[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Rules and Regulations]
[Pages 41100-41111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17470]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2010-0720-201123 FRL-9436-3]
Approval and Promulgation of Implementation Plans; Alabama;
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve the December 10, 2007,
submission by the State of Alabama, through the Alabama Department of
Environmental Management (ADEM) as demonstrating that the State meets
the state implementation plan (SIP) requirements of sections 110(a)(1)
and (2) of the Clean Air Act (CAA or the Act) for the 1997 8-hour ozone
national ambient air quality standards (NAAQS). Section 110(a) of the
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance, and enforcement of each NAAQS promulgated
by the EPA, which is commonly referred to as an ``infrastructure'' SIP.
Alabama certified that the Alabama SIP contains provisions that ensure
the 1997 8-hour ozone NAAQS is implemented, enforced, and maintained in
Alabama (hereafter referred to as ``infrastructure submission'').
Alabama's infrastructure submission, provided to EPA on December 10,
2007, addressed all the required infrastructure elements for the 1997
8-hour ozone NAAQS. Additionally, EPA is responding to adverse comments
received on EPA's March 17, 2011, proposed approval of Alabama's
December 10, 2007, infrastructure submission.
DATES: Effective Date: This rule will be effective August 12, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2010-0720. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30 excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Scope of Infrastructure SIPs
III. This Action
IV. EPA's Response to Comments
V. Final Action
VI. Statutory and Executive Order Reviews
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that new NAAQS. On July 18, 1997, EPA
promulgated a new NAAQS for ozone based on 8-hour average
concentrations, thus states were required to provide submissions to
address sections 110(a)(1) and (2) of the CAA for this new NAAQS.
Alabama provided its infrastructure submission for the 1997 8-hour
ozone NAAQS on December 10, 2007. On March 17, 2011, EPA proposed to
approve Alabama's December 10, 2007, infrastructure submission for the
1997 8-hour ozone NAAQS. See 76 FR 14611. A summary of the background
for today's final action is provided below. See EPA's March 17, 2011,
proposed rulemaking at 76 FR 14611 for more detail.
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 8-hour ozone NAAQS, states typically
have met the basic program elements required in section 110(a)(2)
through earlier SIP submissions in connection with previous ozone
NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As already mentioned, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and
[[Page 41101]]
emissions inventories that are designed to assure attainment and
maintenance of the NAAQS. The requirements that are the subject of this
final rulemaking are listed below \1\ and in EPA's October 2, 2007,
memorandum entitled ``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.''
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\1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather are due at the time the nonattainment
area plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA, and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's final rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) but does provide detail on how Alabama's SIP addresses
110(a)(2)(C).
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110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control
measures.\2\
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\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D): Interstate transport.\3\
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\3\ Today's final rule does not address element 110(a)(2)(D)(i)
(Interstate Transport) for the 1997 8-hour ozone NAAQS. Interstate
transport requirements were formerly addressed by Alabama consistent
with the Clean Air Interstate Rule (CAIR). On December 23, 2008,
CAIR was remanded by the D.C. Circuit Court of Appeals, without
vacatur, back to EPA. See North Carolina v. EPA, 531 F.3d 896 (D.C.
Cir. 2008). Prior to this remand, EPA took final action to approve
Alabama's SIP revision, which was submitted to comply with CAIR. See
72 FR 55659 (October 1, 2007). In so doing, Alabama's CAIR SIP
revision addressed the interstate transport provisions in Section
110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS. In response to the
remand of CAIR, EPA has since proposed a new rule to address the
interstate transport of NOx and SOx in the eastern United States.
See 75 FR 45210 (Aug. 2, 2010) (``the Transport Rule''). However,
because this rule has yet to be finalized, EPA's action on element
110(a)(2)(D)(i) will be addressed in a separate action.
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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\4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``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,'' but
as previously discussed is not relevant to today's final rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
II. Scope of Infrastructure SIPs
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 the infrastructure SIP
submissions.\5\ The Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements 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
(``SSM'') at sources, that may be contrary to the CAA and EPA's
policies addressing such excess emissions; and (ii) existing provisions
related to ``director's variance'' or ``director's discretion'' that
purport to permit revisions to SIP approved emission limits with
limited public process or without requiring further approval by EPA,
that may be contrary to the CAA. EPA notes that there are two other
substantive issues for which EPA likewise stated that it would respond
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 now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained.
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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 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.
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 issue 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
[[Page 41102]]
submissions under section 110(k) or under section 110(c). Given the
confusion evidently resulting from EPA's statements, 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.
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
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
ensure 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) states 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 25163-25165 (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 requirement
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 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
NAAQS.
[[Page 41103]]
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--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''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``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'').
\12\ 2007 Guidance at page 2.
\13\ Id., at attachment A, page 1.
\14\ Id., at page 4. In retrospect, the concerns raised by the
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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Significantly, the 2007 Guidance did not explicitly refer 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, 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 the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief a
state's submission should establish that the state has 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 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.
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 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.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on the infrastructure SIP 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
[[Page 41104]]
bases that the Agency cites in the course of addressing the issue in a
subsequent action.\17\
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\15\ 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,'' 74 FR 21639 (April 18, 2011).
\16\ 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).
\17\ 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).
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III. This Action
EPA is taking final action to approve Alabama's infrastructure
submission as demonstrating that the State meets the applicable
requirements of sections 110(a)(1) and (2) of the CAA for the 1997 8-
hour ozone NAAQS. Section 110(a) of the CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by the EPA, which is commonly
referred to as an ``infrastructure'' SIP. Alabama, through ADEM,
certified that the Alabama SIP contains provisions that ensure the 1997
8-hour ozone NAAQS is implemented, enforced, and maintained in Alabama.
Alabama's infrastructure submission, provided to EPA on December
10, 2007, addressed all the required infrastructure elements for the
1997 8-hour ozone NAAQS. EPA has determined that Alabama's December 10,
2007, infrastructure submission is consistent with section 110 of the
CAA. Additionally, EPA is responding to adverse comments received on
EPA's March 17, 2011, proposed approval of Alabama's December 10, 2007,
infrastructure submission. The responses to comments are found in
Section IV below.
IV. EPA's Response to Comments
EPA received one set of comments on the March 17, 2011, proposed
rulemaking to approve Alabama's December 10, 2007, infrastructure
submission as meeting the requirements of sections 110(a)(1) and (2) of
the CAA for the 1997 8-hour ozone NAAQS. Generally, the Commenter's
concerns relate to whether EPA's approval of Alabama's December 10,
2007, infrastructure submission is in compliance with section 110(l) of
the CAA, and whether EPA's approval will interfere with the State's
compliance with the CAA's prevention of significant deterioration (PSD)
requirements. A full set of the comments provided on behalf of the
Kentucky Environmental Foundation (hereinafter referred to as ``the
Commenter'') is provided in the docket for today's final action. A
summary of the comments and EPA's response are provided below.
Comment 1: Under the header ``No Clean Air Act Section 110(l)
Analysis,'' the Commenter states ``Before providing the technical
analysis for why finalizing this proposed rule would be contrary to the
Clean Air Act, I wish to point out that it is 2011 and EPA has yet to
ensure that these areas have plans to meet the 1997 National Ambient
Air Quality Standard[s] (NAAQS) for ozone.'' The Commenter goes on to
state that ``EPA acknowledged that the science indicates that the 1997
NAAQS, which is effectively 85 parts per billion (ppb), does not
protect people's health or welfare when in 2008, EPA set a new ozone
NAAQS at 75 ppb.''
Response 1: As noted in EPA's proposed rulemaking on Alabama's
December 10, 2007, infrastructure submission and in today's final
rulemaking, the very action that EPA is undertaking is a determination
that Alabama has a plan to ensure compliance with the 1997 8-hour ozone
NAAQS. Alabama's submission was provided on December 10, 2007, for the
1997 8-hour ozone NAAQS, thus the State's submission predates the
release of the revision to the 8-hour ozone NAAQS on March 12, 2008,
and is distinct from any plan that Alabama would have to provide to
ensure compliance of the 2008 NAAQS. This action is meant to address,
and EPA is approving, the 1997 ozone infrastructure requirements under
section 110 of the Act. In today's action EPA is not addressing the 110
infrastructure requirements for the 2008 ozone NAAQS as they will be
addressed in a separate rulemaking.
EPA notes that the 1997 8-hour ozone standards as published in a
July 18, 1997, final rulemaking notice (62 FR 38856) and effective
September 18, 1997, are 0.08 parts per million (ppm), which is
effectively 0.084 ppm or 84 ppb due to the rounding convention and not
``effectively 85 parts per billion (ppb)'' as the Commenter stated.
Further, EPA agrees that the Agency has made the determination that the
1997 8-hour ozone NAAQS is not as protective as needed for public
health and welfare, and as the Commenter mentioned, the Agency
established a new ozone NAAQS at 75 ppb. However, the Agency is
currently reconsidering the 2008 8-hour ozone NAAQS, and has not yet
designated areas for any subsequent NAAQS.
Finally, while it is not clear which areas the Commenter refers to
in stating ``EPA has yet to ensure these areas have plans to meet'' the
1997 ozone NAAQS, EPA believes this concern is addressed by the
requirements under section 172, Part D, Title I of the Act for states
with nonattainment areas for the 1997 ozone NAAQS to submit
nonattainment plans. As discussed in EPA's notice proposing approval of
the Alabama infrastructure SIP, submissions required by section
110(a)(2)(I) which pertain to the nonattainment planning requirements
of part D, Title I of the CAA are outside the scope of this action, as
such plans are not due within three 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.\18\
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\18\ Currently, Alabama does not have any nonattainment areas
for the 1997 8-hour ozone NAAQS. The Birmingham, Alabama area, which
was previously designated nonattainment for this NAAQS, was
redesignated to attainment and is currently attaining the 1997 8-
hour ozone NAAQS.
---------------------------------------------------------------------------
Comment 2: Also under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter cites the section 110(l) CAA requirement, and
states ``Clean Air Act Sec. 110(l) requires `EPA to evaluate whether
the plan as revised will achieve the pollution reductions required
under the Act, and the absence of exacerbation of the existing
situation does not assure this result.' Hall v. EPA, 273 F.3d 1146,
1152 (9th Cir. 2001).'' The Commenter goes on to state that ``* * * the
Federal Register notices are devoid of any analysis of how these rule
makings will or will not interfere with attaining, making reasonable
further progress on attaining and maintaining the 75 ppb ozone NAAQS as
well as the 1-hour 100 ppb nitrogen oxides NAAQS.''
Response 2: EPA agrees with the Commenter's assertion that
consideration of section 110(l) of the CAA is necessary for EPA's
action with regard to approving the State's submission. However, EPA
disagrees with the Commenter's assertion that EPA did not consider
110(l) in terms of the March 17, 2011, proposed action. Further, EPA
disagrees with the Commenter's assertion that EPA's proposed March 17,
2011, action does not comply with the requirements of section 110(l).
Section 110(l) provides in part: ``[t]he Administrator shall not
approve a revision of a plan if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress * * *, or any other applicable requirement of this chapter.''
EPA has consistently interpreted section 110(l) as not requiring a
new attainment demonstration for every SIP submission. The following
actions are examples of where EPA has addressed
[[Page 41105]]
110(l) in previous rulemakings: 70 FR 53, 57 (January 3, 2005); 70 FR
17029, 17033 (April 4, 2005); 70 FR 28429, 28431 (May 18, 2005); and 70
FR 58119, 58134 (October 5, 2005). Alabama's December 10, 2007,
infrastructure submission does not revise or remove any existing
emissions limit for any NAAQS, or any other existing substantive SIP
provisions relevant to the 1997 8-hour ozone NAAQS. Simply put, it does
not make any substantive revision that could result in any change in
emissions. As a result, the submission does not relax any existing
requirements or alter the status quo air quality. Therefore, approval
of Alabama's December 10, 2007, infrastructure submission will not
interfere with attainment or maintenance of any NAAQS.
Comment 3: Under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter states that ``We are not required to guess
what EPA's Clean Air Act 110(l) analysis would be. Rather, EPA must
approve in part and disapprove in part these action and re-propose to
approve the disapproved part with a Clean Air Act Sec. 110(l)
analysis.'' Further, the Commenter states that ``EPA cannot include its
analysis in its response to comments and approve the actions without
providing the public with an opportunity to comment on EPA's Clean Air
Act Sec. 110(l) analysis.''
Response 3: Please see Response 2 for a more detailed explanation
regarding EPA's response to the Commenter's assertion that EPA's action
is not in compliance with section 110(l) of the CAA. EPA does not agree
with the Commenter's assertion that EPA's analysis did not consider
section 110(l) and so therefore ``EPA must approve in part and
disapprove in part these action and re-propose to approve the
disapproved part with a Clean Air Act Sec. 110(l) analysis.'' Every
action that EPA takes to approve a SIP revision is subject to section
110(l) and thus EPA's consideration of whether a state's submission
``would interfere with any applicable requirement concerning attainment
and reasonable further progress * * *, or any other applicable
requirement of this chapter'' is inherent in EPA's action to approve or
disapprove a submission from a state. In the ``Proposed Action''
section of the March 17, 2011, rulemaking, EPA notes that ``EPA is
proposing to approve Alabama's infrastructure submission for the 1997
8-hour ozone NAAQS because this submission is consistent with section
110 of the CAA.'' Section 110(l) is a component of section 110, so EPA
believes that this provides sufficient notice that EPA considered
section 110(l) for the proposed action and concluded that section
110(l) was not violated.
Further, EPA does not agree with the Commenter's assertion that the
Agency cannot provide additional clarification in response to a comment
concerning section 110(l) and take a final approval action without
``providing the public with an opportunity to comment on EPA's Clean
Air Act Sec. 110(l) analysis.'' Clearly such a broad proposition is
incorrect where the final rule is a logical outgrowth of the proposed
rule. In fact, the proposition that providing an analysis for the first
time in response to a comment on a rulemaking per se violates the
public's opportunity to comment has been rejected by the D.C. Circuit
Court of Appeals. See Int'l Harvester Co. v. Ruckelshaus, 478 F.2d 615,
632 n.51 (D.C. Cir. 1973).
Finally, as previously mentioned, EPA's approval of Alabama's
December 10, 2007, infrastructure submission does not make any
substantive revision that could result in any change in emissions, so
there is no further ``analysis'' beyond whether the state has adequate
provisions in its SIP to address the infrastructure requirements for
the 1997 8-hour ozone NAAQS. EPA's March 17, 2011, proposed rulemaking
goes through each of the relevant infrastructure requirements and
provides detailed information on how Alabama's SIP addresses the
relevant infrastructure requirements. Beyond making a general statement
indicating that Alabama's submission is not in compliance with section
110(l) of the CAA, the Commenter does not provide comments on EPA's
detailed analysis of each infrastructure requirement to indicate that
Alabama's infrastructure submission for the 1997 8-hour ozone NAAQS is
deficient in meeting these individual requirements. Therefore, the
Commenter has not provided a basis to question the Agency's
determination that Alabama's December 10, 2007, infrastructure
submission meets the requirements for the infrastructure submission for
the 1997 8-hour ozone NAAQS, including section 110(l) of the CAA.
Comment 4: Under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter further asserts that ``EPA's analysis must
conclude that this proposed action would [violate] Sec. 110(l) if
finalized.'' An example given by the Commenter is as follows: ``For
example, a 42 U.S.C. 7502(a)(2)(J) public notification program based on
a 85 [parts per billion (ppb)] ozone level interferes with a public
notification program that should exist for a 75 ppb ozone level. At its
worst, the public notification system would be notifying people that
the air is safe when in reality, based on the latest science, the air
is not safe. Thus, EPA would be condoning the states providing
information that can physical[ly] hurt people.''
Response 4: EPA disagrees with the Commenter's statement that EPA's
analysis must conclude that this proposed action would be in violation
of section 110(l) if finalized. As mentioned above, Alabama's December
10, 2007, infrastructure submission does not revise or remove any
existing emissions limit for any NAAQS, nor does it make any
substantive revision that could result in any change in emissions. EPA
has concluded that Alabama's December 10, 2007, infrastructure
submission does not relax any existing requirements or alter the status
quo air quality. Therefore, approval of Alabama's December 10, 2007,
infrastructure submission will not interfere with attainment or
maintenance of any NAAQS. See Response 2 and Response 3 above for a
more detailed discussion.
EPA also disagrees with the specific example provided by the
Commenter that the section 110(a)(2)(J) requirement for public
notification for the 1997 8-hour ozone NAAQS based on 85 ppb interferes
with a public notification program that should exist for a 75 ppb ozone
level, and ``EPA would be condoning the states providing information
that can physical[ly] hurt people.'' As noted in Response 1, Alabama's
December 10, 2007, infrastructure submission was provided to address
the 1997 8-hour ozone NAAQS and was submitted prior to EPA's
promulgation of the 2008 8-hour ozone in March 2008. Thus, Alabama
provided sufficient information at that time to meet the requirement
for the 1997 8-hour ozone NAAQS which is the subject of this action.
Finally, members of the public do get information related to the
more recent NAAQS via the Air Quality Index (AQI) for ozone. When EPA
promulgated the 2008 NAAQS (73 FR 16436, March 27, 2008), EPA revised
the AQI for ozone to show that at the level of the 2008 ozone NAAQS the
AQI is set to 100, which indicates unhealthful ozone levels. It is this
revised AQI that EPA uses to both forecast ozone levels and to provide
notice to the public of current air quality. The EPA AIRNOW system uses
the revised AQI as its basis for ozone. In addition, when Alabama
forecasts ozone and provides real-time ozone information to the public,
either through the AIRNOW system or through its own internet based
system, the State uses the
[[Page 41106]]
revised ozone AQI keyed to the 2008 revised ozone NAAQS. EPA believes
this should address the Commenter's legitimate assertion.
Comment 5: Under the header ``No Clean Air Act Section 110(l)
Analysis,'' the Commenter asserts that ``if a SIP provides an ozone
NAAQS of 85 ppb for PSD purposes, this interferes with the requirement
that PSD programs require sources to demonstrate that they will not
cause or contribute to a violation of a NAAQS because this requirement
includes the current 75 ppb ozone NAAQS.''
Response 5: EPA believes that this comment gives no basis for
concluding that approval of the Alabama infrastructure SIP violates the
requirements of section 110(l). EPA assumes that the comment refers to
the requirement that owners and operators of sources subject to PSD
demonstrate that the allowable emissions from the proposed source or
emission increases from a proposed modification, in conjunction with
all other applicable emissions increases or reductions (including
secondary emissions) will not cause or contribute to a violation of any
NAAQS. 40 CFR 51.166(k)(1).
EPA further assumes that the Commenter's statement ``if a SIP
provides an ozone NAAQS of 85 ppb for PSD purposes'' refers to a
hypothetical SIP-approved PSD program that only requires owners and
operators of sources subject to PSD to make the demonstration discussed
above for the 1997 ozone NAAQS, and not for the 2008 ozone NAAQS.
However, the Commenter gives no indication that Alabama's SIP-approved
PSD program suffers from this alleged defect. EPA has examined the
relevant provision in Alabama's SIP, Regulation 335-3-14-.04(2)(10)--
Air Permits Authorizing Construction in Clean Air Areas (Prevention of
Significant Deterioration Permitting (PSD))--Definitions--Source Impact
Analysis, and has determined that the language is nearly identical to
that in 51.166(k)(1), and thus satisfies the requirements of this
federal provision.
Furthermore, as discussed in detail above, the infrastructure SIP
makes no substantive change to any provision of Alabama's SIP-approved
PSD program, and therefore does not violate the requirements of section
110(l). Had Alabama submitted a SIP revision that substantively
modified its PSD program to limit the required demonstration to just
the 1997 ozone NAAQS, then the comment might have been relevant to a
110(l) analysis of that hypothetical SIP revision. However, in this
case, the comment gives no basis for EPA to conclude that the Alabama
infrastructure SIP would interfere with any applicable requirement of
the Act.
EPA concludes that approval of Alabama's December 10, 2007,
infrastructure submission will not make the status quo air quality
worse and is in fact consistent with the development of an overall plan
capable of meeting the Act's requirements. Accordingly, when applying
section 110(l) to this submission, EPA finds that approval of Alabama's
December 10, 2007, infrastructure submission is consistent with section
110 (including section 110(l)) of the CAA.
Comment 6: The Commenter provided comments opposing the proposed
approval of the infrastructure submission because it did not identify a
specific model to be used to demonstrate that a PSD source will not
cause or contribute to a violation of the ozone NAAQS. Specifically,
the Commenter stated: ``[t]he SIP submittals do not comply with Clean
Air Act 110(a)(2)(J), (K), and (D)(i)(II) because the SIP submittals do
not identify a specific model to use in PSD permitting to demonstrate
that a proposed source of modification will not cause or contribute to
a violation [or] the ozone NAAQS.''
The commenter asserted that because EPA does not require the use of
a specific model, states use no modeling or use deficient modeling to
evaluate these impacts. Specifically, the commenter alleged: ``[m]any
states abuse this lack of an explicitly named model by claiming that
because no model is explicitly named, no modeling is required or use of
completely irrelevant modeling (e.g. Kentucky using modeling from
Georgia for the J.K. Smith proposed facility) is allowed.''
To support the argument that EPA should designate a particular
model and require states to use it, the Commenter attached and
incorporated by reference a prior petition for rulemaking requesting
that EPA designate such a model.\19\ The petition in question was
submitted by Robert Ukeiley on behalf of the Sierra Club on July 28,
2010, requesting EPA to designate air quality models to use for PSD
permit applications with regard to ozone and PM2.5. As
supporting documentation for that petition for rulemaking, the
Commenter also resubmitted 15 attachments in the comment on EPA's
proposed approval of the infrastructure submission. These attachments
were as follows:
---------------------------------------------------------------------------
\19\ The Commenter attached the July 28, 2010, ``Petition for
Rulemaking To Designate Air Quality Models To Use for PSD Permit
Applications With Regard to Ozone and PM2.5,'' from
Robert Ukeiley on behalf of the Sierra Club.
---------------------------------------------------------------------------
1. Exhibit 1: Comments from Camille Sears on the Ninth Conference
on Air Quality Modeling (Docket ID: EPA-HQ-OAR-2008-0604) (November 10,
2008);
2. Exhibit 2: ``Response to Petitions for Review, Supplemental
Briefs, and Amicus Brief'' regarding the Desert Rock Energy Company,
LLC from Ann Lyons, EPA Region 9--Office of Regional Counsel and Brian
L. Doster/Elliot Zenick, EPA Headquarters--Office of General Counsel
(January 8, 2009);
3. Exhibit 3: Report, The Kentucky Natural Resources and
Environmental Protection Cabinet, A Cumulative Assessment of the
Environmental Impacts Caused by Kentucky Electric Generating Units,
(December 17, 2001);
4. Exhibit 4: Letter from Richard A. Wayland, Director of the Air
Quality Assessment Division, EPA Office Air Quality and Planning
Standards to Robert Ukeiley regarding Mr. Ukeiley's Freedom of
Information Act (FOIA) request on behalf of the Sierra Club for
documents related to EPA development of a modeling protocol for
PM2.5 (October 1, 2008);
5. Exhibit 5: Expert Report of Lyle R. Chinkin and Neil J. M.
Wheeler, Analysis of Air Quality Impacts, prepared for Civil Action No.
IP99-1693 C-M/S United States v. Cinergy Corp., (August 28, 2008);
6. Exhibit 6: Illinois Environmental Protection Agency, Bureau of
Air, Assessing the impact on the St. Louis Ozone Attainment
Demonstration from the proposed electrical generating units in
Illinois'' (September 25, 2003);
7. Exhibit 7: Memorandum from Stephen D. Page, Director, EPA Office
Air Quality and Planning Standards entitled, ``Modeling Procedures for
Demonstrating Compliance with the PM2.5 NAAQS'' (March 23,
2010);
8. Exhibit 8: E-mail from Scott B. (Title and Affiliation not
provided), to Donna Lucchese, (Title and Affiliation not provided),
entitled, ``Ozone impact of point source'' (Date described as ``Early
2000'');
9. Exhibit 9: E-mail from Mary Portanova, EPA, Region 5, to Noreen
Weimer, EPA, Region 5, entitled ``FOIA--Robert Ukeiley--RIN-02114-09''
(October 20, 2009, 10:05 CST);
10. Exhibit 10: Synopsis from PSD Modeling Workgroup--EPA/State/
Local Workshop, New Orleans (May 17, 2005);
11. Exhibit 11: Letter from Carl E. Edlund, P.E., Director, EPA,
Region 6 Multimedia Planning and Permitting Division to Richard Hyde,
P.E. Deputy Director of the Office of Permitting and Registration,
Texas Commission on Environmental Quality regarding
[[Page 41107]]
``White Stallion Energy Center, PSD Permit Nos. PSD-TX-1160, PAL 26,
and HAP 28'' (February 10, 2010);
12. Exhibit 12: Memorandum from John S. Seitz, Director, EPA Office
of Air Quality Planning & Standards entitled, ``Interim Implementation
of New Source Review Requirements for PM2.5'' (October 23,
1997);
13. Exhibit 13: Presentation by Erik Snyder and Bret Anderson
(Titles and Affiliations not provided), to R/S/L Workshop, Single
Source Ozone/PM2.5 Impacts in Regional Scale Modeling &
Alternate Methods, (May 18, 2005);
14. Exhibit 14: Letter from Richard D. Scheffe, PhD, Senior Science
Advisor, EPA, Office of Air Quality Planning & Standards to Abigail
Dillen in response to an inquiry regarding the applicability of the
Scheffe Point Source Screening Tables (July 28, 2000);
15. Exhibit 15: Presentation by Gail Tonnesen, Zion Wang, Mohammad
Omary, Chao-Jung Chien (University of California, Riverside); Zac
Adelman (University of North Carolina); Ralph Morris et al. (ENVIRON
Corporation Int., Novato, CA) to the Ozone MPE, TAF Meeting, Review of
Ozone Performance in WRAP Modeling and Relevance to Future Regional
Ozone Planning, (July 30, 2008).
Finally, the Commenter stated that ``EPA has issued guidance
suggesting [that] PSD sources should use the ozone limiting method for
NOX modeling.'' The Commenter referred to EPA's March 2011
NOX modeling guidance to support this position.\20\ The
Commenter then asserts that this ``ozone modeling'' helps sources
demonstrate compliance and that sources should also do ozone modeling
that may inhibit a source's permission to pollute. The Commenter argues
that EPA's guidance supports the view that EPA must require states to
require a specific model in their SIPs to demonstrate that proposed PSD
sources do not cause or contribute to a violation the ozone NAAQS.
---------------------------------------------------------------------------
\20\ The Commenter attached an EPA memorandum dated March 1,
2011entitled: ``Additional Clarification Regarding Application of
Appendix W Modeling Guidance for the 1-hour NO2 National
Ambient Air Quality Standard,'' from Tyler Fox, Leader, Air Quality
Modeling Group, Office of Air Quality Planning and Standards.
---------------------------------------------------------------------------
Response 6: EPA disagrees with the Commenter's views concerning
modeling in the context of acting upon the infrastructure submission.
The Commenter raised four primary interrelated arguments: (1) The
state's infrastructure SIP must specify a required model; (2) the
failure to specify a model leads to inadequate analysis; (3) the
attached petition for rulemaking explains why EPA should require states
to specify a model; and (4) a recent guidance document concerning
modeling for NOX sources recommends using ozone limit
methods for NOX sources and EPA could issue comparable
guidance for modeling ozone from a single source.
At the outset, EPA notes that although the Commenter sought to
incorporate by reference the prior petition for rulemaking requesting
EPA to designate a particular model for use by states for this purpose,
the Agency is not required to respond to that petition in the context
of acting upon the infrastructure submission. In reviewing the
infrastructure submission, EPA is evaluating the state's submission in
light of current statutory and regulatory requirements, not in light of
potential requirements that EPA has been requested to establish in a
petition. Moreover, the petition arose in a different context, requests
different relief, and raises other issues unrelated to those concerning
ozone modeling raised by the Commenter in this action. EPA believes
that the appropriate place to respond to the issues raised in the
petition is in a petition response. Accordingly, EPA is not responding
to the July 28, 2010 petition in this action. The issues raised in that
petition are under separate consideration.
EPA believes that the comment concerning the approvability of the
infrastructure submission based upon whether the SIP specifies the use
of a particular model are germane to this action, but EPA disagrees
with the Commenter's conclusions. The Commenter stated that the SIP
submittals ``do not comply with Clean Air Act 110(a)(2)(J), (K), and
(D)(i)(II) because the SIP submittals do not identify a specific model
to use in PSD permitting to demonstrate that a proposed source [or]
modification will not cause or contribute to a violation of the ozone
NAAQS.'' EPA's PSD permitting regulations are found at 40 CFR 51.166
and 52.21. PSD requirements for SIPs are found in 40 CFR 51.166.
Similar PSD requirements for SIPs that have been disapproved with
respect to PSD and for SIPs incorporating EPA's regulations by
reference are found in 40 CFR 52.21. The PSD regulations require an
ambient impact analysis for ozone for proposed major stationary sources
and major modifications to obtain a PSD permit (40 CFR
51.166(b)(23)(i), (i)(5)(i)(f),\21\ (k), (l) and (m) and 40 CFR
52.21(b)(23)(i), (i)(5)(i)(f),\22\ (k), (l) and (m)). The regulations
at 40 CFR 51.166(l) state that for air quality models the SIP shall
provide for procedures which specify that:
---------------------------------------------------------------------------
\21\ Citation includes a footnote: ``No de minimis air quality
level is provided for ozone. However, any net emissions increase of
100 tons per year or more of volatile organic compounds or nitrogen
oxides subject to PSD would be required to perform an ambient impact
analysis, including the gathering of ambient air quality data.''
\22\ Id.
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(1) All applications of air quality modeling involved in this
subpart shall be based on the applicable models, data bases, and other
requirements specified in Appendix W of this part (Guideline on Air
Quality Models).
(2) Where an air quality model specified in Appendix W of this part
(Guideline on Air Quality Models) is inappropriate, the model may be
modified or another model substituted. Such a modification or
substitution of a model may be made on a case-by-case basis or, where
appropriate, on a generic basis for a specific State program. Written
approval of the Administrator must be obtained for any modification or
substitution. In addition, use of a modified or substituted model must
be subject to notice and opportunity for public comment under
procedures set forth in Sec. 51.102.
These parts of 40 CFR part 51 and 52 are the umbrella SIP
components that states have either adopted by reference or the states
have been approved or delegated authority to incorporate the PSD
requirements of the CAA. As discussed above, these part 51 and 52 PSD
provisions refer to 40 CFR part 51, Appendix W for the appropriate
model to utilize for the ambient impact assessment. 40 CFR part 51,
Appendix W is the Guideline on Air Quality models and Section 1.0.a.
states:
The Guideline recommends air quality modeling techniques that
should be applied to State Implementation Plan (SIP) revisions for
existing sources and to new source review (NSR), including
prevention of significant deterioration (PSD).[footnotes not
included]. Applicable only to criteria air pollutants, it is
intended for use by EPA Regional Offices in judging the adequacy of
modeling analyses performed by EPA, State and local agencies, and by
industry. * * * The Guideline is not intended to be a compendium of
modeling techniques. Rather, it should serve as a common measure of
acceptable technical analysis when supported by sound scientific
judgment.
Appendix W Section 5.2.1. includes the Guideline recommendations
for models to be utilized in assessing ambient air quality impacts for
ozone. Specifically, Section 5.2.1.c. states:
Estimating the Impact of Individual Sources. Choice of methods
used to assess the impact of an individual source depends on the
nature of the source and its emissions.
[[Page 41108]]
Thus, model users should consult with the Regional Office to
determine the most suitable approach on a case-by-case basis
(subsection 3.2.2).
Appendix W Section 5.2.1.c. provides that the model users (state
and local permitting authorities and permitting applicants) should work
with the appropriate EPA Regional Office on a case-by-case basis to
determine an adequate method for performing an air quality analysis for
assessing ozone impacts. Due to the complexity of modeling ozone and
the dependency on the regional characteristics of atmospheric
conditions, EPA believes this is an appropriate approach rather than
specifying one particular preferred model nationwide, which may not be
appropriate in all circumstances. Instead, the choice of method
``depends on the nature of the source and its emissions. Thus, model
users should consult with the Regional Office * * *.'' Appendix W
Section 5.2.1.c. Therefore, EPA continues to believe it is appropriate
for permitting authorities to consult and work with EPA Regional
Offices as described in Appendix W, including section 3.0.b and c,
3.2.2, and 3.3, to determine the appropriate approach to assess ozone
impacts for each PSD required evaluation.23, 24, 25, 26
Although EPA has not selected one particular preferred model in
Appendix A of Appendix W (Summaries of Preferred Air Quality Models)
for conducting ozone impact analyses for individual sources, state/
local permitting authorities must comply with the appropriate PSD FIP
or SIP requirements with respect to ozone.
---------------------------------------------------------------------------
\23\ 40 CFR part 51 Appendix W, Section 3.0.b. states: ``In this
guidance, when approval is required for a particular modeling
technique or analytical procedure, we often refer to the
`appropriate reviewing authority'. In some EPA regions, authority
for NSR and PSD permitting and related activities have been
delegated to State and even local agencies. In these cases, such
agencies are `representatives' of the respective regions. Even in
these circumstances, the Regional Office retains authority in
decisions and approvals. Therefore, as discussed above and depending
on the circumstances, the appropriate reviewing authority may be the
Regional Office, Federal Land Manager(s), State agency(ies), or
perhaps local agency(ies). In cases where review and approval comes
solely from the Regional Office (sometimes stated as `Regional
Administrator'), this will be stipulated. If there is any question
as to the appropriate reviewing authority, you should contact the
Regional modeling contact (http://www.epa.gov/scram001/tt28.htm#regionalmodelingcontacts) in the appropriate EPA Regional
Office, whose jurisdiction generally includes the physical location
of the source in question and its expected impacts.''
\24\ 40 CFR Part 51 Appendix W, Section 3.0.c. states: ``In all
regulatory analyses, especially if other-than-preferred models are
selected for use, early discussions among Regional Office staff,
State and local control agencies, industry representatives, and
where appropriate, the Federal Land Manager, are invaluable and
encouraged. Agreement on the data base(s) to be used, modeling
techniques to be applied and the overall technical approach, prior
to the actual analyses, helps avoid misunderstandings concerning the
final results and may reduce the later need for additional analyses.
The use of an air quality analysis checklist, such as is posted on
EPA's Internet SCRAM Web site (subsection 2.3), and the preparation
of a written protocol help to keep misunderstandings at a minimum.''
\25\ 40 CFR part 51 Appendix W, Section 3.2.2.a states:
``Determination of acceptability of a model is a Regional Office
responsibility. Where the Regional Administrator finds that an
alternative model is more appropriate than a preferred model, that
model may be used subject to the recommendations of this subsection.
This finding will normally result from a determination that (1) A
preferred air quality model is not appropriate for the particular
application; or (2) a more appropriate model or analytical procedure
is available and applicable.''
\26\ 40 CFR part 51 Appendix W, Section 3.3.a. states: ``The
Regional Administrator has the authority to select models that are
appropriate for use in a given situation. However, there is a need
for assistance and guidance in the selection process so that
fairness and consistency in modeling decisions is fostered among the
various Regional Offices and the States. To satisfy that need, EPA
established the Model Clearinghouse and also holds periodic
workshops with headquarters, Regional Office, State, and local
agency modeling representatives. Section 3.3.b. states: ``The
Regional Office should always be consulted for information and
guidance concerning modeling methods and interpretations of modeling
guidance, and to ensure that the air quality model user has
available the latest most up-to-date policy and procedures. As
appropriate, the Regional Office may request assistance from the
Model Clearinghouse after an initial evaluation and decision has
been reached concerning the application of a model, analytical
technique or data base in a particular regulatory action.''
(footnote omitted).
---------------------------------------------------------------------------
The current SIP meets the requirements of 40 CFR 51.166(l)(1).
Specifically, the Alabama SIP states at Alabama Air Regulations 335-3-
14-.04 (11) Air Quality Models:
All estimates of ambient concentrations required under this Rule
shall be based on the applicable air quality models, data bases, and
other requirements specified in the ``Guideline on Air Quality
Models''. (U.S. Environmental Protection Agency, Office of Air
Quality Planning and Standards, Research Triangle Park, N.C. 27711).
This statement in the federally approved Alabama SIP is a direct
reference to EPA's ``Guideline on Air Quality Models'' at 40 CFR part
51, Appendix W. The commitment in Alabama's SIP to implement and adopt
air quality models utilizing 40 CFR part 51, Appendix W as a basis is
appropriate and consistent with federal regulations.
Alabama requires that PSD permit applications contain an analysis
of ozone impacts from the proposed project.\27\ As recommended by
Appendix W, the methods used for the ozone impacts analysis for
individual PSD permit actions are determined on a case-by-case basis.
Alabama consults with EPA Region 4 on a case-by-case basis for
evaluating the adequacy of the ozone impact analysis. When appropriate,
EPA Region 4 provides input/comments on the analysis. As stated in
Section 5.2.1.c. of Appendix W, the ``[c]hoice of methods used to
assess the impact of an individual source depends on the nature of the
source and its emissions.'' Therefore, based on an evaluation of the
source, its emissions and background ozone concentrations, an ozone
impact analysis other than modeling may be required. While in other
cases a complex photochemical grid type modeling analysis, as discussed
below, may be warranted. As noted, the appropriate methods are
determined in consultation with EPA Region 4 on a case-by-case basis.
---------------------------------------------------------------------------
\27\ Alabama Administrative Code 335-3-14-.04(2)(w), (8)(a),
(8)(h)(1), (10)(a), and (12).
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As a second point, the Commenter asserted that states abuse this
lack of an explicitly named model by claiming that because no model is
explicitly named, no modeling is required or use of completely
irrelevant modeling is allowed.
EPA agrees that States should not be using inappropriate analytical
tools in this context. For example, the Commenter's Exhibit 14 does
discuss the inappropriateness of using a screening technique referred
to as the ``Scheffe Tables.'' The Commenter is correct that the use of
``Scheffe Tables'' and other particular screening techniques, which
involve ratios of nitrogen oxides (NOX) to volatile organic
compounds (VOC) that do not consider the impact of biogenic emissions,
or that use other outdated or irrelevant modeling, is inappropriate to
evaluate a single source's ozone impacts on an air quality control
region. More scientifically appropriate screening and refined tools are
available and should be considered for use. Therefore, EPA continues to
believe States should consult and work with EPA Regional Offices as
described in Appendix W on a case-by-case basis to determine the
appropriate method for estimating the impacts of these ozone precursors
from individual sources.
For ozone, a proposed emission source's impacts are dependent upon
local meteorology and pollution levels in the surrounding atmosphere.
Ozone is formed from chemical reactions in the atmosphere. The impact a
new or modified source can have on ozone levels is dependent, in part,
upon the existing atmospheric pollutant loading already in the region
with which emissions from the new or modified source can react. In
addition, meteorological parameters such as wind
[[Page 41109]]
speed, temperature, wind direction, solar radiation influx, and
atmospheric stability are also important factors. The more
sophisticated analyses consider meteorology and interactions with
emissions from surrounding sources. EPA has not identified an
established modeling system that would fit all situations and take into
account all of the additional local information about sources and
meteorological conditions. The Commenter submitted a number of exhibits
(including Exhibits 10, 11, and 13) in which EPA has previously
indicated a preference for using a photochemical grid model when
appropriate modeling databases exist and when it is acceptable to use
the photochemical grid modeling to assess a specific source.
Commenter's Exhibit 13 includes a list of issues to evaluate, which
aid in considering if the existing photochemical grid modeling
databases are acceptable, and discusses the need for permitting
authorities to consult with the EPA Regional Office in determining if
photochemical grid modeling would be appropriate for conducting an
ozone impacts analysis. In these documents EPA has indicated that
photochemical grid modeling (e.g., CAMx or CMAQ) is generally the most
sophisticated type of modeling analysis for evaluating ozone impacts,
and it is usually conducted by adding a source into an existing
modeling system to determine the change in impact from the source. The
analysis is done by comparing the photochemical grid modeling results,
which include the new or modified source under evaluation, with the
results from the original modeling analysis that does not contain the
source. Photochemical grid modeling is often an excellent modeling
exercise for evaluating a single source's impacts on an air quality
control region when such models are available and appropriate to
utilize because they take into account the important parameters and the
models have been used in regional modeling for attainment SIPs.
The use of reactive plume models may also be appropriate under
certain circumstances. EPA has approved the use of plume models in some
instances, but these models are not always appropriate because of the
difficulty in obtaining the background information to make an
appropriate assessment of the photochemistry and meteorology impacts.
EPA has not selected a specific ``preferred'' model for conducting
an ozone impact analysis. Model selection normally depends upon the
details about the modeling systems available and if they are
appropriate for assessing the impacts from a proposed new source or
modification. Considering that a photochemical modeling system with
inputs, including meteorological and emissions data, that would also
have to be evaluated for model performance, could potentially be costly
and time consuming to develop, EPA has taken a case-by-case evaluation
approach. Such photochemical modeling databases are typically developed
so that impacts of regulatory actions across multiple sources can be
evaluated, and therefore the time and financial costs can be absorbed
by the regulatory body. It is these types of databases that have the
potential to be used to assess single source ozone impacts after they
have been developed as part of a regional modeling demonstration to
support a SIP. From a cost and time requirement standpoint, EPA would
generally not expect a single source to develop an entire photochemical
modeling system just to evaluate its individual impacts on an air
quality region, as long as other methods of analyzing ozone impacts are
available and acceptable to EPA.
When an existing photochemical modeling system is deemed
appropriate, it is an excellent tool to evaluate the ozone impact that
a single source's emissions can have on an air quality region in the
context of PSD modeling and should be evaluated for potential use. More
often now than 10 or 15 years ago, a photochemical modeling system may
be available that covers the geographic area of concern. EPA notes that
even where photochemical modeling is readily available, it should be
evaluated as part of the development of a modeling protocol, in
consultation with the Regional Office to determine its appropriateness
for conducting an impact analysis for a particular proposed source or
modification.\28\ Factors to consider when evaluating the
appropriateness of a particular photochemical modeling system include,
but are not limited to, meteorology, year of emissions projections,
model performance issues in the area of concern or in areas that might
impact projections in the area of concern. Therefore, even where
photochemical modeling systems exist, there may be circumstances where
their use is inappropriate for estimating the ozone impacts of a
proposed source or modification. Because of these scientific issues and
the need for appropriate case-by-case technical considerations, EPA has
not designated a single ``Preferred Model'' for conducting single
source impact analyses for ozone in Appendix A of Appendix W.
---------------------------------------------------------------------------
\28\ 40 CFR part 51Appendix W, Sections 3.0, 3.2., 3.3, 5.2.1.c
and commenter Exhibit 13.
---------------------------------------------------------------------------
In summary, the Commenter states that many States abuse this lack
of an explicitly named model by claiming that because no model is
explicitly named, no modeling is required or use of completely
irrelevant modeling is allowed. For the reasons described in this
response to comment, we do not believe that one modeling system is
presently appropriate to designate for all situations, yet that does
not relieve proposed sources and modifications from the obligation of
making the required demonstration under the applicable PSD rules. The
Alabama SIP contains a direct reference for use of the procedures
specified in EPA's ``Guideline on Air Quality Models'' (40 CFR Part 51
Appendix W) for estimating ambient concentrations of criteria
pollutants, including ozone (Alabama Air Pollution Control Regulation
335-3-14-.04(11) Air Quality Models). As such, Alabama requires that
PSD permit applications contain an analysis of ozone impacts from the
proposed project. As recommended by Appendix W, the methods used for
the ozone impacts analysis are determined on a case-by-case basis.
Alabama consults with EPA Region 4 on a case-by-case basis for
evaluating the adequacy of the ozone impact analysis. When appropriate,
EPA Region 4 provides input/comments on the analysis. Because EPA has
not designated one particular model as being appropriate in all
situations for evaluating single source ozone impacts, EPA Region 4
concurs with Alabama's proposed approach.
In conclusion, for the reasons stated above it is difficult to
identify and implement a standardized national model for ozone. EPA has
had a standard approach in its PSD SIP and FIP rules of not mandating
the use of a particular model for all circumstances, instead treating
the choice of a particular method for analyzing ozone impacts as
circumstance-dependent. EPA then determines whether the State's
implementation plan revision submittal meets the PSD SIP requirements.
For purposes of review for this infrastructure SIP, Alabama has an EPA-
approved PSD SIP that meets the EPA PSD SIP requirements.
Finally, the Commenter argued that EPA's March 2011 guidance
concerning modeling for the 1-hour nitrogen dioxide (NO2)
NAAQS demonstrates that similar single source modeling could be
conducted for sources for purposes of the ozone NAAQS. Specifically,
the commenter argued that the model used for other criteria
[[Page 41110]]
pollutants (AERMOD), incorporates ozone chemistry for modeling
NO2 and therefore is modeling ozone chemistry for a single
source. The Commenter stated that this guidance suggested that PSD
sources should use the ozone limiting method for NOX
modeling.\29\ Further, the Commenter noted that this technique ``is
modeling of ozone chemistry for a single source'' and therefore, that
this modeling with ozone chemistry allows a source to be permitted. The
commenter concludes with the assertion that EPA must require the SIPs
to include a model to use to demonstrate that proposed PSD sources do
not cause or contribute to a violation of an ozone NAAQS.
---------------------------------------------------------------------------
\29\ The Commenter attached EPA memorandum dated March 1, 2011:
``Additional Clarification Regarding Application of Appendix W
Modeling Guidance for the 1-hour NO2 National Ambient Air
Quality Standard,'' from Tyler Fox, Leader, Air Quality Modeling
Group, Office of Air Quality Planning and Standards.
---------------------------------------------------------------------------
EPA's recent March 2011 guidance for the NO2 NAAQS does
discuss using two different techniques to estimate the amount of
conversion of NOX emissions to NO2 ambient
NO2 concentrations as part of the NO2 modeling
guidance. NOX emissions are composed of NO and
NO2 molecules. These two techniques, which have been
available for years, are the Ozone Limiting Method (OLM), which was
mentioned by the Commenter, and the Plume Volume Molar-Ratio-Method
(PVMRM). Both of these techniques are designed and formulated based on
the principle of assuming available atmospheric ozone mixes with NO/
NO2 emissions from sources. This ``mixing'' results in ozone
molecules reacting with the NO molecules to form NO2 and
O2. This is a simple one-direction chemical reaction that is
used to determine how much NO is converted to NO2 for
modeling of the NO2 standard. Thus, these techniques do not
predict ozone concentrations, rather they take ambient ozone data as
model inputs to determine the calculation of NO conversion to
NO2. These techniques are not designed to calculate the
amount of ozone that might be generated as the NOX emissions
traverses downwind of the source and potentially reacts with other
pollutants in the atmosphere. Rather, these two techniques rely on a
one-way calculation based on an ozone molecule (O3) reacting
with an NO molecule to generate an NO2 molecule and an
O2 molecule.30, 31
---------------------------------------------------------------------------
\30\ ``AERMOD: Model Formulation Document'', http://www.epa.gov/scram001/7thconf/aermod/aermod_mfd_addm_rev.pdf.
\31\ Hanrahan, P.L., 1999a. ``The plume volume molar ratio
method for determining NO2/NOX ratios in
modeling. Part I: Methodology,'' J. Air & Waste Manage. Assoc., 49,
1324-1331.
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As previously mentioned, these two techniques do not attempt to
estimate the amount of ozone that might be generated, and the models in
which these techniques are applied are not designed or formulated to
even account for the potential generation of ozone from emissions of
NO/NO2. Ozone chemistry has many cycles of destruction and
generation and is dependent upon a large number of variables, including
VOC concentrations and the specific types of VOC molecules present,
other atmospheric pollutant concentrations, meteorological conditions,
and solar radiation levels as already discussed in this response. Since
OLM and PVMRM do not include any of these scientific principles and do
not account for any chemical mechanisms that would generate ozone,
these techniques cannot be used for determining potential changes in
ozone levels from a proposed source or modification.
In summary, the Commenter asserts that the OLM technique models of
ozone chemistry for a single source and that this modeling helps a
source demonstrate compliance with the NO2 standard. The
Commenter is concerned that EPA has not designated a single specific
OLM technique is not also used to determine ozone impacts and believes
that EPA should rectify this concern. To do so the Commenter concludes
that EPA must require the SIPs to include a model to demonstrate that
proposed PSD sources do not cause or contribute to a violation of an
ozone NAAQS. As previously discussed, EPA disagrees and reiterates that
the OLM (and PVMRM) are simple chemistry techniques that are not
formulated to be capable to determine potential ozone impacts from a
proposed source or modification.
For the reasons discussed above, EPA does not believe that the
comments provide a basis for not approving the infrastructure
submission. In short, EPA has not modified the Guidelines in Appendix W
for ozone impacts analysis for a single source (Appendix W part
5.2.1.c.) to require use of a specific model as the Commenter requests.
EPA finds that the State has the appropriate regulations to operate the
PSD program consistent with federally-approved requirements.
Furthermore, we disagree that states are required to designate a
specific model in the SIP, because App. W states that state and local
agencies should consult with EPA on a case-by-case basis to determine
what analysis to require.
V. Final Action
As already described, ADEM has addressed the elements of the CAA
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007,
guidance to ensure that the 1997 8-hour ozone NAAQS are implemented,
enforced, and maintained in Alabama. EPA is taking final action to
approve Alabama's December 10, 2007, infrastructure submission for the
1997 8-hour ozone NAAQS because this submission is consistent with
section 110 of the CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as
[[Page 41111]]
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the state,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 12, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: June 30, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Alabama
0
2. Section 52.50(e) is amended by adding a new entry ``110(a)(1) and
(2) Infrastructure Requirements for the 1997 8-Hour Ozone National
Ambient Air Quality Standards'' at the end of the table to read as
follows:
Sec. 52.50 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Alabama Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State
Name of nonregulatory SIP Applicable geographic or submittal date/ EPA approval Explanation
provision nonattainment area effective date date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Alabama..................... 12/10/2007 7/13/2011; For the 1997 8-
Infrastructure Requirements [Insert hour ozone
for the 1997 8-Hour Ozone citation of NAAQS.
National Ambient Air Quality publication].
Standards.
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[FR Doc. 2011-17470 Filed 7-12-11; 8:45 am]
BILLING CODE 6560-50-P