Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 8455 

distributable amount to supported 

organizations that are attentive to O. 

(6) Distributions that count toward 

distribution requirement. * * * 

Distributions by the supporting 

organization that count toward the 

distribution requirement imposed in 

paragraph (i)(5)(ii) of this section are 

limited to the following— 

* * * * * 

(iii) Any reasonable and necessary— 

(A) Administrative expenses paid to 

accomplish the exempt purposes of the 

supported organization, which do not 

include expenses incurred in the 

production of investment income or the 

conduct of fundraising activities, except 

as provided in paragraph (i)(6)(iii)(B) of 

this section; and 

(B) Expenses incurred to solicit 

contributions that are received directly 

by a supported organization, but only to 

the extent the amount of such expenses 

does not exceed the amount of 

contributions actually received by the 

supported organization as a result of the 

solicitation, as substantiated in writing 

by the supported organization; 

* * * * * 

(v) Any amount set aside for a specific 

project that accomplishes the exempt 

purposes of a supported organization, 

with such set-aside counting toward the 

distribution requirement for the taxable 

year in which the amount is set aside 

but not in the year in which it is 

actually paid, if at the time of the setaside, the supporting organization— 

* * * * * 

(l) Effective/applicability dates. (1) 

Paragraphs (a)(6), (f)(5), and (i) of this 

section are effective on December 28, 

2012, except— 

(i) Paragraphs (i)(4)(ii)(C), (i)(5)(ii)(C) 

and (D), (i)(6)(iv), (i)(7)(ii), and (i)(8) of 

this section are applicable on December 

21, 2015; and 

(ii) Paragraphs (f)(5)(ii), (i)(2)(i) and 

(iii), (i)(3)(i), (i)(4)(ii)(A)(1), (i)(4)(ii)(B), 

(i)(4)(iii) and (iv), (i)(5)(ii)(A) and (B), 

(i)(5)(iii)(A), (i)(6)(i), (iii) and (v) of this 

section, Example 3 of paragraph 

(i)(3)(iv) of this section, and Example 4 

of paragraph (i)(5)(iii)(D) of this section 

are effective on the date the Treasury 

decision adopting these rules as final or 

temporary regulations is published in 

the Federal Register. 

(2) See paragraphs (i)(5)(ii)(B) and (C) 

and (i)(8) of § 1.509(a)–4T contained in 

26 CFR part 1, revised as of April 1, 

2015, for certain rules regarding nonfunctionally integrated Type III 

supporting organizations effective 

before December 21, 2015. See 

paragraphs (i)(5)(ii)(A) and (B) and 

(i)(5)(iii)(D) of § 1.509(a)–4 (as effective 

December 21, 2015), for certain rules 

regarding non-functionally integrated 

Type III supporting organizations 

effective before the date the Treasury 

decision adopting these rules as final or 

temporary regulations is published in 

the Federal Register. 

John Dalrymple, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2016–02858 Filed 2–18–16; 8:45 am] 

BILLING CODE 4830–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R02–OAR–2016–0060, FRL–9942–52– 

Region 2] 

Approval of Air Quality Implementation 

Plans; Puerto Rico; Infrastructure 

Requirements for the 1997 and 2008 

Ozone, 1997 and 2006 Fine Particulate 

Matter and 2008 Lead NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

most elements of the five State 

Implementation Plan (SIP) revision 

submittals from the Commonwealth of 

Puerto Rico to demonstrate that the 

State meets the requirements of section 

110(a)(1) and (2) of the Clean Air Act 

(CAA) for the 1997 and 2008 ozone, 

1997 and 2006 fine particulate matter 

(PM2.5) and 2008 lead National Ambient 

Air Quality Standards (NAAQS). The 

plan is required to address basic 

program elements, including, but not 

limited to, regulatory structure, 

monitoring, modeling, legal authority, 

and adequate resources necessary to 

assure attainment and maintenance of 

the standards. These elements are 

referred to as infrastructure 

requirements. In this rulemaking action, 

EPA is proposing to approve, in 

accordance with the requirements of the 

CAA, the infrastructure SIP submissions 

with the exception of some portions of 

the submittals addressing Prevention of 

Significant Deterioration (PSD). 

DATES: Written comments must be 

received on or before March 21, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R02–OAR–2016–0060 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

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

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

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

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Raymond K. Forde, Air Programs 

Branch, Environmental Protection 

Agency, 290 Broadway, 25th Floor, New 

York, New York 10007–1866, (212) 637– 

3716, or by email at forde.raymond@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

The SUPPLEMENTARY INFORMATION

section is arranged as follows: 

Table of Contents 

I. Background 

II. Summary of State Submittals 

III. EPA’s Approach To Review Infrastructure 

SIPs 

IV. Summary of EPA’s Rationale for 

Proposing Approval and Disapproval 

V. Proposed Action 

VI. Incorporation by Reference 

VII. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, the Environmental 

Protection Agency (EPA) promulgated a 

revised national ambient air quality 

standard (NAAQS or standards) for 

ozone (62 FR 38856) and a new NAAQS 

for fine particle matter (PM2.5) (62 FR 

38652). The revised ozone NAAQS was 

based on 8-hour average concentrations. 

The 8-hour averaging period replaced 

the previous 1-hour averaging period, 

and the level of the NAAQS was 

changed from 0.12 parts per million 

(ppm) to 0.08 ppm. The new PM2.5

NAAQS established a health-based 

annual standard of 15.0 micrograms per 

cubic meter (mg/m3) based on a 3-year 

average of annual mean PM2.5

concentrations, and a 24-hour standard 

of 65 mg/m3 based on a 3-year average 

of the 98th percentile of 24-hour 

concentrations. 

On October 17, 2006 (71 FR 61144), 

effective December 18, 2006, EPA 

revised the 24-hour average PM2.5


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
8456 Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 

1For 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. 

primary and secondary NAAQS from 65 

mg/m3 to 35 mg/m3. As required by 

section 110(a)(1) of the CAA, the 

110(a)(2) submittals were due within 

three years after promulgation of the 

revised standard. 

On March 27, 2008 (73 FR 16436) 

EPA strengthened its NAAQS for 

ground-level ozone, revising the 8-hour 

primary ozone standard to 0.075 ppm. 

EPA also strengthened the secondary 8- 

hour ozone standard to the level of 

0.075 ppm making it identical to the 

revised primary standard. 

On November 12, 2008 (73 FR 66964), 

EPA promulgated a revised NAAQS for 

lead. The Agency revised the level of 

the primary lead standard from 1.5 mg/ 

m3 to 0.15 mg/m3 . The EPA also revised 

the secondary NAAQS to 0.15 mg/m3

and made it identical to the revised 

primary standard. 

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. 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 content 

of such SIP submission may also vary 

depending upon what provisions the 

state’s existing SIP already contains. 

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 earlier, 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. 

II. Summary of State Submittals 

The Commonwealth of Puerto Rico 

through the Commonwealth of Puerto 

Rico Environmental Quality Board 

(PREQB) submitted five revisions to its 

SIP to satisfy the requirements of 

section 110(a)(2) of the CAA for the five 

different NAAQS. On November 29, 

2006, PREQB submitted SIP revisions 

addressing the infrastructure 

requirements for the 1997 ozone and 

PM2.5 NAAQS. On January 22, 2013 and 

April 16, 2015, PREQB submitted SIP 

revisions addressing the infrastructure 

requirements for the 2006 PM2.5 and 

2008 ozone NAAQS, and supplemented 

the November 2006 submittal for the 

1997 ozone and PM2.5 NAAQS. On 

January 31, 2013, PREQB submitted SIP 

revisions addressing the infrastructure 

requirements for the 2008 lead NAAQS. 

On February 1, 2016, PREQB submitted 

additional provisions for inclusion into 

the SIP which address infrastructure SIP 

requirements for 1997 and 2008 ozone, 

1997 and 2006 PM2.5 and 2008 lead 

NAAQS. Each of the infrastructure SIP 

revisions addressed the following 

infrastructure elements for the 

applicable NAAQS which EPA is 

proposing to approve pursuant to 

section 110(a)(2) of the CAA. 

Specifically sections 110(a)(2)(A), (B), 

portions of (C), portions of (D), (E), (F), 

(G), (H), portions of (J), (K), (L), and (M) 

for the 1997 and 2008 ozone, 1997 and 

2006 PM2.5 and 2008 lead NAAQS. 

III. EPA’s Approach To Review 

Infrastructure SIPs 

EPA is acting upon Puerto Rico’s SIP 

submissions that address the 

infrastructure requirements of section 

110(a)(1) and (2) of the CAA for the 

1997 and 2008 ozone, 1997 and 2006 

PM2.5 and 2008 lead NAAQS. The 

requirement for states to make a SIP 

submission of this type arises out of 

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

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

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 302(d) of the CAA includes the 

Commonwealth of Puerto Rico in the 

definition of the term ‘‘State.’’ Section 

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

elements that ‘‘each such plan’’ 

submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of section 

110(a)(1) and (2) as ‘‘infrastructure SIP’’ 

submissions. Although the term 

‘‘infrastructure SIP’’ does not appear in 

the CAA, EPA uses the term to 

distinguish this particular type of SIP 

submission from submissions that are 

intended to satisfy other SIP 

requirements under the CAA, such as 

‘‘nonattainment SIP’’ or ‘‘attainment 

plan SIP’’ submissions to address the 

nonattainment planning requirements of 

part D of Title I of the CAA, ‘‘regional 

haze SIP’’ submissions required by EPA 

rule to address the visibility protection 

requirements of section 169A of the 

CAA, and nonattainment new source 

review 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.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 

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 CAA, which specifically 

address nonattainment SIP 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 8457 

2See, 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)). 

3EPA 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. 

4See, 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). 

5On 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. 

6For 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. 

7EPA 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. 

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. 

requirements.2 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.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 submission. 

Another example of ambiguity within 

section 110(a)(1) and (2) with respect to 

infrastructure SIPs pertains to whether 

states must meet all of the infrastructure 

SIP requirements in a single SIP 

submission, and whether EPA must act 

upon such SIP submission in a single 

action. Although section 110(a)(1) 

directs states to submit ‘‘a plan’’ to meet 

these requirements, EPA interprets the 

CAA to allow states to make multiple 

SIP submissions separately addressing 

infrastructure SIP elements for the same 

NAAQS. If states elect to make such 

multiple SIP submissions to meet the 

infrastructure SIP requirements, EPA 

can elect to act on such submissions 

either individually or in a larger 

combined action.4 Similarly, EPA 

interprets the CAA to allow it to take 

action on the individual parts of one 

larger, comprehensive infrastructure SIP 

submission for a given NAAQS without 

concurrent action on the entire 

submission. For example, EPA has 

sometimes elected to act at different 

times on various elements and subelements of the same infrastructure SIP 

submission.5

Ambiguities within section 110(a)(1) 

and (2) may also arise with respect to 

infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

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

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

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

different pollutants, because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.6

EPA notes that interpretation of 

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

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

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

these other types of SIP submissions. 

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

attainment plan SIP submissions 

required by part D to meet the 

‘‘applicable requirements’’ of section 

110(a)(2); thus, attainment plan SIP 

submissions must meet the 

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

regarding enforceable emission limits 

and control measures and section 

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

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the 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.7 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

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 

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 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
8458 Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 

9EPA’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. 

10By 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. 

SIP submissions.9 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). EPA 

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

that infrastructure SIP submissions need 

to address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

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

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

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

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and NSR 

pollutants, including Green House 

Gases (GHGs). By contrast, structural 

PSD program requirements do not 

include provisions that are not required 

under EPA’s regulations at 40 CFR 

51.166 but are merely available as an 

option for the state, such as the option 

to provide grandfathering of complete 

permit applications with respect to the 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

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

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

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

inter alia, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

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 (SSM) that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (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 SIPapproved 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.10 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 

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

each and every provision of a state’s 

existing SIP against all requirements in 

the CAA and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

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

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

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

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

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

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of section 110(a)(1) 

and (2) because the CAA provides other 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 8459 

11For 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 ‘‘Findings of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

12EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under section 110(k)(6) of the 

CAA to remove numerous other SIP provisions that 

the Agency determined it had approved in error. 

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

34641 (June 27, 1997) (corrections to American 

Samoa, Arizona, California, Hawaii, and Nevada 

SIPs); 69 FR 67062, November 16, 2004 (corrections 

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

2009) (corrections to Arizona and Nevada SIPs). 

13See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

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

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

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

14These elements are typically referred to as 

nonattainment SIP or attainment plan elements and 

are due by the dates prescribed under subparts 2 

through 5 of part D. 

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.11

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.12

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.13

IV. Summary of EPA’s Rationale for 

Proposing Approval and Disapproval 

In this rulemaking action, EPA is 

proposing approval of Puerto Rico’s 

infrastructure SIP submittals for the 

1997 and 2008 ozone, 1997 and 2006 

PM2.5 and 2008 lead NAAQS as 

addressing requirements in section 

110(a)(2)(A), (B), (C) (with the exception 

of program requirements for PSD), (D)(i) 

(with the exception of program 

requirements related to PSD), (D)(ii) 

(with the exception of program 

requirements related to PSD), (E), (F), 

(G), (H), (J) (with the exception of 

program requirements related to PSD), 

(K), (L), and (M) of the CAA. 

On February 1, 2016, PREQB 

submitted rules from the 

Commonwealth of Puerto Rico Statutes, 

‘‘Environmental Public Policy Act,’’ Act 

No. 416 (2004, as amended), Section 

7.A, and Section 7.D and ‘‘Puerto Rico 

Government Ethics Law,’’ Act. No 1 

(approved January 3, 2012), Section 5, 

for incorporation into the SIP to address 

the requirements of Sections 

110(a)(2)(E)(ii) and 128 of the CAA. 

Among other things, these collective 

provisions prohibit members of the 

Commonwealth’s Environmental 

Quality Board from having any 

‘‘conflicts of interests that might 

interfere with the discharge their 

offices,’’ and require disclosure of 

potential conflicts of interest. EPA is 

proposing to approve these submissions, 

which are intended to apply to any 

person subject to CAA 128, for inclusion 

into the SIP as meeting CAA obligations 

under section 110(a)(2)(E)(ii) for the 

1997 ozone, 1997 PM2.5, 2006 PM2.5, 

2008 lead, and 2008 ozone NAAQS. 

EPA Region 2 is the permitting 

authority for Puerto Rico’s PSD Major 

Source Program. The sources affected by 

PSD Program are subject to the Federal 

Implementation Plan PSD control 

requirements in 40 CFR Sections 52.21. 

Puerto Rico does not have its own state 

adopted PSD program, its infrastructure 

submission is not approvable with 

respect to this element. Therefore, EPA 

is disapproving the following 

infrastructure SIP elements as they 

relate to the PSD program for lack of a 

State adopted PSD rule to satisfy section 

110(a)(2) for the 1997 and 2008 ozone, 

1997 and 2006 PM2.5, and 2008 lead 

NAAQS: sections 110(a)(2)(C), (D)(i) 

prong 3, (D)(ii) and (J). It should be 

noted that a FIP clock will not be started 

because a PSD FIP is currently in place, 

and sanctions will not be triggered. 

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

meet applicable requirements of part C 

of the CAA related to visibility. Puerto 

Rico’s submittal does not address the 

visibility portion of J, including 

submission of any visibility measures 

under this sub-element. As indicated in 

EPA’s September 2013 Infrastructure 

Guidance, although states are subject to 

visibility and regional haze program 

requirements under part C, the visibility 

and regional haze program requirements 

under part C do not change due to 

promulgation of, or revision to, a 

NAAQS. The SIP is not required to be 

revised with respect to visibility 

protection since there are no new 

visibility obligations. Accordingly, air 

agencies do not need to address the 

visibility sub-element of section 

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

submissions. Since Puerto Rico did not 

make a submission addressing the 

visibility portion of (J), action on this 

sub-element is not applicable. 

EPA is not acting on section 

110(a)(2)(I), plan revisions for 

nonattainment areas. Specific SIP 

submissions for nonattainment areas, as 

required under CAA title I part D, are 

subject to a different submission 

schedule 14 than those for section 110 

infrastructure elements and are 

reviewed and acted upon under a 

separate process. 

A detailed analysis of EPA’s review 

and rationale for proposing to approve 

and disapprove elements of the 

infrastructure SIP submittals as 

addressing these CAA requirements may 

be found in the Technical Support 

Document (TSD) for this proposed 

rulemaking action which is available on 

line at www.regulations.gov, Docket ID 

Number EPA–R02–OAR–2016–0060. 

EPA is soliciting public comments on 

the issues discussed in this document. 

These comments will be considered 

before taking final action. 

V. Proposed Action 

EPA is proposing to approve Puerto 

Rico’s infrastructure submittals dated 

November 29, 2006, January 22 and 31, 

2013, April 16, 2005 and February 1, 

2016, for the 1997 and 2008 ozone, 1997 

and 2006 PM2.5 and 2008 lead NAAQS, 

respectively, as meeting the 

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

CAA, including specifically section 

110(a)(2)(A), (B), (C) (with the exception 

of program requirements for PSD), (D)(i) 

(with the exception of program 

requirements related to PSD), (D)(ii) 

(with the exception of program 

requirements related to PSD), (E), (F), 

(G), (H), (J) (with the exception of 

program requirements related to PSD), 

(K), (L), and (M). 

EPA is proposing to incorporate the 

Commonwealth of Puerto Rico’s 

‘‘Environmental Public Policy Act’’, Act 

No. 416 (2004, as amended), Section 

7.A, and Section 7.D and the ‘‘Puerto 

Rico Government Ethics Law,’’ Act. No. 

1 (approved January 3, 2012), Section 5, 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
8460 Federal Register / Vol. 81, No. 33 / Friday, February 19, 2016 / Proposed Rules 

for inclusion into Puerto Rico’s SIP to 

address the requirements of Sections 

110(a)(2)(E)(ii) and 128 of the CAA. EPA 

is further proposing to approve these 

submissions, which are intended to 

apply to any person subject to CAA 128, 

for inclusion into the SIP as meeting 

CAA obligations section 110(a)(2)(E)(ii) 

for the 1997 ozone, 1997 PM2.5, 2006 

PM2.5, 2008 lead, and 2008 ozone 

NAAQS. 

EPA is disapproving the following 

infrastructure SIP requirements as they 

relate to the PSD program for lack of a 

State adopted PSD rule to satisfy section 

110(a)(2) for the 1997 and 2008 ozone 

NAAQS, 1997 and 2006 PM2.5 NAAQS, 

and 2008 lead NAAQS: sections 

110(a)(2)(C), (D)(i) prong 3, (D)(ii) and 

(J). It should be noted that a FIP clock 

will not be started because a PSD FIP is 

currently in place, and sanctions will 

not be triggered. Since Puerto Rico is 

not required to address the visibility 

portion of section 110(a)(2)(J) in the 

context of an infrastructure SIP, and 

therefore did not make a submission, 

action on this sub-element is not 

applicable. 

VI. Incorporation by Reference 

In this rule, EPA is proposing to 

include in a final EPA rule regulatory 

text that includes incorporation by 

reference. In accordance with 

requirements of 1 CFR 51.5, the EPA is 

proposing to incorporate by reference 

Puerto Rico’s ‘‘Environmental Public 

Policy Act,’’ Act No. 416 (2004, as 

amended), Section 7.A, and Section 7.D 

and ‘‘Puerto Rico Government Ethics 

Law,’’ Act. No. 1 (approved January 3, 

2012), Section 5. These provisions are 

intended to apply to any person subject 

to CAA Section 128. The EPA has made, 

and will continue to make, these 

documents generally available 

electronically through http://

www.regulations (see the FOR FURTHER

INFORMATION CONTACT section of this 

preamble for more information). 

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA 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 CAA. 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 

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, this proposed rulemaking 

action, pertaining to Puerto Rico’s 

section 110(a)(2) infrastructure 

requirements for the 1997 and 2008 

ozone NAAQS, 1997 and 2006 PM2.5

NAAQS, and 2008 lead NAAQS 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, Nitrogen dioxide, 

Intergovernmental relations, Lead, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

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

Dated: February 9, 2016. 

Judith A. Enck, 

Regional Administrator, Region 2. 

[FR Doc. 2016–03395 Filed 2–18–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR part 52 

[EPA–R05–OAR–2015–0529; FRL–9942–57– 

Region 5] 

Air Plan Approval; Wisconsin; 

Infrastructure SIP Requirements for 

the 2012 PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

some elements of a state 

implementation plan (SIP) submission 

from Wisconsin regarding the 

infrastructure requirements of section 

110 of the Clean Air Act (CAA) for the 

2012 fine particulate matter (PM2.5) 

National Ambient Air Quality Standards 

(NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. 

DATES: Comments must be received on 

or before March 21, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2015–0529 at http://

www.regulations.gov or via email to 

aburano.douglas@epa.gov. For 

comments submitted at Regulations.gov, 

follow the online instructions for 

submitting comments. Once submitted, 

comments cannot be edited or removed 

from Regulations.gov. For either manner 

of submission, EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e. 

on the Web, cloud, or other file sharing 

system). For additional submission 

methods, please contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section. For the 


asabaliauskas on DSK5VPTVN1PROD with PROPOSALS