81_FR_87736 81 FR 87503 - Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour Ozone Standard

81 FR 87503 - Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour Ozone Standard

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 81, Issue 233 (December 5, 2016)

Page Range87503-87509
FR Document2016-28871

The Environmental Protection Agency (EPA) is proposing to disapprove the visibility transport (prong 4) portion of a revision to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM), addressing the Clean Air Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an ``infrastructure SIP.'' Specifically, EPA is proposing to disapprove the prong 4 portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP submission. All other applicable infrastructure requirements for this SIP submission have been addressed in separate rulemakings.

Federal Register, Volume 81 Issue 233 (Monday, December 5, 2016)
[Federal Register Volume 81, Number 233 (Monday, December 5, 2016)]
[Proposed Rules]
[Pages 87503-87509]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28871]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52

[EPA-R04-OAR-2012-0689; FRL-9955-95-Region 4]


Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour 
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
disapprove the visibility transport (prong 4) portion of a revision to 
the Alabama State Implementation Plan (SIP), submitted by the Alabama 
Department of Environmental Management (ADEM), addressing the Clean Air 
Act (CAA or Act) infrastructure SIP requirements for the 2008 8-hour 
ozone National Ambient Air Quality Standards (NAAQS). The CAA requires 
that each state adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by EPA, commonly 
referred to as an ``infrastructure SIP.'' Specifically, EPA is 
proposing to disapprove the prong 4 portion of Alabama's August 20, 
2012, 2008 8-hour ozone infrastructure SIP submission. All other 
applicable infrastructure requirements for this SIP submission have 
been addressed in separate rulemakings.

DATES: Comments must be received on or before December 27, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2012-0689 at http://www.regulations.gov. Follow the online 
instructions for submitting comments.

[[Page 87504]]

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

FOR FURTHER INFORMATION CONTACT: Sean Lakeman of 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 
or via electronic mail at lakeman.sean@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years after 
promulgation of a new or revised NAAQS to provide for the 
implementation, maintenance, and enforcement of the new or revised 
NAAQS. EPA has historically referred to these SIP submissions made for 
the purpose of satisfying the requirements of sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and 
(2) require states to address basic SIP elements such as for 
monitoring, basic program requirements, and legal authority that are 
designed to assure attainment and maintenance of the newly established 
or revised NAAQS. More specifically, section 110(a)(1) provides the 
procedural and timing requirements for infrastructure SIPs. Section 
110(a)(2) lists specific elements that states must meet for the 
infrastructure SIP requirements related to a newly established or 
revised NAAQS. The contents of an infrastructure SIP submission may 
vary depending upon the data and analytical tools available to the 
state, as well as the provisions already contained in the state's 
implementation plan at the time in which the state develops and submits 
the submission for a new or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes 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), 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 from 
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), prohibit any source or other type of emissions 
activity in one state from interfering with measures required to 
prevent significant deterioration of air quality in another state 
(prong 3) or from interfering with measures 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 international and interstate pollution abatement, 
respectively.
    On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075 
parts per million. See 73 FR 16436 (March 27, 2008). States were 
required to submit infrastructure SIP submissions for the 2008 8-hour 
ozone NAAQS to EPA no later than March 12, 2011. For the 2008 8-hour 
ozone NAAQS, this proposed action only addresses the prong 4 element of 
Alabama's infrastructure SIP submission that EPA received on August 20, 
2012. Through this action, EPA is proposing to disapprove the prong 4 
portion of Alabama's infrastructure SIP submission for the 2008 8-hour 
ozone NAAQS. All other applicable infrastructure SIP requirements for 
this SIP submission have been addressed in separate rulemakings.

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

    The requirement for states to make a SIP submission of this type 
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states 
must make SIP submissions ``within 3 years (or such shorter period as 
the Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``each such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of section 110(a)(1) and (2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of Title I of the CAA, 
``regional haze SIP'' submissions required by EPA rule to address the 
visibility protection requirements of section 169A of the CAA, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, Title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\1\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \1\ 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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[[Page 87505]]

    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of Title I of the 
CAA, which specifically address nonattainment SIP requirements.\2\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years or in some cases three years, for such designations to be 
promulgated.\3\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \3\ 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 section 110(a)(1) and (2) with 
respect to infrastructure SIPs pertains to whether states must meet all 
of the infrastructure SIP requirements in a single SIP submission, and 
whether EPA must act upon such SIP submission in a single action. 
Although section 110(a)(1) directs states to submit ``a plan'' to meet 
these requirements, EPA interprets the CAA to allow states to make 
multiple SIP submissions separately addressing infrastructure SIP 
elements for the same NAAQS. If states elect to make such multiple SIP 
submissions to meet the infrastructure SIP requirements, EPA can elect 
to act on such submissions either individually or in a larger combined 
action.\4\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\5\
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    \4\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \5\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submission.
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    Ambiguities within section 110(a)(1) and (2) may also arise with 
respect to infrastructure SIP submission requirements for different 
NAAQS. Thus, EPA notes that not every element of section 110(a)(2) 
would be relevant, or as relevant, or relevant in the same way, for 
each new or revised NAAQS. The states' attendant infrastructure SIP 
submissions for each NAAQS therefore could be different. For example, 
the monitoring requirements that a state might need to meet in its 
infrastructure SIP submission for purposes of section 110(a)(2)(B) 
could be very different for different pollutants, because the content 
and scope of a state's infrastructure SIP submission to meet this 
element might be very different for an entirely new NAAQS than for a 
minor revision to an existing NAAQS.\6\
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    \6\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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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 attainment plan SIP submissions 
required by part D to meet the ``applicable requirements'' of section 
110(a)(2); thus, attainment plan SIP submissions must meet the 
requirements of section 110(a)(2)(A) regarding enforceable emission 
limits and control measures and section 110(a)(2)(E)(i) regarding air 
agency resources and authority. By contrast, it is clear that 
attainment plan SIP submissions required by part D would not need to 
meet the portion of section 110(a)(2)(C) that pertains to the PSD 
program required in part C of Title I of the CAA, because PSD does not 
apply to a pollutant for which an area is designated nonattainment and 
thus subject to part D planning requirements. As this example 
illustrates, each type of SIP submission may implicate some elements of 
section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portion of section 110(a)(1) and 
section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\7\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013

[[Page 87506]]

Guidance).\8\ EPA developed this document to provide states with up-to-
date guidance for infrastructure SIPs for any new or revised NAAQS. 
Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\9\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). EPA interprets section 110(a)(1) and (2) such that 
infrastructure SIP submissions need to address certain issues and need 
not address others. Accordingly, EPA reviews each infrastructure SIP 
submission for compliance with the applicable statutory provisions of 
section 110(a)(2), as appropriate.
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    \7\ 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.
    \8\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \9\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address Section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of Section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in section 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
Greenhouse Gases (GHGs). By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor new source review program and whether 
the program addresses the pollutants relevant to that NAAQS. In the 
context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction (SSM) that may be contrary to the CAA and 
EPA's policies addressing such excess emissions; \10\ (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR 
Reform). Thus, EPA believes that it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\11\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \10\ Subsequent to issuing the 2013 Guidance, EPA's 
interpretation of the CAA with respect to the approvability of 
affirmative defense provisions in SIPs has changed. See ``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,'' 80 FR 33839 (June 12, 2015). As a 
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents 
EPA's view concerning the validity of affirmative defense 
provisions, in light of the requirements of section 113 and section 
304.
    \11\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption or affirmative defense for 
excess emissions during SSM events, then EPA would need to evaluate 
that provision for compliance against the rubric of applicable CAA 
requirements in the context of the action on the infrastructure SIP.
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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 section 110(a)(2) as requiring 
review of each and every provision of a state's existing SIP against 
all requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may

[[Page 87507]]

include some outmoded provisions and historical artifacts. These 
provisions, while not fully up to date, nevertheless may not pose a 
significant problem for the purposes of ``implementation, maintenance, 
and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy 
of the infrastructure SIP submission. EPA believes that a better 
approach is for states and EPA to focus attention on those elements of 
section 110(a)(2) of the CAA most likely to warrant a specific SIP 
revision due to the promulgation of a new or revised NAAQS or other 
factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
section 110(a)(1) and (2) because the CAA provides other 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.\12\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\13\ 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.\14\
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    \12\ 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).
    \13\ 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 section 110(k)(6) of the CAA to 
remove numerous other SIP provisions that the Agency determined it 
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \14\ 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 (January 26, 2011) (final disapproval of such provisions).
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III. What are the prong 4 requirements?

    Section 110(a)(2)(D)(i)(II) requires a state's SIP to contain 
provisions prohibiting sources in that state from emitting pollutants 
in amounts that interfere with any other state's efforts to protect 
visibility under part C of the CAA (which includes sections 169A and 
169B). The 2013 Guidance states that these prong 4 requirements can be 
satisfied by approved SIP provisions that EPA has found to adequately 
address any contribution of that state's sources that impacts the 
visibility program requirements in other states. The 2013 Guidance also 
states that EPA interprets this prong to be pollutant-specific, such 
that the infrastructure SIP submission need only address the potential 
for interference with protection of visibility caused by the pollutant 
(including precursors) to which the new or revised NAAQS applies.
    The 2013 Guidance lays out two ways in which a state's 
infrastructure SIP may satisfy prong 4. The first way is through an air 
agency's confirmation in its infrastructure SIP submission that it has 
an EPA-approved regional haze SIP that fully meets the requirements of 
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require 
that a state participating in a regional planning process include all 
measures needed to achieve its apportionment of emission reduction 
obligations agreed upon through that process. A fully approved regional 
haze SIP will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with visibility protection in other 
air agencies' jurisdiction.
    Alternatively, in the absence of a fully approved regional haze 
SIP, a state may meet the requirements of prong 4 through a 
demonstration in its infrastructure SIP submission that emissions 
within its jurisdiction do not interfere with other air agencies' plans 
to protect visibility. Such an infrastructure SIP submission would need 
to include measures to limit visibility-impairing pollutants and ensure 
that the reductions conform with any mutually agreed regional haze 
reasonable progress goals for mandatory Class I areas in other states.

IV. What is EPA's analysis of how Alabama addressed prong 4?

    Alabama's August 20, 2012, 2008 8-hour ozone infrastructure 
submission cites to the State's regional haze SIP alone to satisfy 
prong 4 requirements.\15\ Alabama's regional haze SIP relies on the 
Clean Air Interstate Rule (CAIR) \16\ as an alternative to the best 
available retrofit technology (BART) requirements for its CAIR-subject 
electricity generating units (EGUs).\17\ Although this reliance on CAIR 
was consistent with the CAA at the time the State submitted its 
regional haze SIP, CAIR has since been replaced by the Cross-State Air

[[Page 87508]]

Pollution Rule (CSAPR) \18\ and can no longer be relied upon as an 
alternative to BART or as part of a long-term strategy (LTS) for 
addressing regional haze. Therefore, EPA finalized a limited 
disapproval of Alabama's 2008 regional haze SIP submission to the 
extent that it relied on CAIR to satisfy the BART and LTS 
requirements.\19\ See 77 FR 33642 (June 7, 2012).
---------------------------------------------------------------------------

    \15\ As mentioned above, a state may meet the requirements of 
prong 4 without a fully approved regional haze SIP by showing that 
its SIP contains adequate provisions to prevent emissions from 
within the state from interfering with other states' measures to 
protect visibility. Alabama did not, however, provide a 
demonstration in the infrastructure SIP submission subject to this 
proposed action that emissions within its jurisdiction do not 
interfere with other states' plans to protect visibility.
    \16\ CAIR created regional cap-and-trade programs to reduce 
sulfur dioxide (SO2) and nitrogen oxides (NOX) 
emissions in 28 eastern states, including Alabama, that contributed 
to downwind nonattainment and maintenance of the 1997 8-hour ozone 
NAAQS and the 1997 PM2.5 NAAQS.
    \17\ Section 169A of the CAA and EPA's implementing regulations 
require states to establish long-term strategies for making 
reasonable progress towards the national goal of achieving natural 
visibility conditions in certain Class I areas. The 156 mandatory 
Class I federal areas in which visibility has been determined to be 
an important value are listed at subpart D of 40 CFR part 81. For 
brevity, these areas are referred to here simply as ``Class I 
areas.''
     Implementation plans must give specific attention to certain 
stationary sources. Specifically, section 169A(b)(2)(A) of the CAA 
requires states to revise their SIPs to contain such measures as may 
be necessary to make reasonable progress towards the natural 
visibility goal, including a requirement that certain categories of 
existing major stationary sources built between 1962 and 1977 
procure, install, and operate BART as determined by the state. Under 
the Regional Haze Rule, states are directed to conduct BART 
determinations for such ``BART-eligible'' sources that may be 
anticipated to cause or contribute to any visibility impairment in a 
Class I area.
    \18\ CSAPR addresses the interstate transport of emissions 
contributing to nonattainment and interfering with maintenance of 
the two air quality standards covered by CAIR as well as the 2006 
PM2.5 NAAQS. CSAPR requires substantial reductions of 
SO2 and NOX emissions from electric generating 
units (EGUs) in 28 states in the eastern United States.
    \19\ EPA finalized a limited approval of Alabama's regional haze 
SIP on March 30, 2012. See 77 FR 19098.
---------------------------------------------------------------------------

    In that limited disapproval action, EPA also amended the Regional 
Haze Rule to provide that CSAPR can serve as an alternative to BART, 
i.e., that participation by a state's EGUs in a CSAPR trading program 
for a given pollutant achieves greater reasonable progress toward the 
national goal of achieving natural visibility conditions in Class I 
areas than source-specific BART for those EGUs for that pollutant.\20\ 
See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the 
trading program through either a federal implementation plan (FIP) 
implementing CSAPR or an integrated CSAPR state trading program 
implemented through an approved SIP revision. In promulgating this 
amendment to the Regional Haze Rule, EPA relied on an analytic 
demonstration of visibility improvement from CSAPR implementation 
relative to BART based on an air quality modeling study.
---------------------------------------------------------------------------

    \20\ Legal challenges from state, industry, and other 
petitioners to EPA's determination that CSAPR can be an alternative 
to BART are pending. Utility Air Regulatory Group v. EPA, No. 12-
1342 (D.C. Cir. filed August 6, 2012).
---------------------------------------------------------------------------

    At the time of the rule amendment, questions regarding the legality 
of CSAPR were pending before the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) and the court had stayed 
implementation of the rule. The D.C. Circuit subsequently vacated and 
remanded CSAPR in August 2012, leaving CAIR in place temporarily.\21\ 
However, in April 2014, the Supreme Court reversed the vacatur and 
remanded to the D.C. Circuit for resolution of the remaining 
claims.\22\ The D.C. Circuit then granted EPA's motion to lift the stay 
and to toll the rule's deadlines by three years.\23\ Consequently, 
implementation of CSAPR Phase 1 began in January 2015 and 
implementation of Phase 2 is scheduled to begin in January 2017.
---------------------------------------------------------------------------

    \21\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012).
    \22\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
    \23\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 
(D.C. Cir. issued October 23, 2014).
---------------------------------------------------------------------------

    Following the Supreme Court remand, the D.C. Circuit conducted 
further proceedings to address the remaining claims. In July 2015, the 
court issued a decision denying most of the claims but remanding the 
Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama, 
Georgia, South Carolina, and Texas and the Phase 2 ozone-season 
nitrogen oxides (NOX) budgets for eleven states to EPA for 
reconsideration.\24\ Since receipt of the D.C. Circuit's 2015 decision, 
EPA has engaged the affected states to determine appropriate next steps 
to address the decision with regard to each state.\25\ In a November 
10, 2016 proposed rulemaking, EPA stated that it expects that 
potentially material changes to the scope of CSAPR coverage resulting 
from the remand will be limited to withdrawal of the CSAPR FIP 
requiring Texas to participate in the Phase 2 trading programs for 
annual emissions of SO2 and NOX and withdrawal of 
Florida's CSAPR FIP requirements for ozone-season NOX, which 
EPA recently finalized in another action.\26\
---------------------------------------------------------------------------

    \24\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 
(D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone 
season NOX budgets for Alabama.
    \25\ As discussed below, Alabama submitted a SIP revision to EPA 
on October 26, 2015, to incorporate the Phase 2 annual 
NOX and annual SO2 CSAPR budgets for the State 
into the SIP. EPA approved this SIP revision in a final action 
published on August 31, 2016. See 81 FR 59869.
    \26\ See 81 FR 78954 (November 10, 2016) for further discussion 
regarding EPA's expectations and the proposed withdrawal of the 
CSAPR FIP for Texas.
---------------------------------------------------------------------------

    Due to these expected changes to CSAPR's scope, EPA conducted a 
sensitivity analysis to the 2012 analytic CSAPR ``alternative to BART'' 
demonstration showing that the analysis would have supported the same 
conclusion if the actions that EPA has proposed to take or has already 
taken in response to the D.C. Circuit's remand of various CSAPR Phase 2 
budgets--specifically, the proposed withdrawal of PM2.5-
related CSAPR Phase 2 FIP requirements for Texas EGUs and the recently 
finalized withdrawal of ozone-related CSAPR Phase 2 FIP requirements 
for Florida EGUs--were reflected in that analysis. EPA's November 10, 
2016 notice of proposed rulemaking seeks comment on this analysis. See 
81 FR 78954.
    Alabama sought to convert the 2012 limited approval/limited 
disapproval of the State's regional haze SIP to a full approval through 
a SIP revision submitted on October 26, 2015. This SIP revision 
intended to adopt the CSAPR trading program into the SIP, including the 
Phase 2 annual NOx and annual SO2 CSAPR budgets for the 
State, and to use this adoption to replace reliance on CAIR with 
reliance on CSAPR to satisfy the BART and LTS requirements. Although 
EPA has approved the CSAPR trading program into the Alabama SIP,\27\ 
EPA is currently seeking comment on its proposal that CSAPR continue to 
be available as an alternative to BART. EPA thus cannot approve the 
portion of Alabama's 2015 SIP submission seeking to replace reliance on 
CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at 
this time. Because Alabama's prong 4 SIP submission relies solely on 
the State having a fully approved regional haze SIP, EPA is not 
currently in a position to approve the prong 4 element of Alabama's 
August 20, 2012, 2008 8-hour ozone infrastructure SIP revision.
---------------------------------------------------------------------------

    \27\ See 81 FR 59869 (August 31, 2016).
---------------------------------------------------------------------------

    EPA is therefore proposing to disapprove the prong 4 element of 
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP 
submission. Alabama did not submit this infrastructure SIP to meet 
requirements for Part D or a SIP call; therefore, if EPA takes final 
action to disapprove the prong 4 portion of this submission, no 
sanctions will be triggered. However, if EPA finalizes this proposed 
disapproval, that final action will trigger the requirement under 
section 110(c) that EPA promulgate a federal implementation plan (FIP) 
no later than two years from the date of the disapproval unless EPA 
approves a SIP revision satisfying prong 4 requirements before EPA 
promulgates such a FIP.

V. Proposed Action

    As described above, EPA is proposing to disapprove the prong 4 
portion of Alabama's August 20, 2012, 2008 8-hour ozone infrastructure 
SIP submission. All other applicable infrastructure requirements for 
this SIP submission have been addressed in separate rulemakings.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions,

[[Page 87509]]

EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. EPA is proposing to determine that the prong 4 
portion of the aforementioned SIP submission does not meet Federal 
requirements. Therefore, this proposed action does not impose 
additional requirements on the state 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 CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: November 23, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-28871 Filed 12-2-16; 8:45 am]
 BILLING CODE 6560-50-P



                                                                        Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules                                                 87503

                                                  The information needed to document                      Proposed Amendments to the                              (3) [The text of the proposed
                                                  eligibility for the CTC/ACTC and the                    Regulations                                           amendment to § 1.6695–2T(c)(3) is the
                                                  AOTC largely duplicates the                               Accordingly, 26 CFR part 1 is                       same as the text of § 1.6695–2T(c)(3)
                                                  information needed to compute the EIC                   proposed to be amended as follows:                    published elsewhere in this issue of the
                                                  and complete other parts of the return                                                                        Federal Register].
                                                  or claim for refund. Even if certain                    PART 1—INCOME TAXES                                   *     *     *     *     *
                                                  preparers are required to maintain the                                                                          (e) Applicability date. The rules of
                                                  checklists and complete Form 8867 for                   ■ Paragraph 1. The authority citation                 this section apply to tax returns and
                                                  the first time, the IRS estimates that the              for part 1 continues to read in part as               claims for refunds prepared on or after
                                                  total time required should be minimal                   follows:                                              the date of publication of the Treasury
                                                  for these tax return preparers. Further,                    Authority: 26 U.S.C. 7805 * * *                   decision adopting these rules as final
                                                  the IRS does not expect that the                                                                              regulations in the Federal Register with
                                                                                                          ■ Par. 2. Section 1.6695–2 is amended
                                                  requirements in these proposed                                                                                respect to tax years beginning after
                                                                                                          by revising the section heading and
                                                  regulations would necessitate the                                                                             December 31, 2015.
                                                                                                          paragraphs (a), (b)(1)(i) introductory
                                                  purchase of additional software or                      text, (b)(1)(ii), (b)(2), (b)(3)(i) and (ii),         John M. Dalrymple,
                                                  equipment in order to meet the                          (b)(4)(i)(B) and (C), (c)(3), and (e) to read         Deputy Commissioner for Services and
                                                  additional information retention                        as follows:                                           Enforcement.
                                                  requirements.                                                                                                 [FR Doc. 2016–28995 Filed 12–2–16; 8:45 am]
                                                                                                          § 1.6695–2 Tax return preparer due
                                                     Based on these facts, the IRS hereby                 diligence requirements for certain credits.           BILLING CODE 4830–01–P
                                                  certifies that the collection of                          (a) [The text of the proposed
                                                  information contained in this notice of                 amendment to § 1.6695–2(a) is the same
                                                  proposed rulemaking will not have a                     as the text of § 1.6695–2T(a) published               ENVIRONMENTAL PROTECTION
                                                  significant economic impact on a                        elsewhere in this issue of the Federal                AGENCY
                                                  substantial number of small entities.                   Register].                                            40 CFR Parts 52
                                                  Accordingly, a Regulatory Flexibility                     (b) * * *
                                                  Analysis is not required.                                 (1) * * *                                           [EPA–R04–OAR–2012–0689; FRL–9955–95–
                                                                                                            (i) [The text of the proposed                       Region 4]
                                                     Pursuant to section 7805(f) of the
                                                  Internal Revenue Code, this notice of                   amendment to § 1.6695–2(b)(1)(i) is the
                                                                                                          same as the text of § 1.6695–2T(b)(1)(i)              Air Plan Disapproval; AL; Prong 4
                                                  proposed rulemaking has been                                                                                  Visibility for the 2008 8-Hour Ozone
                                                  submitted to the Chief Counsel for                      published elsewhere in this issue of the
                                                                                                          Federal Register].                                    Standard
                                                  Advocacy of the Small Business
                                                  Administration for comment on the                       *      *    *      *    *                             AGENCY:  Environmental Protection
                                                  impact on small business.                                 (ii) [The text of the proposed                      Agency (EPA).
                                                                                                          amendment to § 1.6695–2(b)(1)(ii) is the              ACTION: Proposed rule.
                                                  Comments and Requests for Public                        same as the text of § 1.6695–2T(b)(1)(ii)
                                                  Hearing                                                 published elsewhere in this issue of the              SUMMARY:   The Environmental Protection
                                                                                                          Federal Register].                                    Agency (EPA) is proposing to
                                                    Before these proposed regulations are                   (2) [The text of the proposed                       disapprove the visibility transport
                                                  adopted as final regulations,                           amendment to § 1.6695–2(b)(2) is the                  (prong 4) portion of a revision to the
                                                  consideration will be given to any                      same as the text of § 1.6695–2T(b)(2)                 Alabama State Implementation Plan
                                                  written comments (a signed original and                 published elsewhere in this issue of the              (SIP), submitted by the Alabama
                                                  eight (8) copies) or electronic comments                Federal Register].                                    Department of Environmental
                                                  that are timely submitted to the IRS as                   (3) * * *                                           Management (ADEM), addressing the
                                                  prescribed in this preamble under the                     (i) [The text of the proposed                       Clean Air Act (CAA or Act)
                                                  ADDRESSES heading. The IRS and                          amendment to § 1.6695–2(b)(3)(i) is the               infrastructure SIP requirements for the
                                                  Treasury Department request comments                    same as the text of § 1.6695–2T(b)(3)(i)              2008 8-hour ozone National Ambient
                                                  on all aspects of the proposed rules. All               published elsewhere in this issue of the              Air Quality Standards (NAAQS). The
                                                  comments will be available at                           Federal Register].                                    CAA requires that each state adopt and
                                                  www.regulations.gov or upon request. A                    (ii) [The text of the proposed                      submit a SIP for the implementation,
                                                  public hearing will be scheduled if                     amendment to § 1.6695–2(b)(3)(ii) is the              maintenance, and enforcement of each
                                                  requested in writing by any person that                 same as the text of § 1.6695–2T(b)(3)(ii)             NAAQS promulgated by EPA,
                                                  timely submits written comments. If a                   published elsewhere in this issue of the              commonly referred to as an
                                                  public hearing is scheduled, notice of                  Federal Register].                                    ‘‘infrastructure SIP.’’ Specifically, EPA
                                                                                                            (4) * * *                                           is proposing to disapprove the prong 4
                                                  the date, time, and place for the public
                                                                                                            (i) * * *                                           portion of Alabama’s August 20, 2012,
                                                  hearing will be published in the Federal
                                                                                                            (B) [The text of the proposed                       2008 8-hour ozone infrastructure SIP
                                                  Register.
                                                                                                          amendment to § 1.6695–2(b)(4)(i)(B) is                submission. All other applicable
                                                  Drafting Information                                    the same as the text of § 1.6695–                     infrastructure requirements for this SIP
                                                                                                          2T(b)(4)(i)(B) published elsewhere in                 submission have been addressed in
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                     The principal author of this regulation              this issue of the Federal Register].                  separate rulemakings.
                                                  is Rachel L. Gregory, Office of the                       (C) [The text of the proposed                       DATES: Comments must be received on
                                                  Associate Chief Counsel (Procedure &                    amendment to § 1.6695–2T(b)(4)(i)(C) is               or before December 27, 2016.
                                                  Administration).                                        the same as the text of § 1.6695–                     ADDRESSES: Submit your comments,
                                                  List of Subjects in 26 CFR Part 1                       2T(b)(4)(i)(C) published elsewhere in                 identified by Docket ID No EPA–R04–
                                                                                                          this issue of the Federal Register].                  OAR–2012–0689 at http://
                                                    Income taxes, Reporting and                           *      *    *      *    *                             www.regulations.gov. Follow the online
                                                  recordkeeping requirements.                               (c) * * *                                           instructions for submitting comments.


                                             VerDate Sep<11>2014   17:33 Dec 02, 2016   Jkt 241001   PO 00000   Frm 00018   Fmt 4702   Sfmt 4702   E:\FR\FM\05DEP1.SGM   05DEP1


                                                  87504                 Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules

                                                  Once submitted, comments cannot be                      the data and analytical tools available to            these SIP submissions are to provide for
                                                  edited or removed from Regulations.gov.                 the state, as well as the provisions                  the ‘‘implementation, maintenance, and
                                                  EPA may publish any comment received                    already contained in the state’s                      enforcement’’ of such NAAQS. The
                                                  to its public docket. Do not submit                     implementation plan at the time in                    statute directly imposes on states the
                                                  electronically any information you                      which the state develops and submits                  duty to make these SIP submissions,
                                                  consider to be Confidential Business                    the submission for a new or revised                   and the requirement to make the
                                                  Information (CBI) or other information                  NAAQS.                                                submissions is not conditioned upon
                                                  whose disclosure is restricted by statute.                Section 110(a)(2)(D) has two                        EPA’s taking any action other than
                                                  Multimedia submissions (audio, video,                   components: 110(a)(2)(D)(i) and                       promulgating a new or revised NAAQS.
                                                  etc.) must be accompanied by a written                  110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)             Section 110(a)(2) includes a list of
                                                  comment. The written comment is                         includes four distinct components,                    specific elements that ‘‘each such plan’’
                                                  considered the official comment and                     commonly referred to as ‘‘prongs,’’ that              submission must address.
                                                  should include discussion of all points                 must be addressed in infrastructure SIP                  EPA has historically referred to these
                                                  you wish to make. EPA will generally                    submissions. The first two prongs,                    SIP submissions made for the purpose
                                                  not consider comments or comment                        which are codified in section                         of satisfying the requirements of section
                                                  contents located outside of the primary                 110(a)(2)(D)(i)(I), prohibit any source or            110(a)(1) and (2) as ‘‘infrastructure SIP’’
                                                  submission (i.e., on the web, cloud, or                 other type of emissions activity in one               submissions. Although the term
                                                  other file sharing system). For                         state from contributing significantly to              ‘‘infrastructure SIP’’ does not appear in
                                                  additional submission methods, the full                 nonattainment of the NAAQS in another                 the CAA, EPA uses the term to
                                                  EPA public comment policy,                              state (prong 1) and from interfering with             distinguish this particular type of SIP
                                                  information about CBI or multimedia                     maintenance of the NAAQS in another                   submission from submissions that are
                                                  submissions, and general guidance on                    state (prong 2). The third and fourth                 intended to satisfy other SIP
                                                  making effective comments, please visit                 prongs, which are codified in section                 requirements under the CAA, such as
                                                  http://www2.epa.gov/dockets/                            110(a)(2)(D)(i)(II), prohibit any source or           ‘‘nonattainment SIP’’ or ‘‘attainment
                                                  commenting-epa-dockets.                                 other type of emissions activity in one               plan SIP’’ submissions to address the
                                                                                                          state from interfering with measures                  nonattainment planning requirements of
                                                  FOR FURTHER INFORMATION CONTACT:
                                                                                                          required to prevent significant                       part D of Title I of the CAA, ‘‘regional
                                                  Sean Lakeman of the Air Regulatory
                                                                                                          deterioration of air quality in another               haze SIP’’ submissions required by EPA
                                                  Management Section, Air Planning and
                                                                                                          state (prong 3) or from interfering with              rule to address the visibility protection
                                                  Implementation Branch, Air, Pesticides
                                                                                                          measures to protect visibility in another             requirements of section 169A of the
                                                  and Toxics Management Division, U.S.
                                                                                                          state (prong 4). Section 110(a)(2)(D)(ii)             CAA, and nonattainment new source
                                                  Environmental Protection Agency,
                                                                                                          requires SIPs to include provisions                   review permit program submissions to
                                                  Region 4, 61 Forsyth Street SW.,                        insuring compliance with sections 115
                                                  Atlanta, Georgia 30303–8960. Mr.                                                                              address the permit requirements of
                                                                                                          and 126 of the Act, relating to                       CAA, Title I, part D.
                                                  Lakeman can be reached by telephone at                  international and interstate pollution
                                                  (404) 562–9043 or via electronic mail at                                                                         Section 110(a)(1) addresses the timing
                                                                                                          abatement, respectively.                              and general requirements for
                                                  lakeman.sean@epa.gov.                                     On March 12, 2008, EPA revised the
                                                  SUPPLEMENTARY INFORMATION:                                                                                    infrastructure SIP submissions and
                                                                                                          8-hour ozone NAAQS to 0.075 parts per
                                                                                                                                                                section 110(a)(2) provides more details
                                                  I. Background                                           million. See 73 FR 16436 (March 27,
                                                                                                                                                                concerning the required contents of
                                                                                                          2008). States were required to submit
                                                     By statute, SIPs meeting the                                                                               these submissions. The list of required
                                                                                                          infrastructure SIP submissions for the
                                                  requirements of sections 110(a)(1) and                                                                        elements provided in section 110(a)(2)
                                                                                                          2008 8-hour ozone NAAQS to EPA no
                                                  (2) of the CAA are to be submitted by                   later than March 12, 2011. For the 2008               contains a wide variety of disparate
                                                  states within three years after                         8-hour ozone NAAQS, this proposed                     provisions, some of which pertain to
                                                  promulgation of a new or revised                        action only addresses the prong 4                     required legal authority, some of which
                                                  NAAQS to provide for the                                element of Alabama’s infrastructure SIP               pertain to required substantive program
                                                  implementation, maintenance, and                        submission that EPA received on                       provisions, and some of which pertain
                                                  enforcement of the new or revised                       August 20, 2012. Through this action,                 to requirements for both authority and
                                                  NAAQS. EPA has historically referred to                 EPA is proposing to disapprove the                    substantive program provisions.1 EPA
                                                  these SIP submissions made for the                      prong 4 portion of Alabama’s                          therefore believes that while the timing
                                                  purpose of satisfying the requirements                  infrastructure SIP submission for the                 requirement in section 110(a)(1) is
                                                  of sections 110(a)(1) and 110(a)(2) as                  2008 8-hour ozone NAAQS. All other                    unambiguous, some of the other
                                                  ‘‘infrastructure SIP’’ submissions.                     applicable infrastructure SIP                         statutory provisions are ambiguous. In
                                                  Sections 110(a)(1) and (2) require states               requirements for this SIP submission                  particular, EPA believes that the list of
                                                  to address basic SIP elements such as                   have been addressed in separate                       required elements for infrastructure SIP
                                                  for monitoring, basic program                           rulemakings.                                          submissions provided in section
                                                  requirements, and legal authority that                                                                        110(a)(2) contains ambiguities
                                                  are designed to assure attainment and                   II. What is EPA’s approach to the                     concerning what is required for
                                                  maintenance of the newly established or                 review of infrastructure SIP                          inclusion in an infrastructure SIP
                                                  revised NAAQS. More specifically,                       submissions?                                          submission.
                                                  section 110(a)(1) provides the                             The requirement for states to make a
sradovich on DSK3GMQ082PROD with PROPOSALS




                                                                                                                                                                   1 For example: Section 110(a)(2)(E)(i) provides
                                                  procedural and timing requirements for                  SIP submission of this type arises out of
                                                                                                                                                                that states must provide assurances that they have
                                                  infrastructure SIPs. Section 110(a)(2)                  section 110(a)(1). Pursuant to section                adequate legal authority under state and local law
                                                  lists specific elements that states must                110(a)(1), states must make SIP                       to carry out the SIP; Section 110(a)(2)(C) provides
                                                  meet for the infrastructure SIP                         submissions ‘‘within 3 years (or such                 that states must have a SIP-approved program to
                                                  requirements related to a newly                         shorter period as the Administrator may               address certain sources as required by part C of
                                                                                                                                                                Title I of the CAA; and section 110(a)(2)(G) provides
                                                  established or revised NAAQS. The                       prescribe) after the promulgation of a                that states must have legal authority to address
                                                  contents of an infrastructure SIP                       national primary ambient air quality                  emergencies as well as contingency plans that are
                                                  submission may vary depending upon                      standard (or any revision thereof),’’ and             triggered in the event of such emergencies.



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                                                                        Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules                                                      87505

                                                     The following examples of                            either individually or in a larger                       these other types of SIP submissions.
                                                  ambiguities illustrate the need for EPA                 combined action.4 Similarly, EPA                         For example, section 172(c)(7) requires
                                                  to interpret some section 110(a)(1) and                 interprets the CAA to allow it to take                   attainment plan SIP submissions
                                                  section 110(a)(2) requirements with                     action on the individual parts of one                    required by part D to meet the
                                                  respect to infrastructure SIP                           larger, comprehensive infrastructure SIP                 ‘‘applicable requirements’’ of section
                                                  submissions for a given new or revised                  submission for a given NAAQS without                     110(a)(2); thus, attainment plan SIP
                                                  NAAQS. One example of ambiguity is                      concurrent action on the entire                          submissions must meet the
                                                  that section 110(a)(2) requires that                    submission. For example, EPA has                         requirements of section 110(a)(2)(A)
                                                  ‘‘each’’ SIP submission must meet the                   sometimes elected to act at different                    regarding enforceable emission limits
                                                  list of requirements therein, while EPA                 times on various elements and sub-                       and control measures and section
                                                  has long noted that this literal reading                elements of the same infrastructure SIP                  110(a)(2)(E)(i) regarding air agency
                                                  of the statute is internally inconsistent               submission.5                                             resources and authority. By contrast, it
                                                  and would create a conflict with the                      Ambiguities within section 110(a)(1)                   is clear that attainment plan SIP
                                                  nonattainment provisions in part D of                   and (2) may also arise with respect to
                                                                                                                                                                   submissions required by part D would
                                                  Title I of the CAA, which specifically                  infrastructure SIP submission
                                                                                                                                                                   not need to meet the portion of section
                                                  address nonattainment SIP                               requirements for different NAAQS.
                                                                                                                                                                   110(a)(2)(C) that pertains to the PSD
                                                  requirements.2 Section 110(a)(2)(I)                     Thus, EPA notes that not every element
                                                                                                          of section 110(a)(2) would be relevant,                  program required in part C of Title I of
                                                  pertains to nonattainment SIP
                                                                                                          or as relevant, or relevant in the same                  the CAA, because PSD does not apply
                                                  requirements and part D addresses
                                                                                                          way, for each new or revised NAAQS.                      to a pollutant for which an area is
                                                  when attainment plan SIP submissions
                                                  to address nonattainment area                           The states’ attendant infrastructure SIP                 designated nonattainment and thus
                                                  requirements are due. For example,                      submissions for each NAAQS therefore                     subject to part D planning requirements.
                                                  section 172(b) requires EPA to establish                could be different. For example, the                     As this example illustrates, each type of
                                                  a schedule for submission of such plans                 monitoring requirements that a state                     SIP submission may implicate some
                                                  for certain pollutants when the                         might need to meet in its infrastructure                 elements of section 110(a)(2) but not
                                                  Administrator promulgates the                           SIP submission for purposes of section                   others.
                                                  designation of an area as nonattainment,                110(a)(2)(B) could be very different for                    Given the potential for ambiguity in
                                                  and section 107(d)(1)(B) allows up to                   different pollutants, because the content                some of the statutory language of section
                                                  two years or in some cases three years,                 and scope of a state’s infrastructure SIP                110(a)(1) and section 110(a)(2), EPA
                                                  for such designations to be                             submission to meet this element might                    believes that it is appropriate to
                                                  promulgated.3 This ambiguity illustrates                be very different for an entirely new                    interpret the ambiguous portion of
                                                  that rather than apply all the stated                   NAAQS than for a minor revision to an                    section 110(a)(1) and section 110(a)(2)
                                                  requirements of section 110(a)(2) in a                  existing NAAQS.6                                         in the context of acting on a particular
                                                  strict literal sense, EPA must determine                   EPA notes that interpretation of                      SIP submission. In other words, EPA
                                                  which provisions of section 110(a)(2)                   section 110(a)(2) is also necessary when                 assumes that Congress could not have
                                                  are applicable for a particular                         EPA reviews other types of SIP
                                                                                                                                                                   intended that each and every SIP
                                                  infrastructure SIP submission.                          submissions required under the CAA.
                                                                                                                                                                   submission, regardless of the NAAQS in
                                                     Another example of ambiguity within                  Therefore, as with infrastructure SIP
                                                                                                                                                                   question or the history of SIP
                                                  section 110(a)(1) and (2) with respect to               submissions, EPA also has to identify
                                                                                                          and interpret the relevant elements of                   development for the relevant pollutant,
                                                  infrastructure SIPs pertains to whether
                                                                                                          section 110(a)(2) that logically apply to                would meet each of the requirements, or
                                                  states must meet all of the infrastructure
                                                                                                                                                                   meet each of them in the same way.
                                                  SIP requirements in a single SIP
                                                  submission, and whether EPA must act                      4 See, e.g., ‘‘Approval and Promulgation of            Therefore, EPA has adopted an
                                                  upon such SIP submission in a single                    Implementation Plans; New Mexico; Revisions to           approach under which it reviews
                                                  action. Although section 110(a)(1)
                                                                                                          the New Source Review (NSR) State                        infrastructure SIP submissions against
                                                                                                          Implementation Plan (SIP); Prevention of
                                                  directs states to submit ‘‘a plan’’ to meet             Significant Deterioration (PSD) and Nonattainment
                                                                                                                                                                   the list of elements in section 110(a)(2),
                                                  these requirements, EPA interprets the                  New Source Review (NNSR) Permitting,’’ 78 FR             but only to the extent each element
                                                  CAA to allow states to make multiple                    4339 (January 22, 2013) (EPA’s final action              applies for that particular NAAQS.
                                                                                                          approving the structural PSD elements of the New
                                                  SIP submissions separately addressing                   Mexico SIP submitted by the State separately to             Historically, EPA has elected to use
                                                  infrastructure SIP elements for the same                meet the requirements of EPA’s 2008 PM2.5 NSR            guidance documents to make
                                                  NAAQS. If states elect to make such                     rule), and ‘‘Approval and Promulgation of Air            recommendations to states for
                                                  multiple SIP submissions to meet the                    Quality Implementation Plans; New Mexico;
                                                                                                          Infrastructure and Interstate Transport
                                                                                                                                                                   infrastructure SIPs, in some cases
                                                  infrastructure SIP requirements, EPA                    Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR           conveying needed interpretations on
                                                  can elect to act on such submissions                    4337 (January 22, 2013) (EPA’s final action on the       newly arising issues and in some cases
                                                                                                          infrastructure SIP for the 2006 PM2.5 NAAQS).            conveying interpretations that have
                                                    2 See, e.g., ‘‘Rule To Reduce Interstate Transport      5 On December 14, 2007, the State of Tennessee,

                                                                                                          through the Tennessee Department of Environment
                                                                                                                                                                   already been developed and applied to
                                                  of Fine Particulate Matter and Ozone (Clean Air
                                                  Interstate Rule); Revisions to Acid Rain Program;       and Conservation, made a SIP revision to EPA             individual SIP submissions for
                                                  Revisions to the NOX SIP Call; Final Rule,’’ 70 FR      demonstrating that the State meets the requirements      particular elements.7 EPA most recently
                                                  25162, at 25163–65 (May 12, 2005) (explaining           of sections 110(a)(1) and (2). EPA proposed action       issued guidance for infrastructure SIPs
                                                  relationship between timing requirement of section      for infrastructure SIP elements (C) and (J) on
                                                  110(a)(2)(D) versus section 110(a)(2)(I)).              January 23, 2012 (77 FR 3213) and took final action
                                                                                                                                                                   on September 13, 2013 (2013
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                                                    3 EPA notes that this ambiguity within section        on March 14, 2012 (77 FR 14976). On April 16,
                                                  110(a)(2) is heightened by the fact that various        2012 (77 FR 22533) and July 23, 2012 (77 FR                7 EPA notes, however, that nothing in the CAA

                                                  subparts of part D set specific dates for submission    42997), EPA took separate proposed and final             requires EPA to provide guidance or to promulgate
                                                  of certain types of SIP submissions in designated       actions on all other section 110(a)(2) infrastructure    regulations for infrastructure SIP submissions. The
                                                  nonattainment areas for various pollutants. Note,       SIP elements of Tennessee’s December 14, 2007            CAA directly applies to states and requires the
                                                  e.g., that section 182(a)(1) provides specific dates    submission.                                              submission of infrastructure SIP submissions,
                                                  for submission of emissions inventories for the           6 For example, implementation of the 1997 PM
                                                                                                                                                             2.5   regardless of whether or not EPA provides guidance
                                                  ozone NAAQS. Some of these specific dates are           NAAQS required the deployment of a system of             or regulations pertaining to such submissions. EPA
                                                  necessarily later than three years after promulgation   new monitors to measure ambient levels of that new       elects to issue such guidance in order to assist
                                                  of the new or revised NAAQS.                            indicator species for the new NAAQS.                     states, as appropriate.



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                                                  87506                  Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules

                                                  Guidance).8 EPA developed this                            Section 128 are necessarily included in              emissions; 10 (ii) existing provisions
                                                  document to provide states with up-to-                    EPA’s evaluation of infrastructure SIP               related to ‘‘director’s variance’’ or
                                                  date guidance for infrastructure SIPs for                 submissions because section                          ‘‘director’s discretion’’ that may be
                                                  any new or revised NAAQS. Within this                     110(a)(2)(E)(ii) explicitly requires that            contrary to the CAA because they
                                                  guidance, EPA describes the duty of                       the state satisfy the provisions of section          purport to allow revisions to SIP-
                                                  states to make infrastructure SIP                         128.                                                 approved emissions limits while
                                                  submissions to meet basic structural SIP                                                                       limiting public process or not requiring
                                                                                                               As another example, EPA’s review of
                                                  requirements within three years of                                                                             further approval by EPA; and (iii)
                                                                                                            infrastructure SIP submissions with
                                                  promulgation of a new or revised                                                                               existing provisions for PSD programs
                                                                                                            respect to the PSD program
                                                  NAAQS. EPA also made                                                                                           that may be inconsistent with current
                                                                                                            requirements in section 110(a)(2)(C),                requirements of EPA’s ‘‘Final NSR
                                                  recommendations about many specific
                                                                                                            (D)(i)(II), and (J) focuses upon the                 Improvement Rule,’’ 67 FR 80186
                                                  subsections of section 110(a)(2) that are
                                                                                                            structural PSD program requirements                  (December 31, 2002), as amended by 72
                                                  relevant in the context of infrastructure
                                                                                                            contained in part C and EPA’s PSD                    FR 32526 (June 13, 2007) (NSR Reform).
                                                  SIP submissions.9 The guidance also
                                                  discusses the substantively important                     regulations. Structural PSD program                  Thus, EPA believes that it may approve
                                                  issues that are germane to certain                        requirements include provisions                      an infrastructure SIP submission
                                                  subsections of section 110(a)(2). EPA                     necessary for the PSD program to                     without scrutinizing the totality of the
                                                  interprets section 110(a)(1) and (2) such                 address all regulated sources and NSR                existing SIP for such potentially
                                                  that infrastructure SIP submissions need                  pollutants, including Greenhouse Gases               deficient provisions and may approve
                                                  to address certain issues and need not                    (GHGs). By contrast, structural PSD                  the submission even if it is aware of
                                                  address others. Accordingly, EPA                          program requirements do not include                  such existing provisions.11 It is
                                                  reviews each infrastructure SIP                           provisions that are not required under               important to note that EPA’s approval of
                                                  submission for compliance with the                        EPA’s regulations at 40 CFR 51.166 but               a state’s infrastructure SIP submission
                                                  applicable statutory provisions of                        are merely available as an option for the            should not be construed as explicit or
                                                  section 110(a)(2), as appropriate.                        state, such as the option to provide                 implicit re-approval of any existing
                                                     As an example, section 110(a)(2)(E)(ii)                grandfathering of complete permit                    potentially deficient provisions that
                                                  is a required element of section                          applications with respect to the PM2.5               relate to the three specific issues just
                                                  110(a)(2) for infrastructure SIP                          NAAQS. Accordingly, the latter                       described.
                                                  submissions. Under this element, a state                  optional provisions are types of                        EPA’s approach to review of
                                                  must meet the substantive requirements                    provisions EPA considers irrelevant in               infrastructure SIP submissions is to
                                                  of section 128, which pertain to state                    the context of an infrastructure SIP                 identify the CAA requirements that are
                                                  boards that approve permits or                            action.                                              logically applicable to that submission.
                                                  enforcement orders and heads of                                                                                EPA believes that this approach to the
                                                                                                               For other section 110(a)(2) elements,             review of a particular infrastructure SIP
                                                  executive agencies with similar powers.                   however, EPA’s review of a state’s
                                                  Thus, EPA reviews infrastructure SIP                                                                           submission is appropriate, because it
                                                                                                            infrastructure SIP submission focuses                would not be reasonable to read the
                                                  submissions to ensure that the state’s                    on assuring that the state’s SIP meets
                                                  SIP appropriately addresses the                                                                                general requirements of section
                                                                                                            basic structural requirements. For                   110(a)(1) and the list of elements in
                                                  requirements of section 110(a)(2)(E)(ii)                  example, section 110(a)(2)(C) includes,
                                                  and section 128. The 2013 Guidance                                                                             section 110(a)(2) as requiring review of
                                                                                                            inter alia, the requirement that states              each and every provision of a state’s
                                                  explains EPA’s interpretation that there                  have a program to regulate minor new
                                                  may be a variety of ways by which states                                                                       existing SIP against all requirements in
                                                                                                            sources. Thus, EPA evaluates whether                 the CAA and EPA regulations merely for
                                                  can appropriately address these                           the state has an EPA-approved minor
                                                  substantive statutory requirements,                                                                            purposes of assuring that the state in
                                                                                                            new source review program and                        question has the basic structural
                                                  depending on the structure of an                          whether the program addresses the
                                                  individual state’s permitting or                                                                               elements for a functioning SIP for a new
                                                                                                            pollutants relevant to that NAAQS. In                or revised NAAQS. Because SIPs have
                                                  enforcement program (e.g., whether
                                                                                                            the context of acting on an                          grown by accretion over the decades as
                                                  permits and enforcement orders are
                                                                                                            infrastructure SIP submission, however,              statutory and regulatory requirements
                                                  approved by a multi-member board or
                                                                                                            EPA does not think it is necessary to                under the CAA have evolved, they may
                                                  by a head of an executive agency).
                                                                                                            conduct a review of each and every
                                                  However they are addressed by the
                                                                                                            provision of a state’s existing minor                  10 Subsequent to issuing the 2013 Guidance,
                                                  state, the substantive requirements of                                                                         EPA’s interpretation of the CAA with respect to the
                                                                                                            source program (i.e., already in the
                                                                                                                                                                 approvability of affirmative defense provisions in
                                                     8 ‘‘Guidance on Infrastructure State                   existing SIP) for compliance with the                SIPs has changed. See ‘‘State Implementation Plans:
                                                  Implementation Plan (SIP) Elements under Clean            requirements of the CAA and EPA’s                    Response to Petition for Rulemaking; Restatement
                                                  Air Act Sections 110(a)(1) and 110(a)(2),’’               regulations that pertain to such                     and Update of EPA’s SSM Policy Applicable to
                                                  Memorandum from Stephen D. Page, September 13,            programs.                                            SIPs; Findings of Substantial Inadequacy; and SIP
                                                  2013.                                                                                                          Calls To Amend Provisions Applying to Excess
                                                     9 EPA’s September 13, 2013, guidance did not              With respect to certain other issues,             Emissions During Periods of Startup, Shutdown and
                                                  make recommendations with respect to                      EPA does not believe that an action on               Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
                                                  infrastructure SIP submissions to address Section                                                              result, EPA’s 2013 Guidance (p. 21 & n.30) no
                                                                                                            a state’s infrastructure SIP submission is           longer represents EPA’s view concerning the
                                                  110(a)(2)(D)(i)(I). EPA issued the guidance shortly
                                                  after the U.S. Supreme Court agreed to review the         necessarily the appropriate type of                  validity of affirmative defense provisions, in light
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                                                  D.C. Circuit decision in EME Homer City, 696 F.3d         action in which to address possible                  of the requirements of section 113 and section 304.
                                                  7 (D.C. Cir. 2012) which had interpreted the              deficiencies in a state’s existing SIP.                11 By contrast, EPA notes that if a state were to

                                                  requirements of section 110(a)(2)(D)(i)(I). In light of                                                        include a new provision in an infrastructure SIP
                                                  the uncertainty created by ongoing litigation, EPA
                                                                                                            These issues include: (i) Existing                   submission that contained a legal deficiency, such
                                                  elected not to provide additional guidance on the         provisions related to excess emissions               as a new exemption or affirmative defense for
                                                  requirements of section 110(a)(2)(D)(i)(I) at that        from sources during periods of startup,              excess emissions during SSM events, then EPA
                                                  time. As the guidance is neither binding nor              shutdown, or malfunction (SSM) that                  would need to evaluate that provision for
                                                  required by statute, whether EPA elects to provide                                                             compliance against the rubric of applicable CAA
                                                  guidance on a particular section has no impact on
                                                                                                            may be contrary to the CAA and EPA’s                 requirements in the context of the action on the
                                                  a state’s CAA obligations.                                policies addressing such excess                      infrastructure SIP.



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                                                                        Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules                                                        87507

                                                  include some outmoded provisions and                    Significantly, EPA’s determination that                  with visibility protection in other air
                                                  historical artifacts. These provisions,                 an action on a state’s infrastructure SIP                agencies’ jurisdiction.
                                                  while not fully up to date, nevertheless                submission is not the appropriate time                     Alternatively, in the absence of a fully
                                                  may not pose a significant problem for                  and place to address all potential                       approved regional haze SIP, a state may
                                                  the purposes of ‘‘implementation,                       existing SIP deficiencies does not                       meet the requirements of prong 4
                                                  maintenance, and enforcement’’ of a                     preclude EPA’s subsequent reliance on                    through a demonstration in its
                                                  new or revised NAAQS when EPA                           provisions in section 110(a)(2) as part of               infrastructure SIP submission that
                                                  evaluates adequacy of the infrastructure                the basis for action to correct those                    emissions within its jurisdiction do not
                                                  SIP submission. EPA believes that a                     deficiencies at a later time. For example,               interfere with other air agencies’ plans
                                                  better approach is for states and EPA to                although it may not be appropriate to                    to protect visibility. Such an
                                                  focus attention on those elements of                    require a state to eliminate all existing                infrastructure SIP submission would
                                                  section 110(a)(2) of the CAA most likely                inappropriate director’s discretion                      need to include measures to limit
                                                  to warrant a specific SIP revision due to               provisions in the course of acting on an                 visibility-impairing pollutants and
                                                  the promulgation of a new or revised                    infrastructure SIP submission, EPA                       ensure that the reductions conform with
                                                  NAAQS or other factors.                                 believes that section 110(a)(2)(A) may be                any mutually agreed regional haze
                                                     For example, EPA’s 2013 Guidance                     among the statutory bases that EPA                       reasonable progress goals for mandatory
                                                  gives simpler recommendations with                      relies upon in the course of addressing                  Class I areas in other states.
                                                  respect to carbon monoxide than other                   such deficiency in a subsequent
                                                  NAAQS pollutants to meet the visibility                 action.14                                                IV. What is EPA’s analysis of how
                                                  requirements of section                                                                                          Alabama addressed prong 4?
                                                  110(a)(2)(D)(i)(II), because carbon                     III. What are the prong 4 requirements?
                                                                                                                                                                      Alabama’s August 20, 2012, 2008 8-
                                                  monoxide does not affect visibility. As                    Section 110(a)(2)(D)(i)(II) requires a                hour ozone infrastructure submission
                                                  a result, an infrastructure SIP                         state’s SIP to contain provisions                        cites to the State’s regional haze SIP
                                                  submission for any future new or                        prohibiting sources in that state from                   alone to satisfy prong 4 requirements.15
                                                  revised NAAQS for carbon monoxide                       emitting pollutants in amounts that                      Alabama’s regional haze SIP relies on
                                                  need only state this fact in order to                   interfere with any other state’s efforts to              the Clean Air Interstate Rule (CAIR) 16 as
                                                  address the visibility prong of section                 protect visibility under part C of the                   an alternative to the best available
                                                  110(a)(2)(D)(i)(II).                                    CAA (which includes sections 169A and                    retrofit technology (BART) requirements
                                                     Finally, EPA believes that its                       169B). The 2013 Guidance states that                     for its CAIR-subject electricity
                                                  approach with respect to infrastructure                 these prong 4 requirements can be                        generating units (EGUs).17 Although this
                                                  SIP requirements is based on a                          satisfied by approved SIP provisions                     reliance on CAIR was consistent with
                                                  reasonable reading of section 110(a)(1)                 that EPA has found to adequately                         the CAA at the time the State submitted
                                                  and (2) because the CAA provides other                  address any contribution of that state’s                 its regional haze SIP, CAIR has since
                                                  avenues and mechanisms to address                       sources that impacts the visibility                      been replaced by the Cross-State Air
                                                  specific substantive deficiencies in                    program requirements in other states.
                                                  existing SIPs. These other statutory tools              The 2013 Guidance also states that EPA                      15 As mentioned above, a state may meet the
                                                  allow EPA to take appropriately tailored                interprets this prong to be pollutant-                   requirements of prong 4 without a fully approved
                                                  action, depending upon the nature and                   specific, such that the infrastructure SIP               regional haze SIP by showing that its SIP contains
                                                  severity of the alleged SIP deficiency.                                                                          adequate provisions to prevent emissions from
                                                                                                          submission need only address the                         within the state from interfering with other states’
                                                  Section 110(k)(5) authorizes EPA to                     potential for interference with                          measures to protect visibility. Alabama did not,
                                                  issue a ‘‘SIP call’’ whenever the Agency                protection of visibility caused by the                   however, provide a demonstration in the
                                                  determines that a state’s SIP is                        pollutant (including precursors) to                      infrastructure SIP submission subject to this
                                                  substantially inadequate to attain or                                                                            proposed action that emissions within its
                                                                                                          which the new or revised NAAQS                           jurisdiction do not interfere with other states’ plans
                                                  maintain the NAAQS, to mitigate                         applies.                                                 to protect visibility.
                                                  interstate transport, or to otherwise                      The 2013 Guidance lays out two ways                      16 CAIR created regional cap-and-trade programs

                                                  comply with the CAA.12 Section                          in which a state’s infrastructure SIP may                to reduce sulfur dioxide (SO2) and nitrogen oxides
                                                  110(k)(6) authorizes EPA to correct                     satisfy prong 4. The first way is through                (NOX) emissions in 28 eastern states, including
                                                                                                                                                                   Alabama, that contributed to downwind
                                                  errors in past actions, such as past                    an air agency’s confirmation in its                      nonattainment and maintenance of the 1997 8-hour
                                                  approvals of SIP submissions.13                         infrastructure SIP submission that it has                ozone NAAQS and the 1997 PM2.5 NAAQS.
                                                                                                          an EPA-approved regional haze SIP that                      17 Section 169A of the CAA and EPA’s
                                                    12 For example, EPA issued a SIP call to Utah to                                                               implementing regulations require states to establish
                                                                                                          fully meets the requirements of 40 CFR
                                                  address specific existing SIP deficiencies related to                                                            long-term strategies for making reasonable progress
                                                  the treatment of excess emissions during SSM
                                                                                                          51.308 or 51.309. 40 CFR 51.308 and                      towards the national goal of achieving natural
                                                  events. See ‘‘Finding of Substantial Inadequacy of      51.309 specifically require that a state                 visibility conditions in certain Class I areas. The
                                                  Implementation Plan; Call for Utah State                participating in a regional planning                     156 mandatory Class I federal areas in which
                                                  Implementation Plan Revisions,’’ 74 FR 21639            process include all measures needed to                   visibility has been determined to be an important
                                                  (April 18, 2011).                                                                                                value are listed at subpart D of 40 CFR part 81. For
                                                    13 EPA has used this authority to correct errors in
                                                                                                          achieve its apportionment of emission                    brevity, these areas are referred to here simply as
                                                  past actions on SIP submissions related to PSD          reduction obligations agreed upon                        ‘‘Class I areas.’’
                                                  programs. See ‘‘Limitation of Approval of               through that process. A fully approved                      Implementation plans must give specific
                                                  Prevention of Significant Deterioration Provisions      regional haze SIP will ensure that                       attention to certain stationary sources. Specifically,
                                                  Concerning Greenhouse Gas Emitting-Sources in           emissions from sources under an air                      section 169A(b)(2)(A) of the CAA requires states to
                                                  State Implementation Plans; Final Rule,’’ 75 FR                                                                  revise their SIPs to contain such measures as may
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                                                  82536 (December 30, 2010). EPA has previously           agency’s jurisdiction are not interfering                be necessary to make reasonable progress towards
                                                  used its authority under section 110(k)(6) of the                                                                the natural visibility goal, including a requirement
                                                  CAA to remove numerous other SIP provisions that           14 See, e.g., EPA’s disapproval of a SIP submission   that certain categories of existing major stationary
                                                  the Agency determined it had approved in error.         from Colorado on the grounds that it would have          sources built between 1962 and 1977 procure,
                                                  See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR        included a director’s discretion provision               install, and operate BART as determined by the
                                                  34641 (June 27, 1997) (corrections to American          inconsistent with CAA requirements, including            state. Under the Regional Haze Rule, states are
                                                  Samoa, Arizona, California, Hawaii, and Nevada          section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344    directed to conduct BART determinations for such
                                                  SIPs); 69 FR 67062, November 16, 2004 (corrections      (July 21, 2010) (proposed disapproval of director’s      ‘‘BART-eligible’’ sources that may be anticipated to
                                                  to California SIP); and 74 FR 57051 (November 3,        discretion provisions); 76 FR 4540 (January 26,          cause or contribute to any visibility impairment in
                                                  2009) (corrections to Arizona and Nevada SIPs).         2011) (final disapproval of such provisions).            a Class I area.



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                                                  87508                  Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules

                                                  Pollution Rule (CSAPR) 18 and can no                     rule’s deadlines by three years.23                        Alabama sought to convert the 2012
                                                  longer be relied upon as an alternative                  Consequently, implementation of                        limited approval/limited disapproval of
                                                  to BART or as part of a long-term                        CSAPR Phase 1 began in January 2015                    the State’s regional haze SIP to a full
                                                  strategy (LTS) for addressing regional                   and implementation of Phase 2 is                       approval through a SIP revision
                                                  haze. Therefore, EPA finalized a limited                 scheduled to begin in January 2017.                    submitted on October 26, 2015. This SIP
                                                  disapproval of Alabama’s 2008 regional                     Following the Supreme Court remand,                  revision intended to adopt the CSAPR
                                                  haze SIP submission to the extent that                   the D.C. Circuit conducted further                     trading program into the SIP, including
                                                  it relied on CAIR to satisfy the BART                    proceedings to address the remaining                   the Phase 2 annual NOx and annual SO2
                                                  and LTS requirements.19 See 77 FR                        claims. In July 2015, the court issued a               CSAPR budgets for the State, and to use
                                                  33642 (June 7, 2012).                                    decision denying most of the claims but                this adoption to replace reliance on
                                                                                                           remanding the Phase 2 sulfur dioxide                   CAIR with reliance on CSAPR to satisfy
                                                     In that limited disapproval action,
                                                                                                           (SO2) emissions budgets for Alabama,                   the BART and LTS requirements.
                                                  EPA also amended the Regional Haze
                                                                                                           Georgia, South Carolina, and Texas and                 Although EPA has approved the CSAPR
                                                  Rule to provide that CSAPR can serve as
                                                                                                           the Phase 2 ozone-season nitrogen                      trading program into the Alabama SIP,27
                                                  an alternative to BART, i.e., that
                                                                                                           oxides (NOX) budgets for eleven states                 EPA is currently seeking comment on its
                                                  participation by a state’s EGUs in a
                                                                                                           to EPA for reconsideration.24 Since                    proposal that CSAPR continue to be
                                                  CSAPR trading program for a given
                                                                                                           receipt of the D.C. Circuit’s 2015                     available as an alternative to BART. EPA
                                                  pollutant achieves greater reasonable
                                                                                                           decision, EPA has engaged the affected                 thus cannot approve the portion of
                                                  progress toward the national goal of                                                                            Alabama’s 2015 SIP submission seeking
                                                  achieving natural visibility conditions                  states to determine appropriate next
                                                                                                           steps to address the decision with                     to replace reliance on CAIR with
                                                  in Class I areas than source-specific                                                                           reliance on CSAPR to satisfy the BART
                                                  BART for those EGUs for that                             regard to each state.25 In a November 10,
                                                                                                           2016 proposed rulemaking, EPA stated                   and LTS requirements at this time.
                                                  pollutant.20 See 40 CFR 51.308(e)(4); 77                                                                        Because Alabama’s prong 4 SIP
                                                  FR 33642. A state can participate in the                 that it expects that potentially material
                                                                                                           changes to the scope of CSAPR coverage                 submission relies solely on the State
                                                  trading program through either a federal                                                                        having a fully approved regional haze
                                                  implementation plan (FIP)                                resulting from the remand will be
                                                                                                           limited to withdrawal of the CSAPR FIP                 SIP, EPA is not currently in a position
                                                  implementing CSAPR or an integrated                                                                             to approve the prong 4 element of
                                                  CSAPR state trading program                              requiring Texas to participate in the
                                                                                                           Phase 2 trading programs for annual                    Alabama’s August 20, 2012, 2008 8-hour
                                                  implemented through an approved SIP                                                                             ozone infrastructure SIP revision.
                                                  revision. In promulgating this                           emissions of SO2 and NOX and
                                                                                                           withdrawal of Florida’s CSAPR FIP                         EPA is therefore proposing to
                                                  amendment to the Regional Haze Rule,                                                                            disapprove the prong 4 element of
                                                  EPA relied on an analytic demonstration                  requirements for ozone-season NOX,
                                                                                                           which EPA recently finalized in another                Alabama’s August 20, 2012, 2008 8-hour
                                                  of visibility improvement from CSAPR                                                                            ozone infrastructure SIP submission.
                                                  implementation relative to BART based                    action.26
                                                                                                             Due to these expected changes to                     Alabama did not submit this
                                                  on an air quality modeling study.                                                                               infrastructure SIP to meet requirements
                                                                                                           CSAPR’s scope, EPA conducted a
                                                     At the time of the rule amendment,                    sensitivity analysis to the 2012 analytic              for Part D or a SIP call; therefore, if EPA
                                                  questions regarding the legality of                      CSAPR ‘‘alternative to BART’’                          takes final action to disapprove the
                                                  CSAPR were pending before the United                     demonstration showing that the analysis                prong 4 portion of this submission, no
                                                  States Court of Appeals for the District                 would have supported the same                          sanctions will be triggered. However, if
                                                  of Columbia Circuit (D.C. Circuit) and                   conclusion if the actions that EPA has                 EPA finalizes this proposed
                                                  the court had stayed implementation of                   proposed to take or has already taken in               disapproval, that final action will trigger
                                                  the rule. The D.C. Circuit subsequently                  response to the D.C. Circuit’s remand of               the requirement under section 110(c)
                                                  vacated and remanded CSAPR in                            various CSAPR Phase 2 budgets—                         that EPA promulgate a federal
                                                  August 2012, leaving CAIR in place                       specifically, the proposed withdrawal of               implementation plan (FIP) no later than
                                                  temporarily.21 However, in April 2014,                   PM2.5-related CSAPR Phase 2 FIP                        two years from the date of the
                                                  the Supreme Court reversed the vacatur                   requirements for Texas EGUs and the                    disapproval unless EPA approves a SIP
                                                  and remanded to the D.C. Circuit for                     recently finalized withdrawal of ozone-                revision satisfying prong 4 requirements
                                                  resolution of the remaining claims.22                    related CSAPR Phase 2 FIP                              before EPA promulgates such a FIP.
                                                  The D.C. Circuit then granted EPA’s                      requirements for Florida EGUs—were                     V. Proposed Action
                                                  motion to lift the stay and to toll the                  reflected in that analysis. EPA’s                        As described above, EPA is proposing
                                                                                                           November 10, 2016 notice of proposed                   to disapprove the prong 4 portion of
                                                     18 CSAPR addresses the interstate transport of
                                                                                                           rulemaking seeks comment on this                       Alabama’s August 20, 2012, 2008 8-hour
                                                  emissions contributing to nonattainment and
                                                  interfering with maintenance of the two air quality
                                                                                                           analysis. See 81 FR 78954.                             ozone infrastructure SIP submission. All
                                                  standards covered by CAIR as well as the 2006                                                                   other applicable infrastructure
                                                  PM2.5 NAAQS. CSAPR requires substantial                    23 Order, EME Homer City Generation, L.P. v.
                                                  reductions of SO2 and NOX emissions from electric        EPA, No. 11–1302 (D.C. Cir. issued October 23,
                                                                                                                                                                  requirements for this SIP submission
                                                  generating units (EGUs) in 28 states in the eastern      2014).                                                 have been addressed in separate
                                                  United States.                                             24 EME Homer City Generation, L.P. v. EPA, 795       rulemakings.
                                                     19 EPA finalized a limited approval of Alabama’s
                                                                                                           F.3d 118, 138 (D.C. Cir. 2015). The D.C. Circuit did
                                                  regional haze SIP on March 30, 2012. See 77 FR           not remand the CSAPR ozone season NOX budgets          VI. Statutory and Executive Order
                                                  19098.                                                   for Alabama.                                           Reviews
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                                                     20 Legal challenges from state, industry, and other     25 As discussed below, Alabama submitted a SIP
                                                  petitioners to EPA’s determination that CSAPR can        revision to EPA on October 26, 2015, to incorporate
                                                                                                                                                                    Under the CAA, the Administrator is
                                                  be an alternative to BART are pending. Utility Air       the Phase 2 annual NOX and annual SO2 CSAPR            required to approve a SIP submission
                                                  Regulatory Group v. EPA, No. 12–1342 (D.C. Cir.          budgets for the State into the SIP. EPA approved       that complies with the provisions of the
                                                  filed August 6, 2012).                                   this SIP revision in a final action published on       Act and applicable federal regulations.
                                                     21 EME Homer City Generation, L.P. v. EPA, 696        August 31, 2016. See 81 FR 59869.
                                                  F.3d 7 (D.C. Cir. 2012).                                   26 See 81 FR 78954 (November 10, 2016) for
                                                                                                                                                                  See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
                                                     22 EPA v. EME Homer City Generation, L.P., 134        further discussion regarding EPA’s expectations and    Thus, in reviewing SIP submissions,
                                                  S. Ct. 1584 (2014), reversing 696 F.3d 7 (D.C. Cir.      the proposed withdrawal of the CSAPR FIP for
                                                  2012).                                                   Texas.                                                  27 See   81 FR 59869 (August 31, 2016).



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                                                                        Federal Register / Vol. 81, No. 233 / Monday, December 5, 2016 / Proposed Rules                                          87509

                                                  EPA’s role is to approve state choices,                 List of Subjects in 40 CFR Part 52                    FOR FURTHER INFORMATION CONTACT:
                                                  provided that they meet the criteria of                   Environmental protection, Air                       Kathryn Boyle, Field and External
                                                  the CAA. EPA is proposing to determine                  pollution control, Incorporation by                   Affairs Division (7506P), Office of
                                                  that the prong 4 portion of the                         reference, Intergovernmental relations,               Pesticide Programs, Environmental
                                                  aforementioned SIP submission does                      Nitrogen dioxide, Ozone, Particulate                  Protection Agency, 1200 Pennsylvania
                                                  not meet Federal requirements.                          matter, Reporting and recordkeeping                   Ave. NW., Washington, DC 20460–0001;
                                                  Therefore, this proposed action does not                requirements, Volatile organic                        telephone number: (703) 305–6304;
                                                  impose additional requirements on the                   compounds.                                            email address: boyle.kathryn@epa.gov.
                                                  state beyond those imposed by state                                                                           SUPPLEMENTARY INFORMATION:
                                                  law. For that reason, this proposed                       Authority: 42 U.S.C. 7401 et seq.
                                                  action:                                                   Dated: November 23, 2016.                           I. What action is EPA taking?
                                                     • Is not a ‘‘significant regulatory                  Heather McTeer Toney,                                    Section 25(a)(2)(B) of FIFRA requires
                                                  action’’ subject to review by the Office                Regional Administrator, Region 4.                     the EPA Administrator to provide the
                                                  of Management and Budget under                          [FR Doc. 2016–28871 Filed 12–2–16; 8:45 am]           Secretary of USDA with a copy of any
                                                  Executive Orders 12866 (58 FR 51735,                    BILLING CODE 6560–50–P                                draft final rule at least 30 days before
                                                  October 4, 1993) and 13563 (76 FR 3821,                                                                       signing it in final form for publication
                                                  January 21, 2011);                                                                                            in the Federal Register. The draft final
                                                     • does not impose an information                     ENVIRONMENTAL PROTECTION                              rule is not available to the public until
                                                  collection burden under the provisions                  AGENCY                                                after it has been signed by EPA. If the
                                                  of the Paperwork Reduction Act (44                                                                            Secretary of USDA comments in writing
                                                                                                          40 CFR Parts 152, 153, 155, 156, 160,                 regarding the draft final rule within 15
                                                  U.S.C. 3501 et seq.);
                                                                                                          165, 168, 170, and 172                                days after receiving it, the EPA
                                                     • is certified as not having a
                                                                                                          [EPA–HQ–OPP–2016–0227; FRL–9945–77]                   Administrator shall include the
                                                  significant economic impact on a
                                                                                                                                                                comments of the Secretary of USDA, if
                                                  substantial number of small entities                    RIN 2070–AK13                                         requested by the Secretary of USDA,
                                                  under the Regulatory Flexibility Act (5
                                                                                                                                                                and the EPA Administrator’s response
                                                  U.S.C. 601 et seq.);                                    Notification of Submission to the
                                                                                                                                                                to those comments with the final rule
                                                     • does not contain any unfunded                      Secretary of Agriculture; Pesticides;
                                                                                                                                                                that publishes in the Federal Register.
                                                  mandate or significantly or uniquely                    Removal of Obsolete Information
                                                                                                                                                                If the Secretary of USDA does not
                                                  affect small governments, as described                  AGENCY:  Environmental Protection                     comment in writing within 15 days after
                                                  in the Unfunded Mandates Reform Act                     Agency (EPA).                                         receiving the draft final rule, the EPA
                                                  of 1995 (Pub. L. 104–4);                                ACTION: Notification of submission to                 Administrator may sign the final rule for
                                                     • does not have Federalism                           the Secretary of Agriculture.                         publication in the Federal Register any
                                                  implications as specified in Executive                                                                        time after the 15–day period.
                                                  Order 13132 (64 FR 43255, August 10,                    SUMMARY:    This document notifies the
                                                                                                          public as required by the Federal                     II. Do any Statutory and Executive
                                                  1999);
                                                                                                          Insecticide, Fungicide, and Rodenticide               Order reviews apply to this
                                                     • is not an economically significant                                                                       notification?
                                                  regulatory action based on health or                    Act (FIFRA) that the EPA Administrator
                                                  safety risks subject to Executive Order                 has forwarded to the Secretary of the                   No. This document is merely a
                                                  13045 (62 FR 19885, April 23, 1997);                    United States Department of Agriculture               notification of submission to the
                                                                                                          (USDA) a draft regulatory document                    Secretary of USDA. As such, none of the
                                                     • is not a significant regulatory action             concerning removal of obsolete                        regulatory assessment requirements
                                                  subject to Executive Order 13211 (66 FR                 information. The draft regulatory                     apply to this document.
                                                  28355, May 22, 2001);                                   document is not available to the public
                                                     • is not subject to requirements of                  until after it has been signed and made               List of Subjects
                                                  Section 12(d) of the National                           available by EPA.                                     40 CFR Part 152
                                                  Technology Transfer and Advancement                     DATES: See Unit I. under SUPPLEMENTARY
                                                  Act of 1995 (15 U.S.C. 272 note) because                                                                        Environmental protection,
                                                                                                          INFORMATION.
                                                  application of those requirements would                                                                       Administrative practice and procedure,
                                                                                                          ADDRESSES: The docket for this action,                Pesticides and pests, Reporting and
                                                  be inconsistent with the CAA; and                       identified by docket identification (ID)              recordkeeping requirements.
                                                     • does not provide EPA with the                      number EPA–HQ–OPP–2016–0227 is
                                                  discretionary authority to address, as                  available at http://www.regulations.gov               40 CFR Part 153
                                                  appropriate, disproportionate human                     or at the Office of Pesticide Programs                  Environmental protection, Pesticides
                                                  health or environmental effects, using                  Regulatory Docket (OPP Docket) in the                 and pests, Reporting and recordkeeping
                                                  practicable and legally permissible                     Environmental Protection Agency                       requirements.
                                                  methods, under Executive Order 12898                    Docket Center (EPA/DC), West William
                                                  (59 FR 7629, February 16, 1994).                        Jefferson Clinton Bldg., Rm. 3334, 1301               40 CFR Part 155
                                                     The SIP is not approved to apply on                  Constitution Ave. NW., Washington, DC                   Environmental protection,
                                                  any Indian reservation land or in any                   20460–0001. The Public Reading Room                   Administrative practice and procedure,
                                                  other area where EPA or an Indian tribe                 is open from 8:30 a.m. to 4:30 p.m.,                  Confidential business information,
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                                                  has demonstrated that a tribe has                       Monday through Friday, excluding legal                Pesticides and pests, Reporting and
                                                  jurisdiction. In those areas of Indian                  holidays. The telephone number for the                recordkeeping requirements.
                                                  country, the rule does not have tribal                  Public Reading Room is (202) 566–1744,
                                                  implications as specified by Executive                  and the telephone number for the OPP                  40 CFR Part 156
                                                  Order 13175 (65 FR 67249, November 9,                   Docket is (703) 305–5805. Please review                 Environmental protection, Labeling,
                                                  2000), nor will it impose substantial                   the visitor instructions and additional               Occupational safety and health,
                                                  direct costs on tribal governments or                   information about the docket available                Pesticides and pests, Reporting and
                                                  preempt tribal law.                                     at http://www.epa.gov/dockets.                        recordkeeping requirements.


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Document Created: 2016-12-03 00:25:51
Document Modified: 2016-12-03 00:25:51
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received on or before December 27, 2016.
ContactSean Lakeman of 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]
FR Citation81 FR 87503 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Volatile Organic Compounds

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