Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 2851 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• Email: ostigaard.crystal@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT if you are faxing 

comments). 

• Mail: Carl Daly, Director, Air 

Program, U.S. Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Carl Daly, Director, 

Air Program, U.S. Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. Such 

deliveries are only accepted Monday 

through Friday, 8:00 a.m. to 4:30 p.m., 

excluding federal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Please see the direct final rule, which 

is located in the Rules section of this 

Federal Register for detailed instruction 

on how to submit comments. 

FOR FURTHER INFORMATION CONTACT: 

Crystal Ostigaard, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop Street, Denver, Colorado 

80202–1129, (303) 312–6602, 

ostigaard.crystal@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules section of this Federal Register, 

the EPA is approving the State’s SIP 

revision through a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

SIP revision and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the preamble to 

the direct final rule. If EPA receives no 

adverse comments, EPA will not take 

further action on this proposed rule. If 

EPA receives adverse comments, EPA 

will withdraw the direct final rule and 

it will not take effect. Then, EPA will 

address all public comments in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. See the information 

provided in the direct final action of the 

same title which is located in the Rules 

section of this Federal Register. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, PM10, Incorporation 

by reference, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

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

Dated: December 17, 2014. 

Shaun L. McGrath, 

Regional Administrator. 

[FR Doc. 2015–00778 Filed 1–20–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0689; FRL–9921–88– 

Region 4] 

Approval and Promulgation of 

Implementation Plans; Alabama; 

Infrastructure Requirements for the 

2008 8-Hour Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

in part and disapprove in part the State 

Implementation Plan (SIP) revision, 

submitted by the State of Alabama, 

through the Alabama Department of 

Environmental Management (ADEM), 

for inclusion into the Alabama SIP. This 

proposal pertains to the Clean Air Act 

(CAA or the Act) infrastructure 

requirements for the 2008 8-hour ozone 

national ambient air quality standards 

(NAAQS). The CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. ADEM certified 

that the Alabama SIP contains 

provisions that ensure the 2008 8-hour 

ozone NAAQS is implemented, 

enforced, and maintained in Alabama. 

With the exception of provisions 

pertaining to prevention of significant 

deterioration (PSD) permitting, 

interstate transport, and visibility 

protection requirements for which EPA 

is proposing no action through this 

notice, and with the exception of the 

provisions respecting state boards, for 

which EPA is proposing disapproval, 

EPA is proposing to approve Alabama’s 

infrastructure SIP submission provided 

to EPA on August 20, 2012, as satisfying 

the required infrastructure elements for 

the 2008 8-hour ozone NAAQS. 

DATES: Written comments must be 

received on or before February 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0689, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2012– 

0689,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2012– 

0689. 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 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. 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 


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2852 Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 

1 In these infrastructure SIP submissions states 

generally certify evidence of compliance with 

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

combination of state regulations and statutes, some 

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

appropriate for demonstrating compliance with 

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

rulemaking, unless otherwise indicated, the term 

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

regulation has been approved into Alabama’s 

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

to Alabama state statutes, which, unless otherwise 

indicated, are not a part of the federally-approved 

SIP. 

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

not governed by the three year submission deadline 

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

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

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

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

extent that subsection refers to a permit program as 

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

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

pertain to the nonattainment planning requirements 

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

rulemaking does not address infrastructure 

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

nonattainment planning requirements of 

110(a)(2)(C). 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background and Overview 

II. What elements are required under 

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

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

IV. What is EPA’s analysis of how Alabama 

addressed the elements of sections 

110(a)(1) and (2) ‘‘Infrastructure’’ 

provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background and Overview 

On March 27, 2008, EPA promulgated 

a revised NAAQS for ozone based on 8- 

hour average concentrations. EPA 

revised the level of the 8-hour ozone 

NAAQS to 0.075 parts per million. See 

77 FR 16436. Pursuant to section 

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

to submit SIPs meeting the applicable 

requirements of section 110(a)(2) within 

three years after promulgation of a new 

or revised NAAQS or within such 

shorter period as EPA may prescribe. 

Section 110(a)(2) requires states to 

address basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 2008 8-hour ozone 

NAAQS to EPA no later than March 

2011.1 ADEM made this submission and 

certified that the Alabama SIP contains 

provisions that ensure the 2008 8-hour 

ozone NAAQS is implemented, 

enforced, and maintained in Alabama 

(hereafter referred to as an 

‘‘infrastructure SIP submission’’). 

Today’s action is proposing to 

approve Alabama’s infrastructure SIP 

submission for the applicable 

requirements of the 2008 8-hour ozone 

NAAQS, with the exception of the PSD 

permitting requirements for major 

sources of section 110(a)(2)(C) and (J), 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), the state board 

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

and the visibility requirements of 

110(a)(2)(J). With respect to Alabama’s 

infrastructure SIP submission related to 

the provisions pertaining to the PSD 

permitting requirements for major 

sources of section 110(a)(2)(C) and (J), 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II), and the 

visibility requirements of 110(a)(2)(J), 

EPA is not proposing any action today 

regarding these requirements. EPA will 

act on these portions of Alabama’s 

submission in a separate action. With 

respect to Alabama’s infrastructure SIP 

submission related to section 

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

the section 128 state board 

requirements, EPA is proposing to 

disapprove this element of Alabama’s 

submission in today’s rulemaking. 

Finally, EPA notes that this action is not 

approving any specific rule, but rather 

proposing that Alabama’s already 

approved SIP meets certain CAA 

requirements. 

II. What elements are required under 

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

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 2008 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with the 

1997 8-hour ozone NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

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

lists specific elements that states must 

meet for ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. The requirements of section 

110(a)(2) are summarized below and in 

EPA’s September 13, 2013, 

memorandum entitled ‘‘Guidance on 

Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 


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3As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

4For 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. 

5See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

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

6EPA notes that this ambiguity within section 

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

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

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

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

7See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

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

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

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

infrastructure SIP for the 2006 PM2.5 NAAQS). 

• 110(a)2(C): Programs for Enforcement 

of Control Measures and for 

Construction or Modification of 

Stationary Sources 

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

Pollution Transport 

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

Abatement and International Air 

Pollution 

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

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 3

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from Alabama that address 

the infrastructure requirements of CAA 

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

2008 8-hour ozone NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

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

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

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.4 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

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

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.5 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

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

two years, or in some cases three years, 

for such designations to be 

promulgated.6 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

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

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

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

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.7

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 


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2854 Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 

8On 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. 

9For 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. 

10EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

11 ‘‘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. 

12EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d 

7 (D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.8

Ambiguities within sections 110(a)(1) 

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

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

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

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

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

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.9

EPA notes that interpretation of 

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

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

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

these other types of SIP submissions. 

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

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

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

plan SIP submissions must meet the 

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

regarding enforceable emission limits 

and control measures and section 

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

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

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

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

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

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

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

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

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

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.10 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).11 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.12 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

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

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

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

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

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

SIP appropriately addresses the 

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

and section 128. The 2013 Guidance 

explains EPA’s interpretation that there 

may be a variety of ways by which states 

can appropriately address these 

substantive statutory requirements, 

depending on the structure of an 

individual state’s permitting or 

enforcement program (e.g., whether 

permits and enforcement orders are 

approved by a multi-member board or 

by a head of an executive agency). 

However they are addressed by the 

state, the substantive requirements of 

section 128 are necessarily included in 

EPA’s evaluation of infrastructure SIP 

submissions because section 

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

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

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

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

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including GHGs. By contrast, 

structural PSD program requirements do 

not include provisions that are not 

required under EPA’s regulations at 40 


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13By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

14For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

15EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

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

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

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

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

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

FR 67062 (November 16, 2004) (corrections to 

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

2009) (corrections to Arizona and Nevada SIPs). 

16See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

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

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

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

(final disapproval of such provisions). 

CFR 51.166 but are merely available as 

an option for the state, such as the 

option to provide grandfathering of 

complete permit applications with 

respect to the 2012 PM2.5 NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

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

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

among other things, the requirement 

that states have a program to regulate 

minor new sources. Thus, EPA 

evaluates whether the state has an EPAapproved minor new source review 

program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

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

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

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.13 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

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

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

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

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

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

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

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

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

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

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

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

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

Agency determines that a state’s SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.14 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.15

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.16

IV. What is EPA’s analysis of how 

Alabama addressed the elements of 

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

‘‘infrastructure’’ provisions? 

Alabama’s infrastructure SIP 

submission addresses the provisions of 

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

below. 

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

other control measures: Several 


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17On February 22, 2013, EPA published a 

proposed action in the Federal Register entitled, 

‘‘State Implementation Plans: Response to Petition 

for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls to Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction; Proposed 

Rule.’’ See 78 FR 12460. 

18On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR part 58. 

regulations within Alabama’s SIP are 

relevant to air quality control 

regulations. The regulations described 

below have been federally approved in 

the Alabama SIP and include 

enforceable emission limitations and 

other control measures. ADEM Admin. 

Code r. 335–3–1–.03—Ambient Air 

Quality Standards, authorizes ADEM to 

adopt rules for the control of air 

pollution in order to comply with 

NAAQS, including those necessary to 

obtain EPA approval under section 110 

of the CAA. This regulation along with 

ADEM Admin. Code r. 335–3–1–.06— 

Compliance Schedule, set the schedule 

for compliance with the State’s Air 

Pollution Control rules and regulations 

to be consistent with the requirements 

of the CAA. ADEM Admin. Code r. 335– 

3–1–.05—Sampling and Testing 

Methods, details the authority and 

means with which ADEM can require 

testing and emissions verification. EPA 

has made the preliminary determination 

that the provisions contained in these 

regulations and Alabama’s practices are 

adequate to protect the 2008 8-hour 

ozone NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing 

State provisions with regard to excess 

emissions during SSM of operations at 

a facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency plans to address such state 

regulations in a separate action.17 In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing State rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient air quality 

monitoring/data system: ADEM Admin. 

Code r. 335–3–1–.04—Monitoring, 

Records, and Reporting, requires 

sources to submit emissions monitoring 

reports as prescribed by the Director of 

ADEM. Pursuant to this regulation, 

these sources collect air monitoring 

data, quality assure the results, and 

report the data to EPA. ADEM Admin. 

Code r. 335–3–1–.05—Sampling and 

Testing Methods, details the authority 

and means with which ADEM can 

require testing and emissions 

verification. ADEM Admin. Code r. 

335–3–14–.04—Air Permits Authorizing 

Construction in Clean Air: Prevention of 

Significant Deterioration Permitting 

(PSD), describes the State’s use of 

ambient air quality monitoring data for 

purposes of permitting new facilities 

and assessing major modifications to 

existing facilities. Annually, States 

develop and submit to EPA for approval 

statewide ambient monitoring network 

plans consistent with the requirements 

of 40 CFR parts 50, 53, and 58. The 

annual network plan involves an 

evaluation of any proposed changes to 

the monitoring network, includes the 

annual ambient monitoring network 

design plan and a certified evaluation of 

the agency’s ambient monitors and 

auxiliary support equipment.18 On June 

4, 2013, Alabama submitted its plan to 

EPA. On November 22, 2013, EPA 

approved Alabama’s monitoring 

network plan. Alabama’s approved 

monitoring network plan can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2012– 

0689. EPA has made the preliminary 

determination that Alabama’s SIP and 

practices are adequate for the ambient 

air quality monitoring and data systems 

related to the 2008 8-hour ozone 

NAAQS. 

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

enforcement of control measures 

including review of proposed new 

sources: This element consists of three 

sub-elements; enforcement, state-wide 

regulation of new and modified minor 

sources and minor modifications of 

major sources; and preconstruction 

permitting of major sources and major 

modifications in areas designated 

attainment or unclassifiable for the 

subject NAAQS as required by CAA title 

I part C (i.e., the major source PSD 

program). ADEM’s 2008 8-hour ozone 

NAAQS infrastructure SIP submission 

cited a number of SIP provisions to 

address these requirements. 

Specifically, the submission cited 

ADEM Admin. Code r. 335–3–14–.04— 

Air Permits Authorizing Construction in 

Clean Air Areas: Prevention of 

Significant Deterioration Permitting 

(PSD) and ADEM Admin. Code r. 335– 

3–14–.05—Air Permits Authorizing 

Construction in or Near Nonattainment 

Areas. Collectively, these provisions of 

Alabama’s SIP regulate the construction 

of any new major stationary source or 

any modification at an existing major 

stationary source in an area designated 

as nonattainment, attainment or 

unclassifiable. As discussed further 

below, in this action EPA is only 

proposing to approve the enforcement, 

and the regulation of minor sources and 

minor modifications aspects of 

Alabama’s section 110(a)(2)(C) 

infrastructure SIP submission. 

Enforcement: ADEM’s abovedescribed, SIP-approved regulations 

provide for enforcement of ozone 

precursor (VOC and NOX) emission 

limits and control measures and 

construction permitting for new or 

modified stationary sources. 

Preconstruction PSD Permitting for 

Major Sources: With respect to 

Alabama’s infrastructure SIP submission 

related to the preconstruction PSD 

permitting requirements for major 

sources of section 110(a)(2)(C), EPA is 

not proposing any action today 

regarding these requirements and 

instead will act on this portion of the 

submission in a separate action. 

Regulation of minor sources and 

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

requires the SIP to include provisions 

that govern the minor source program 

that regulates emissions of the 2008 8- 

hour ozone NAAQS. ADEM Admin. 

Code r. 334–3–14–.03—Standards for 

Granting Permits, governs the 

preconstruction permitting of 

modifications and construction of minor 

stationary sources. 

EPA has made the preliminary 

determination that Alabama’s SIP and 

practices are adequate for program 

enforcement of control measures and 

regulation of minor sources and 

modifications related to the 2008 8-hour 

ozone NAAQS. 

4. 110(a)(2)(D)(i)(I) and (II) Interstate 

Pollution Transport: Section 

110(a)(2)(D)(i) has two components; 

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

Each of these components have two 

subparts resulting in four distinct 

components, commonly referred to as 

‘‘prongs,’’ that must be addressed in 

infrastructure SIP submissions. The first 

two prongs, which are codified in 

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

that prohibit any source or other type of 

emissions activity in one state from 


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19ADEM Admin. Code r. 335–3–12–.02 

establishes that data reporting requirements for 

sources required to conduct continuous monitoring 

in the state should comply with data reporting 

requirements set forth at 40 CFR part 51, Appendix 

P. Section 40 CFR part 51, Appendix P includes 

that the averaging period used for data reporting 

should be established by the state to correspond to 

Continued 

contributing significantly to 

nonattainment of the NAAQS in another 

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

maintenance of the NAAQS in another 

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

prongs, which are codified in section 

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

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

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

to protect visibility in another state 

(‘‘prong 4’’). With respect to Alabama’s 

infrastructure SIP submission related to 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II) (prongs 1 through 4), 

EPA is not proposing any action today 

regarding these requirements and 

instead will act on these portions of the 

submission in a separate action. 

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

International transport provisions: 

Section 110(a)(2)(D)(ii) requires SIPs to 

include provisions insuring compliance 

with sections 115 and 126 of the Act, 

relating to interstate and international 

pollution abatement. ADEM Admin. 

Code r. 335–3–14–.04—Prevention of 

Significant Deterioration in Permitting 

describes how Alabama notifies 

neighboring states of potential emission 

impacts from new or modified sources 

applying for PSD permits. This 

regulation requires ADEM to provide an 

opportunity for a public hearing to the 

public, which includes State or local air 

pollution control agencies, ‘‘whose 

lands may be affected by emissions from 

the source or modification’’ in Alabama. 

Additionally, Alabama does not have 

any pending obligation under sections 

115 and 126 of the CAA. Accordingly, 

EPA has made the preliminary 

determination that Alabama’s SIP and 

practices are adequate for insuring 

compliance with the applicable 

requirements relating to interstate and 

international pollution abatement for 

the 2008 8-hour ozone NAAQS. 

6. 110(a)(2)(E) Adequate resources: 

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

implementation plan provide (i) 

necessary assurances that the State will 

have adequate personnel, funding, and 

authority under state law to carry out its 

implementation plan, (ii) that the State 

comply with the requirements 

respecting State Boards pursuant to 

section 128 of the Act, and (iii) 

necessary assurances that, where the 

State has relied on a local or regional 

government, agency, or instrumentality 

for the implementation of any plan 

provision, the State has responsibility 

for ensuring adequate implementation 

of such plan provisions. EPA is 

proposing to approve Alabama’s 

infrastructure SIP submission as 

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

respect to sub-element 110(a)(2)(E)(ii) 

(regarding state boards), EPA is 

proposing to disapprove this subelement. EPA’s rationale respecting each 

sub-element is described in turn below. 

In support of EPA’s proposal to 

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

(iii), ADEM’s infrastructure submission 

demonstrate that it is responsible for 

promulgating rules and regulations for 

the NAAQS, emissions standards 

general policies, a system of permits, fee 

schedules for the review of plans, and 

other planning needs. As evidence of 

the adequacy of ADEM’s resources with 

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

submitted a letter to ADEM on April 24, 

2014, outlining 105 grant commitments 

and current status of these commitments 

for fiscal year 2013. The letter EPA 

submitted to Alabama can be accessed 

at www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0689. 

Annually, states update these grant 

commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. There were no outstanding 

issues in relation to the SIP for fiscal 

year 2013, therefore, Alabama’s grants 

were finalized and closed out. EPA has 

made the preliminary determination 

that Alabama has adequate resources for 

implementation of the 2008 8-hour 

ozone NAAQS. In addition, the 

requirements of 110(a)(2)(E)(i) and (iii) 

are met when EPA performs a 

completeness determination for each 

SIP submittal. This determination 

ensures that each submittal provides 

evidence that adequate personnel, 

funding, and legal authority under state 

law has been used to carry out the 

state’s implementation plan and related 

issues. Alabama’s authority is included 

in all prehearings and final SIP 

submittal packages for approval by EPA. 

EPA has made the preliminary 

determination that Alabama has 

adequate resources for implementation 

of the 2008 8-hour ozone NAAQS. 

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

the state comply with section 128 of the 

CAA. Section 128 requires that the SIP 

provide: (1) The majority of members of 

the state board or body which approves 

permits or enforcement orders represent 

the public interest and do not derive 

any significant portion of their income 

from persons subject to permitting or 

enforcement orders under the CAA; and 

(2) any potential conflicts of interest by 

such board or body, or the head of an 

executive agency with similar powers be 

adequately disclosed. After reviewing 

Alabama’s SIP, EPA has made the 

preliminary determination that the 

State’s implementation plan does not 

contain provisions to comply with 

section 128 of the Act, and thus 

Alabama’s August 20, 2012, 

infrastructure SIP submission does not 

meet the requirements of the Act. While 

Alabama has state statutes that may 

address, in whole or in part, 

requirements related to state boards at 

the state level, these provisions are not 

included in the SIP as required by the 

CAA. Based on an evaluation of the 

federally-approved Alabama SIP, EPA is 

proposing to disapprove Alabama’s 

infrastructure SIP submission as 

meeting the requirements of 

110(a)(2)(E)(ii) of the CAA for the 2008 

8-hour ozone NAAQS. The submitted 

provisions which purport to address 

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

other portions of ADEM’s infrastructure 

SIP submission, therefore, EPA is 

proposing to disapprove those 

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

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

monitoring system: ADEM’s 

infrastructure SIP submission describes 

the establishment of requirements for 

compliance testing by emissions 

sampling and analysis, and for 

emissions and operation monitoring to 

ensure the quality of data in the State. 

The Alabama infrastructure SIP 

submission also describes how the 

major source and minor source emission 

inventory programs collect emission 

data throughout the State and ensure the 

quality of such data. Alabama meets 

these requirements through ADEM 

Admin. Code r. 335–3–1–.04— 

Monitoring, Records, and Reporting, and 

335–3–12—Continuous Monitoring 

Requirements for Existing Sources. 

ADEM Admin. Code r. 335–3–1–.04, 

details how sources are required as 

appropriate to establish and maintain 

records; make reports; install, use, and 

maintain such monitoring equipment or 

methods and provide periodic emission 

reports as the regulation requires. These 

reports and records are required to be 

compiled, and submitted on forms 

furnished by the State. Additionally, 

ADEM Admin. Code r. 335–3–12–.02 

requires owners and operators of 

emissions sources to ‘‘install, calibrate, 

operate and maintain all monitoring 

equipment necessary for continuously 

monitoring the pollutants.’’ 19 ADEM 


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the averaging period specified in the emission test 

method used to determine compliance with an 

emission standard for the pollutant/source category 

in question. 

20This regulation has not been incorporated into 

the federally-approved SIP. 

Admin. Code r. 335–3–1–.13—Credible 

Evidence, makes allowances for owners 

and/or operators to utilize ‘‘any credible 

evidence or information relevant’’ to 

demonstrate compliance with 

applicable requirements if the 

appropriate performance or compliance 

test had been performed, for the purpose 

of submitting compliance certification 

and can be used to establish whether or 

not an owner or operator has violated or 

is in violation of any rule or standard. 

Accordingly, EPA is unaware of any 

provision preventing the use of credible 

evidence in the Alabama SIP. 

Additionally, Alabama is required to 

submit emissions data to EPA for 

purposes of the National Emissions 

Inventory (NEI). The NEI is EPA’s 

central repository for air emissions data. 

EPA published the Air Emissions 

Reporting Rule (AERR) on December 5, 

2008, which modified the requirements 

for collecting and reporting air 

emissions data (73 FR 76539). The 

AERR shortened the time states had to 

report emissions data from 17 to 12 

months, giving states one calendar year 

to submit emissions data. All states are 

required to submit a comprehensive 

emissions inventory every three years 

and report emissions for certain larger 

sources annually through EPA’s online 

Emissions Inventory System. States 

report emissions data for the six criteria 

pollutants and the precursors that form 

them—nitrogen oxides, SO2, ammonia, 

lead, carbon monoxide, particulate 

matter, and VOC. Many states also 

voluntarily report emissions of 

hazardous air pollutants. Alabama made 

its latest update to the 2011 NEI on May 

7, 2013. EPA compiles the emissions 

data, supplementing it where necessary, 

and releases it to the general public 

through the Web site http://

www.epa.gov/ttn/chief/

eiinformation.html. EPA has made the 

preliminary determination that 

Alabama’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 2008 

8-hour ozone NAAQS. 

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

This section requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. ADEM Admin. Code r. 335– 

3–2—Air Pollution Emergency, provides 

for the identification of air pollution 

emergency episodes, episode criteria, 

and emissions reduction plans. 

Alabama’s compliance with section 303 

of the CAA and adequate contingency 

plans to implement such authority is 

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

Air Pollution Emergencies. Ala. Code 

Section 22–28–21 provides ADEM the 

authority to order the ‘‘person or 

persons responsible for the operation or 

operations of one or more air 

contaminants sources’’ causing 

‘‘imminent danger to human health or 

safety in question to reduce or 

discontinue emissions immediately.’’ 

The order triggers a hearing no later 

than 24-hours after issuance before the 

Environmental Management 

Commission which can affirm, modify 

or set aside the Director’s order. 

Additionally, the Governor can, by 

proclamation, declare, as to all or any 

part of said area, that an air pollution 

emergency exists and exercise certain 

powers in whole or in part, by the 

issuance of an order or orders to protect 

the public health. EPA has made the 

preliminary determination that 

Alabama’s SIP, state laws and practices 

are adequate to satisfy the infrastructure 

SIP obligations for emergency powers 

related to the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is proposing 

to approve Alabama’s infrastructure SIP 

submission with respect to section 

110(a)(2)(G). 

9. 110(a)(2)(H) Future SIP revisions: 

As previously discussed, ADEM is 

responsible for adopting air quality 

rules and revising SIPs as needed to 

attain or maintain the NAAQS. Alabama 

has the ability and authority to respond 

to calls for SIP revisions, and has 

provided a number of SIP revisions over 

the years for implementation of the 

NAAQS. ADEM Admin. Code r. 335–1– 

1–.03—Organization and Duties of the 

Commission,20 provides ADEM with the 

authority to establish, adopt, 

promulgate, modify, repeal and suspend 

rules, regulations, or environmental 

standards which may be applicable to 

Alabama or ‘‘any of its geographic 

parts.’’ Admin. Code r. 335–1–1–.03— 

Ambient Air Quality Standards, 

provides ADEM the authority to amend, 

revise, and incorporate the NAAQS into 

its SIP. EPA has made the preliminary 

determination that Alabama adequately 

demonstrates a commitment to provide 

future SIP revisions related to the 2008 

8-hour ozone NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submission with respect to section 

110(a)(2)(H). 

10. 110(a)(2)(J) (121 consultation) 

Consultation with government officials: 

EPA is proposing to approve Alabama’s 

infrastructure SIP submission for the 

2008 8-hour ozone NAAQS with respect 

to the general requirement in section 

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

SIP that complies with the applicable 

consultation requirements of section 

121 and the public notification 

requirements of section 127. With 

respect to Alabama’s infrastructure SIP 

submission related to the 

preconstruction PSD permitting and 

visibility protection requirements, EPA 

is not proposing any action today 

regarding these requirements and 

instead will act on these portions of the 

submission in a separate action. EPA’s 

rationale for applicable consultation 

requirements of section 121 and the 

public notification requirements of 

section 127 is described below. 

110(a)(2)(J) (121 consultation) 

Consultation with government officials: 

ADEM Admin. Code r. 335–3–1–.03— 

Ambient Air Quality Standards, as well 

as its Regional Haze Implementation 

Plan (which allows for continued 

consultation with appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

Federal Land Managers), provide for 

consultation with government officials 

whose jurisdictions might be affected by 

SIP development activities. Specifically, 

Alabama adopted state-wide 

consultation procedures for the 

implementation of transportation 

conformity which includes the 

development of mobile inventories for 

SIP development. These consultation 

procedures were developed in 

coordination with the transportation 

partners in the State and are consistent 

with the approaches used for 

development of mobile inventories for 

SIPs. Required partners covered by 

Alabama’s consultation procedures 

include federal, state and local 

transportation and air quality agency 

officials. EPA has made the preliminary 

determination that Alabama’s SIP and 

practices adequately demonstrate 

consultation with government officials 

related to the 2008 8-hour ozone 

NAAQS when necessary. 

110(a)(2)(J) (127 public notification) 

Public notification: ADEM Admin. Code 

r. 335–3–14–.01(7)—Public 

Participation, and 335–3–14–.05(13)— 

Public Participation, and Ala. Code 

section 22–28–21—Air Pollution 

Emergencies, provides for public 

notification when air pollution episodes 

occur. Furthermore, ADEM has several 

public notice mechanisms in place to 

notify the public of ozone and other 

pollutant forecasting. Alabama 

maintains a public Web site on which 

daily air quality index forecasts are 

posted for the Birmingham, Huntsville, 


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Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 2859 

21This regulation has not been incorporated into 

the federally-approved SIP. 

22Title V program regulations are federally 

approved but not incorporated into the federallyapproved SIP. 

and Mobile areas. This Web site can be 

accessed at: http://adem.alabama.gov/

programs/air/airquality.cnt. 

Accordingly, EPA is proposing to 

approve Alabama’s infrastructure SIP 

submission with respect to section 

110(a)(2)(J) public notification. 

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

modeling/data: ADEM Admin. Code r 

335–3–14–.04—Prevention of 

Significant Deterioration Permitting, of 

the Alabama SIP specifies that required 

air modeling be conducted in 

accordance with 40 CFR part 51, 

Appendix W ‘‘Guideline on Air Quality 

Models.’’ This regulation provides 

Alabama with the authority to conduct 

air quality modeling and report the 

results of such modeling to EPA. These 

regulations also demonstrate that 

Alabama has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 2008 8-hour ozone 

NAAQS. Additionally, Alabama 

supports a regional effort to coordinate 

the development of emissions 

inventories and conduct regional 

modeling for several NAAQS, including 

the 2008 8-hour ozone NAAQS, for the 

southeastern states. ADEM Admin. Code 

r 335–3–1–.04—Monitoring, Records, 

and Reporting details how sources are 

required as appropriate to establish and 

maintain records; make reports; install, 

use, and maintain such monitoring 

equipment or methods and provide 

periodic emission reports as the 

regulation requires. These reports and 

records are required to be compiled, and 

submitted on forms furnished by the 

State. Taken as a whole, Alabama’s air 

quality regulations and practices 

demonstrate that ADEM has the 

authority to provide relevant data for 

the purpose of predicting the effect on 

ambient air quality of any emissions of 

any pollutant for which a NAAQS had 

been promulgated, and to provide such 

information to the EPA Administrator 

upon request. EPA has made the 

preliminary determination that 

Alabama’s SIP and practices adequately 

demonstrate the State’s ability to 

provide for air quality modeling, along 

with analysis of the associated data, 

related to the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is proposing 

to approve South Carolina’s 

infrastructure SIP submission with 

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

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

section requires the owner or operator of 

each major stationary source to pay to 

the permitting authority, as a condition 

of any permit required under the CAA, 

a fee sufficient to cover (i) the 

reasonable costs of reviewing and acting 

upon any application for such a permit, 

and (ii) if the owner or operator receives 

a permit for such source, the reasonable 

costs of implementing and enforcing the 

terms and conditions of any such permit 

(not including any court costs or other 

costs associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

ADEM Admin. Code r. 335–1–6— 

Application Fees 21 requires ADEM to 

charge permit-specific fees to the 

applicant/source as authorized by State 

legislation and Ala. Code section 22– 

22A–5. ADEM thus assures its 

permitting fee structure is sufficient for 

the reasonable cost of reviewing and 

acting upon PSD and NNSR permits. 

Additionally, Alabama has a fullyapproved title V operating permit 

program—ADEM Admin. Code r. 335– 

1–7—‘‘Air Division Operating Permit 

Fees’’ 22—that covers the cost of 

implementation and enforcement of 

PSD and NNSR permits after they have 

been issued. EPA has made the 

preliminary determination that 

Alabama’s state rules and practices 

adequately provide for permitting fees 

related to the 2008 8-hour ozone 

NAAQS, when necessary. Accordingly, 

EPA is proposing to approve Alabama’s 

infrastructure SIP submission with 

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

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

participation by affected local entities: 

ADEM coordinates with local 

governments affected by the SIP. 

Alabama’s SIP also includes a 

description of the public participation 

process for SIP development. Alabama 

has consulted with local entities for the 

development of transportation 

conformity and has worked with the 

Federal Land Managers as a requirement 

of its regional haze rule. More 

specifically, Alabama adopted Statewide consultation procedures for the 

implementation of transportation 

conformity which includes the 

development of mobile inventories for 

SIP development and the requirements 

that link transportation planning and air 

quality planning in nonattainment and 

maintenance areas. These consultation 

and participation procedures have been 

approved in the Alabama SIP as the 

non-regulatory provisions: ‘‘Alabama 

Interagency Transportation Conformity 

Memorandum of Agreement’’ and 

‘‘Conformity SIP for Birmingham and 

Jackson County.’’ These provisions were 

approved on May 11, 2000, and March 

26, 2009, respectively. See 65 FR 30362 

and 74 FR 13118. Required partners 

covered by Alabama’s consultation 

procedures include federal, state and 

local transportation and air quality 

agency officials. The state and local 

transportation agency officials are most 

directly impacted by transportation 

conformity requirements and are 

required to provide public involvement 

for their activities including the analysis 

demonstrating how they meet 

transportation conformity requirements. 

EPA has made the preliminary 

determination that Alabama’s SIP and 

practices adequately demonstrate 

consultation with affected local entities 

related to the 2008 8-hour ozone 

NAAQS when necessary. 

V. Proposed Action 

As described above, with the 

exception of the PSD permitting 

requirements for major sources of 

section 110(a)(2)(C) and (J), the 

interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), the state board 

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

and the visibility requirements of 

110(a)(2)(J), EPA is proposing to 

approve Alabama’s August 20, 2012, SIP 

submission for the 2008 8-hour ozone 

NAAQS for the above described 

infrastructure SIP requirements. EPA is 

proposing to disapprove section 

110(a)(2)(E)(ii) of Alabama’s 

infrastructure submission because the 

State’s implementation plan does not 

contain provisions to comply with 

section 128 of the Act, and thus 

Alabama’s August 20, 2012, 

infrastructure SIP submission does not 

meet the requirements of the Act. This 

proposed approval in part and 

disapproval in part, however, does not 

include the PSD permitting 

requirements for major sources of 

section 110(a)(2)(C) and (J), the 

interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), and the visibility 

requirements of section 110(a)(2)(J) and 

will be addressed by EPA in a separate 

action. 

Under section 179(a) of the CAA, final 

disapproval of a submittal that 

addresses a requirement of a CAA Part 

D Plan or is required in response to a 

finding of substantial inadequacy as 

described in CAA section 110(k)(5) (SIP 

call) starts a sanctions clock. The 

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

provisions (the provisions being 

proposed for disapproval in today’s 

notice) were not submitted to meet 

requirements for Part D or a SIP call, 

and therefore, if EPA takes final action 


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2860 Federal Register / Vol. 80, No. 13 / Wednesday, January 21, 2015 / Proposed Rules 

to disapprove this submittal, no 

sanctions will be triggered. However, if 

this disapproval action is finalized, that 

final action will trigger the requirement 

under section 110(c) that EPA 

promulgate a FIP no later than 2 years 

from the date of the disapproval unless 

the State corrects the deficiency, and 

EPA approves the plan or plan revision 

before EPA promulgates such FIP. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive 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 

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, Intergovernmental 

relations, Nitrogen dioxide, Particulate 

Matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: January 6, 2015. 

V. Anne Heard, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2015–00870 Filed 1–20–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2014–0796; FRL–9921–75– 

Region 1] 

Approval and Promulgation of Air 

Quality Implementation Plans; New 

Hampshire; Prevention of Significant 

Deterioration Program 

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 New 

Hampshire on November 15, 2012. The 

submittal proposes to ensure that the 

State PSD program is consistent with 

the Final New Source Review (NSR) 

Improvement Rule issued on December 

31, 2002; the Final Rule Governing the 

Implementation of NSR for Fine 

Particulate Matter issued on May 16, 

2008; and the Final Rule to Establish 

Increments, Significant Impact Levels 

(SILs) and a Significant Monitoring 

Concentration (SMC) issued on October 

20, 2010. This action is being taken 

under the Clean Air Act (CAA). 

DATES: Written comments must be 

received on or before February 20, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R01–OAR–2014–0796 by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: mcdonnell.ida@epa.gov. 

3. Fax: (617) 918–0653 

4. Mail: ‘‘Docket Identification 

Number EPA–R01–OAR–2014–0796’’, 

Ida McDonnell, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, Office of Ecosystem 

Protection, Air Permits, Toxics, and 

Indoor Programs Unit, 5 Post Office 

Square—Suite 100, (Mail code OEP05– 

2), Boston, MA 02109–3912. 

5. Hand Delivery or Courier: Deliver 

your comments to: Ida McDonnell, 

Manager, Air Permits, Toxics, and 

Indoor Programs Unit, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, Office of 

Ecosystem Protection, Air Permits, 

Toxics and Indoor Programs Unit, 5 Post 

Office Square—Suite 100, (mail code 

OEP05–2), Boston, MA 02109–3912. 

Such deliveries are only accepted 

during the Regional Office’s normal 

hours of operation. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R01–OAR–2014– 

0796. 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 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov, or email, 

information that you consider to be CBI 

or otherwise protected. 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. 


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