Daily Rules, Proposed Rules, and Notices of the Federal Government
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to make a SIP submission to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 36852), EPA promulgated a new annual PM
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. Among the elements that states must address is section 110(a)(2)(E)(ii), which in turn refers to the specific requirements of section 128. Section 128 explicitly provides that state SIPs “shall contain requirements” as described in sections 128(a)(1) and (2). In addition, states may adopt any additional requirements that are “more stringent” than those explicitly required in section 128. EPA issued guidance to states making recommendations concerning compliance with section 128.
In this action, EPA is only addressing sub-element 110(a)(2)(E)(ii). In taking final action on the proposed disapproval, EPA is responding to an adverse comment received on EPA's July 20, 2012, proposed disapproval of Alabama's July 25, 2008, and September 23, 2009, infrastructure submissions for sub-element 110(a)(2)(E)(ii). EPA is taking a separate action to address the other applicable infrastructure elements for the 1997 annual and 2006 24-hour PM
The following is EPA's response to the adverse comment received on EPA's July 20, 2012, proposed disapproval of Alabama's July 25, 2008, and September 23, 2009, infrastructure submissions as they relate to section 110(a)(2)(E)(ii) of the CAA.
In its July 20, 2012, proposed rulemaking (77 FR 42682), EPA preliminarily determined that the State's implementation plan did not contain provisions to comply with section 128 of the Act, and thus, Alabama's July 25, 2008, and September 23, 2009, submissions do not meet the requirements of the Act with respect to section 110(a)(2)(E)(ii).
EPA considered the State's comment and has determined the comments do not adequately address the requirements for the following procedural and substantive reasons. With respect to procedural issues, an adverse comment letter on a proposed action does not meet the statutory and regulatory requirements for a SIP submission. Section 110(a)(1), section 110(a)(2), and section 110(l), all provide that a state's implementation plan submission must undergo reasonable notice and opportunity for comment. In addition, EPA regulations at Part 51, Appendix V, set forth additional criteria for a SIP submission. EPA has determined that the conflict of interest disclosure protocol attached to the State's adverse comment letter does not constitute such a SIP submission for a number of reasons including, but not limited to, the fact that the State has not provided information that the submission has undergone the requisite public notice or a demonstration that the protocol has been adopted and is in final form as submitted. In addition, the protocol was not signed, stamped and dated by an appropriate official to indicate that it is fully enforceable by the State.
Substantively, were it an official submission, it would not be sufficient to satisfy the requirements of section 128 necessary for EPA to approve Alabama's infrastructure submissions as they relate to section 110(a)(2)(E)(ii). As noted in the proposed rule for today's action, section 128 requires that: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed.
Alabama provides no explanation as to how its conflict of interest disclosure protocol would satisfy the public interest and significant portion of income requirements applicable to the majority of a state board or body subject to section 128(a)(1). Alabama's response to EPA's comments on the State's draft 2008 8-hour ozone infrastructure submission (included with Alabama's comment on today's rulemaking) notes that certain ADEM officials are charged with responsibilities for issuing permits or enforcement orders. EPA has interpreted the “board or body” requirements of section 128(a)(1) as not applying to individuals tasked with authority to approve permits or enforcement orders. However, where appeals of such permits or enforcement orders are resolved by boards or bodies, those entities are subject to the majority requirements of section 128(a)(1). Alabama's comment does not describe how appeals of permits or enforcement order are handled in the State. In order for EPA to determine that the requirements of section 128(a)(1) are not applicable in Alabama, the State must provide this information. If a board or body does review appeals of permit or enforcement orders, the SIP must require that such board or board be subject to the 128(a)(1) majority requirements in order for EPA to approve Alabama's section 110(a)(2)(E)(ii) infrastructure submittals. Based upon the information protocol described by Alabama, the State's approach fails to address the majority requirements of section 128.
In addition to the issues noted above regarding the section 128(a)(1) requirements, the question of whether a board or body handles appeals of permits or enforcement orders is also relevant to sufficiency of the State's protocol with respect to the section 128(a)(2) requirements. To the extent a board or body decides appeals of permits or enforcement orders, the SIP must require that members of such board or body be subject to the section 128(a)(2) conflict of interest disclosure requirements. The State's conflict of interest disclosure protocol, as submitted, would appear to only apply to three specified officials within ADEM. Alabama has failed to demonstrate how the submitted protocol would provide adequate disclosure consistent with the requirements section 128(a)(2).
EPA also notes that Alabama's conflict of interest disclosure protocol, at footnote 3, asserts that “EPA defines `significant portion of income' as 50% or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement. This information need only be provided if the recipient falls in this category.” This statement is incomplete. The complete suggested definition for “Significant Portion of Income” recommended in EPA's 1978 Guidance to States for Meeting Conflict of Interest Requirements of Section 128 is “10 percent or more of gross personal income for a calendar year, including retirement benefits, consultation fees, and stock dividends, except that it shall mean 50 percent [or more] of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement.” Alabama's protocol omits the generally applicable 10 percent standard.
EPA is finalizing disapproval of Alabama's infrastructure submissions as they relate to sub-element 110(a)(2)(E)(ii) because, as described above, the SIP presently does not contain provisions to address the requirements of section 128 of the CAA. Consistent with the obligations under the CAA, EPA intends to continue working with the State to resolve this SIP deficiency.
EPA is taking final action to disapprove the portion of Alabama's July 25, 2008, and September 23, 2009, submissions which was intended to meet the requirement to address element 110(a)(2)(E)(ii) for the 1997 annual and 2006 24-hour PM
Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or is required in response to a finding of substantial inadequacy as described in section 7410(k)(5) (SIP call) starts a sanctions clock. Section 110(a)(2)(E)(ii) provisions (the provisions being disapproved in today's notice) were not submitted to meet requirements for Part D, and
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly this final action disapproves state law because it does not meet federal requirements. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• 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 Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 14, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401