[Federal Register Volume 77, Number 27 (Thursday, February 9, 2012)]
[Proposed Rules]
[Pages 6711-6727]
[FR Doc No: 2012-2902]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2008-0633; FRL-9628-5]

Approval and Promulgation of Implementation Plans; Arkansas;
Infrastructure Requirements for the 1997 Ozone NAAQS and the 1997 and
2006 PM2.5 NAAQS and Interstate Transport Requirements for the 1997
Ozone NAAQS and 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove
submittals from the state of Arkansas pursuant to the Clean Air Act
(CAA or Act) that address the infrastructure elements specified in the
CAA section 110(a)(2), necessary to implement, maintain, and enforce
the 1997 8-hour ozone and the 1997 and 2006 fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS or
standards). We are proposing to find that the current Arkansas State
Implementation Plan (SIP) meets the following infrastructure elements
for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5
NAAQS: 110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), (M), and
portions of (C), (D)(ii) and (J). We are proposing to find that the
current Arkansas SIP does not meet the infrastructure requirements for
the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5
NAAQS at 110(a)(2) for portions of (C), (D)(ii), and (J) because the
EPA-approved SIP prevention of significant deterioration (PSD) program
does not apply to greenhouse gas (GHG) emitting sources. We also are
proposing to find that the current Arkansas SIP does not meet the
infrastructure requirements for the 1997 and 2006 PM2.5
NAAQS at 110(a)(2) for portions of (C), (D)(ii), and (J) because
Arkansas has not submitted the PSD SIP revision required by EPA's
Implementation of the New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (73 FR 28321, May 16, 2008). Further,
we are proposing to partially approve and partially disapprove the
provisions of SIP submissions that emissions from sources in Arkansas
do not interfere with measures required in the SIP of any other state
under part C of the CAA to prevent significant deterioration of air
quality, with regard to the 1997 8-hour ozone NAAQS and the 2006
PM2.5 NAAQS. The partial disapprovals herein are because
Arkansas cannot

issue permits for GHG emissions and because the State did not submit
the required PM2.5 PSD SIP revision. Finally, for purposes
of the 1997 8-hour ozone NAAQS, EPA is proposing to approve SIP
revisions that modify the Arkansas PSD SIP to include nitrogen oxides
(NOX) as an ozone precursor.
    This action is being taken under section 110 and part C of the Act.
Finally, EPA is also proposing to make a correction to the attainment
status table in 40 CFR 81.304 to accurately reflect the redesignation
date of Crittenden County, Arkansas to attainment for the 1997 8-hour
ozone standard.

DATES: Comments must be received on or before March 12, 2012.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0633, by one of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     U.S. EPA Region 6 ``Contact Us'' Web site: http://epa.gov/region6/r6comment.htm. Please click on ``6PD (Multimedia)'' and select
``Air'' before submitting comments.
     Email: Mr. Guy Donaldson at<EMAIL_ADDRESS>Please
also send a copy by email to the person listed in the FOR FURTHER
INFORMATION CONTACT section below.
     Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), at fax number<PHONE_NUMBER>.
     Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
     Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air
Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross
Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are
accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not
on legal holidays. Special arrangements should be made for deliveries
of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2008-0633. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
at www.regulations.gov or in hard copy at the Air Planning Section
(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below or Mr. Bill Deese at<PHONE_NUMBER> to make an
appointment. If possible, please make the appointment at least two
working days in advance of your visit. There will be a fee of 15 cents
per page for making photocopies of documents. On the day of the visit,
please check in at the EPA Region 6 reception area at 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202.
    The State submittal is also available for public inspection during
official business hours by appointment: Arkansas Department of
Environmental Quality (ADEQ), Planning and Air Quality Analysis Branch,
5301 Northshore Drive, North Little Rock, Arkansas 72118.

FOR FURTHER INFORMATION CONTACT: Mr. Jeffrey Riley, Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733, telephone<PHONE_NUMBER>;
fax number<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' means EPA.

Table of Contents

I. Background
    A. What are the National Ambient Air Quality Standards?
    B. What is a SIP?
    C. What is the background for this rulemaking?
    1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    2. What elements are required under Section 110(a)(2)?
    3. 110(a)(2)(D)(i) Interstate Transport SIP Elements
    4. Revisions to the Arkansas PSD SIP
    5. Greenhouse Gas (GHG) Component of PSD Programs
    6. PM2.5 SIP Revisions
II. What action is EPA proposing?
III. How has Arkansas addressed the elements of Section 110(a)(2)?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. What are the National Ambient Air Quality Standards?

    Section 109 of the Act requires EPA to establish NAAQS for
pollutants that ``may reasonably be anticipated to endanger public
health and welfare,'' and to develop a primary and secondary standard
for each NAAQS. The primary standard is designed to protect human
health with an adequate margin of safety, and the secondary standard is
designed to protect public welfare and the environment. EPA has set
NAAQS for six common air pollutants, referred to as criteria
pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate
matter, and sulfur dioxide. These standards present state and local
governments with the minimum air quality levels they must meet to
comply with the Act. Also, these standards provide information to
residents of the United States about the air quality in their
communities.

B. What is a SIP?

    The SIP is a set of air pollution regulations, control strategies,
other means or techniques, and technical analyses developed by the
state, to ensure that the state meets the NAAQS. The SIP is required by
section 110 and other provisions of the Act. These SIPs can be
extensive, containing state

regulations or other enforceable documents and supporting information
such as emissions inventories, monitoring networks, and modeling
demonstrations. Each state must submit these regulations and control
strategies to EPA for approval and incorporation into the federally-
enforceable SIP. Another important aspect of the SIP is to ensure that
emissions from within the state do not have certain prohibited impacts
upon the ambient air in other states through interstate transport of
pollutants. This SIP requirement is specified in section 110(a)(2)(D)
of the CAA. Pursuant to that provision, each state's SIP must contain
provisions adequate to prevent, among other things, emissions that
interfere with measures required to be included in the SIP of any other
state to prevent significant deterioration of air quality in any other
state. Each federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin.

C. What is the background for this rulemaking?

    Under sections 110(a)(1) and (2) of the Act, states are required to
submit SIPs that provide for the implementation, maintenance, and
enforcement (the infrastructure) of a new or revised NAAQS within three
years following the promulgation of the NAAQS, or within such shorter
period as EPA may prescribe. Section 110(a)(2) lists the specific
infrastructure elements that must be incorporated into the SIPs,
including for example, requirements for emission inventories, NSR, air
pollution control measures, and monitoring that are designed to assure
attainment and maintenance of the NAAQS. Table 1, displayed in Section
D of this rulemaking, lists all 14 infrastructure elements.\1\ EPA
refers to the requirements of section 110(a)(2)(A)-(C), (D)(ii), (E)-
(H), and (J)-(M) as the ``infrastructure'' SIPs. Additionally, EPA
refers to the requirements of section 110(a)(2)(D)(i) as the
``interstate transport'' SIPs. EPA provided separate guidance to states
on each type of SIP, infrastructure and interstate transport, and these
actions are on separate tracks and timelines.
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but rather are due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (i) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA and (ii) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D Title I of the CAA. Therefore, this action
does not cover these specific SIP elements.
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1. Section 110(a)(1) and (2) Infrastructure SIP Elements
    On July 18, 1997, we published new and revised NAAQS for ozone (62
FR 38856) and PM (62 FR 38652). For ozone, we set an 8-hour standard of
0.08 parts per million (ppm) to replace the 1-hour standard of 0.12
ppm. For PM, we set a new annual and a new 24-hour NAAQS for particles
with an aerodynamic diameter less than or equal to a nominal 2.5
micrometers (denoted PM2.5). The annual PM2.5
standard was set at 15 micrograms per cubic meter ([mu]g/m\3\). The 24-
hour PM2.5 standard was set at 65 [mu]g/m\3\. On October 17,
2006, we published revised standards for PM (71 FR 61144). For
PM2.5 the annual standard of 15 [mu]g/m\3\ was retained and
the 24-hour standard was revised to 35 [mu]g/m\3\. For PM10
the annual standard was revoked and the 24-hour standard (150 [mu]g/
m\3\) was retained. For more information on these standards, please see
the 1997 and 2006 Federal Register notices (62 FR 38856, 62 FR 38652,
and 71 FR 61144).
    Thus, states were required to submit such SIPs for the 1997 8-hour
ozone and PM2.5 NAAQS to EPA no later than June 2000.\2\
However, intervening litigation over the 1997 8-hour ozone and
PM2.5 NAAQS created uncertainty about how to proceed and
many states did not provide the required ``infrastructure'' SIP
submission for these newly promulgated NAAQS.
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    \2\ EPA issued a revised 8-hour ozone standard on March 27, 2008
(73 FR 16436). This rulemaking does not address the 2008 ozone
standard.
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    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the infrastructure requirements for the 1997 8-hour ozone and
PM2.5 NAAQS. EPA entered into a consent decree with
Earthjustice which required EPA, among other things, to complete a
Federal Register notice announcing EPA's determinations pursuant to
section 110(k)(1)(B) of the Act as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 8-hour ozone NAAQS by December 15, 2007. Subsequently, EPA
received an extension of the date to complete this Federal Register
notice until March 17, 2008, based upon agreement to make the findings
with respect to submissions made by January 7, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state as of January 7, 2008.
With regard to the 1997 PM2.5 NAAQS, EPA entered into a
consent decree with Earthjustice which required EPA, among other
things, to complete a Federal Register notice announcing EPA's
determinations pursuant to section 110(k)(1)(B) of the Act as to
whether each state had made complete submissions to meet the
requirements of section 110(a)(2) for the 1997 PM2.5 NAAQS
by October 5, 2008.
    On March 27, 2008, and October 22, 2008, we published findings
concerning whether states had made the 110(a)(2) submissions for the
1997 ozone (73 FR 16205) and PM2.5 standards (73 FR 62902).
In the March 27, 2008 action, we found that Arkansas had made a
submission that addressed some, but not all of the section 110(a)(2)
requirements of the Act necessary to implement the 1997 8-hour ozone
NAAQS.\3\ In the October 22, 2008 action, we found that Arkansas had
made a complete submission intended to provide for the basic program
elements specified in section 110(a)(2) of the Act necessary to
implement the 1997 PM2.5 NAAQS.
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    \3\ In the March 27, 2008 action we found that Arkansas had not
submitted a SIP revision that modified Arkansas' Prevention of
Significant Deterioration (PSD) SIP for the 1997 8-hour ozone NAAQS
to include NOX as an ozone precursor, which is necessary
for approval of elements 110(a)(2)(C) and the PSD and visibility
portion of element 110(a)(2)(J). On February 17, 2010, Arkansas
submitted the necessary PSD SIP revision.
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    On October 2, 2007, we issued ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' Memorandum
from William T. Harnett, Director, Air Quality Policy Division, Office
of Air Quality Planning and Standards (OAQPS).\4\ On September 25,
2009, we issued ``Guidance on SIP Elements Required Under Sections
110(a)(l) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards (NAAQS),'' Memorandum also from
William T. Harnett, Director, AQPD, OAQPS. Each of these guidance memos
addresses the SIP elements found in 110(a)(2). In each of these
guidance memos, the guidance states that to the extent that existing
SIPs for ozone and PM already meet the requirements, states need only
certify that fact to us.
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    \4\ This and any other guidance documents referenced in this
action are in the docket for this rulemaking.
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    On December 17, 2007, March 28, 2008, and September 16, 2009, the
State of Arkansas submitted letters certifying that Arkansas has
addressed any potential infrastructure issues associated with ozone and
PM2.5 and

fulfilled its infrastructure SIP obligations. The letters provided
information on how the current Arkansas SIP provisions meet the
110(a)(2) requirements. These letters are in the docket for this
rulemaking.
    Additional information: EPA is currently acting upon SIPs that
address the infrastructure requirements of CAA section 110(a)(1) and
(2) for ozone and PM2.5 NAAQS for various states across the
country. Commenters on EPA's recent proposals for some states raised
concerns about EPA statements that it was not addressing certain
substantive issues in the context of acting on those infrastructure SIP
submissions.\5\ Those commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated in other proposals that it would address
the issues separately: (i) existing provisions for minor source new
source review programs that may be inconsistent with the requirements
of the CAA and EPA's regulations that pertain to such programs (``minor
source NSR''); and (ii) existing provisions for Prevention of
Significant Deterioration 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''). In light of the comments, EPA believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth. It is important to emphasize that EPA is taking the same
position with respect to these four substantive issues in this action
on the infrastructure SIP submittals for the 1997 8-hour ozone NAAQS
and the 1997 and 2006 PM2.5 NAAQS submissions from Arkansas.
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    \5\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational, and to provide general notice
of the potential existence of provisions within the existing SIPs of
some states that might require future corrective action. EPA did not
want states, regulated entities, or members of the public to be under
the misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
these infrastructure SIP submittals for Arkansas.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``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
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, 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 provisions, and some of which pertain to
requirements for both authority and substantive provisions.\6\ Some of
the elements of section 110(a)(2) are relatively straightforward, but
others clearly require interpretation by EPA through rulemaking, or
recommendations through guidance, in order to give specific meaning for
a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) 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 substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. 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 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, 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 and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be very
different than what might be necessary for a different pollutant. Thus,
the content of an infrastructure SIP submission to meet this element
from a state might be very different for an entirely new NAAQS, versus
a minor revision to an existing NAAQS.\10\
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    \8\ See, e.g., Id., 70 FR 25162, at 63--65 (May 12, 2005)
(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for

the 1997 PM2.5 NAAQS, EPA assumed that each State would work
with its corresponding EPA regional office to refine the scope of a
State's submittal based on an assessment of how the requirements of
section 110(a)(2) should reasonably apply to the basic structure of the
State's SIP for the NAAQS in question.
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    \11\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I--X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ d., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS.
---------------------------------------------------------------------------

    \15\ See, ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T. Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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    Significantly, neither the 2007 Guidance nor the 2009 Guidance
explicitly referred to the SSM, director's discretion, minor source
NSR, or NSR Reform issues as among specific substantive issues EPA
expected states to address in the context of the infrastructure SIPs,
nor did EPA give any more specific recommendations with respect to how
states might address such issues even if they elected to do so. The SSM
and director's discretion issues implicate section 110(a)(2)(A), and
the minor source NSR and NSR Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA
did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in existing SIP provisions in the context of the
infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance
merely indicated its belief that the states should make submissions in
which they established that they have the basic SIP structure necessary
to implement, maintain, and enforce the NAAQS. EPA believes that states
can establish that they have the basic SIP structure, notwithstanding
that there may be potential deficiencies within the existing SIP. Thus,
EPA's proposals for other states mentioned these issues not because the
Agency considers them issues that must be addressed in the context of
an infrastructure SIP as required by section 110(a)(1) and (2), but
rather because EPA wanted to be clear that it considers these potential
existing SIP problems as separate from the pending infrastructure SIP
actions. The same holds true for this action on the infrastructure SIP
submittals for Arkansas.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, 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 considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
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 otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP submittal is not
the appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 76 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved 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).
---------------------------------------------------------------------------

2. What elements are required under Section 110(a)(2)?
    Pursuant to the October 2, 2007 ``EPA guidance for addressing the
SIP infrastructure elements required under sections 110(a)(1) and (2)
for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS,'' there
are 14 essential components that must be in the SIP. These are listed
in Table 1 below.

                                                  Table 1--Section 110(a)(2) Elements Required in SIPs
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Clean Air Act Citation                                                         Brief description
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 110(a)(2)(A)...................  Enforceable emission limits and other control measures.
Section 110(a)(2)(B)...................  Ambient air quality monitoring/data system.
Section 110(a)(2)(C)...................  Program for enforcement of control measures.
Section 110(a)(2)(D)...................  International and interstate transport.
Section 110(a)(2)(E)...................  Adequate resources.
Section 110(a)(2)(F)...................  Stationary source monitoring system.
Section 110(a)(2)(G)...................  Emergency power.
Section 110(a)(2)(H)...................  Future SIP revisions.
Section 110(a)(2)(J) \19\..............  Consultation with government officials.
Section 110(a)(2)(J)...................  Public notification.
Section 110(a)(2)(J)...................  Prevention of significant deterioration (PSD) and visibility protection.
Section 110(a)(2)(K)...................  Air quality modeling/data.
Section 110(a)(2)(L)...................  Permitting fees.
Section 110(a)(2)(M)...................  Consultation/participation by affected local entities.
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. 110(a)(2)(D)(i) Interstate Transport SIP Elements
    Section\19\ 110(a)(2)(D)(i) pertains to interstate transport of
certain emissions. On August 15, 2006, EPA issued its ``Guidance for
State Implementation Plan (SIP) Submission to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2006
Guidance). EPA developed the 2006 Guidance to make recommendations to
states for making submissions to meet the requirements of section
110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997
PM2.5 standards. As identified in the 2006 Guidance, the
``good neighbor'' provisions in section 110(a)(2)(D)(i) require each
state to submit a SIP that prohibits emissions that adversely affect
another state in the ways contemplated in the statute. Section
110(a)(2)(D)(i) contains four distinct requirements related to the
impacts of interstate transport. The SIP must prevent sources in the
state from emitting pollutants in amounts that will: (1) Contribute
significantly to nonattainment of the NAAQS in other states; (2)
interfere with maintenance of the NAAQS in other states; (3) interfere
with provisions to prevent significant deterioration of air quality in
other states; and (4) interfere with efforts to protect visibility in
other states.
---------------------------------------------------------------------------

    \19\ Section 110(a)(2)(I) pertains to the nonattainment planning
requirements of part D, Title I of the Act. This section is not
governed by the 3-year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within 3 years after promulgation of a new or
revised NAAQS, but are due at the time the nonattainment area plan
requirements are due pursuant to section 172. Thus this action does
not cover section 110(a)(2)(I).
---------------------------------------------------------------------------

    On December 17, 2007, we received a certification from the State of
Arkansas intended to address the requirements of section
110(a)(2)(D)(i) for both the 1997 8-hour ozone and 1997
PM2.5 standard. On March 28, 2008, we received a
certification \20\ from the State intended to address the requirements
of section 110(a)(2)(D)(i) for the 2006 PM2.5 NAAQS. In this
rulemaking, for the 1997 ozone and 2006 PM2.5 NAAQS, we are
addressing only the 110(a)(2)(D)(i) requirement that pertains to
preventing sources in Arkansas from emitting pollutants that will
interfere with measures required to prevent significant deterioration
of air quality in other states.\21\ In its submission, Arkansas
indicated that its current PSD New Source Review (NSR) SIP is adequate
to prevent such interference.
---------------------------------------------------------------------------

    \20\ This is the same submittal that addresses the 110(a)(2)
infrastructure SIP elements for the 1997 ozone and 1997
PM2.5 NAAQS.
    \21\ EPA published a finding on April 25, 2005 (70 FR 21147)
that all states had failed to submit SIPs addressing interstate
transport for the 1997 ozone and PM2.5 standards, as
required by section 110(a)(2)(D)(i). EPA proposed a FIP on August 2,
2010 (75 FR 45210) to limit emissions of ozone precursors and PM
that contribute significantly to nonattainment of the 1997 ozone and
1997 and 2006 PM NAAQS in other states and interfere with
maintenance of these three NAAQS in other states. EPA finalized the
FIP on July 6, 2011; known as the Cross-State Air Pollution Rule, it
requires that Arkansas (and 26 other states in the eastern half of
the United States) must significantly improve air quality by
reducing power plant emissions that cross state lines and contribute
to ground-level ozone and fine particle pollution in other states.
See 76 FR 48208 (published August 8, 2011) and www.epa.gov/crossstaterule. On December 30, 2011, the U.S. Court of Appeals for
the DC Circuit issued its ruling to stay the Cross-State Air
Pollution Rule, pending judicial review. See http://www.epa.gov/airtransport/pdfs/CourtDecision.pdf.
---------------------------------------------------------------------------

4. Revisions to the Arkansas PSD SIP
    To meet the infrastructure requirements of section 110(a)(2)(C) of
the Act for the 1997 ozone standard, EPA believes the State must have
updated its rules for PSD to treat NOX as a precursor to
ozone (70 FR 71612, November 29, 2005). PSD rules to treat
NOX as a precursor to ozone are also required to meet the
third 110(a)(2)(D)(i) interstate transport prong, interference with
provisions to prevent significant deterioration of air quality in other
states. On February 17, 2010, Arkansas submitted revisions that
provided for NOX to be treated as a precursor to ozone
formation in its PSD program. We are proposing action on this revision
to the PSD program that implements the provisions for NOX as
a precursor because EPA believes that this is a necessary provision for
implementation of the 1997 ozone standard.
5. Greenhouse Gas (GHG) Component of PSD Programs
    EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's proposed action on
the Arkansas infrastructure SIP. Four of these actions include, as they
are commonly called, the ``Endangerment Finding'' and ``Cause or
Contribute Finding,'' which EPA issued in a single final action,\22\
the ``Johnson Memo Reconsideration,'' \23\ the ``Light-Duty Vehicle
Rule,'' \24\ and the ``Tailoring Rule.'' \25\ Taken together and in
conjunction with the CAA, these actions established regulatory
requirements for GHGs emitted from new motor vehicles and new motor
vehicle engines; determined that such regulations, when they took
effect on January 2, 2011, subjected GHGs

emitted from stationary sources to PSD requirements; and limited the
applicability of PSD requirements to GHG sources on a phased-in basis.
EPA took this last action in the Tailoring Rule, which, more
specifically, established appropriate GHG emission thresholds for
determining the applicability of PSD requirements to GHG-emitting
sources.
---------------------------------------------------------------------------

    \22\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \23\ ``Interpretation of Regulations that Determine Pollutants
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April
2, 2010).
    \24\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \25\ Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
---------------------------------------------------------------------------

    The approved Arkansas SIP contained errors that resulted in its
failure to address, or provide adequate legal authority for, the
implementation of a GHG PSD program in Arkansas. On this basis, on
December 13, 2010, EPA issued a finding that Arkansas' SIP was
substantially inadequate to meet CAA requirements because it did not
apply PSD requirements to GHG emitting sources (75 FR 77698). This
rulemaking also issued a ``SIP call'' to Arkansas, requiring the state
to revise its SIP as necessary to correct the inadequacies. The SIP
call established a deadline of December 22, 2010 for Arkansas to submit
its corrective SIP revision. In response to EPA's proposal of the SIP
call (75 FR 53892), the state declined the 12-month deadline for SIP
revision following the finding of substantial inadequacy in order to
ensure that PSD permitting authorities for newly constructed or
modified sources remain in place.\26\ As required following the SIP
call, EPA promulgated a Federal Implementation Plan (FIP), which
established EPA as the permitting authority for GHG-emitting sources in
Arkansas (75 FR 82246). EPA took these actions through final
rulemaking, effective upon publication, to ensure the availability of a
permitting authority--EPA--in Arkansas for GHG-emitting sources when
they became subject to PSD on January 2, 2011. The FIP allowed those
sources to proceed with plans to construct or expand.
---------------------------------------------------------------------------

    \26\ See letter from Teresa Marks to Lisa P. Jackson, dated
October 1, 2010, in the docket for this rulemaking.
---------------------------------------------------------------------------

    As we discuss further in this proposal and in the TSD, the current
EPA-approved SIP PSD program does not apply to GHG-emitting sources
that emit at or above the levels of emissions set in the Tailoring
Rule, or at other appropriate levels. Thus, the Arkansas SIP does not
satisfy portions of elements within the infrastructure and transport
requirements as they pertain to GHGs. However, EPA's disapproval of
those elements does not engender an additional statutory obligation,
because EPA has already promulgated a FIP for the Arkansas PSD program
to address permitting GHGs at or above the Tailoring Rule thresholds.
6. PM2.5 SIP Revisions
    To implement the PSD NSR component of section 110(a)(2)(C) for the
1997 and 2006 PM2.5 standards, states were required to
submit the necessary SIP revisions to EPA by May 16, 2011 under EPA's
Implementation of the New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (73 FR 28321, May 16, 2008). At
present, Arkansas has not submitted revisions to satisfy this
requirement, and therefore the Arkansas federally-approved PSD NSR SIP
does not fully implement the PSD NSR program for the 1997 and 2006
PM2.5 NAAQS. Although the State has indicated that
regulations are currently being developed to address section
110(a)(2)(C) for the implementation of the NSR program for the 1997 and
2006 PM2.5 standards, the state-level rulemaking process is
anticipated to proceed on a timeline that will prevent Arkansas from
adopting these regulations before EPA is required to take final action
on the State's 110(a)(2) infrastructure SIP. Therefore, we are
proposing to find that the current Arkansas PSD SIP does not meet the
requirements of section 110(a)(2)(C) with respect to the 1997 and 2006
PM2.5 NAAQS because the State failed to submit the PSD SIP
revision required by the May 16, 2008 rulemaking.

II. What action is EPA proposing?

A. Section 110(a)(1) and (2)

    EPA is proposing to partially approve and partially disapprove the
Arkansas SIP submittals that identify where and how the 14 basic
infrastructure elements are in the EPA-approved SIP as specified in CAA
section 110(a)(2). The Arkansas submittals do not include revisions to
the SIP, but do document how the current Arkansas SIP already includes
the required infrastructure elements. In today's action, we are
proposing to find that the following infrastructure elements are
contained in the current Arkansas SIP regarding implementation of the
1997 ozone and 1997 and 2006 PM2.5 standards: emission
limits and other control measures (section 110(a)(2)(A)); ambient air
quality monitoring/data system (section 110(a)(2)(B)); program for
enforcement of control measures, except for the portion that addresses
GHGs and PM2.5 emissions (section 110(a)(2)(C));
international and interstate pollution abatement, except for the
portion that addresses GHGs and PM2.5 emissions (section
110(a)(2)(D)(ii)); adequate resources (section 110(a)(2)(E));
stationary source monitoring system (section 110(a)(2)(F)); emergency
power (section 110(a)(2)(G)); future SIP revisions (section
110(a)(2)(H)); consultation with government officials (section
110(a)(2)(J)); public notification (section 110(a)(2)(J)); PSD and
visibility protection, except for the PSD portion that addresses GHGs
and PM2.5 emissions (section 110(a)(2)(J)); air quality
modeling/data (section 110(a)(2)(K)); permitting fees (section
110(a)(2)(L)); and consultation/participation by affected local
entities (section 110(a)(2)(M)).
    As discussed in section I.C.6 of this proposal, we are proposing to
find that the current Arkansas SIP does not meet the infrastructure
requirements for the 1997 and 2006 PM2.5 NAAQS at 110(a)(2)
for portions of (C), (D)(ii), and (J) because Arkansas failed to submit
the PSD SIP revision required by EPA's Implementation of the New Source
Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers
(73 FR 28321, May 16, 2008). We are also proposing to find that the
current Arkansas SIP does not meet the infrastructure requirements for
the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM2.5
NAAQS at 110(a)(2) for portions of (C), (D)(ii), and (J) because the
Arkansas SIP PSD program does not apply to GHG-emitting sources.
    We are proposing to approve severable portions of the December 17,
2007 and the March 28, 2008 submissions from Arkansas, demonstrating
that Arkansas has adequately addressed one of the four required prongs
of the 110(a)(2)(D)(i) interstate transport element, specifically the
prong that requires that the SIP prohibit air emissions from sources
within a state from interfering with measures required to prevent
significant deterioration of air quality in any other state.\27\ We are
proposing to determine that emissions from sources in Arkansas do not
interfere with measures to prevent significant deterioration of air
quality in any other state for the 1997 8-hour ozone NAAQS (CAA section
110(a)(2)(D)(i)(II)), except for the portion that addresses GHG
emissions. We are proposing to disapprove the portion of the Arkansas
interstate transport SIP element that prohibits GHG emissions from
sources within Arkansas from interfering with measures required to
prevent significant deterioration of air quality in any other state
(section 110(a)(2)(D)(i)). We are proposing to determine that
PM2.5 emissions from

sources in Arkansas do interfere with measures to prevent significant
deterioration of air quality in any other state for the 2006
PM2.5 NAAQS. Therefore, we are proposing to disapprove the
portion of the Arkansas interstate transport SIP element that prohibits
PM2.5 emissions from sources within Arkansas from
interfering with measures required to prevent significant deterioration
of air quality in any other state (section 110(a)(2)(D)(i)) for the
2006 PM2.5 NAAQS. We are not addressing in this action the
1997 PM2.5 NAAQS nor the three remaining prongs of section
110(a)(2)(D)(i) \28\ for the 1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS. We will take action on the three remaining
prongs in separate rulemakings.
---------------------------------------------------------------------------

    \27\ As noted in Section I.C.2 of this action, the December 17,
2007 submittal addresses the 1997 ozone and PM2.5
standards; it does not address the 2006 PM2.5 standard.
The March 28, 2008 submittal addresses the 110(a)(2) infrastructure
and interstate transport elements for the 2006 PM2.5
NAAQS.
    \28\ The remaining three prongs pertain to prohibiting air
emissions within Arkansas from: (1) Significantly contributing to
nonattainment in any other state, (2) interfering with maintenance
of the relevant NAAQS in any other state, and (3) interfering with
measures required to protect visibility in any other state. We
proposed action on the visibility prong on October 17, 2011 at 76 FR
64186.
---------------------------------------------------------------------------

    In conjunction with our proposed finding that the Arkansas SIP
meets the section 110(a)(1) and (2) infrastructure SIP elements listed
above, we are also proposing to fully approve four severable portions
of a SIP revision submitted by the ADEQ to EPA on February 17, 2010.
This submittal contains rule revisions by ADEQ to (1) Regulate
NOX emissions in its PSD permit program as a precursor to
ozone; (2) add NOX to the PSD definitions for Major
Modification and Major Stationary Source; (3) under the PSD definition
for Significant, add the emission rate for NOX, as a
precursor to ozone, as 40 tpy; and (4) under the PSD requirements,
allow for an exemption with respect to ambient air quality monitoring
data for a source with a net emissions increase less than 100 tpy of
NOX. The actions proposed herein are described in greater
detail in Section III of this rulemaking and in the TSD. At this time,
EPA is not taking action on other portions of the February 17, 2010 SIP
revision submitted by ADEQ; EPA intends to act on the other revisions
at a later date.

B. Why is EPA proposing a partial approval, partial disapproval?

    Section 110(k)(3) of the Act states that EPA may partially approve
and partially disapprove a SIP submittal if it finds that only a
portion of the submittal meets the requirements of the Act. We believe
that the Arkansas SIP meets a majority of the requirements of section
110(a)(2) of the Act and that specific portions of three elements of
section 110(a)(2) are not met.\29\ Because the portions proposed for
disapproval are independent from those proposed for approval, we
believe that the Arkansas Infrastructure SIP can be partially approved
and partially disapproved.
---------------------------------------------------------------------------

    \29\ The three elements refer to the infrastructure and
interstate transport SIP elements discussed in section II above.
---------------------------------------------------------------------------

C. What are the implications of a partial approval, partial
disapproval?

    Enforcement of a state regulation (or rule) before and after it is
incorporated into the federally approved SIP is primarily a state
responsibility. However, after the rule is federally approved, we are
authorized to take enforcement action against violators. Citizens are
also offered legal recourse to address violations as described in
section 304 of the Act. If a state rule is disapproved, it is not
incorporated into the federally approved SIP, and is not enforceable by
EPA or by citizens under section 304. Disapproval of any of the
Arkansas infrastructure SIP elements would not trigger sanctions under
section 179 of the Act, because the submittals are not required by part
D of Title I of the Act and are not required by a call for a SIP
revision under section 110(k)(5) of the Act.
    Under section 110(c) of the Act, disapproval of a SIP in whole or
in part requires EPA to promulgate a Federal implementation plan (FIP)
at any time within two years following final disapproval, unless the
State submits a plan or plan revision that corrects the deficiency--and
the EPA approves the plan or plan revision--before the EPA promulgates
such FIP. This two-year period is commonly referred to as the ``FIP
clock.'' Here, based on Arkansas's failure to submit the required
PM2.5 PSD SIP revision, and because Arkansas cannot issue
permits for GHG emissions, we are proposing to partially disapprove
certain severable elements of the Arkansas infrastructure SIP.
Accordingly, EPA is required by law to promulgate a FIP at any time
within two years of the final rulemaking, unless Arkansas submits and
we approve a new SIP or SIP revisions that correct the deficiencies, or
unless EPA has already fulfilled its FIP obligation.

III. How has Arkansas addressed the elements of Section 110(a)(2)?

    The Arkansas submittals address the elements of Section 110(a)(2)
as described below. We provide a more detailed review and analysis of
the Arkansas infrastructure and transport SIP elements in the TSD.
    Enforceable emission limits and other control measures, pursuant to
section 110(a)(2)(A): Section 110(a)(2)(A) requires that all measures
and other elements in the SIP be enforceable. This provision does not
require the submittal of regulations or emission limits developed
specifically for attaining the 1997 8-hour ozone and 1997 and 2006
PM2.5 standards. Those regulations are due later as part of
attainment demonstrations.
    The Arkansas Water and Air Pollution Control Act (AWAPCA), found in
Title 8, Chapter 4 of the Arkansas Code Annotated (A.C.A.) names the
Arkansas Department of Environmental Quality (ADEQ) as the state's air
pollution control agency and provides enforcement authority to the ADEQ
(37 FR 10841, May 31, 1972). ADEQ was originally created by the
Arkansas General Assembly as the Arkansas Water Pollution Control
Commission by Act 472 of 1949. Act 183 of 1965 changed the Commission's
name to the Arkansas Pollution Control Commission (APCC) and gave it
the power to regulate air pollution. A reorganization of state
government in 1971 renamed the APCC to the Arkansas Pollution Control
and Ecology Commission (APCEC), and created the Department of Pollution
Control and Ecology as a cabinet-level agency headed by a director
appointed by the Commission. In 1996, the Arkansas General Assembly
voted to rename the Department of Pollution Control and Ecology to the
Arkansas Department of Environmental Quality, effective March 31, 1999.
The Department is responsible for the day-to-day administration of the
Commission's regulations for a variety of environmental programs.
    The APCEC has promulgated rules to limit and control emissions of,
among other things, particulate matter (PM), sulfur dioxide
(SO2), nitrogen oxides (NOX), and volatile
organic compounds (VOCs).\30\ These rules include emission limits,
control measures, permits, fees, and compliance schedules and are found
in APCEC Regulation 19, Regulation 26, and Regulation 31: Regulation
19, Chapters 1, 3-5, 7, 8, 10, 13-15; Regulation 26, Chapters 1, 3 and
7; and Regulation 31, Chapters 1, 3, 4 and 8.
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    \30\ NOX and VOCs are precursors to ozone. PM can be
emitted directly and secondarily formed; the latter is the result of
NOX and SO2 precursors combining with ammonia
to form ammonium nitrate and ammonium sulfate.
---------------------------------------------------------------------------

    In this proposed action, EPA has not reviewed and is not proposing
to take any action to approve or disapprove any existing Arkansas SIP
provisions with regard to excess emissions during

startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states have SSM SIP provisions that are
contrary to the Act and inconsistent with existing EPA guidance,\31\
and the Agency plans to conduct a SIP call in the future to address
such SIP regulations. In the meantime, EPA encourages any state having
an SSM SIP provision that is contrary to the Act and inconsistent with
EPA guidance to take steps to correct the deficiency as soon as
possible before a SIP call is implemented. Similarly, this proposed
action does not include a review of, nor does it propose to, take any
action to approve or disapprove any existing SIP rules with regard to
director's discretion or variance provisions. EPA believes that a
number of SIPs have such provisions that are contrary to the Act and
not consistent with existing EPA guidance (52 FR 45044, November 24,
1987) \32\ and the Agency plans to take action in the future to address
such SIP regulations. In the meantime, EPA encourages any state having
a director's discretion or variance provision in its SIP that is
contrary to the Act and inconsistent with EPA guidance to take steps to
correct the deficiency as soon as possible.
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    \31\ ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown,''
Memorandum from Steven A. Herman, Assistant Administrator for
Enforcement and Compliance Assurance, and Robert Perciasepe,
Assistant Administrator for Air and Radiation, dated September 20,
1999.
    \32\ The section addressing exemptions and variances is found on
p. 45109 of the 1987 rulemaking.
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    A detailed list of the applicable Regulation 19, Regulation 26, and
Regulation 31 chapters discussed above are provided in the TSD.
Arkansas' SIP clearly contains enforceable emission limits and other
control measures, which are in the federally enforceable SIP. EPA is
proposing to find that the Arkansas SIP meets the requirements of
section 110(a)(2)(A) of the Act with respect to the 1997 8-hour ozone
and 1997 and 2006 PM2.5 NAAQS.
    Ambient air quality monitoring/data analysis system, pursuant to
section 110(a)(2)(B): Section 110(a)(2)(B) requires SIPs to include
provisions for establishment and operation of ambient air quality
monitors, collecting and analyzing ambient air quality data, and making
these data available to EPA upon request. EPA approved Regulation 19,
Chapter 3 into the SIP that makes ADEQ responsible for conducting
ambient air monitoring in any area of the state that can be expected to
be in excess of the NAAQS (65 FR 61103, October 16, 2000). The ADEQ
operates and maintains a statewide network of air quality monitors--
data are collected, results are quality assured, and the data are
submitted to EPA's Air Quality System \33\ on a regular basis.
Arkansas' Statewide Air Quality Surveillance Network was approved by
EPA on August 6, 1981 (46 FR 40005), and consists of stations that
measure ambient concentrations of the six criteria pollutants,
including ozone and PM2.5. The Air Quality Surveillance
Network undergoes annual review by EPA. On June 29, 2010, ADEQ
submitted its 2010 Annual Air Monitoring Network Plan (AAMNP) that
included the plans for the 1997 ozone and PM2.5 NAAQS. EPA
approved the AAMNP on January 20, 2011.\34\ The ADEQ Web site provides
the ozone and PM2.5 monitor locations (http://www.adeq.state.ar.us/air/branch_planning/monitoring.htm), as well as
current data including air quality indices and concentrations for 8-
hour ozone and PM2.5 for the past 90 days (http://www.adeq.state.ar.us/techsvs/dailyaqidata.asp#AQI).
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    \33\ The Air Quality System (AQS) is EPA's repository of ambient
air quality data. AQS stores data from over 10,000 monitors, 5,000
of which are currently active. State, Local and Tribal agencies
collect the data and submit it to AQS on a periodic basis.
    \34\ A copy of our approval letter is in the docket for this
rulemaking. At the time of this writing, the review of the 2011
AAMNP has not been completed.
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    In summary, Arkansas meets the requirement to establish, operate,
and maintain an ambient air monitoring network; collect and analyze the
monitoring data; and make the data available to EPA upon request. EPA
is proposing to find that the current Arkansas SIP meets the
requirements of section 110(a)(2)(B) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Program for enforcement of control measures and regulation of the
modification and construction of any stationary source within the areas
covered by the plan as necessary to assure that NAAQS are achieved,
including a permit program, as required by Parts C and D, pursuant to
section 110(a)(2)(C). As discussed previously, the AWAPCA provides the
ADEQ with authority to enforce the state's environmental quality rules.
The ADEQ established rules governing emissions of the NAAQS and their
precursors throughout the state, and these rules are in the federally-
enforceable SIP. The rules in Regulation 19, Chapters 1, 3-5, 7-10, 13
and 14; Regulation 26, Chapter 3; and Regulation 31, Chapters 1, 3, 4
and 8 include allowable rates, compliance, control plan requirements,
actual and allowable emissions, monitoring and testing requirements,
recordkeeping and reporting requirements, and control schedules. These
rules clarify the boundaries beyond which regulated entities in
Arkansas can expect enforcement action.
    To meet the requirement for having a program for the regulation of
the modification and construction of any stationary source within the
areas covered by the plan as necessary to assure that national ambient
air quality standards are achieved--including a permit program as
required by Parts C and D--generally, the state is required to have
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs
adequate to implement the 1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS. We are not evaluating nonattainment-related
provisions--such as the Nonattainment NSR program required by part D in
110(a)(2)(C) and measures for attainment required by section
110(a)(2)(I), as part of the infrastructure SIPs for these NAAQS--
because these submittals are required beyond the date (3 years from
NAAQS promulgation) that section 110 infrastructure submittals are
required (see footnotes 1 and 19).
    PSD programs apply in areas that are meeting the NAAQS, referred to
as attainment areas, or in areas that are unclassifiable, referred to
as unclassifiable/attainment areas. PSD applies to new major sources
and major modifications at existing sources. EPA's PSD permitting
regulations are found at 40 CFR 51.166 and 40 CFR 52.21. PSD
requirements for SIPs are found in 40 CFR 51.166 and 40 CFR part 51
appendix W. Similar PSD requirements for SIPs incorporating EPA's
regulations by reference are found in 40 CFR 52.21.
    The Arkansas' PSD program was initially approved into the SIP on
January 14, 1982 (47 FR 02112). Subsequent revisions to Arkansas' PSD
program were approved into the SIP on February 10, 1986 (51 FR 04910),
May 2, 1991 (56 FR 20137), October 16, 2000 (65 FR 61103), and April
12, 2007 (72 FR 18394). To meet the requirements of 110(a)(2)(C) for
the 1997 ozone standard, EPA believes the state must have updated its
PSD rules to treat NOX as a precursor for ozone (70 FR
71612, November 29, 2005). On February 17, 2010, Arkansas submitted the
provisions for NOX as a precursor consistent with EPA's
November 29, 2005 Phase 2 rule for the 1997 8-hour ozone NAAQS (70 FR
71612) as part of

its revisions to address NSR reform. EPA proposes to approve the
following portions of the February 17, 2010 SIP revision to Regulation
19, Chapter 9: 1) the substantive change adding NOX to the
definition of Major Modification through incorporation by reference of
40 CFR 52.21(b) and 40 CFR 51.301 as of November 29, 2005; 2) the
substantive change adding NOX to the definition of Major
Stationary Source through incorporation by reference of 40 CFR 52.21(b)
and 40 CFR 51.301 as of November 29, 2005; 3) the substantive change
adding NOX as a precursor to the table's criteria and other
pollutants listing for ozone through incorporation by reference of 40
CFR 52.21(b)(23)(i); and 4) the substantive change allowing for an
exemption with respect to ozone monitoring for a source with a net
emissions increase less than 100 tpy of NOX through
incorporation by reference of 40 CFR 52.21(i)(5)(i).
    The February 17, 2010 revisions to the definitions in the Arkansas
rules for ``major modification'' and ``major stationary source'' meet
the Federal definition in 40 CFR 52.21(b) to identify a major source of
NOX as a major source for ozone. The February 17, 2010
revisions to the Arkansas rules also meet the Federal definition in 40
CFR 52.21(b)(50)(i) for inclusion of NOX as an ozone
precursor. The February 17, 2010 revisions to the emissions rate for
NOX under the definition for Significant in the Arkansas
rules also meet the Federal requirements in 40 CFR 52.21(b)(23)(i),
which establishes these emission thresholds as 40 tpy.\35\ The February
17, 2010 revisions allowing for an exemption for ozone monitoring for a
source with a net emissions increase less than 100 tpy of
NOX also meet the Federal requirement on monitoring
exemptions under the footnote for 40 CFR 52.21(i)(5)(i). Because of
their consistency with 40 CFR 52.21, which provides the requirements
for an approvable PSD program, EPA believes these revisions are
consistent with 110(l) and the revisions would not interfere with any
applicable standard. Therefore, EPA is proposing to approve these
revisions as meeting the requirements of section 110 of the Act and 40
CFR 52.21 for establishing NOX emissions as a precursor for
ozone.
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    \35\ In a November 23, 2010 submission (received by EPA on
December 1, 2010), Arkansas proposed revisions to its SIP that
include, among other things, raising its emissions threshold for
NOX from 25 tpy to 40 tpy. It is important to note that
EPA is not proposing action at this time on that proposed revision,
nor on any other part of Arkansas's November 23, 2010 submittal. We
will take action on it in a separate rulemaking.
---------------------------------------------------------------------------

    The revisions to Regulation 19, Chapter 9, and EPA's evaluation of
these revisions are discussed in greater detail in the TSD. The
provisions that address NOX as a precursor are severable
from the remaining portions of the February 17, 2010 submittal, and EPA
is proposing to approve these revisions in today's action.
    To implement section 110(a)(2)(C) for the 1997 and 2006
PM2.5 standards, states were required to submit SIP
revisions for the implementation of the PSD and nonattainment NSR
program for the PM2.5 standard by May 16, 2011 (see 73 FR
28321, May 16, 2008). Because the State has failed to adopt and submit
the required PM2.5 PSD rules, we are proposing to find that
the current Arkansas PSD SIP does not meet the requirements of section
110(a)(2)(C) with respect to the implementation of the PSD NSR program
for the 1997 and 2006 PM2.5 NAAQS.
    Section 110(a)(2)(C) creates ``a general duty on States to include
a program in their SIP that regulates the modification and construction
of any stationary source as necessary to assure that the NAAQS are
achieved'' (70 FR 71612, 71677). This duty is often referred to as
``minor NSR.'' EPA provides states with a ``broad degree of
discretion'' in implementing their minor NSR programs (71 FR 48696,
48700). The ``considerably less detailed'' regulations for minor NSR
are provided in 40 CFR 51.160 through 51.164. EPA has determined that
Arkansas' minor NSR program, adopted pursuant to section 110(a)(2)(C)
of the Act, regulates emissions of ozone and its precursors and PM.
Arkansas' minor source permitting requirements are contained in
Regulation 19, Chapter 4, and portions of Chapters 3 and 5, and were
approved at 65 FR 61108.
    It is important to stress that EPA is not proposing to approve or
disapprove the state's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
    As explained in section I.C.5 of this proposal, the current EPA-
approved SIP PSD program does not apply to GHG-emitting sources that
emit at or above the levels of emissions set in the Tailoring Rule, or
at other appropriate levels. Thus, the Arkansas SIP does not satisfy
this portion of section 110(a)(2)(C). We are proposing to disapprove
this portion of the Arkansas SIP for failing to meet the infrastructure
requirements for the 1997 ozone and the 1997 and 2006 PM2.5
NAAQS with respect to the GHG requirement of section 110(a)(2)(C).
EPA's disapproval here does not engender an additional statutory
obligation, because EPA has already promulgated a FIP for the Arkansas
PSD program to address permitting GHGs at or above the Tailoring Rule
thresholds (75 FR 82246).
    Interstate transport, pursuant to section 110(a)(2)(D): 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) requires SIPs to include provisions prohibiting
any source or other type of emissions activity in one state from
contributing significantly to nonattainment, interfering with
maintenance of the NAAQS in another state, or from interfering with
measures required to prevent significant deterioration of air quality
or to protect visibility in another state. Section 110(a)(2)(D)(ii)
requires SIPs to include provisions insuring compliance with sections
115 and 126 of the Act, relating to interstate and international
pollution abatement.
    PSD and interstate transport, pursuant to section 110(a)(2)(D)(i):
One of the four prongs in section 110(a)(2)(D)(i) requires a SIP to
contain adequate provisions prohibiting emissions that interfere with
any other state's required measures to prevent significant
deterioration of its air quality. This is the only element of
110(a)(2)(D)(i) for which EPA is proposing action in this rulemaking.
    EPA's 2006 Guidance made recommendations for SIP submissions to
meet this requirement with respect to both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.
    The 2006 Guidance states that the PSD permitting program is the
primary measure that each state must include to prevent interference
with any other state's required measures to prevent significant
deterioration of its air quality in accordance with section
110(a)(2)(D)(i)(II). EPA believes that Arkansas' December 17, 2007 and
March 28, 2008 submissions, when

considered in conjunction with the State's PSD program and other PSD
program revisions that EPA is proposing to approve in this action
address, in part, the requirements of 110(a)(2)(D)(i)(II). The
submittal states that all major sources in Arkansas are subject to PSD
and nonattainment NSR permitting programs. As discussed previously in
our analysis of section 110(a)(2)(C) and in the TSD, the State's PSD
program is in the SIP (47 FR 02112, 51 FR 04910, 56 FR 20137, 65 FR
61103, and 72 FR 18394). We also note in our discussion of 110(a)(2)(C)
that Arkansas does not have a PSD program to address permitting GHG
emissions and Arkansas has not adopted necessary revisions to properly
address permitting of PM2.5 emissions. Please see the
attached TSD and refer to our discussion of section 110(a)(2)(C) in
this rulemaking for additional information.
    Consistent with EPA's November 29, 2005 rulemaking, ``Final Rule to
Implement the 8-hour Ozone National Ambient Air Quality Standards--
Phase 2'' (70 FR 71612), Arkansas submitted SIP revisions to modify its
PSD provisions to address NOX as an ozone precursor. For the
same reasons discussed in our analysis of section 110(a)(2)(C) of this
proposed action, EPA believes that the PSD revision for the 1997 8-hour
ozone NAAQS that makes NOX a precursor for ozone for PSD
purposes, taken together with the PSD SIP and the interstate transport
SIP, partially satisfies the requirements of the third prong of section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS, i.e., there will be no
interference with any other state's required PSD measures. Arkansas
only partially satisfies the requirements because of the deficiencies
in its ability to permit sources of GHG emissions. Therefore, EPA is
proposing partial approval and partial disapproval of the Arkansas SIP
as it applies to section 110(a)(2)(D)(i) under the 1997 8-hour ozone
NAAQS. EPA's disapproval here for the GHG emissions does not engender
an additional statutory obligation, because EPA has already promulgated
a FIP for the Arkansas PSD program to address permitting GHGs at or
above the Tailoring Rule thresholds (75 FR 82246).
    We are proposing to find that Arkansas does not meet the third
prong of section 110(a)(2)(D)(i), because the current Arkansas PSD SIP
does not meet the requirements of section 110(a)(2)(C) with respect to
the implementation of the PSD NSR program for the 2006 PM2.5
NAAQS because the state has not submitted the required PSD SIP revision
to fully implement the PSD NSR program for the 1997 and 2006
PM2.5 NAAQS.
    Interstate and international pollution abatement, pursuant to
section 110(a)(2)(D)(ii):
    Section 110(a)(2)(D)(ii) of the Act requires compliance with
sections 115 and 126 of the Act, relating to interstate and
international pollution abatement. Section 115 addresses endangerment
of public health or welfare in foreign countries from pollution emitted
in the United States. Pursuant to section 115(a), the Administrator has
neither received nor issued a formal notification that emissions from
Arkansas are endangering public health or welfare in a foreign country.
    Section 126(a) of the Act requires new or modified sources to
notify neighboring states of potential impacts from such sources.
Regulation 26, Chapter 6 requires that each major proposed new or
modified source provide such notification and is in the federally
enforceable SIP (see 66 FR 51312). The State also has no pending
obligations under section 126 of the Act. For additional detail, please
refer to the TSD. However, as previously noted in this rulemaking,
Arkansas does not have a current EPA-approved SIP PSD program that
applies to GHG-emitting sources that emit at or above the level of
emissions set in the Tailoring Rule, or at other appropriate levels.
Also, the State has failed to submit the required PSD NSR SIP revisions
for the 1997 and 2006 PM2.5 NAAQS. Therefore, EPA is not
proposing to approve Arkansas' interstate pollution abatement
provisions in full because Arkansas cannot require each major proposed
or modified new source to notify neighboring states of potential
impacts from PM2.5 and GHGs emitted by such sources.
    Adequate personnel, funding, and authority, pursuant to section
110(a)(2)(E): The duties, powers and structure of the ADEQ (described
in A.C.A. section 8-1-202) provide that the director is empowered to
administer all activities ``including, but not limited to the
employment and supervision of such technical, legal, and administrative
staff, within approved appropriations, as is necessary to carry out the
responsibilities vested within the department''. The AWAPCA provides
the ADEQ adequate authority with the powers and duties, in part, ``to
administer and enforce all laws and regulations relating to pollution
of the air.'' A.C.A. section 8-4-311(7). Furthermore, the ADEQ has the
power and duty to ``cooperate with and receive moneys from the Federal
government or any other source for the study and control of air
pollution.'' A.C.A. section 8-4-311(9)(A).
    There are Federal sources of funding for the implementation of the
1997 8-hour ozone and PM2.5 NAAQS, through, for example, CAA
sections 103 and 105 grant funds. The ADEQ receives Federal funds on an
annual basis, under sections 103 and 105 of the Act, to support its air
quality programs. Fees collected for the NSR permit programs, and other
inspections, maintenance and renewals required of other air pollution
sources also provide necessary funds to help implement the State's air
programs. More specific information on permitting fees is provided in
the discussion of section 110(a)(2)(L) below and in the TSD.
    Section 110(a)(2)(E)(ii) requires that the state comply with
section 128. Section 128 requires: (1) that the majority of members of
the state body that approves permits or enforcement orders do not
derive any significant portion of their income from entities subject to
permitting or enforcement orders under the CAA; and (2) any potential
conflicts of interest by such body be adequately disclosed. In 1982,
the EPA approved the state's submittal to demonstrate compliance of the
SIP with Section 128 of the CAA (47 FR 19136). The submittal cited
AWAPCA Section 82-1901 as demonstrating compliance with CAA Section
128(a)(1), and cited Arkansas Code of Ethics Law, Act 570 of 1979 as
addressing CAA Section 128(a)(2). See Arkansas Code of Ethics Law, Act
570 of 1979, Section 3: Use of Public Office to Obtain Special
Privilege Prohibited; Section 4: Use and Disclosure of Information
Acquired by Reason of Office--Activities Requiring Disclosure; Section
5: Requirement to File Statement; and Section 6: Statements--Period
Retained--Public Access--Signature Required.
    EPA is proposing to find that the current Arkansas PSD SIP meets
section 110(a)(2)(E) with respect to the 1997 8-hour ozone and 1997 and
2006 PM2.5 NAAQS.
    Stationary source monitoring system, pursuant to section
110(a)(2)(F): Regulation 19, chapters 2-4, 7-10, and 13 require that
stationary sources monitor for compliance, provide recordkeeping and
reporting, and provide for enforcement of ozone standards,
PM2.5 standards, and precursors to these pollutants (e.g.,
NOX, SO2, and VOCs). These source monitoring
requirements also generate data for these pollutants.
    Under the Arkansas SIP, the ADEQ is required to analyze the
emissions data from point, area, mobile, and biogenic (natural)
sources. The ADEQ uses this

data to track progress toward maintaining the NAAQS, develop control
and maintenance strategies, identify sources and general emission
levels, and determine compliance with Arkansas and EPA requirements.
The State's emissions data are available on the ADEQ Web site (http://www.adeq.state.ar.us) and EPA's AirData Web site (www.epa.gov/air/data/index.html).\36\ These rules are in the federally-approved SIP. A list
of the chapters and Federal Register citations is provided in the TSD.
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    \36\ The AirData Web site provides access to air pollution data
for the entire United States and produces reports and maps of air
pollution data based on criteria specified by the user.
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    EPA is proposing to find that the Arkansas SIP meets the
requirements of section 110(a)(2)(F) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Emergency power, pursuant to section 110(a)(2)(G): Section
110(a)(2)(G) requires States to provide for authority to address
activities causing imminent and substantial endangerment to public
health, including contingency plans to implement the emergency episode
provisions in their SIPs. The AWAPCA, pursuant to A.C.A. sections 8-1-
202(b)(2)(C) and 8-4-202(e)(1), provides the ADEQ with authority to
address environmental emergencies, and the ADEQ has contingency plans
to implement emergency episode provisions in the SIP. The ADEQ
promulgated the ``Prevention of Air Pollution Emergency Episodes,''
which includes contingency measures, and these provisions were approved
into the SIP on May 31, 1972 (37 FR 10850). The criteria for ozone are
based on a 1-hour average ozone level. These episode criteria and
contingency measures are adequate to address ozone emergency episodes
and are in the federally-approved SIP.
    The 2009 Infrastructure SIP Guidance for PM2.5
recommends that a state with at least one monitored 24-hour
PM2.5 value exceeding 140.4 [mu]g/m\3\ since 2006
establishes an emergency episode plan and contingency measures to be
implemented if such level is exceeded again. The 2006-2010 ambient air
quality monitoring data \37\ for Arkansas do not exceed 140.4 [mu]g/
m\3\. The PM2.5 levels have consistently remained below
140.4 [mu]g/m\3\. Furthermore, the State has appropriate general
emergency powers to address PM2.5 related episodes to
protect the environment and public health. Given the State's low
monitored PM2.5 levels, EPA is proposing the State is not
required to submit an emergency episode plan and contingency measures
at this time for the 1997 and 2006 PM2.5 standards.
Additional detail is provided in the TSD.
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    \37\ The ozone and PM data are available through AQS. The AQS
data for PM are provided in the docket for this rulemaking.
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    EPA is proposing to find that the Arkansas SIP meets the
requirements of section 110(a)(2)(G) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Future SIP revisions, pursuant to section 110(a)(2)(H): The AWAPCA,
Section 82-1935(1), empowers the APCEC to ``formulate and promulgate,
amend, repeal, and enforce rules and regulations implementing or
effectuating the powers and duties of the Commission [* * *] to control
air pollution''. In addition, A.C.A. 8-4-202(d)(4)(A) authorizes the
Commission to ``refer to the CFR for regulations and standards
identical to those sanctioned by EPA.'' Thus, Arkansas has the
authority to revise its SIP from time to time as may be necessary to
take into account revisions of primary or secondary NAAQS, or the
availability of improved or more expeditious methods of attaining such
standards. Furthermore, Arkansas also has the authority under these
AWAPCA provisions to revise its SIP in the event the EPA pursuant to
the Act finds the SIP to be substantially inadequate to attain the
NAAQS.
    EPA is proposing to find that the Arkansas SIP meets the
requirements of section 110(a)(2)(H) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Consultation with government officials, pursuant to section
110(a)(2)(J): \38\ The AWAPCA, as codified under A.C.A. section 8-1-203
provides that the APCEC ``shall meet regularly in publicly noticed open
meetings to discuss and rule upon matters of environmental concern''
prior to the adoption of any rule or regulation implementing the
substantive statutes charged to the ADEQ for administration. In
addition, A.C.A. section 8-4-311 provides that the ADEQ or its
successor shall have the power and duty ``to advise, consult, and
cooperate with other agencies of the state, political subdivisions,
industries, other states, the Federal government, and with affected
groups in the furtherance of the purposes of this chapter.'' Further,
Regulation 19.904(D) provides that ADEQ shall make determinations that
a source may affect air quality or visibility in a mandatory Class I
Federal area based on screening criteria agreed upon by the Department
and the Federal Land Manager (see 72 FR 18394). These rules are in the
federally approved SIP. EPA is proposing to find that the Arkansas SIP
meets the requirements of this portion of section 110(a)(2)(J) with
respect to the 1997 8-hour ozone and 1997 and 2006 PM2.5
NAAQS.
---------------------------------------------------------------------------

    \38\ Section 110(a)(2)(J) is divided into three segments:
Consultation with government officials; public notification; and PSD
and visibility protection.
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    Public notification if NAAQS are exceeded, pursuant to section
110(a)(2)(J): Public notification begins with the air quality
forecasts, which advise the public of conditions capable of exceeding
the 8-hour ozone \39\ and PM2.5 NAAQS. The air quality
forecasts can be found on the ADEQ Web site: for 8-hour ozone and
PM2.5, the forecast includes 2 regions \40\ in the State.
Ozone forecasts are made daily during the ozone season for each of the
forecast areas.\41\ The ozone forecasts are made, in most cases, a day
in advance by 2 p.m. local time and are valid for the next day. When
the forecast indicates that ozone levels will be above the 8-hour ozone
standard, the ADEQ and the Arkansas Department of Health issue an Ozone
Health Advisory.
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    \39\ The ADEQ forecasts for 8-hour ozone are based on the 2008
ozone standard, which is 75 ppb.
    \40\ The 2 forecast areas for 8-hour ozone and PM2.5
are Little Rock and Springdale. See www.adeq.state.ar.us/techsvs/default.htm.
    \41\ Ozone is a gas composed of three oxygen atoms. Ground level
ozone is generally not emitted directly from a vehicle's exhaust or
an industrial smokestack, but is created by a chemical reaction
between NOX and VOCs in the presence of sunlight and high
ambient temperatures. Thus, ozone is known primarily as a summertime
air pollutant. For Arkansas, the ozone season runs from March 1
through November 31 (see 40 CFR 58, Appendix D, Table D-3). The
Arkansas air quality control regions are defined at 45 FR 6571
(January 29, 1980).
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    In addition, the State implements an Ozone Action Day (OAD) program
\42\ and will issue an ozone alert in the afternoon on the day before
an elevated level of ozone is expected to occur. Announcements for an
OAD will be broadcast through television and other news media, and to
employers participating in the OAD program. The OAD program includes
examples of actions that can be implemented by individuals and
organizations to reduce ozone levels and exposure to ozone. Also
through the Metroplan Web site, the public can subscribe to an
electronic information system that provides air quality forecast and
ozone alert information via email. Ozone data are posted on the ADEQ
Web site; current, regional hourly and regional 8-hour ozone data are
posted hourly (see http://www.adeq.state.ar.us/techsvs/ozonemonitors.asp). EPA is proposing

to find that the Arkansas SIP meets this portion of section
110(a)(2)(J) with respect to the 1997 8-hour ozone 1997 and 2006
PM2.5 NAAQS.
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    \42\ For coordinating agencies, participating counties and other
information, please see http://www.adeq.state.ar.us/air/ozone/ozonedays.asp.
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    PSD and visibility protection, pursuant to section 110(a)(2)(J):
This portion of section 110(a)(2)(J) in part requires that a state's
SIP meet the applicable requirements of section 110(a)(2)(C) as
relating to PSD programs. As discussed in our section 110(a)(2)(C)
analysis and in the TSD, the State's PSD program is in the SIP (47 FR
02112, 51 FR 04910, 56 FR 20137, 65 FR 61103 and 72 FR 18394) . In
addition to the approved program and to meet the requirements of
110(a)(2)(C) and 110(a)(2)(D)(i) for the 1997 ozone standard, EPA
believes the State must have updated its PSD rules to treat
NOX as a precursor for ozone. Thus, we are proposing to
approve portions of a SIP revision (submitted February 17, 2010) to
implement NOX as a precursor to ozone. These revisions are
proposed for APCEC Regulation 19, Chapter 9, as described above.
    For Arkansas to meet the requirements of the PSD portion of section
110(a)(2)(J), it must comply with section 110(a)(2)(C).\43\ To
implement section 110(a)(2)(C) for the 1997 and 2006 PM2.5
standards, states were required to submit PSD NSR SIP revisions for the
PM2.5 standards by May 16, 2011 (73 FR 28321, May 16, 2008).
At present, Arkansas has not submitted revisions to satisfy this
requirement. Therefore, Arkansas fails to meet the requirements of
section 110(a)(2)(C) for the 1997 and 2006 PM2.5 NAAQS. We
are proposing to find that the current Arkansas PSD SIP does not meet
the requirements of section 110(a)(2)(J) with respect to the 1997 and
2006 PM2.5 NAAQS.
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    \43\ CAA Section 110(a)(2)(J) requires, among other things, that
each implementation plan ``meet[s] the applicable requirements of
[110(a)(2)(C)]''.
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    Moreover, as stated in our discussion of the PSD program under
section 110(a)(2)(C), the current EPA-approved SIP PSD program does not
apply to GHG-emitting sources that emit at or above the levels of
emissions set in the Tailoring Rule, or at other appropriate levels.
Thus, the Arkansas SIP does not satisfy the portion of section
110(a)(2)(J) that relates to permitting GHGs with respect to the 1997
8-hour ozone and 1997 and 2006 PM2.5 NAAQS. EPA's
disapproval here does not engender any additional statutory obligation,
because EPA has already promulgated a FIP for the Arkansas PSD program
related to permitting GHGs at or above the Tailoring Rule thresholds
(75 FR 82246).
    EPA approved Arkansas' Visibility Protection Plan (Protection of
Visibility in Mandatory Class I Federal Areas) into the Arkansas SIP on
February 10, 1986 (51 FR 4910). EPA approved revisions to the Arkansas
Visibility Protection Plan and approved a Long-Term Strategy for
Visibility Protection into the Arkansas SIP on July 21, 1988 (53 FR
27514). The State's most recent SIP revision of their Regional Haze
program was submitted to EPA on July 29, 2008, and we will take action
on it in a separate rulemaking. With regard to the applicable
requirements for visibility protection, EPA recognizes that States are
subject to visibility and regional haze program requirements under Part
C of the Act (which includes sections 169A and 169B). In the event of
the establishment of a new NAAQS, however, the visibility and regional
haze program requirements under part C do not change. Thus, we find
that there is no new visibility obligation ``triggered'' under section
110(a)(2)(J) when a new NAAQS becomes effective. This would be the case
even in the event a secondary PM2.5 NAAQS for visibility is
established, because this NAAQS would not affect visibility
requirements under part C. EPA is therefore proposing to find that the
Arkansas SIP meets this portion of section 110(a)(2)(J) with respect to
the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.
    EPA is proposing to find that the Arkansas SIP meets the
requirements of this portion of section 110(a)(2)(J) with respect to
the 1997 8-hour ozone NAAQS with the exception of section 110(a)(2)(J)
as it relates to the GHG component of the PSD program. EPA is proposing
to find that the Arkansas SIP does not meet the requirements of section
110(a)(2)(J) as it relates to the GHG component of the PSD program with
respect to the 1997 8-hour ozone NAAQS. EPA is also proposing to find
that the Arkansas SIP does not meet the requirements of this portion of
section 110(a)(2)(J) with respect to the 1997 and 2006 PM2.5
NAAQS because the state has not submitted the required PSD SIP revision
to fully implement the PSD NSR program for the 1997 and 2006
PM2.5 NAAQS.
    Air quality modeling and submission of data, pursuant to section
110(a)(2)(K): The AWAPCA prescribes at A.C.A. section 8-4-311(a)(1)
that the ADEQ shall ``[d]evelop and effectuate a comprehensive program
for the prevention and control of all sources of pollution of the air
of this state.'' Arkansas has extensive modeling in numerous submitted
SIP revisions. For example, Arkansas submitted modeling in SIP
revisions for implementing an Economic Development Zone in Crittenden
County, and demonstrating maintenance of the 1997 8-hour ozone standard
in Crittenden County. EPA approved the modeling as part of the Arkansas
SIP.\44\
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    \44\ See the Economic Development Zone implementation for the
Crittenden County 1997 8-hour O3 nonattainment area, approved by EPA
and adopted into the SIP on April 12, 2007 (72 FR 18394), and the
Crittenden County 1997 8-hour O3 maintenance plan, approved by EPA
and adopted into the SIP on March 24, 2010 (75 FR 14077).
---------------------------------------------------------------------------

    This section of the Act also requires that a SIP provides for the
submission of data related to such air quality modeling to the EPA upon
request. A.C.A. section 8-4-311 authorizes ADEQ to cooperate with the
Federal government, allowing it to make this submission to the EPA.
    EPA is proposing to find that the Arkansas SIP meets the
requirements of section 110(a)(2)(K) with respect to the 1997 8-hour
ozone and 1997 and 2006 PM2.5 NAAQS.
    Permitting fees, pursuant to section 110(a)(2)(L): The AWAPCA, as
codified in Regulation 9, Chapter 5 provides authority for the ADEQ to
charge and collect fees for Title V and non-Title V permit
applications, revisions, renewals, and inspections. The non-Title V
rules that address permit fees found in APCEC Regulation 9, Chapter 5
are in the federally-approved SIP. A detailed list of the applicable
chapters listed herein is provided in the TSD. EPA is proposing to find
that the Arkansas SIP meets the requirements of section 110(a)(2)(L)
with respect to the 1997 8-hour ozone and 1997 and 2006
PM2.5 NAAQS.
    Consultation/participation by affected local entities, pursuant to
section 110(a)(2)(M): As indicated above, the Arkansas statute under
A.C.A. section 8-1-203 provides that the APCEC ``shall meet regularly
in publicly noticed open meetings to discuss and rule upon matters of
environmental concern'' prior to the adoption of any rule or regulation
implementing the substantive statutes charged to the ADEQ for
administration. In addition, AWAPCA Section 82-1935 empowers the APCEC
to develop and put into effect a comprehensive program for the
prevention and control of all sources of pollution in the air in the
state. The State has the power to advise, consult and cooperate with
other agencies of the State, political subdivisions, other states, the
Federal government, and with affected groups. EPA is proposing to find
that the Arkansas SIP meets the requirements of section 110(a)(2)(M)
with respect to the

1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS.

IV. Proposed Action

    We are proposing to partially approve and partially disapprove the
submittals provided by the State of Arkansas to demonstrate that the
Arkansas SIP meets the requirements of Section 110(a)(1) and (2) of the
Act for the 1997 ozone and 1997 and 2006 PM2.5 NAAQS. For
the 1997 ozone standard, we are proposing to find that the current
Arkansas SIP meets the infrastructure elements listed below:
    Emission limits and other control measures (110(a)(2)(A) of the
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the
Act);
    Program for enforcement of control measures (110(a)(2)(C) of the
Act), except for the portion that addresses GHGs;
    Interstate Transport, pursuant to section (110(a)(2)(D)(ii) of the
Act), except for the portion that addresses GHGs;
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Prevention of significant deterioration and visibility protection
(110(a)(2)(J) of the Act), except for the portion that addresses GHGs;
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M)
of the Act).
    For the 1997 ozone standard, we are proposing to find that the
current Arkansas SIP does not meet the infrastructure elements listed
below:
    Program for enforcement of control measures (110(a)(2)(C) of the
Act), only as it relates to GHGs;
    Interstate transport, pursuant to section 110(a)(2)(D)(ii) of the
Act, only as it relates to GHGs; and
    Prevention of significant deterioration (110(a)(2)(J) of the Act),
only as it relates to GHGs.
    We are also proposing to approve the Arkansas Interstate Transport
SIP provisions that address the requirement of section
110(a)(2)(D)(i)(II) that emissions from sources in Arkansas do not
interfere with measures required in the SIP of any other state under
part C of the CAA to prevent significant deterioration of air quality,
except as they relate to GHGs for the 1997 ozone NAAQS.
    We are proposing to disapprove the portion of the Arkansas
Interstate Transport SIP provisions that address the requirement of
section 110(a)(2)(D)(i)(II), as it relates to GHGs, that emissions from
sources in Arkansas do not interfere with measures required in the SIP
of any other state under part C of the CAA to prevent significant
deterioration of air quality, for the 1997 ozone NAAQS.
    For the 1997 and 2006 PM2.5 standards, we are proposing
to find that the current Arkansas SIP meets the infrastructure elements
listed below:
    Emission limits and other control measures (110(a)(2)(A) of the
Act);
    Ambient air quality monitoring/data system (110(a)(2)(B) of the
Act);
    Adequate resources (110(a)(2)(E) of the Act);
    Stationary source monitoring system (110(a)(2)(F) of the Act);
    Emergency power (110(a)(2)(G) of the Act);
    Future SIP revisions (110(a)(2)(H) of the Act);
    Consultation with government officials (110(a)(2)(J) of the Act);
    Public notification (110(a)(2)(J) of the Act);
    Air quality modeling data (110(a)(2)(K) of the Act);
    Permitting fees (110(a)(2)(L) of the Act); and
    Consultation/participation by affected local entities (110(a)(2)(M)
of the Act).
    For the 1997 and 2006 PM2.5 standards, we are proposing
to find that the current Arkansas SIP does not address the 110(a)(2)
infrastructure elements listed below:
    Program for enforcement of control measures (110(a)(2)(C) of the
Act);
    Interstate Transport, pursuant to section 110(a)(2)(D)(ii) of the
Act; and
    Prevention of significant deterioration and visibility protection
(110(a)(2)(J) of the Act).
    We are also proposing to disapprove the portion of the Arkansas
Interstate Transport SIP that addresses the requirement of section
110(a)(2)(D)(i)(II)--that emissions from sources in Arkansas do not
interfere with measures required in the SIP of any other state under
part C of the CAA to prevent significant deterioration of air quality--
for the 2006 PM2.5 NAAQS.
    EPA is also proposing to approve the following revisions to APCEC
Regulation 19, Chapter 9, submitted by the State of Arkansas on
February 17, 2010:
    1. The substantive change adding NOX to the definition
of Major Modification through incorporation by reference of 40 CFR
52.21(b) and 40 CFR 51.301 as of November 29, 2005.
    2. The substantive change adding NOX to the definition
of Major Stationary Source through incorporation by reference of 40 CFR
52.21(b) and 40 CFR 51.301 as of November 29, 2005.
    3. The substantive change adding NOX as a precursor to
the table's criteria and other pollutants listing for ozone through
incorporation by reference of 40 CFR 52.21(b)(23)(i).
    4. The substantive change allowing for an exemption with respect to
ozone monitoring for a source with a net emissions increase less than
100 tpy of NOX through incorporation by reference of 40 CFR
52.21(i)(5)(i).
    EPA is proposing these actions in accordance with section 110 and
part C of the Act and EPA's regulations and consistent with EPA
guidance. We are also proposing to make ministerial corrections to the
attainment status table in 40 CFR 81.304 to accurately reflect the
redesignation date of Crittenden County, Arkansas to attainment for the
1997 8-hour ozone standard. On March 24, 2010, we redesignated the
county with an effective date of April 23, 2010 (75 FR 14077).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to act on state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act

    This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed SIP disapproval under section 110
and subchapter I, part D of the CAA will not in-and-of itself create
any new information collection burdens but simply disapproves certain
State requirements for inclusion into the

SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the CAA will not in-and-of itself create any new requirements but
simply disapproves certain State requirements for inclusion into the
SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the CAA prescribes that various consequences (e.g., higher offset
requirements) may or will flow from this disapproval does not mean that
EPA either can or must conduct a regulatory flexibility analysis for
this action. Therefore, this action will not have a significant
economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
    This proposed action does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This proposed action does not have tribal implications, as
specified in Executive Order 13175 (65 FR 67249, November 9, 2000),
because the action EPA is proposing neither imposes substantial direct
compliance costs on tribal governments, nor preempts tribal law.
Therefore, the requirements of section 5(b) and 5(c) of the Executive
Order do not apply to this rule. Consistent with EPA policy, EPA
nonetheless is offering consultation to Tribes regarding this
rulemaking action. EPA will respond to relevant comments in the final
rulemaking action.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed SIP disapproval under section 110 and subchapter
I, part D of the CAA will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use

    This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
    The EPA believes that this proposed action is not subject to
requirements of Section 12(d) of NTTAA because application of those
requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent

practicable and permitted by law, to make environmental justice part of
their mission by identifying and addressing, as appropriate,
disproportionately high and adverse human health or environmental
effects of their programs, policies, and activities on minority
populations and low-income populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the CAA. Accordingly, this action merely proposes to disapprove
certain State requirements for inclusion into the SIP under section 110
and subchapter I, part D of the CAA and will not in-and-of itself
create any new requirements. Accordingly, it 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.

K. Statutory Authority

    The statutory authority for this action is provided by section 110
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

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

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

    Dated: January 30, 2012.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2012-2902 Filed 2-8-12; 8:45 am]
BILLING CODE 6560-50-P