### 45428 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules

Dated: May 10, 2016.
Sterling Rideout, Acting Regional Director,
Mid-Continent Region.

[FR Doc. 2016–16657 Filed 7–13–16; 8:45 am]

**BILLING CODE 4310–05–P**

**DEPARTMENT OF HOMELAND**
**SECURITY**

**Coast Guard**

**33 CFR Part 110**

**[Docket No. USCG–2014–0142]**

**RIN 1625–AA01**

**Anchorage Regulations; Special Anchorage Areas, Marina del Rey**  **Harbor, California**

**AGENCY :**  Coast Guard, DHS.

**ACTION :**  Supplemental notice of proposed rulemaking; reopen comment period.

**SUMMARY :**  The Coast Guard is re-opening the comment period for its supplemental notice of proposed rulemaking (SNPRM), published in May 2014. The Coast Guard is proposing to amend the shape and reduce the size of the special anchorage in Marina del Rey Harbor, California. Additionally, we propose to clarify the language in the note section of the existing regulation. Because the date of the public meeting was not published in the Federal Register until after the meeting was held, the Coast Guard is providing an additional opportunity for public

comment.

**DATES :**  Comments and related material
must reach the Coast Guard on or before August 15, 2016.

**ADDRESSES :**  You may submit written comments identified by docket number USCG–2014–0142 using the Federal eRulemaking Portal at http:// www.regulations.gov.

**FOR FURTHER INFORMATION CONTACT :**  If you have questions concerning the proposed rule, please call or email Lieutenant Junior Grade Colleen Patton, Waterways Management Branch, Eleventh Coast Guard District, telephone 510–437–5984, email Colleen.M.Patton@uscg.mil.

**SUPPLEMENTARY INFORMATION :** 
Background and Purpose

We published a notice of proposed rulemaking (NPRM) in the Federal Register on May 28, 2014 (79 FR 30509), entitled ‘‘Anchorage Regulations: Special Anchorage Areas, Marina del Rey Harbor, California.’’ The NPRM proposed to disestablish the special anchorage area. In response to comments received, we have issued a supplemental NPRM (81 FR 10156, February 29, 2016) to retain the special anchorage, but amend the shape and reduce the size of the anchorage to remove the anchorage area from a location where it could endanger vessel
traffic.

Because the date of the public meeting was not published in the Federal Register until after the meeting was held, we have concluded that
additional comments would aid this rulemaking. Therefore, we are publishing this document to reopen the comment period.

You may view the SNPRM, in our online docket, in addition to supporting documents prepared by the Coast Guard and comments submitted thus far by going to http://www.regulations.gov. Once there, insert ‘‘USCG–2014–0142’’ in the ‘‘Keyword’’ box and click
‘‘Search.’’

We encourage you to participate in this rulemaking by submitting comments to the docket through the Federal eRulemaking Portal at http:// www.regulations.gov. If your material cannot be submitted using http:// www.regulations.gov, contact the person
in the **FOR FURTHER INFORMATION**

**CONTACT** section of this document for
alternate instructions.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Public Meeting

We do not now plan to hold another public meeting, but will consider holding one in response to a request from the public. You may submit a request for a meeting either by submitting a comment to the docket or by writing to Eleventh Coast Guard
District at the address under **ADDRESSES** explaining why one would be
beneficial. If we determine that a meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice.

Reopening the Comment Period

The comment period for the SNPRM published in February 2016 ended April 30, 2016. In order to give the public a chance to make additional comments, the Coast Guard is reopening the comment period on our SNPRM. All comments must reach the public docket at the address found in **ADDRESSES** on or before August 15, 2016.

Dated: June 10, 2016.
J.A. Servidio,

RADM, U.S. Coast Guard, Commander,

Eleventh Coast Guard District.

[FR Doc. 2016–16713 Filed 7–13–16; 8:45 am]

**BILLING CODE 9110–04–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R04–OAR–2014–0431; FRL– 9948–98– Region 4]** 

**Air Plan Approval/Disapproval; Alabama; Infrastructure Requirements** 
**for the 2010 Sulfur Dioxide National Ambient Air Quality Standard** 

**AGENCY :**  Environmental Protection Agency.

**ACTION :**  Proposed rule.

**SUMMARY :**  The Environmental Protection Agency (EPA) is proposing to approve in part and disapprove in part portions of the April 23, 2013, State Implementation Plan (SIP) submission, submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM),
for inclusion into the Alabama SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO 2 ) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation,
maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an
‘‘infrastructure’’ SIP. ADEM certified
that the Alabama SIP contains provisions that ensure the 2010 1-hour

SO 2 NAAQS is implemented, enforced,
and maintained in Alabama. With the exception of provisions respecting state boards, which EPA is proposing to disapprove, and interstate transport, which EPA is not proposing any action at this time, EPA is proposing to determine that portions of Alabama’s infrastructure SIP submission provided to EPA on April 23, 2013, satisfy the required infrastructure elements for the
2010 1-hour SO 2 NAAQS.

**DATES :**  Written comments must be received on or before August 15, 2016.

**ADDRESSES :**  Submit your comments, identified by Docket ID No. EPA–R04–

OAR–2014–0431 at http:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be


### 45429 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / 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, someof 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 Administrative Code (Admin. Code r).’’ indicates that the cited regulation has either been approved, or submitted for approval into Alabama’s federally-approved SIP. The term ‘‘Alabama Code’’ (Ala. Code) indicates cited Alabama state statutes, which are not a part of the SIP unless otherwise

indicated. 2 Two 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. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

3 This rulemaking only addresses requirements for this element as they relate to attainment areas.

4 As mentioned previously, this element is not relevant to this proposed rulemaking. edited or removed from Regulations.gov

. EPA may publish any comment received to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and should include discussion of all points you wish to make. EPA will generally
not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets.

**FOR FURTHER INFORMATION CONTACT :**  Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms.
Notarianni can be reached via electronic
mail at notarianni.michele@epa.gov or via telephone at (404) 562–9031.

**SUPPLEMENTARY INFORMATION :** 
I. Background and Overview

On June 22, 2010 (75 FR 35520), EPA revised the primary SO 2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily

maximum concentrations. 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 2010 1-hour

SO 2 NAAQS to EPA no later than June

2, 2013. 1 This action is proposing to approve
Alabama’s infrastructure SIP submission for the applicable requirements of the
2010 1-hour SO 2 NAAQS, with the exception of interstate transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the state board requirements of section 110(a)(2)(E)(ii). With respect to the interstate transport provisions of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) and the visibility protection requirements of section 110(a)(2)(D)(i)(II) (prong 4), EPA is not proposing any action at this time regarding these requirements. 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 this rulemaking. For the aspects of Alabama’s submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Alabama’s already approved SIP meets certain CAA requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and
enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP
submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon
the facts and circumstances. In particular, the data and analytical tools available at the time the state develops
and submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary depending upon what provisions the state’s existing SIP already contains.

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 previously, 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 later on 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

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

of Control Measures and for
Construction or Modification of Stationary Sources 3

• 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 4

• 110(a)(2)(J): Consultation with

Government Officials, Public Notification, and Prevention of Significant Deterioration (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


### 45430 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules

5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

6 See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;

Revisions to the NO X 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)).

7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for 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. 8 See, e.g., ‘‘Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,’’ 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA’s 2008 PM 2.5 NSR rule), and ‘‘Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM 2.5 NAAQS,’’ (78 FR 4337) (January 22, 2013) (EPA’s final action on the

infrastructure SIP for the 2006 PM 2.5 NAAQS).

9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007

submittal. III. What is EPA’s approach to the
review of infrastructure SIP
submissions?

EPA is acting upon the SIP
submission from Alabama that
addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO 2 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. 5 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. 6 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. 7 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. 8 Similarly, EPA interprets the CAA to
allow it to take action on the individual parts of one larger, comprehensive
infrastructure SIP submission for a given NAAQS without concurrent
action on the entire submission. For example, EPA has sometimes elected to
act at different times on various
elements and sub-elements of the same
infrastructure SIP submission. 9

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


### 45431 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules

10 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of

new monitors to measure ambient levels of that new indicator species for the new NAAQS. 11 EPA 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.

12 ‘‘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.

13 EPA’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 United States (U.S.) Supreme Court agreed

to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (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. 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. 10

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. 11 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 12 EPA developedthis 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. 13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that
infrastructure SIP submissions need to
address certain issues and need not address others. Accordingly, EPA
reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or
enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on
the structure of an individual state’s permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section

128.

As another example, EPA’s review of
infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA’s regulations at 40 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 fine particulate matter (PM 2.5 ) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA’s review of a state’s
infrastructure SIP submission focuses on assuring that the state’s implementation plan 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 EPA-approved minor NSR 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


### 45432 Federal Register / Vol. 81, No. 135 / Thursday, July 14, 2016 / Proposed Rules

14 By 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. 15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,’’ 74 FR 21639 (April 18, 2011).

16 EPA 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).

17 See, 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). 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. 14 It is important to note that EPA’s approval of
a state’s infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just
described.

EPA’s approach to review of
infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state’s existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ‘‘implementation, maintenance, and enforcement’’ of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure
SIP submission. EPA believes that a better approach is for states and EPA to
focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides
other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes
EPA to issue a ‘‘SIP call’’ whenever the Agency determines that a state’s implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 16 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. 17

IV. What is EPA’s analysis of how
Alabama addressed the elements of the Sections 110(a)(1) and (2) ‘‘Infrastructure’’ provisions?

Alabama’s infrastructure SIP submission addresses the provisions of sections 110(a)(1) and (2) as described
later on.

1. 110(a)(2)(A): Emission Limits and
Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include
enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Several regulations within Alabama’s SIP are relevant to air quality control regulations. The regulations described later on 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. ADEM Admin. Code r. 335–

3–1–.06— Compliance Schedule, sets the schedule for compliance with the State’s
Air Pollution Control rules and


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18 On June 12, 2015, EPA published a final action entitled, ‘‘State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.’’

See 80 FR 33840. 19 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. 20 For more information on EPA’s analysis of

Alabama’s infrastructure SIP in connection with the current PSD-related infrastructure requirements, see the Technical Support Document in the docket for this rulemaking. 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. Also, the following ADEM Administrative Code rules regulate stack height: 335–3–14–03(2)— Stack Heights, subparagraphs (d) and (e), 335–3–15– 02(9)—Stack Heights, subparagraphs (d) and (e), and 335–3–16–.02(10)—General Provisions, subparagraphs (d) and (e). EPA has made the preliminary
determination that Alabama’s SIP satisfies Section 110(a)(2)(A) for the
2010 1-hour SO 2 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 is addressing such state regulations in a separate action. 18

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: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make
such data available to the
Administrator. 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 through 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, and includes the annual ambient monitoring network design plan and a certified evaluation of the agency’s ambient monitors and auxiliary support equipment. 19 On July 22, 2015, Alabama submitted its plan to EPA. On November 19, 2015, 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–2014– 0431. EPA has made the preliminary
determination that Alabama’s SIP and practices are adequate for the ambient air quality monitoring and data system
related to the 2010 1-hour SO 2 NAAQS.

3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element
consists of three sub-elements: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C ( i.e., the major source PSD program). ADEM’s
2010 1-hour SO 2 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–.01— General Provisions,

335–3–14–.02,— Permit Procedure, 335–

3–14–.03— Standards for Granting
Permits, 335–3–14–.04— Prevention of Significant Deterioration in Permitting
and 335–3–14–.05—Air Permits Authorizing Construction in or Near

Nonattainment Areas. 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.

Enforcement: ADEM’s abovedescribed, SIP-approved regulations provide for enforcement of SO 2 emission limits and control measures through construction permitting for new or modified stationary sources. Note also that ADEM has authority to issue enforcement orders and assess penalties ( see Ala. Code sections 22–22A–5, 22– 28–10 and 22–28–22).

PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state’s infrastructure SIP submission for a particular NAAQS
demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state’s PSD permittingprogram is complete for this subelement (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state’s implementation plan with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA’s proposed action on
the infrastructure SIP submission.

For the 2010 1-hour SO 2 NAAQS, Alabama’s authority to regulate new and
modified sources to assist in the protection of air quality in Alabama is
established in the Alabama Administrative Code Chapters 335–3–

14–.01— General Provisions, 335–3–14–

.02— Permit Procedure, 335–3–14–.03— Standards for Granting Permits, 335–3–

14–.04— Prevention of Significant Deterioration in Permitting, and 335–3–

14–.05—Air Permits Authorizing

Construction in or Near Nonattainment

Areas. Alabama’s SIP contains the current structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD elements. 20

As such, EPA has made the preliminary determination that
Alabama’s SIP satisfies this PSD
element for the 2010 1-hour SO 2 NAAQS.

Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program


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

22 This regulation has not been incorporated into the federally-approved SIP. that regulates emissions of the 2010 1-
hour SO 2 NAAQS. ADEM Admin. Code

r. 335–3–14–.01 General Provisions,

335–3–14–.02 Permit Procedure, and

335–3–14–.03— Standards for Granting

Permits govern 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, and preconstruction permitting of modifications and construction of minor stationary sources, and minor modifications of major stationary sources related to the
2010 1-hour SO 2 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 has two subparts resulting in four distinct components, commonly referred to as ‘‘prongs,’’ that must be addressed in
infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (‘‘prong 1’’), and interfering with maintenance of the NAAQS in another state (‘‘prong 2’’). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (‘‘prong 3’’), or to protect visibility in another state (‘‘prong 4’’).

110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Alabama’s
2010 1-hour SO 2 NAAQS infrastructure submission did not address prongs 1
and 2.

110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state’s
confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting current structural requirements of part C of title I of the CAA, or (if the state
contains a nonattainment area that has the potential to impact PSD in another state) a NNSR program. As discussed in more detail previously under section 110(a)(2)(C), Alabama’s SIP contains provisions for the State’s PSD program that reflect the required structural PSD requirements to satisfy the requirement of prong 3. EPA has made the preliminary determination that
Alabama’s SIP satisfies section 110(a)(2)(D)(i)(II) (prong 3) for PSD permitting of major sources and major
modifications related to interstate transport for the 2010 1-hour SO 2 NAAQS.

110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the
contribution to nonattainment or
interference with maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements
in relation to Alabama’s 2010 1-hour

SO 2 NAAQS infrastructure submission in a separate rulemaking.

5. 110(a)(2)(D)(ii) Interstate and International Transport Provisions: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. ADEM Admin.
Code r. 335–3–14–.04— Prevention of Significant Deterioration in Permitting
describes how Alabama notifies neighboring states of potential emission impacts from new or modified sources applying for PSD permits. This regulation requires ADEM to provide an opportunity for a public hearing to the public, which includes state or local air pollution control agencies, ‘‘whose lands may be affected by emissions from
the source or modification’’ in Alabama. Additionally, Alabama does not have any pending obligation under sections
115 and 126 of the CAA. EPA has made the preliminary determination that Alabama’s SIP and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution
abatement for the 2010 1-hour SO 2 NAAQS.

6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Alabama’s
infrastructure SIP submission asmeeting 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 isproposing to disapprove this subelement. EPA’s rationale respecting each
sub-element is described in turn later

on.

In support of EPA’s proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), ADEM’s infrastructure submission demonstrates that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs as authorized at
Ala. Code section 22–28–11 and section 22–28–9. As evidence of the adequacy of ADEM’s resources with respect to sub-elements (i) and (iii), EPA submitted a letter to Alabama on April 19, 2016, outlining 105 grant
commitments and current status of these commitments for fiscal year 2015. The
letter EPA submitted to Alabama can be
accessed at www.regulations.gov using
Docket ID No. EPA–R04–OAR–2014– 0431. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding
issues in relation to the SIP for fiscal year 2015, therefore, Alabama’s grants
were finalized and closed out. Alabama’s funding is also met through the state’s title V fee program at ADEM
Admin. Code r. 335–1–7—Air Division Operating Permit Fees 21 and ADEM
Admin. Code r. 335–1–6—Application

Fees. 22 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 to implement provisions of the State’s implementation plan is included in all prehearings and final SIP submittal packages for approval by EPA. EPA has made the preliminary
determination that Alabama has


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23 ADEM 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 the averaging period specified in the emission test method used to determine compliance with an emission standard for the pollutant/source category in question. adequate authority and resources for implementation of the 2010 1-hour SO 2 NAAQS.

Section 110(a)(2)(E)(ii) requires that SIPs comply with section 128 of the CAA. Section 128 requires that SIPs contain provisions to provide that: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed. After reviewing Alabama’s SIP, EPA has made the preliminary determination that the State’s implementation plan does not contain provisions to comply with section 128 of the Act, and thus Alabama’s April 23, 2013, infrastructure
SIP submission does not meet the requirements of the Act. While Alabama has state statutes that may address, in whole or part, requirements related to state boards at the state level, these provisions are not included in the SIP as required by the CAA. Based on an evaluation of the federally-approved Alabama SIP, EPA is proposing to disapprove Alabama’s certification that its SIP meets the requirements of 110(a)(2)(E)(ii) of the CAA for the 2010
1-hour SO 2 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 thoseprovisions which relate only to subelement 110(a)(2)(E)(ii).

7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports
on the nature and amounts of emissions
and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any
emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection.
ADEM’s infrastructure SIP 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. Additionally, ADEM Admin. Code r. 335–3–12–.02 requires owners and operators of emissions sources to ‘‘install, calibrate, operate and maintain all monitoring equipment necessary for continuously monitoring the pollutants.’’ 23 ADEM Admin. Code r.

335–3–1–.13— Credible Evidence, makes allowances for owners and/or operators to utilize ‘‘any credible evidence or
information relevant’’ to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and
can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard. Accordingly, EPA is unaware of any provision preventing the use of credible
evidence in the Alabama SIP.

Additionally, Alabama is required to
submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA’s central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The
AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year
to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form
them—NO X , SO 2 , ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Alabama made its latest update to the 2011 NEI on 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 2010
1-hour SO 2 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. Ala. Code sections 22–28–22, 22–28–14 and 22–28–21 grant ADEM authority to adopt regulations for the purpose of protecting human health, welfare and the environment as required by section 303 of the CAA. 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. Under Ala. Code sections 22–28–3(a) and 22–28–10(2), ADEM also has the authority to issue such orders as may be necessary to effectuate the purposes of the Alabama Pollution Control Act, which includes achieving and maintaining such levels of air quality as will protect human health and safety and, to the greatest


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24 This regulation has not been incorporated into the federally-approved SIP. degree practicable, prevent injury to plant and animal life and property,
foster the comfort and convenience of the people, promote the social development of this state and facilitate the enjoyment of the natural attractions
of the state. EPA has made the preliminary determination that Alabama’s SIP, state laws and practices are adequate to satisfy the infrastructure SIP obligations for emergency powers
related to the 2010 1-hour SO 2 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) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take
account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii)
whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. 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, 24 provides the Alabama Environmental Management Commission with the authority to establish, adopt, promulgate, modify, repeal and suspend rules, regulations, or environmental standards which may be applicable to Alabama or ‘‘any of its geographic parts.’’ Admin. Code r. 335–

3–1–.03—Ambient Air Quality Standards, incorporate NAAQS, as amended or revised, and provides that the NAAQS apply throughout the State. EPA has made the preliminary determination that Alabama adequately demonstrates a commitment to provide
future SIP revisions related to the 2010
1-hour SO 2 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) Consultation with government officials, public notification, and PSD and visibility protection: EPA is proposing to approve
Alabama’s infrastructure SIP for the 2010 1-hour SO 2 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, the public notification requirements of section 127, PSD and visibility protection. EPA’s rationale for
each sub-element is described later on.

Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant
to section 121 relative to consultation.
ADEM Admin. Code r. 335–3–1–.03— Ambient Air Quality Standards, as well as its Regional Haze Implementation Plan (which allows for continued consultation with appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. In addition, 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 2010 1-hour SO 2 NAAQS when necessary.

Public notification (127 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, provide for public notification when air pollution episodes occur. Furthermore, ADEM has several public notice mechanisms in place to notify the public of ozone and PM 2.5 forecasting. Alabama maintains a public Web site on which daily air quality index forecasts are posted for the Birmingham, Huntsville, and Mobile areas. This Web
site can be accessed at: http:// adem.alabama.gov/programs/air/ airquality.cnt. Although specific air quality forecasts for SO 2 are not provided, they are provided for PM 2.5 for which SO 2 is a precursor. Accordingly, EPA is proposing to approve Alabama’s infrastructure SIP submission with respect to section 110(a)(2)(J) public notification.

PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement may be met by the state’s confirmation
in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a PSD program meeting current structural requirements of part C of title
I of the CAA. As discussed in more detail previously under the section discussing 110(a)(2)(C), Alabama’s SIP contains the required structural PSD requirements to satisfy the PSD element of section 110(a)(2)(J). Thus, EPA has made the preliminary determination
that Alabama’s SIP satisfies the PSD element of section 110(a)(2)(J) for the
2010 1-hour SO 2 NAAQS .

Visibility protection: EPA’s 2013
Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. ADEM referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has
determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP
submittals so ADEM does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that Alabama’s submission is approvable for the visibility protection element of section 110(a)(2)(J) and that Alabama does not need to rely on its regional haze program to address this element.

11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and
submission of such data to the EPA can
be made. ADEM Admin. Code r. 335–3–

14–.04— Prevention of Significant Deterioration Permitting, specifically sub-paragraph (11)—Air Quality Models, specifies that required air modeling be
conducted in accordance with 40 CFR part 51, Appendix W ‘‘Guideline on Air Quality Models’’. ADEM Admin. Code r.

335–3–1–.04— Monitoring, Records, and


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25 This regulation has not been incorporated into the federally-approved SIP. 26 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. Reporting details how sources are required as appropriate to establish and maintain records; make reports; install, use, and maintain such monitoring equipment or methods; and provide periodic emission reports as the regulation requires. These reports and records are required to be compiled, and submitted on forms furnished by the State. These 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 2010 1-hour

SO 2 NAAQS. Additionally, Alabama participates in a regional effort to coordinate the development of
emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour SO 2 NAAQS,
for the southeastern states. Taken as a whole, Alabama’s air quality regulations and practices demonstrate that ADEM has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS has 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 2010–1-
hour SO 2 NAAQS. Accordingly, EPA is proposing to approve Alabama’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 25requires ADEM to charge permitspecific fees to the applicant/source as authorized by Ala. Code section 22–
22A–5. ADEM relies on these State requirements to demonstrate that 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 26 —that covers the cost of implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that Alabama’s state rules and practices adequately provide for permitting fees
related to the 2010 1-hour SO 2 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 and Participation by Affected Local Entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by
the SIP. ADEM coordinates with local governments affected by the SIP. ADEM
Administrative Code 335–3–17–.01— Transportation Conformity is one way that Alabama provides for consultation
with affected local entities. Morespecifically, 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. Required partners covered by Alabama’s consultation procedures include Federal, state and local transportation and air quality agency officials. Furthermore, ADEM
has worked with the Federal Land Managers as a requirement of the regional haze rule. EPA has made the preliminary determination that Alabama’s SIP and practices adequately
demonstrate consultation with affected
local entities related to the 2010 1-hour

SO 2 NAAQS when necessary.

V. Proposed Action

With the exception of interstate transport provisions pertaining to visibility protection requirements of section 110(a)(2)(D)(i)(II) (prong 4), and the state board requirements of section 110(a)(2)(E)(ii), EPA is proposing to approve Alabama’s April 23, 2013, SIP
submission for the 2010 1-hour SO 2 NAAQS for the previously 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 April 23, 2013, infrastructure
SIP submission does not meet the requirements of the Act. The interstate transport requirements of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) will not be addressed by EPA at this time.

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 this notice)
were not submitted to meet requirements for Part D or a SIP call, and therefore, if EPA takes final action to disapprove this submittal, no sanctions will be triggered. However, if this disapproval action is finalized, that final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.

VI. Statutory and Executive Order

Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44

U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility Act (5

U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described


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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, someof 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 ‘‘Tennessee Air Pollution Control Regulations’’ or ‘‘Regulation’’ indicates that the cited regulation has been approved into Tennessee’s federally-approved SIP. The term ‘‘Tennessee Annotated Code’’, or ‘‘TCA’’, indicates cited Tennessee state statutes, which are not a part of the SIP unless otherwise

indicated. 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

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

Dated: June 30, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.

[FR Doc. 2016–16577 Filed 7–13–16; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R04–OAR–2015–0252; FRL–9948–96- Region 4]** 

**Air Plan Approval; Tennessee Infrastructure Requirements for the**  **2010 Nitrogen Dioxide National Ambient Air Quality Standard** 

**AGENCY :**  Environmental Protection Agency.

**ACTION :**  Proposed rule. **SUMMARY :**  The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on March 13, 2014, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 nitrogen dioxide (NO 2 ) national ambient air quality standard (NAAQS). The CAA requires that each state adopt

and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an
‘‘infrastructure’’ SIP submission. TDEC
certified that the Tennessee SIP contains provisions that ensure the 2010 NO 2 NAAQS is implemented, enforced, and
maintained in Tennessee. With the exception of provisions pertaining to prevention of significant deterioration (PSD) permitting, and interstate transport provisions pertaining to the
contribution to nonattainment or interference with maintenance, and visibility in other states, for which EPA is proposing no action through this rulemaking, EPA is proposing to find
that Tennessee’s infrastructure SIP submission, provided to EPA on March 13, 2014, satisfies the required
infrastructure elements for the 2010 NO 2 NAAQS.

**DATES :**  Written comments must be received on or before August 15, 2016.

**ADDRESSES :**  Submit your comments, identified by Docket ID No. EPA–R04–

OAR–2015–0252 at http:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be
edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and should include discussion of all points you wish to make. EPA will generally
not consider comments or comment contents located outside of the primary submission ( i.e. on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets.

**FOR FURTHER INFORMATION CONTACT :**  Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Mr. Wong
can be reached via electronic mail at wong.richard@epa.gov or via telephone at (404) 562–8726.

**SUPPLEMENTARY INFORMATION :** 
I. Background and Overview

On February 9, 2010 (75 FR 6474), EPA published a new 1-hour primary NAAQS for NO 2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily

maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling
to assure attainment and maintenance of the NAAQS. States were required to
submit such SIPs for the 2010 1-hour

NO 2 NAAQS to EPA no later than January 22, 2013. 1

This action is proposing to approve
Tennessee’s infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO 2 NAAQS, with the exception of the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J), and the interstate transport provisions of prongs 1, 2, and 4 of section 110(a)(2)(D)(i). On March 18, 2015, EPA approved Tennessee’s March 13, 2014 infrastructure SIP submission regarding the PSD permitting requirements for major sources of sections 110(a)(2)(C), prong 3 of D(i), and (J) for the 2010 1-hour NO 2