80 FR 42765 - Approval and Promulgation of Implementation Plans; Alabama; Infrastructure Requirements for the 2008 Lead National Ambient Air Quality Standards

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 138 (July 20, 2015)

Page Range		42765-42774
FR Document		2015-17733
The Environmental Protection Agency (EPA) is proposing to approve in part, and disapprove, the November 4, 2011, State Implementation Plan (SIP) submission, provided by the Alabama Department of Environmental Management (ADEM) for inclusion into the Alabama SIP. This proposal pertains to the Clean Air Act (CAA or the Act) infrastructure requirements for the 2008 Lead national ambient air quality standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ``infrastructure'' SIP. ADEM certified that the Alabama SIP contains provisions that ensure the 2008 Lead NAAQS is implemented, enforced, and maintained in Alabama. With the exception of provisions pertaining to prevention of significant deterioration (PSD) permitting, which EPA is proposing no action through this notice, and with the exception of the provisions respecting state boards, for which EPA is proposing disapproval, EPA is proposing to approve Alabama's infrastructure SIP submission provided to EPA on November 4, 2011, as satisfying the required infrastructure elements for the 2008 Lead NAAQS.
Federal Register, Volume 80 Issue 138 (Monday, July 20, 2015)
[Federal Register Volume 80, Number 138 (Monday, July 20, 2015)]
[Proposed Rules]
[Pages 42765-42774]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-17733]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2013-0185; FRL-9930-87-Region 4]


Approval and Promulgation of Implementation Plans; Alabama; 
Infrastructure Requirements for the 2008 Lead National Ambient Air 
Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve in part, and disapprove, the November 4, 2011, State 
Implementation Plan (SIP) submission, provided by the Alabama

[[Page 42766]]

Department of Environmental Management (ADEM) for inclusion into the 
Alabama SIP. This proposal pertains to the Clean Air Act (CAA or the 
Act) infrastructure requirements for the 2008 Lead national ambient air 
quality standards (NAAQS). The CAA requires that each state adopt and 
submit a SIP for the implementation, maintenance, and enforcement of 
each NAAQS promulgated by EPA, which is commonly referred to as an 
``infrastructure'' SIP. ADEM certified that the Alabama SIP contains 
provisions that ensure the 2008 Lead NAAQS is implemented, enforced, 
and maintained in Alabama. With the exception of provisions pertaining 
to prevention of significant deterioration (PSD) permitting, which EPA 
is proposing no action through this notice, and with the exception of 
the provisions respecting state boards, for which EPA is proposing 
disapproval, EPA is proposing to approve Alabama's infrastructure SIP 
submission provided to EPA on November 4, 2011, as satisfying the 
required infrastructure elements for the 2008 Lead NAAQS.

DATES: Written comments must be received on or before August 19, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0185, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2013-0185,'' Air Regulatory Management 
Section, (formerly the Regulatory Development Section), Air Planning 
and Implementation Branch, (formerly the Air Planning Branch) Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2013-0185. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the 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. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Zuri Farngalo, 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. The telephone number is (404) 562-9152. Mr. Farngalo can be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how Alabama addressed the elements of 
Sections 110(a)(1) and (2) ``Infrastructure'' Provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On October 5, 1978, EPA promulgated a primary and secondary NAAQS 
under section 109 of the Act. See 43 FR 46246. Both the primary and 
secondary standards were set at a level of 1.5 micrograms per cubic 
meter ([micro]g/m\3\), measured as Lead in total suspended particulate 
matter (Pb-TSP), not to be exceeded by the maximum arithmetic mean 
concentration averaged over a calendar quarter. This standard was based 
on the 1977 Air Quality Criteria for Lead (USEPA, August 7, 1977). On 
November 12, 2008 (75 FR 81126), EPA issued a final rule to revise the 
primary and secondary Lead NAAQS. The revised primary and secondary 
Lead NAAQS were revised to 0.15 [micro]g/m\3\. By statute, SIPs meeting 
the requirements of sections 110(a)(1) and (2) are to be submitted by 
states within three years after promulgation of a new or revised NAAQS. 
Sections 110(a)(1) and (2) require 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 to EPA no later than October 15, 2011, for the 2008 
Lead NAAQS.\1\
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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, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, 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'' or ``ADEM Admin. 
Code'' refers to regulations that have been approved into Alabama's 
federally-approved SIP. The terms ``Alabama Code'' or ``Ala. Code'' 
indicate Alabama's state statutes, which are not a part of the SIP 
unless otherwise indicated.

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[[Page 42767]]

    Today's action is proposing to in part approve and in part 
disapprove portions of Alabama's infrastructure SIP submissions for the 
applicable requirements of the 2008 Lead NAAQS. On March 18, 2015, EPA 
approved Alabama's November 4, 2011, 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 2008 Lead NAAQS. See 80 
FR 14019. Therefore, EPA is not proposing any action today pertaining 
to the PSD permitting requirements for major sources of sections 
110(a)(2)(C), prong 3 of D(i), and (J) for the 2008 Lead NAAQS. With 
respect to Alabama's infrastructure SIP submissions 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 
submissions in today's 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. In the case of the 2008 Lead NAAQS, states typically have met 
the basic program elements required in section 110(a)(2) through 
earlier SIP submissions in connection with the 1978 Lead NAAQS.
    Section 110(a)(1) provides the procedural and timing requirements 
for SIPs. Section 110(a)(2) lists specific elements that states must 
meet for ``infrastructure'' SIP requirements related to a newly 
established or revised NAAQS. As mentioned above, these requirements 
include SIP infrastructure elements such as modeling, monitoring, and 
emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The requirements that are the subject of this 
proposed rulemaking are listed below \2\ and in EPA's October 14, 2011, 
memorandum entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements Required Under Sections 110(a)(1) and 110(a)(2) for 
the 2008 Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' 
(2011 Lead Infrastructure SIP Guidance).
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    \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. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission limits and other control measures
 110(a)(2)(B): Ambient air quality monitoring/data system
 110(a)(2)(C): Program for enforcement, PSD, and new source 
review (NSR) \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i): Interstate transport provisions
 110(a)(2)(D)(ii): Interstate and International transport 
provisions
 110(a)(2)(E): Adequate personnel, funding, and authority
 110(a)(2)(F): Stationary source monitoring and reporting
 110(a)(2)(G): Emergency episodes
 110(a)(2)(H): Future SIP revisions
 110(a)(2)(I): Nonattainment area plan or plan revision under 
part D.\4\
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    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials, 
public notification, PSD and visibility protection
     110(a)(2)(K): Air quality modeling/data
     110(a)(2)(L): Permitting fees
     110(a)(2)(M): Consultation/participation by affected local 
entities

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

    EPA is acting upon the SIP submission from Alabama that addresses 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the Lead 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

[[Page 42768]]

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.
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    \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.
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    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.
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    \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 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)).
    \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.
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    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\
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    \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 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).
    \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.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    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

[[Page 42769]]

individual SIP submissions for particular elements.\11\ EPA issued the 
Lead Infrastructure SIP Guidance on October 14, 2011.\12\ EPA developed 
this document to provide states with up-to-date guidance for the 2008 
Lead infrastructure SIPs. 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. 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.\13\
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    \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 Required under Clean Air Act Sections 110(a)(1) and 
110(a)(2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS),'' Memorandum from Stephen D. Page, October 14, 
2001.
    \13\ Although not intended to provide guidance for purposes of 
infrastructure SIP submissions for the 2008 Lead NAAQS, EPA notes, 
that following the 2011 Lead Infrastructure SIP Guidance, EPA issued 
the ``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. This 2013 
guidance provides recommendations for air agencies' development and 
the EPA's review of infrastructure SIPs for the 2008 ozone primary 
and secondary NAAQS, the 2010 primary nitrogen dioxide 
(NO2) NAAQS, the 2010 primary sulfur dioxide 
(SO2) NAAQS, and the 2012 primary fine particulate matter 
(PM2.5) NAAQS, as well as infrastructure SIPs for new or 
revised NAAQS promulgated in the future.
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    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.
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\14\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\15\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\16\
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    \14\ 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).
    \15\ 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).
    \16\ 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).
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IV. What is EPA's analysis of how Alabama addressed the elements of 
sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The Alabama infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Several regulations within Alabama's SIP are relevant to air quality 
control regulations. The regulations described below have been 
federally approved in the Alabama SIP and include enforceable emission 
limitations and other control measures. Alabama's infrastructure SIP 
submission cites provisions of the Administrative Code that provide 
ADEM with the necessary authority to adopt and enforce air quality 
controls such as Administrative Codes 335-3-1-.03, ``Ambient Air 
Quality Standards,'' 335-3-1.05 ``Sampling and Testing,'' 335-3-1-.06 
``Compliance Schedule,'' 335-3-14-.03(1)(g) ``Standards for Granting 
Permits'' and 335-3-4-.15 ``Secondary Lead Smelters.'' EPA has made the 
preliminary determination that the provisions contained in these 
chapters and Alabama's practices are adequate to protect the 2008 Lead 
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 
startup, shutdown and malfunction (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

[[Page 42770]]

the Agency is addressing such state regulations in a separate 
action.\17\ In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
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    \17\ On May 22, 2015, the EPA Administrator signed 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.'' The prepublication 
version of this rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/emissions.html.
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    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: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors; the compilation and analysis of ambient air 
quality data; and the submission of these data to EPA upon request. 
ADEM Administrative Code, 335-3-1-.03 ``Ambient Air Quality 
Standards,'' and 335-3-1-.04 ``Monitoring Records and Reporting,'' 
along with the Alabama Network Description and Ambient Air Network 
Monitoring Plan, provide for an ambient air quality monitoring system 
in the State. Annually, States develop and submit to EPA for approval 
statewide ambient monitoring network plans consistent with the 
requirements of 40 CFR parts 50, 53, and 58. The annual network plan 
involves an evaluation of any proposed changes to the monitoring 
network, includes the annual ambient monitoring network design plan and 
a certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\18\ The latest monitoring network plan for Alabama 
was submitted on July 17, 2014, and on March 6, 2015, EPA approved this 
plan. Alabama's approved monitoring network plan can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2013-0185. 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 2008 Lead NAAQS.
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    \18\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Program for enforcement, PSD, and NSR: 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). To meet these obligations, Alabama cited ADEM 
Administrative Codes 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'' of Alabama's SIP. ADEM is able to regulate 
sources of lead through these above cited provisions of Alabama's SIP. 
In this action, EPA is only proposing to approve the enforcement and 
the regulation of new minor sources and minor modifications aspects of 
Alabama's section 110(a)(2)(C) infrastructure SIP submission.
    Enforcement: ADEM's above-described, SIP-approved regulations meet 
the requirements for enforcement of lead emission limits and control 
measures and construction permitting for new or modified stationary 
sources.
    Preconstruction PSD Permitting for Major Sources: With respect to 
Alabama's November 4, 2011 infrastructure SIP submission related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA took final action to approve this provision 
for the 2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern a minor source 
pre-construction program that regulates emissions of the 2008 Lead 
NAAQS. ADEM Administrative Code 335-3-14-.03 ``Standards for Granting 
Permits'' governs the preconstruction permitting of modifications and 
construction of minor stationary sources in the State.
    EPA has made the preliminary determination that Alabama's SIP and 
practices are adequate for program enforcement of control measures and 
regulation of minor sources and modifications related to the 2008 Lead 
NAAQS.
    4. 110(a)(2)(D)(i) Interstate transport provisions: Section 
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from 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 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''). Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement.
    110(a)(2)(D)(i)(I)--prongs 1 and 2: Section 110(a)(2)(D)(i) 
requires infrastructure SIP submissions to include provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment, or interfering with 
maintenance, of the NAAQS in another state. The physical properties of 
lead prevent lead emissions from experiencing that same travel or 
formation phenomena as PM2.5 and ozone for interstate 
transport as outlined in prongs 1 and 2. More specifically, there is a 
sharp decrease in the lead concentrations, at least in the coarse 
fraction, as the distance from a lead source increases. EPA believes 
that the requirements of prongs 1 and 2 can be satisfied through a 
state's assessment as to whether a lead source located within its State 
in close proximity to a state border has emissions that contribute 
significantly to the nonattainment or interfere with maintenance of the 
NAAQS in the neighboring state. For example, EPA's experience with the 
initial Lead designations suggest that sources that emit less than 0.5 
tpy or are located more than two miles from the state border generally 
appear unlikely to contribute significantly to the nonattainment in 
another state. Alabama has one lead source that has emissions of lead 
over 0.5 tons per year (tpy), but because the source is located well 
beyond two miles from the State

[[Page 42771]]

border,\19\ EPA believes it is unlikely to contribute significantly to 
the nonattainment or interfere with maintenance of the NAAQS in another 
state. Therefore, EPA has made the preliminary determination that 
Alabama's SIP meets the requirements of section 110(a)(2)(D)(i)(I).
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    \19\ There is one facility in Alabama that has Lead emissions 
greater than 0.5 tpy. The facility is Sanders Lead Co, Inc., which 
is located at 100 Sanders Rd Troy, AL 36079. This location is about 
45 miles from the Georgia border.
---------------------------------------------------------------------------

    110(a)(2)(D)(i)(II)--prong 3: With respect to Alabama's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of prong 3 of section 110(a)(2)(D)(i), EPA took 
final action to approve Alabama's November 4, 2011 infrastructure SIP 
submission for the 2008 Lead NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: With regard to section 
110(a)(2)(D)(i)(II), the visibility sub-element, referred to as prong 
4, significant visibility impacts from stationary source lead emissions 
are expected to be limited to short distances from the source. Lead 
stationary sources in Alabama are located distances from Class I areas 
such that visibility impacts are negligible. The 2011 Lead 
Infrastructure SIP Guidance notes that the lead constituent of PM would 
likely not travel far enough to affect Class 1 areas and that the 
visibility provisions of the CAA do not directly regulate lead. 
Accordingly, EPA has preliminarily determined that the Alabama SIP 
meets the relevant visibility requirements of prong 4 of section 
110(a)(2)(D)(i).
    5. 110(a)(2)(D)(ii) Interstate and international transport 
provisions: Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions insuring compliance with sections 115 and 126 of the Act, 
relating to interstate and international pollution abatement. ADEM 
Admin. Code 335-3-14-.04--Prevention of Significant Deterioration in 
Permitting describes how Alabama notifies neighboring states of 
potential emission impacts from new or modified sources applying for 
PSD permits. This regulation requires ADEM to provide an opportunity 
for a public hearing to the public, which includes State or local air 
pollution control agencies, ``whose lands may be affected by emissions 
from the source or modification'' in Alabama. Additionally, Alabama 
does not have any pending obligation under sections 115 and 126 of the 
CAA. Accordingly, EPA has made the preliminary determination that 
Alabama's SIP and practices are adequate for insuring compliance with 
the applicable requirements relating to interstate and international 
pollution abatement for the 2008 Lead NAAQS.
    6. 110(a)(2)(E) Adequate personnel, funding, and authority: 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 SIP as meeting the requirements of sections 110(a)(2)(E)(i) 
and 110(2)(E)(iii) but disapprove for element 110(2)(E)(ii). EPA's 
rationale for today's proposals respecting each section of 110(a)(2)(E) 
is described in turn below.
    To satisfy the requirements of section 110(a)(2)(E)(i) and (iii), 
ADEM's infrastructure SIP submission describes Alabama Code section 22-
28-11, which authorizes ADEM to adopt emission requirements though 
regulations that are necessary to prevent, abate, or control air 
pollution. Also, Alabama Code section 22-28-9 authorizes the Department 
to employ necessary staff to carry out responsibilities. The funding 
requirements are met through the 105 grants and the title V fee 
process. As further evidence of the adequacy of ADEM's resources, EPA 
submitted a letter to Alabama on April 24, 2014, outlining 105 grant 
commitments and the current status of these commitments for fiscal year 
2014. The letter EPA submitted to Alabama can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2013-0185. 
Annually, states update these grant commitments based on current SIP 
requirements, air quality planning, and applicable requirements related 
to the NAAQS. Alabama satisfactorily met all commitments agreed to in 
the Air Planning Agreement for fiscal year 2014, therefore Alabama's 
grants were finalized. EPA has made the preliminary determination that 
Alabama has adequate resources for implementation of the 2008 Lead 
NAAQS.
    To satisfy the requirements of section 110(a)(2)(E)(ii), states 
must comply with the requirements respecting State Boards pursuant to 
section 128 of the Act. Section 110(a)(2)(E)(ii) requires that the 
state comply with section 128 of the CAA. Section 128 requires that the 
SIP contain provisions that provide: (1) The majority of members of the 
state board or body which approves permits or enforcement orders 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permitting or enforcement 
orders under the CAA; and (2) any potential conflicts of interest by 
such board or body, or the head of an executive agency with similar 
powers be adequately disclosed. After reviewing Alabama's SIP, EPA has 
made the preliminary determination that the State's implementation plan 
does not contain provisions to comply with section 128 of the Act, and 
thus Alabama's November 4, 2011, infrastructure SIP submission does not 
meet the requirements of the Act. While Alabama has state statutes that 
may address, in whole or in part, requirements related to state boards 
at the state level, these provisions are not included in the SIP as 
required by the CAA. Based on an evaluation of the federally-approved 
Alabama SIP, EPA is proposing to disapprove Alabama's infrastructure 
SIP submission as meeting the requirements of 110(a)(2)(E)(ii) of the 
CAA for the 2008 Lead NAAQS. The submitted provisions which purport to 
address 110(a)(2)(E)(ii) are severable from the other portions of 
ADEM's infrastructure SIP submission, therefore, EPA is proposing to 
disapprove those provisions which relate only to sub-element 
110(a)(2)(E)(ii).
    7. 110(a)(2)(F) Stationary source monitoring system: ADEM's 
infrastructure SIP submission describes the establishment of 
requirements for compliance testing by emissions sampling and analysis, 
and for emissions and operation monitoring to ensure the quality of 
data in the State. The Alabama infrastructure SIP submission also 
describes how the major source and minor source emission inventory 
programs collect emission data throughout the State and ensure the 
quality of such data. Alabama meets these requirements through ADEM 
Admin. Codes 335-3-1-.04 ``Monitoring, Records, and Reporting,'' and 
335-3-12 ``Continuous Monitoring Requirements for Existing Sources.'' 
ADEM Admin. Code 335-3-1-.04, details how sources are required as 
appropriate to establish and maintain records; make reports; install, 
use, and maintain such monitoring equipment or methods and provide 
periodic emission reports as the regulation requires. These reports and 
records are required to be compiled, and submitted on forms furnished 
by the State. Additionally, ADEM Admin. Code 335-3-12-.02

[[Page 42772]]

requires owners and operators of emissions sources to ``install, 
calibrate, operate and maintain all monitoring equipment necessary for 
continuously monitoring the pollutants.'' \20\ ADEM Admin. Code 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.
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    \20\ ADEM Admin. Code 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.
---------------------------------------------------------------------------

    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 their associated precursors--nitrogen oxides, sulfur dioxide, 
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 2013 
NEI on January 13, 2015. EPA compiles the emissions data, supplementing 
it where necessary, and releases it to the general public through the 
Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made 
the preliminary determination that Alabama's SIP and practices are 
adequate for the stationary source monitoring systems related to the 
2008 Lead NAAQS.
    8. 110(a)(2)(G) Emergency episodes: This section of the CAA 
requires that states demonstrate authority comparable with section 303 
of the CAA and adequate contingency plans to implement such authority. 
ADEM Admin. Code 335-3-2 ``Air Pollution Emergency'' provides for the 
identification of air pollution emergency episodes, episode criteria, 
and emissions reduction plans. Alabama's compliance with section 303 of 
the CAA and adequate contingency plans to implement such authority is 
also met by Ala. Code section 22-28-21 ``Air Pollution Emergencies.'' 
Ala. Code section 22-28-21 provides ADEM the authority to order the 
``person or persons responsible for the operation or operations of one 
or more air contaminants sources'' causing ``imminent danger to human 
health or safety in question to reduce or discontinue emissions 
immediately.'' The order triggers a hearing no later than 24-hours 
after issuance before the Environmental Management Commission which can 
affirm, modify or set aside the Director's order. Additionally, the 
Governor can, by proclamation, declare, as to all or any part of said 
area, that an air pollution emergency exists and exercise certain 
powers in whole or in part, by the issuance of an order or orders to 
protect the public health. EPA has made the preliminary determination 
that Alabama's SIP, state laws and practices are adequate to satisfy 
the infrastructure SIP obligations for emergency powers related to the 
2008 Lead NAAQS.
    9. 110(a)(2)(H) Future SIP revisions: As previously discussed, ADEM 
is responsible for adopting air quality rules and revising SIPs as 
needed to attain or maintain the NAAQS. Alabama has the ability and 
authority to respond to calls for SIP revisions, and has provided a 
number of SIP revisions over the years for implementation of the NAAQS. 
These requirements are met through ADEM Administrative Codes 335-1-
1-.03 ``Organization and Duties of the Commission,'' \21\ which 
provides ADEM with the authority to establish, adopt, promulgate, 
modify, repeal and suspend rules, regulations, or environmental 
standards which may be applicable to Alabama or ``any of its geographic 
parts'' and 335-3-1-.03 ``Ambient Air Quality Standards,'' which 
provides ADEM the authority to amend, revise, and incorporate the NAAQS 
into its SIP. Alabama currently has one area designated nonattainment 
for the 2008 Lead NAAQS located in Troy, Alabama related to the Sanders 
Lead Company. ADEM submitted an attainment demonstration for this area 
on November 9, 2012. EPA approved this attainment demonstration on 
January 28, 2014. See 79 FR 4407. Accordingly, EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate a commitment to provide future SIP revisions related to the 
2008 Lead NAAQS, when necessary.
---------------------------------------------------------------------------

    \21\ This regulation has not been incorporated into the 
federally-approved SIP.
---------------------------------------------------------------------------

    10. 110(a)(2)(J) Consultation with government officials, public 
notification, PSD, and visibility protection: EPA is proposing to 
approve Alabama's infrastructure SIP submission for the 2008 Lead NAAQS 
with respect to the general requirement in section 110(a)(2)(J) to 
include a program in the SIP that provides for meeting the applicable 
consultation requirements of section 121, the public notification 
requirements of section 127; and visibility protection requirements of 
part C of the Act. With respect to Alabama's infrastructure SIP 
submission related to the preconstruction PSD permitting requirements 
of section 110(a)(2)(J), EPA took final action to approve Alabama's 
November 4, 2011 2008 Lead NAAQS infrastructure SIP for these 
requirements on March 18, 2015. See 80 FR 14019. EPA's rationale for 
its proposed action regarding applicable consultation requirements of 
section 121, the public notification requirements of section 127, and 
visibility protection requirements is described below.
    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 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. Specifically, Alabama adopted 
state-wide consultation procedures for the implementation of 
transportation conformity which includes the development of mobile 
inventories for SIP development. These consultation procedures were 
developed in

[[Page 42773]]

coordination with the transportation partners in the State and are 
consistent with the approaches used for development of mobile 
inventories for SIPs. Required partners covered by Alabama's 
consultation procedures include federal, state and local transportation 
and air quality agency officials. EPA has made the preliminary 
determination that Alabama's SIP and practices adequately demonstrate 
consultation with government officials related to the 2008 Lead NAAQS 
when necessary.
    Public notification (127 public notification): To meet the public 
notification requirements of section 110(a)(2)(J), ADEM cites Alabama 
Code Sec.  22-28-21 ``Air Pollution Emergencies'' and ADEM 
Administrative Code 335-3-14-.01(7) ``Public Participation,'' which 
requires that ADEM notify the public of any air pollution alert, 
warning, or emergency. The ADEM Web site also sites air quality summary 
data and air quality index reports. Alabama maintains a public Web site 
on which daily air quality index forecasts and summary data are posted. 
This Web site can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt. EPA has made the preliminary determination that 
Alabama's SIP and practices adequately demonstrate the State's ability 
to provide public notification related to the 2008 Lead NAAQS when 
necessary. Accordingly, EPA is proposing to approve Alabama's 
infrastructure SIP submission with respect to section 110(a)(2)(J) 
public notification.
    Visibility Protection: The 2011 Lead Infrastructure SIP Guidance 
notes that the lead constituent of PM would likely not travel far 
enough to affect Class I areas and that the visibility provisions of 
the CAA do not directly regulate lead. 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, in the event of the establishment of a new primary NAAQS, the 
visibility protection and regional haze program requirements under part 
C of the CAA do not change. EPA thus does not expect states to address 
visibility for this element in Lead infrastructure submittals. Thus, 
EPA concludes there are no new applicable visibility protection 
obligations under section 110(a)(2)(J) as a result of the 2008 Lead 
NAAQS. Accordingly, EPA is proposing to approve section 110(a)(2)(J) of 
ADEM's infrastructure SIP submission with respect to visibility.
    EPA has made the preliminary determination that Alabama's SIP and 
practices adequately demonstrate the State's ability to meet the 
general requirement in section 110(a)(2)(J) to include a program in the 
SIP that provides for meeting the applicable consultation requirements 
of section 121, the public notification requirements of section 127 and 
visibility protection associated with regional haze. EPA has also 
preliminarily determined that it is appropriate approve the State's 
Lead infrastructure SIP submission with respect to the visibility 
aspects of section 110(a)(2)(J). EPA is making no determinations with 
respect the PSD requirements of section 110(a)(2)(J), which will be 
addressed in a different notice.
    11. 110(a)(2)(K) Air quality 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 USEPA can be made. ADEM 
Administrative Code 335-3-1-.04 ``Monitoring Records and Reporting'' 
and 335-3-14-.04 ``Prevention of Significant Deterioration Permitting'' 
which incorporates 40 CFR part 51, Appendix W ``Guideline on Air 
Quality Models,'' demonstrate that Alabama has the authority to provide 
relevant data for the purpose of predicting the effect on ambient air 
quality of the 2008 Lead NAAQS. Additionally, Alabama supports a 
regional effort to coordinate the development of emissions inventories 
and conduct regional modeling for several NAAQS, including the 2008 
Lead 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 the Lead NAAQS. EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate the State's ability to provide for air quality and 
modeling, along with analysis of the associated data, related to the 
2008 Lead NAAQS when necessary.
    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. To satisfy these requirements, ADEM's 
infrastructure SIP submission cites ADEM Admin. Code 335-1-6 
``Application Fees,'' \22\ which are State regulations authorized by 
legislation. Also, ADEM has an approved Title V program with a fee 
structure established in ADEM Admin. Code 335-1-7 ``Air Division 
Operating Permit Fees.'' \23\ The Title V fees cover the reasonable 
cost of implementation and enforcement of PSD and NNSR permits after 
they have been issued. EPA has made the preliminary determination that 
Alabama's SIP and practices adequately provide for permitting fees 
related to the Lead NAAQS, when necessary.
---------------------------------------------------------------------------

    \22\ This regulation has not been incorporated into the 
federally-approved SIP.
    \23\ Title V program regulations are federally approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    12. 110(a)(2)(M) Consultation/participation by affected local 
entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. Alabama Administrative Code 335-3-14-.01(17) 
``Public Participation,'' 335-3-14-.04(6) ``Public Participation,'' and 
335-3-14-.05(13) ``Public Participation, ``of the Alabama SIP requires 
that ADEM notify the public of an application, preliminary 
determination, the activity or activities involved in the permit 
action, any emissions change associated with any permit modification, 
and the opportunity for comment prior to making a final permitting 
decision. ADEM worked closely with local political subdivisions during 
the development of its Transportation Conformity SIP and Regional Haze 
Implementation Plan. Required partners covered by Alabama's 
consultation procedures include federal, state and local transportation 
and air quality agency officials. The state and local transportation 
agency officials are most directly impacted by transportation 
conformity requirements and are required to provide public involvement 
for their activities including the analysis demonstrating how they meet 
transportation conformity requirements. Alabama has worked with the 
FLMs as a requirement of its regional haze rule. EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate consultation with affected

[[Page 42774]]

local entities related to the 2008 Lead NAAQS when necessary.

V. Proposed Action

    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 
state board requirements of section 110(a)(2)(E)(ii), EPA is proposing 
to approve that ADEM's infrastructure SIP submission, submitted 
November 4, 2011, for the 2008 Lead NAAQS meets the above described 
infrastructure SIP requirements. EPA is proposing to disapprove section 
110(a)(2)(E)(ii) of Alabama's infrastructure submission because the 
State's implementation plan does not contain provisions to comply with 
section 128 of the Act, and thus Alabama's November 4, 2011, 
infrastructure SIP submission does not meet the requirements of the 
Act. This proposed approval in part and disapproval in part, however, 
does not include the PSD permitting requirements for major sources of 
section 110(a)(2)(C), prong 3 of (D)(i) and (J) because the Agency has 
taken final action on these requirements for 2008 Lead NAAQS for 
Alabama in a separate rulemaking.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a CAA Part D Plan or is required in 
response to a finding of substantial inadequacy as described in CAA 
section 110(k)(5) (SIP call) starts a sanctions clock. The portion of 
section 110(a)(2)(E)(ii) provisions (the provisions being proposed for 
disapproval in today's notice) were not submitted to meet requirements 
for Part D or a SIP call, and therefore, if EPA takes final action 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 2 years from the date of the 
disapproval unless the State corrects the deficiency, and EPA approves 
the plan or plan revision before EPA promulgates such FIP.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 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 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 Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    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, Lead, and Recordkeeping 
requirements.

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

    Dated: July 6, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-17733 Filed 7-17-15; 8:45 am]
 BILLING CODE 6560-50-P
Federal Register / Vol. 80, No. 138 / Monday, July 20, 2015 / Proposed Rules 42767

Today’s action is proposing to in part related to a newly established or revised addresses the infrastructure
approve and in part disapprove portions NAAQS. As mentioned above, these requirements of CAA sections 110(a)(1)
of Alabama’s infrastructure SIP requirements include SIP infrastructure and 110(a)(2) for the Lead NAAQS. The
submissions for the applicable elements such as modeling, monitoring, requirement for states to make a SIP
requirements of the 2008 Lead NAAQS. and emissions inventories that are submission of this type arises out of
On March 18, 2015, EPA approved designed to assure attainment and CAA section 110(a)(1). Pursuant to
Alabama’s November 4, 2011, maintenance of the NAAQS. The section 110(a)(1), states must make SIP
infrastructure SIP submission regarding requirements that are the subject of this submissions ‘‘within 3 years (or such
the PSD permitting requirements for proposed rulemaking are listed below 2 shorter period as the Administrator may
major sources of sections 110(a)(2)(C), and in EPA’s October 14, 2011, prescribe) after the promulgation of a
prong 3 of D(i) and (J) for the 2008 Lead memorandum entitled ‘‘Guidance on national primary ambient air quality
NAAQS. See 80 FR 14019. Therefore, Infrastructure State Implementation standard (or any revision thereof),’’ and
EPA is not proposing any action today Plan (SIP) Elements Required Under these SIP submissions are to provide for
pertaining to the PSD permitting Sections 110(a)(1) and 110(a)(2) for the the ‘‘implementation, maintenance, and
requirements for major sources of 2008 Lead (Pb) National Ambient Air enforcement’’ of such NAAQS. The
sections 110(a)(2)(C), prong 3 of D(i), Quality Standards (NAAQS)’’ (2011 statute directly imposes on states the
and (J) for the 2008 Lead NAAQS. With Lead Infrastructure SIP Guidance). duty to make these SIP submissions,
respect to Alabama’s infrastructure SIP • 110(a)(2)(A): Emission limits and and the requirement to make the
submissions related to section other control measures submissions is not conditioned upon
110(a)(2)(E)(ii) requirements respecting • 110(a)(2)(B): Ambient air quality EPA’s taking any action other than
the section 128 state board monitoring/data system promulgating a new or revised NAAQS.
requirements, EPA is proposing to • 110(a)(2)(C): Program for enforcement, Section 110(a)(2) includes a list of
disapprove this element of Alabama’s PSD, and new source review (NSR) 3 specific elements that ‘‘[e]ach such
submissions in today’s rulemaking. For • 110(a)(2)(D)(i): Interstate transport plan’’ submission must address.
the aspects of Alabama’s submittal provisions EPA has historically referred to these
proposed for approval today, EPA notes • 110(a)(2)(D)(ii): Interstate and SIP submissions made for the purpose
that the Agency is not approving any International transport provisions of satisfying the requirements of CAA
specific rule, but rather proposing that • 110(a)(2)(E): Adequate personnel, sections 110(a)(1) and 110(a)(2) as
Alabama’s already approved SIP meets funding, and authority ‘‘infrastructure SIP’’ submissions.
certain CAA requirements. • 110(a)(2)(F): Stationary source Although the term ‘‘infrastructure SIP’’
monitoring and reporting does not appear in the CAA, EPA uses
II. What elements are required under • 110(a)(2)(G): Emergency episodes the term to distinguish this particular
sections 110(a)(1) and (2)? • 110(a)(2)(H): Future SIP revisions type of SIP submission from
Section 110(a) of the CAA requires • 110(a)(2)(I): Nonattainment area plan submissions that are intended to satisfy
states to submit SIPs to provide for the or plan revision under part D.4 other SIP requirements under the CAA,
implementation, maintenance, and • 110(a)(2)(J): Consultation with such as ‘‘nonattainment SIP’’ or
enforcement of a new or revised government officials, public ‘‘attainment plan SIP’’ submissions to
NAAQS within three years following notification, PSD and visibility address the nonattainment planning
the promulgation of such NAAQS, or protection requirements of part D of title I of the
within such shorter period as EPA may • 110(a)(2)(K): Air quality modeling/ CAA, ‘‘regional haze SIP’’ submissions
prescribe. Section 110(a) imposes the data required by EPA rule to address the
obligation upon states to make a SIP • 110(a)(2)(L): Permitting fees
visibility protection requirements of
• 110(a)(2)(M): Consultation/
submission to EPA for a new or revised CAA section 169A, and nonattainment
participation by affected local entities
NAAQS, but the contents of that new source review permit program
submission may vary depending upon III. What is EPA’s approach to the submissions to address the permit
the facts and circumstances. In review of infrastructure SIP requirements of CAA, title I, part D.
particular, the data and analytical tools submissions? Section 110(a)(1) addresses the timing
available at the time the state develops EPA is acting upon the SIP and general requirements for
and submits the SIP for a new or revised submission from Alabama that infrastructure SIP submissions, and
NAAQS affects the content of the section 110(a)(2) provides more details
submission. The contents of such SIP 2 Two elements identified in section 110(a)(2) are concerning the required contents of
submissions may also vary depending not governed by the three year submission deadline these submissions. The list of required
upon what provisions the state’s of section 110(a)(1) because SIPs incorporating elements provided in section 110(a)(2)
existing SIP already contains. In the necessary local nonattainment area controls are not contains a wide variety of disparate
due within three years after promulgation of a new
case of the 2008 Lead NAAQS, states or revised NAAQS, but rather due at the time the provisions, some of which pertain to
typically have met the basic program nonattainment area plan requirements are due required legal authority, some of which
elements required in section 110(a)(2) pursuant to section 172. These requirements are: (1) pertain to required substantive program
through earlier SIP submissions in Submissions required by section 110(a)(2)(C) to the provisions, and some of which pertain
extent that subsection refers to a permit program as
connection with the 1978 Lead NAAQS. required in part D Title I of the CAA, and (2) to requirements for both authority and
Section 110(a)(1) provides the submissions required by section 110(a)(2)(I) which substantive program provisions.5 EPA
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procedural and timing requirements for pertain to the nonattainment planning requirements
SIPs. Section 110(a)(2) lists specific of part D, Title I of the CAA. Today’s proposed 5 For example: Section 110(a)(2)(E)(i) provides
rulemaking does not address infrastructure that states must provide assurances that they have
elements that states must meet for elements related to section 110(a)(2)(I) or the adequate legal authority under state and local law
‘‘infrastructure’’ SIP requirements nonattainment planning requirements of to carry out the SIP; section 110(a)(2)(C) provides
110(a)(2)(C). that states must have a SIP-approved program to
3 This rulemaking only addresses requirements
into Alabama’s federally-approved SIP. The terms address certain sources as required by part C of title
‘‘Alabama Code’’ or ‘‘Ala. Code’’ indicate Alabama’s for this element as they relate to attainment areas. I of the CAA; and section 110(a)(2)(G) provides that
state statutes, which are not a part of the SIP unless 4 As mentioned above, this element is not states must have legal authority to address
otherwise indicated. relevant to today’s proposed rulemaking. Continued

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therefore believes that while the timing infrastructure SIP requirements in a NAAQS than for a minor revision to an
requirement in section 110(a)(1) is single SIP submission, and whether EPA existing NAAQS.10
unambiguous, some of the other must act upon such SIP submission in EPA notes that interpretation of
statutory provisions are ambiguous. In a single action. Although section section 110(a)(2) is also necessary when
particular, EPA believes that the list of 110(a)(1) directs states to submit ‘‘a EPA reviews other types of SIP
required elements for infrastructure SIP plan’’ to meet these requirements, EPA submissions required under the CAA.
submissions provided in section interprets the CAA to allow states to Therefore, as with infrastructure SIP
110(a)(2) contains ambiguities make multiple SIP submissions submissions, EPA also has to identify
concerning what is required for separately addressing infrastructure SIP and interpret the relevant elements of
inclusion in an infrastructure SIP elements for the same NAAQS. If states section 110(a)(2) that logically apply to
submission. elect to make such multiple SIP these other types of SIP submissions.
The following examples of submissions to meet the infrastructure For example, section 172(c)(7) requires
ambiguities illustrate the need for EPA SIP requirements, EPA can elect to act that attainment plan SIP submissions
to interpret some section 110(a)(1) and on such submissions either individually required by part D have to meet the
section 110(a)(2) requirements with or in a larger combined action.8 ‘‘applicable requirements’’ of section
respect to infrastructure SIP Similarly, EPA interprets the CAA to 110(a)(2). Thus, for example, attainment
submissions for a given new or revised allow it to take action on the individual plan SIP submissions must meet the
NAAQS. One example of ambiguity is parts of one larger, comprehensive requirements of section 110(a)(2)(A)
that section 110(a)(2) requires that infrastructure SIP submission for a regarding enforceable emission limits
‘‘each’’ SIP submission must meet the given NAAQS without concurrent and control measures and section
list of requirements therein, while EPA action on the entire submission. For 110(a)(2)(E)(i) regarding air agency
has long noted that this literal reading example, EPA has sometimes elected to resources and authority. By contrast, it
of the statute is internally inconsistent act at different times on various is clear that attainment plan SIP
and would create a conflict with the elements and sub-elements of the same submissions required by part D would
nonattainment provisions in part D of infrastructure SIP submission.9 not need to meet the portion of section
title I of the Act, which specifically Ambiguities within sections 110(a)(1) 110(a)(2)(C) that pertains to the PSD
address nonattainment SIP and 110(a)(2) may also arise with program required in part C of title I of
requirements.6 Section 110(a)(2)(I) respect to infrastructure SIP submission the CAA, because PSD does not apply
pertains to nonattainment SIP requirements for different NAAQS. to a pollutant for which an area is
requirements and part D addresses Thus, EPA notes that not every element designated nonattainment and thus
when attainment plan SIP submissions of section 110(a)(2) would be relevant, subject to part D planning requirements.
to address nonattainment area or as relevant, or relevant in the same As this example illustrates, each type of
requirements are due. For example, way, for each new or revised NAAQS. SIP submission may implicate some
section 172(b) requires EPA to establish The states’ attendant infrastructure SIP elements of section 110(a)(2) but not
a schedule for submission of such plans submissions for each NAAQS therefore others.
for certain pollutants when the could be different. For example, the Given the potential for ambiguity in
Administrator promulgates the monitoring requirements that a state some of the statutory language of section
designation of an area as nonattainment, might need to meet in its infrastructure 110(a)(1) and section 110(a)(2), EPA
and section 107(d)(1)(B) allows up to SIP submission for purposes of section believes that it is appropriate to
two years, or in some cases three years, 110(a)(2)(B) could be very different for interpret the ambiguous portions of
for such designations to be different pollutants because the content section 110(a)(1) and section 110(a)(2)
promulgated.7 This ambiguity illustrates and scope of a state’s infrastructure SIP in the context of acting on a particular
that rather than apply all the stated submission to meet this element might SIP submission. In other words, EPA
requirements of section 110(a)(2) in a be very different for an entirely new assumes that Congress could not have
strict literal sense, EPA must determine intended that each and every SIP
which provisions of section 110(a)(2) 8 See, e.g., ‘‘Approval and Promulgation of
submission, regardless of the NAAQS in
are applicable for a particular Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
question or the history of SIP
infrastructure SIP submission. Implementation Plan (SIP); Prevention of development for the relevant pollutant,
Another example of ambiguity within Significant Deterioration (PSD) and Nonattainment would meet each of the requirements, or
sections 110(a)(1) and 110(a)(2) with New Source Review (NNSR) Permitting,’’ 78 FR meet each of them in the same way.
respect to infrastructure SIPs pertains to 4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Therefore, EPA has adopted an
whether states must meet all of the Mexico SIP submitted by the State separately to approach under which it reviews
meet the requirements of EPA’s 2008 PM2.5 NSR infrastructure SIP submissions against
emergencies as well as contingency plans that are rule), and ‘‘Approval and Promulgation of Air the list of elements in section 110(a)(2),
triggered in the event of such emergencies. Quality Implementation Plans; New Mexico;
6 See, e.g., ‘‘Rule To Reduce Interstate Transport Infrastructure and Interstate Transport
but only to the extent each element
of Fine Particulate Matter and Ozone (Clean Air Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR applies for that particular NAAQS.
Interstate Rule); Revisions to Acid Rain Program; 4337) (January 22, 2013) (EPA’s final action on the Historically, EPA has elected to use
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR infrastructure SIP for the 2006 PM2.5 NAAQS). guidance documents to make
25162, at 25163–65 (May 12, 2005) (explaining 9 On December 14, 2007, the State of Tennessee,
relationship between timing requirement of section
recommendations to states for
through the Tennessee Department of Environment
110(a)(2)(D) versus section 110(a)(2)(I)). infrastructure SIPs, in some cases
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and Conservation, made a SIP revision to EPA
7 EPA notes that this ambiguity within section demonstrating that the State meets the requirements conveying needed interpretations on
110(a)(2) is heightened by the fact that various of sections 110(a)(1) and (2). EPA proposed action newly arising issues and in some cases
subparts of part D set specific dates for submission for infrastructure SIP elements (C) and (J) on conveying interpretations that have
of certain types of SIP submissions in designated January 23, 2012 (77 FR 3213) and took final action
nonattainment areas for various pollutants. Note, on March 14, 2012 (77 FR 14976). On April 16, already been developed and applied to
e.g., that section 182(a)(1) provides specific dates 2012 (77 FR 22533) and July 23, 2012 (77 FR
for submission of emissions inventories for the 42997), EPA took separate proposed and final 10 For example, implementation of the 1997 PM
2.5
ozone NAAQS. Some of these specific dates are actions on all other section 110(a)(2) infrastructure NAAQS required the deployment of a system of
necessarily later than three years after promulgation SIP elements of Tennessee’s December 14, 2007 new monitors to measure ambient levels of that new
of the new or revised NAAQS. submittal. indicator species for the new NAAQS.

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individual SIP submissions for and EPA regulations merely for preclude EPA’s subsequent reliance on
particular elements.11 EPA issued the purposes of assuring that the state in provisions in section 110(a)(2) as part of
Lead Infrastructure SIP Guidance on question has the basic structural the basis for action to correct those
October 14, 2011.12 EPA developed this elements for a functioning SIP for a new deficiencies at a later time. For example,
document to provide states with up-to- or revised NAAQS. Because SIPs have although it may not be appropriate to
date guidance for the 2008 Lead grown by accretion over the decades as require a state to eliminate all existing
infrastructure SIPs. Within this statutory and regulatory requirements inappropriate director’s discretion
guidance, EPA describes the duty of under the CAA have evolved, they may provisions in the course of acting on an
states to make infrastructure SIP include some outmoded provisions and infrastructure SIP submission, EPA
submissions to meet basic structural SIP historical artifacts. These provisions, believes that section 110(a)(2)(A) may be
requirements within three years of while not fully up to date, nevertheless among the statutory bases that EPA
promulgation of a new or revised may not pose a significant problem for relies upon in the course of addressing
NAAQS. EPA also made the purposes of ‘‘implementation, such deficiency in a subsequent
recommendations about many specific maintenance, and enforcement’’ of a action.16
subsections of section 110(a)(2) that are new or revised NAAQS when EPA
relevant in the context of infrastructure evaluates adequacy of the infrastructure IV. What is EPA’s analysis of how
SIP submissions. The guidance also SIP submission. EPA believes that a Alabama addressed the elements of
discusses the substantively important better approach is for states and EPA to sections 110(a)(1) and (2)
issues that are germane to certain focus attention on those elements of ‘‘infrastructure’’ provisions?
subsections of section 110(a)(2). section 110(a)(2) of the CAA most likely The Alabama infrastructure
Significantly, EPA interprets sections to warrant a specific SIP revision due to submission addresses the provisions of
110(a)(1) and 110(a)(2) such that the promulgation of a new or revised sections 110(a)(1) and (2) as described
infrastructure SIP submissions need to NAAQS or other factors. below.
address certain issues and need not Finally, EPA believes that its 1. 110(a)(2)(A): Emission limits and
address others. Accordingly, EPA approach with respect to infrastructure other control measures: Several
reviews each infrastructure SIP SIP requirements is based on a regulations within Alabama’s SIP are
submission for compliance with the reasonable reading of sections 110(a)(1) relevant to air quality control
applicable statutory provisions of and 110(a)(2) because the CAA provides regulations. The regulations described
section 110(a)(2), as appropriate.13 other avenues and mechanisms to below have been federally approved in
EPA’s approach to review of address specific substantive deficiencies the Alabama SIP and include
infrastructure SIP submissions is to in existing SIPs. These other statutory enforceable emission limitations and
identify the CAA requirements that are tools allow EPA to take appropriately other control measures. Alabama’s
logically applicable to that submission. tailored action, depending upon the infrastructure SIP submission cites
EPA believes that this approach to the nature and severity of the alleged SIP provisions of the Administrative Code
review of a particular infrastructure SIP deficiency. Section 110(k)(5) authorizes that provide ADEM with the necessary
submission is appropriate, because it EPA to issue a ‘‘SIP call’’ whenever the authority to adopt and enforce air
would not be reasonable to read the Agency determines that a state’s SIP is quality controls such as Administrative
general requirements of section substantially inadequate to attain or Codes 335–3–1–.03, ‘‘Ambient Air
110(a)(1) and the list of elements in maintain the NAAQS, to mitigate Quality Standards,’’ 335–3–1.05
110(a)(2) as requiring review of each interstate transport, or to otherwise ‘‘Sampling and Testing,’’ 335–3–1–.06
and every provision of a state’s existing comply with the CAA.14 Section ‘‘Compliance Schedule,’’ 335–3–14–
SIP against all requirements in the CAA 110(k)(6) authorizes EPA to correct .03(1)(g) ‘‘Standards for Granting
errors in past actions, such as past Permits’’ and 335–3–4–.15 ‘‘Secondary
11 EPA notes, however, that nothing in the CAA
approvals of SIP submissions.15 Lead Smelters.’’ EPA has made the
requires EPA to provide guidance or to promulgate Significantly, EPA’s determination that
regulations for infrastructure SIP submissions. The preliminary determination that the
CAA directly applies to states and requires the an action on a state’s infrastructure SIP provisions contained in these chapters
submission of infrastructure SIP submissions, submission is not the appropriate time and Alabama’s practices are adequate to
regardless of whether or not EPA provides guidance and place to address all potential protect the 2008 Lead NAAQS in the
or regulations pertaining to such submissions. EPA existing SIP deficiencies does not
elects to issue such guidance in order to assist State.
states, as appropriate. In this action, EPA is not proposing to
14 For example, EPA issued a SIP call to Utah to
12 ‘‘Guidance on Infrastructure State approve or disapprove any existing
Implementation Plan (SIP) Elements Required address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
State provisions with regard to excess
under Clean Air Act Sections 110(a)(1) and
110(a)(2) for the 2008 Lead (Pb) National Ambient events. See ‘‘Finding of Substantial Inadequacy of emissions during startup, shutdown and
Air Quality Standards (NAAQS),’’ Memorandum Implementation Plan; Call for Utah State malfunction (SSM) of operations at a
from Stephen D. Page, October 14, 2001. Implementation Plan Revisions,’’ 74 FR 21639 facility. EPA believes that a number of
(April 18, 2011).
13 Although not intended to provide guidance for
15 EPA has used this authority to correct errors in
states have SSM provisions which are
purposes of infrastructure SIP submissions for the contrary to the CAA and existing EPA
2008 Lead NAAQS, EPA notes, that following the past actions on SIP submissions related to PSD
2011 Lead Infrastructure SIP Guidance, EPA issued programs. See ‘‘Limitation of Approval of guidance, ‘‘State Implementation Plans:
the ‘‘Guidance on Infrastructure State Prevention of Significant Deterioration Provisions Policy Regarding Excess Emissions
Implementation Plan (SIP) Elements under Clean Concerning Greenhouse Gas Emitting-Sources in During Malfunctions, Startup, and
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Air Act Sections 110(a)(1) and 110(a)(2).’’ State Implementation Plans; Final Rule,’’ 75 FR
Memorandum from Stephen D. Page, September 13, 82536 (December 30, 2010). EPA has previously Shutdown’’ (September 20, 1999), and
2013. This 2013 guidance provides used its authority under CAA section 110(k)(6) to
recommendations for air agencies’ development and remove numerous other SIP provisions that the 16 See, e.g., EPA’s disapproval of a SIP submission

the EPA’s review of infrastructure SIPs for the 2008 Agency determined it had approved in error. See, from Colorado on the grounds that it would have
ozone primary and secondary NAAQS, the 2010 e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 included a director’s discretion provision
primary nitrogen dioxide (NO2) NAAQS, the 2010 (June 27, 1997) (corrections to American Samoa, inconsistent with CAA requirements, including
primary sulfur dioxide (SO2) NAAQS, and the 2012 Arizona, California, Hawaii, and Nevada SIPs); 69 section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
primary fine particulate matter (PM2.5) NAAQS, as FR 67062 (November 16, 2004) (corrections to (July 21, 2010) (proposed disapproval of director’s
well as infrastructure SIPs for new or revised California SIP); and 74 FR 57051 (November 3, discretion provisions); 76 FR 4540 (Jan. 26, 2011)
NAAQS promulgated in the future. 2009) (corrections to Arizona and Nevada SIPs). (final disapproval of such provisions).

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border,19 EPA believes it is unlikely to international pollution abatement for majority of members of the state board
contribute significantly to the the 2008 Lead NAAQS. or body which approves permits or
nonattainment or interfere with 6. 110(a)(2)(E) Adequate personnel, enforcement orders represent the public
maintenance of the NAAQS in another funding, and authority: Section interest and do not derive any
state. Therefore, EPA has made the 110(a)(2)(E) requires that each significant portion of their income from
preliminary determination that implementation plan provide (i) persons subject to permitting or
Alabama’s SIP meets the requirements necessary assurances that the State will enforcement orders under the CAA; and
of section 110(a)(2)(D)(i)(I). have adequate personnel, funding, and (2) any potential conflicts of interest by
110(a)(2)(D)(i)(II)—prong 3: With authority under state law to carry out its such board or body, or the head of an
respect to Alabama’s infrastructure SIP implementation plan, (ii) that the State executive agency with similar powers be
submission related to the interstate comply with the requirements adequately disclosed. After reviewing
transport requirements for PSD of prong respecting State Boards pursuant to Alabama’s SIP, EPA has made the
3 of section 110(a)(2)(D)(i), EPA took section 128 of the Act, and (iii) preliminary determination that the
final action to approve Alabama’s necessary assurances that, where the State’s implementation plan does not
November 4, 2011 infrastructure SIP State has relied on a local or regional contain provisions to comply with
submission for the 2008 Lead NAAQS government, agency, or instrumentality section 128 of the Act, and thus
on March 18, 2015. See 80 FR 14019. for the implementation of any plan Alabama’s November 4, 2011,
110(a)(2)(D)(i)(II)—prong 4: With provision, the State has responsibility infrastructure SIP submission does not
regard to section 110(a)(2)(D)(i)(II), the for ensuring adequate implementation meet the requirements of the Act. While
visibility sub-element, referred to as of such plan provisions. EPA is Alabama has state statutes that may
prong 4, significant visibility impacts proposing to approve Alabama’s SIP as address, in whole or in part,
from stationary source lead emissions meeting the requirements of sections requirements related to state boards at
are expected to be limited to short 110(a)(2)(E)(i) and 110(2)(E)(iii) but the state level, these provisions are not
distances from the source. Lead disapprove for element 110(2)(E)(ii). included in the SIP as required by the
stationary sources in Alabama are EPA’s rationale for today’s proposals CAA. Based on an evaluation of the
located distances from Class I areas such respecting each section of 110(a)(2)(E) is federally-approved Alabama SIP, EPA is
that visibility impacts are negligible. described in turn below. proposing to disapprove Alabama’s
The 2011 Lead Infrastructure SIP To satisfy the requirements of section infrastructure SIP submission as
Guidance notes that the lead constituent 110(a)(2)(E)(i) and (iii), ADEM’s meeting the requirements of
of PM would likely not travel far enough infrastructure SIP submission describes 110(a)(2)(E)(ii) of the CAA for the 2008
to affect Class 1 areas and that the Alabama Code section 22–28–11, which Lead NAAQS. The submitted provisions
visibility provisions of the CAA do not authorizes ADEM to adopt emission which purport to address 110(a)(2)(E)(ii)
directly regulate lead. Accordingly, EPA requirements though regulations that are
are severable from the other portions of
has preliminarily determined that the necessary to prevent, abate, or control
ADEM’s infrastructure SIP submission,
Alabama SIP meets the relevant air pollution. Also, Alabama Code
therefore, EPA is proposing to
visibility requirements of prong 4 of section 22–28–9 authorizes the
disapprove those provisions which
section 110(a)(2)(D)(i). Department to employ necessary staff to
5. 110(a)(2)(D)(ii) Interstate and relate only to sub-element
carry out responsibilities. The funding
international transport provisions: 110(a)(2)(E)(ii).
requirements are met through the 105
Section 110(a)(2)(D)(ii) requires SIPs to grants and the title V fee process. As 7. 110(a)(2)(F) Stationary source
include provisions insuring compliance further evidence of the adequacy of monitoring system: ADEM’s
with sections 115 and 126 of the Act, ADEM’s resources, EPA submitted a infrastructure SIP submission describes
relating to interstate and international letter to Alabama on April 24, 2014, the establishment of requirements for
pollution abatement. ADEM Admin. outlining 105 grant commitments and compliance testing by emissions
Code 335–3–14–.04—Prevention of the current status of these commitments sampling and analysis, and for
Significant Deterioration in Permitting for fiscal year 2014. The letter EPA emissions and operation monitoring to
describes how Alabama notifies submitted to Alabama can be accessed ensure the quality of data in the State.
neighboring states of potential emission at www.regulations.gov using Docket ID The Alabama infrastructure SIP
impacts from new or modified sources No. EPA–R04–OAR–2013–0185. submission also describes how the
applying for PSD permits. This Annually, states update these grant major source and minor source emission
regulation requires ADEM to provide an commitments based on current SIP inventory programs collect emission
opportunity for a public hearing to the requirements, air quality planning, and data throughout the State and ensure the
public, which includes State or local air applicable requirements related to the quality of such data. Alabama meets
pollution control agencies, ‘‘whose NAAQS. Alabama satisfactorily met all these requirements through ADEM
lands may be affected by emissions from commitments agreed to in the Air Admin. Codes 335–3–1–.04
the source or modification’’ in Alabama. Planning Agreement for fiscal year 2014, ‘‘Monitoring, Records, and Reporting,’’
Additionally, Alabama does not have therefore Alabama’s grants were and 335–3–12 ‘‘Continuous Monitoring
any pending obligation under sections finalized. EPA has made the preliminary Requirements for Existing Sources.’’
115 and 126 of the CAA. Accordingly, determination that Alabama has ADEM Admin. Code 335–3–1–.04,
EPA has made the preliminary adequate resources for implementation details how sources are required as
determination that Alabama’s SIP and of the 2008 Lead NAAQS. appropriate to establish and maintain
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practices are adequate for insuring To satisfy the requirements of section records; make reports; install, use, and
compliance with the applicable 110(a)(2)(E)(ii), states must comply with maintain such monitoring equipment or
requirements relating to interstate and the requirements respecting State methods and provide periodic emission
Boards pursuant to section 128 of the reports as the regulation requires. These
19 There is one facility in Alabama that has Lead
Act. Section 110(a)(2)(E)(ii) requires that reports and records are required to be
emissions greater than 0.5 tpy. The facility is the state comply with section 128 of the compiled, and submitted on forms
Sanders Lead Co, Inc., which is located at 100
Sanders Rd Troy, AL 36079. This location is about CAA. Section 128 requires that the SIP furnished by the State. Additionally,
45 miles from the Georgia border. contain provisions that provide: (1) The ADEM Admin. Code 335–3–12–.02

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Federal Register / Vol. 80, No. 138 / Monday, July 20, 2015 / Proposed Rules 42773

coordination with the transportation practices adequately demonstrate the costs associated with any enforcement
partners in the State and are consistent State’s ability to meet the general action), until such fee requirement is
with the approaches used for requirement in section 110(a)(2)(J) to superseded with respect to such sources
development of mobile inventories for include a program in the SIP that by the Administrator’s approval of a fee
SIPs. Required partners covered by provides for meeting the applicable program under title V. To satisfy these
Alabama’s consultation procedures consultation requirements of section requirements, ADEM’s infrastructure
include federal, state and local 121, the public notification SIP submission cites ADEM Admin.
transportation and air quality agency requirements of section 127 and Code 335–1–6 ‘‘Application Fees,’’ 22
officials. EPA has made the preliminary visibility protection associated with which are State regulations authorized
determination that Alabama’s SIP and regional haze. EPA has also by legislation. Also, ADEM has an
practices adequately demonstrate preliminarily determined that it is approved Title V program with a fee
consultation with government officials appropriate approve the State’s Lead structure established in ADEM Admin.
related to the 2008 Lead NAAQS when infrastructure SIP submission with Code 335–1–7 ‘‘Air Division Operating
necessary. respect to the visibility aspects of Permit Fees.’’ 23 The Title V fees cover
Public notification (127 public section 110(a)(2)(J). EPA is making no the reasonable cost of implementation
notification): To meet the public determinations with respect the PSD and enforcement of PSD and NNSR
notification requirements of section requirements of section 110(a)(2)(J), permits after they have been issued.
110(a)(2)(J), ADEM cites Alabama Code which will be addressed in a different EPA has made the preliminary
§ 22–28–21 ‘‘Air Pollution Emergencies’’ notice. determination that Alabama’s SIP and
and ADEM Administrative Code 335–3– 11. 110(a)(2)(K) Air quality modeling/
practices adequately provide for
14–.01(7) ‘‘Public Participation,’’ which data: Section 110(a)(2)(K) of the CAA
permitting fees related to the Lead
requires that ADEM notify the public of requires that SIPs provide for
NAAQS, when necessary.
any air pollution alert, warning, or performing air quality modeling so that
emergency. The ADEM Web site also effects on air quality of emissions from 12. 110(a)(2)(M) Consultation/
sites air quality summary data and air NAAQS pollutants can be predicted and participation by affected local entities:
quality index reports. Alabama submission of such data to the USEPA This element requires states to provide
maintains a public Web site on which can be made. ADEM Administrative for consultation and participation in SIP
daily air quality index forecasts and Code 335–3–1–.04 ‘‘Monitoring Records development by local political
summary data are posted. This Web site and Reporting’’ and 335–3–14–.04 subdivisions affected by the SIP.
can be accessed at: http:// ‘‘Prevention of Significant Deterioration Alabama Administrative Code 335–3–
adem.alabama.gov/programs/air/ Permitting’’ which incorporates 40 CFR 14–.01(17) ‘‘Public Participation,’’ 335–
airquality.cnt. EPA has made the part 51, Appendix W ‘‘Guideline on Air 3–14–.04(6) ‘‘Public Participation,’’ and
preliminary determination that Quality Models,’’ demonstrate that 335–3–14–.05(13) ‘‘Public Participation,
Alabama’s SIP and practices adequately Alabama has the authority to provide ‘‘of the Alabama SIP requires that
demonstrate the State’s ability to relevant data for the purpose of ADEM notify the public of an
provide public notification related to predicting the effect on ambient air application, preliminary determination,
the 2008 Lead NAAQS when necessary. quality of the 2008 Lead NAAQS. the activity or activities involved in the
Accordingly, EPA is proposing to Additionally, Alabama supports a permit action, any emissions change
approve Alabama’s infrastructure SIP regional effort to coordinate the associated with any permit
submission with respect to section development of emissions inventories modification, and the opportunity for
110(a)(2)(J) public notification. and conduct regional modeling for comment prior to making a final
Visibility Protection: The 2011 Lead several NAAQS, including the 2008 permitting decision. ADEM worked
Infrastructure SIP Guidance notes that Lead NAAQS, for the southeastern closely with local political subdivisions
the lead constituent of PM would likely states. Taken as a whole, Alabama’s air during the development of its
not travel far enough to affect Class I quality regulations and practices Transportation Conformity SIP and
areas and that the visibility provisions demonstrate that ADEM has the Regional Haze Implementation Plan.
of the CAA do not directly regulate lead. authority to provide relevant data for Required partners covered by Alabama’s
EPA recognizes that states are subject to the purpose of predicting the effect on consultation procedures include federal,
visibility protection and regional haze ambient air quality of the Lead NAAQS. state and local transportation and air
program requirements under Part C of EPA has made the preliminary quality agency officials. The state and
the Act (which includes sections 169A determination that Alabama’s SIP and local transportation agency officials are
and 169B). However, in the event of the practices adequately demonstrate the most directly impacted by
establishment of a new primary State’s ability to provide for air quality transportation conformity requirements
NAAQS, the visibility protection and and modeling, along with analysis of the and are required to provide public
regional haze program requirements associated data, related to the 2008 Lead involvement for their activities
under part C of the CAA do not change. NAAQS when necessary. including the analysis demonstrating
EPA thus does not expect states to 12. 110(a)(2)(L) Permitting fees: This
how they meet transportation
address visibility for this element in section requires the owner or operator of
conformity requirements. Alabama has
Lead infrastructure submittals. Thus, each major stationary source to pay to
worked with the FLMs as a requirement
EPA concludes there are no new the permitting authority, as a condition
of its regional haze rule. EPA has made
applicable visibility protection of any permit required under the CAA,
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the preliminary determination that
obligations under section 110(a)(2)(J) as a fee sufficient to cover (i) the
reasonable costs of reviewing and acting Alabama’s SIP and practices adequately
a result of the 2008 Lead NAAQS.
upon any application for such a permit, demonstrate consultation with affected
Accordingly, EPA is proposing to
approve section 110(a)(2)(J) of ADEM’s and (ii) if the owner or operator receives
22 This regulation has not been incorporated into
infrastructure SIP submission with a permit for such source, the reasonable
the federally-approved SIP.
respect to visibility. costs of implementing and enforcing the 23 Title V program regulations are federally
EPA has made the preliminary terms and conditions of any such permit approved but not incorporated into the federally-
determination that Alabama’s SIP and (not including any court costs or other approved SIP.

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Document Created: 2015-12-15 12:57:57
Document Modified: 2015-12-15 12:57:57
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Written comments must be received on or before August 19, 2015.
Contact		Zuri Farngalo, 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. The telephone number is (404) 562-9152. Mr. Farngalo can be reached via electronic mail at [email protected]
FR Citation		80 FR 42765
CFR Associated		Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Lead and Recordkeeping Requirements