals and small

businesses purchasing power

comparable to that of large 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 of Personnel Management

(OPM) is proposing 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 meet the goal

of increasing competition.

Abbreviations

EHB Essential Health Benefits

FEHBA Federal Employees Health Benefits

Act

FEHB Program Federal Employees Health

Benefits Program

HHS U.S. Department of Health and Human

Services

MSP Multi-State Plan

NAIC National Association of Insurance

Commissioners

OPM U.S. Office of Personnel Management

PHS Act Public Health Service Act

QHP Qualified Health Plan

SHOP Small Business Health Options

Program

Table of Contents

I. Background

A. Affordable Insurance Exchanges

B. Objectives of the Multi-State Plan

Program

C. Review of U.S. Office of Personnel

Management's Role in Contracting Under

the Federal Employees Health Benefits

Program

D. Overview of the Multi-State Plan

Program's Statutory Requirements

E. Stakeholder Interaction

II. Proposed Regulatory Approach

A. Overview of Regulatory Approach

B. Governing Law

III. Provisions of the 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

or Marketplaces) 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 of the Exchanges in the States

and the District of Columbia. 1 2 The law

1 Multi-State Plan option or MSP option means a

discrete pairing of a package of benefits with

particular cost sharing (which does not include

premium rates or premium rate quotes) that is

offered under a contract with OPM. 2 Note that the U.S. Department of Health &

Human Services (HHS) determined that Statespecific requirements in the ACA do not apply to

U.S. territories, and thus territories are not required

to establish Exchanges. See Letter to Commissioner

Gregory R. Francis, Division of Banking &

Insurance, St. Croix, Virgin Islands, from Marilyn

Tavenner, Administrator, Centers for Medicare and

Medicaid Services, July 16, 2014.

69802