[Federal Register Volume 77, Number 187 (Wednesday, September 26, 2012)]
[Rules and Regulations]
[Pages 59100-59106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23586]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0079; FRL-9731-5]
Approval and Promulgation of Implementation Plans; Alabama:
General and Transportation Conformity & New Source Review Prevention of
Significant Deterioration for Fine Particulate Matter
(PM2.5)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve changes to the Alabama
State Implementation Plan (SIP), submitted by the Alabama Department of
Environmental Management (ADEM) to EPA on May 2, 2011. The May 2, 2011,
SIP revision modifies Alabama's New Source Review (NSR), Prevention of
Significant Deterioration (PSD), and Nonattainment New Source Review
(NNSR) programs to adopt into the Alabama SIP federal NSR PSD
requirements for the fine particulate matter (PM2.5)
national ambient air quality standards (NAAQS) as promulgated in EPA's
2008 NSR PM2.5 Implementation Rule and the 2010
PM2.5 PSD Increment, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC) Rule. The SIP revision also
changes the State's general and transportation conformity regulations.
EPA is approving portions of Alabama's May 2, 2011, SIP revision
because they are consistent with the Clean Air Act (CAA or Act) and EPA
regulations regarding NSR permitting. EPA received one off-topic
comment on the August 6, 2012, proposed rulemaking, and a brief
response is provided below.
DATES: Effective Date: This rule will be effective October 26, 2012.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0079. All documents in the docket
are listed on the 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 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: For information regarding the Florida
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air
Planning Branch, Air, Pesticides and Toxics Management Division, U.S.
[[Page 59101]]
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Ms. Bradley's telephone number is (404)
562-9352; email address: [email protected]. For information
regarding NSR, contact Ms. Yolanda Adams, Air Permits Section, at the
same address above. Ms. Adams' telephone number is (404) 562-9214;
email address: [email protected]. For information regarding the
PM2.5 NAAQS, contact Mr. Joel Huey, Regulatory Development
Section, at the same address above. Mr. Huey's telephone number is
(404) 562-9104; email address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
EPA is taking final action to approve portions of Alabama's May 2,
2011, SIP revision to adopt federal NSR permitting requirements and
federal general and transportation conformity regulations into the SIP.
Alabama's May 2, 2011, SIP revision includes changes to the regulations
at Administrative Code for Division 3: Chapter 335-3-14--Permits and
Chapter 335-3-17--Conformity of Federal Actions to State Implementation
Plans. These changes adopt federal PSD permitting regulations
promulgated in the final rulemakings entitled ``Implementation of the
New Source Review (NSR) Program for Particulate Matter Less than 2.5
Micrometers (PM2.5),'' 73 FR 28321 (May 16, 2008), hereafter
referred to as the ``NSR PM2.5 Rule'' and ``Prevention of
Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC),'' 75 FR 64864
(October 20, 2010), hereafter referred to as the ``PM2.5 PSD
Increment-SILs-SMC Rule.'' Additionally, the SIP revision changes the
State's general and transportation conformity regulations which
incorporate by reference (IBR) \1\ the federal conformity updates.
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\1\ In this document IBR means incorporate or incorporates by
reference.
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EPA is not approving in this action: (1) NNSR changes amended at
rule 335-3-14-.05;\2\ (2) SIL thresholds and provisions promulgated in
EPA's PM2.5 PSD Increment-SILs-SMC Rule, 75 FR 64864
(October 20, 2010);\3\ and (3) the term ``particulate matter
emissions'' when accounting for condensable particles for
PM2.5 emission limits for the definition of ``regulated NSR
pollutant,'' 77 FR 15656 (March 16, 2012). EPA will consider action on
the NNSR changes and SILs provisions separate from this rulemaking.
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\2\ Alabama's May 2, 2011, SIP revision also made changes to its
NNSR regulations to be consistent with federal NSR regulations
including provisions promulgated in the NSR PM2.5 Rule,
PM2.5 PSD Increment-SILs-SMC Rule and other NSR
rulemakings. EPA will consider action on this portion of Alabama's
May 2, 2011, SIP in a separate rulemaking.
\3\ EPA's authority to implement the SILs and SMC for PSD
purposes has been challenged by the Sierra Club. Sierra Club v. EPA,
Case No. 10-1413 United States Court of Appeals for the District of
Columbia (D.C. Circuit Court).
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On August 6, 2012, EPA published a proposed rulemaking to approve
the aforementioned changes to Alabama's SIP. See 77 FR 46664. Comments
on the proposed rulemaking were due on or before September 7, 2012, and
EPA received one off-topic comment. Although EPA has no obligation to
respond to such comments, a brief response is provided in section III
of this notice.
Pursuant to section 110 of the CAA, EPA is now taking final action
to approve the changes to Alabama's SIP as provided in EPA's August 6,
2012, proposed rulemaking. A summary of the background for today's
final action is provided below. EPA's August 6, 2012, proposed
rulemaking contains more detailed information regarding the Alabama SIP
revision being approved today and the rationale for today's final
action. Detailed information regarding the PM2.5 NAAQS and
NSR Program can also be found in EPA's August 6, 2012, proposed
rulemaking as well as the abovementioned final rulemakings.
A. NSR PM2.5 Rule
On May 16, 2008, EPA finalized the NSR PM2.5 Rule, which
revised the NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM2.5
NAAQS in both attainment areas and nonattainment areas (NAA) that: (1)
Require NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) establish significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides (NOx)); (3) establish
PM2.5 emission offsets; (4) provide exceptions to the
grandfathering policy for permits being reviewed under the
PM10 surrogate program; and (5) require states to account
for gases that condense to form particles (condensables) in
PM2.5 and PM10 emission limits in PSD NNSR
permits. Additionally, the NSR PM2.5 Rule authorized states
to adopt provisions in their NNSR rules that would allow interpollutant
offset trading. See 73 FR 28321. States were required to provide SIP
submissions to address the requirements for the NSR PM2.5
Rule by May 16, 2011. Alabama's May 2, 2011, SIP revision addresses
both the PSD and NNSR requirements related to EPA's May 16, 2008, NSR
PM2.5 Rule. However, EPA is only taking final action on the
PSD portion of the State's May 2, 2011, SIP revision.
1. PM10 Surrogate and Grandfathering Policy
In the NSR PM2.5 Rule, EPA required that major
stationary sources seeking permits must begin directly satisfying the
PM2.5 requirements, as of the effective date of the rule,
rather than relying on PM10 as a surrogate, with two
exceptions.\4\ The first exception is a ``grandfathering'' provision in
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering
provision applied to sources that had applied for, but had not yet
received, a final and effective PSD permit before the July 15, 2008,
effective date of the May 2008 final rule. The second exception was
that states with SIP-approved PSD programs could continue to implement
the Seitz Memo's PM10 Surrogate Policy for up to three years
(until May 2011) or until the individual revised state PSD programs for
PM2.5 are approved by EPA, whichever comes first. On May 18,
2011 (76 FR 28646), EPA took final action to repeal the grandfathering
provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of
the 1997 PM10 Surrogate Policy for PSD permits under the
federal PSD program at 40 CFR 52.21. In effect, any PSD permit
applicant previously covered by the grandfathering provision (for
sources that completed and submitted a permit
[[Page 59102]]
application before July 15, 2008) \5\ that did not have a final and
effective PSD permit before the effective date of the repeal will not
be able to rely on the 1997 PM10 Surrogate Policy to satisfy
the PSD requirements for PM2.5 unless the application
includes a valid surrogacy demonstration.\6\ See 76 FR 28646. In its
May 2, 2011, SIP revision, Alabama did not adopt the grandfathering
provision at 40 CFR 52.21(i)(1)(xi) into its PSD regulations.
Therefore, Alabama's SIP is consistent with current federal regulations
regarding the repeal of the grandfathering provision.
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\4\ After EPA promulgated the NAAQS for PM2.5 in
1997, the Agency issued guidance documents related to using
PM10 as a surrogate for PM2.5 entitled:
``Interim Implementation of New Source Review Requirements for
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the
``Seitz Memo'') and ``Implementation of New Source Review
Requirements in PM2.5 Nonattainment Areas'' (the ``2005
PM2.5 NNSR Guidance''). The Seitz Memo was designed to
help states implement NSR requirements pertaining to the new
PM2.5 NAAQS in light of technical difficulties posed by
PM2.5 at that time. The 2005 PM2.5 NNSR
Guidance provided direction regarding implementation of the NNSR
provisions in PM2.5 NAA in the interim period between the
effective date of the PM2.5 NAA designations (April 5,
2005) and EPA's promulgation of final PM2.5 NNSR
regulations (this included recommending that until EPA promulgated
the PM2.5 major NSR regulations, ``States should use a
PM10 nonattainment major NSR program as a surrogate to
address the requirements of nonattainment major NSR for the
PM2.5 NAAQS.'').
\5\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 76 FR 28321.
\6\ Additional information on this issue can also be found in an
August 12, 2009, final order on a title V petition describing the
use of PM10 as a surrogate for PM2.5. In the
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3,
Order on Petition (August 12, 2009).
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2. ``Condensable'' Provision
In the NSR PM2.5 Rule, EPA revised the definition of
``regulated NSR pollutant'' for PSD to add a paragraph providing that
``particulate matter (PM) emissions, PM2.5 emissions and
PM10 emissions'' shall include gaseous emissions from a
source or activity which condense to form particulate matter at ambient
temperatures and that on or after January 1, 2011, such condensable
particulate matter shall be accounted for in applicability
determinations and in establishing emissions limitations for PM,
PM2.5 and PM10 in permits issued. See 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset
Interpretative Ruling'' (40 CFR Part 51, Appendix S). On March 16,
2012, EPA proposed a rulemaking to amend the definition of ``regulated
NSR pollutant'' promulgated in the NSR PM2.5 Rule regarding
the PM condensable provision at 40 CFR 51.166(b)(49)(vi),
52.21(b)(50)(i) and EPA's Emissions Offset Interpretative Ruling. See
77 FR 15656. The rulemaking proposes to remove the inadvertent
requirement in the NSR PM2.5 Rule that the measurement of
condensable ``particulate matter emissions'' be included as part of the
measurement and regulation of ``particulate matter emissions.'' \7\ On
June 18, 2012, the State of Alabama provided a letter to EPA clarifying
the State's intent in light of EPA's March 16, 2012, proposed
rulemaking and requesting that EPA not approve into the Alabama SIP the
term ``particulate matter emissions'' (as part of the definition for
``regulated NSR pollutant'') regarding the inclusion of condensable
emissions in applicability determinations and in establishing emissions
limitations for PM.
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\7\ The term ``particulate matter emissions'' includes particles
that are larger than PM2.5 and PM10 and is an
indicator measured under various New Source Performance Standards
(NSPS) at 40 CFR part 60. In addition to the NSPS for PM, it is
noted that states have regulated ``particulate matter emissions''
for many years in their SIPs for PM, and the same indicator has been
used as a surrogate for determining compliance with certain
standards contained in 40 CFR part 63, regarding National Emission
Standards for Hazardous Air Pollutants.
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B. PM2.5 PSD Increment SILs-SMC Rule
The PM2.5 PSD Increment-SILs-SMC Rule provided
additional regulatory requirements under the PSD program regarding the
implementation of the PM2.5 NAAQS for NSR including: (1)
PM2.5 increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas meeting the
NAAQS; (2) SILs used as a screening tool (by a major source subject to
PSD) to evaluate the impact a proposed major source or modification may
have on the NAAQS or PSD increment; and (3) a SMC, (also a screening
tool) used by a major source subject to PSD to determine the subsequent
level of PM2.5 data gathering required for a PSD permit
application. The SILs and SMC are numerical values that represent
thresholds of insignificant, i.e., de minimis,\8\ modeled source
impacts or monitored (ambient) concentrations, respectively. EPA
established such values to be used as screening tools by a major source
subject to PSD to determine the subsequent level of analysis and data
gathering required for a PSD permit application for emissions of
PM2.5. EPA's authority to implement the SILs and SMC for PSD
purposes has been challenged by the Sierra Club. Sierra Club v. EPA,
Case No. 10-1413 (D.C. Circuit Court).\9\
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\8\ The de minimis principle is grounded in a decision described
by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360
(D.C. Cir. 1980). In this case, reviewing EPA's 1978 PSD
regulations, the court recognized that ``there is likely a basis for
an implication of de minimis authority to provide exemption when the
burdens of regulation yield a gain of trivial or no value.'' 636
F.2d at 360. See 75 FR 64864.
\9\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
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1. PSD Increments
PSD increments prevent air quality in clean areas from
deteriorating to the level set by the NAAQS. Therefore, an increment is
the mechanism used to estimate ``significant deterioration'' \10\ of
air quality for a pollutant in an area. Under section 165(a)(3) of the
CAA, a PSD permit applicant must demonstrate that emissions from the
proposed construction and operation of a facility ``will not cause, or
contribute to, air pollution in excess of any maximum allowable
increase or allowable concentration for any pollutant.'' When a source
applies for a permit to emit a regulated pollutant in an area that
meets the NAAQS, the state and EPA must determine if emissions of the
regulated pollutant from the source will cause significant
deterioration in air quality. As described in the PM2.5 PSD
Increment-SILs-SMC Rule, pursuant to the authority under section 166(a)
of the CAA, EPA promulgated numerical PSD increments for
PM2.5 as a new pollutant \11\ for which NAAQS were
established after August 7, 1977,\12\ and derived 24-hour and annual
PM2.5 increments for the three area classifications (Class
I, II and III) using the ``contingent safe harbor'' approach. See 75 FR
64869 and the ambient air increment tables at 40 CFR 51.166(c)(1) and
52.21(c). In addition to PSD increments for the PM2.5 NAAQS,
the PM2.5 PSD Increment-SILs-SMC Rule amended the definition
at 40 CFR 51.166 and 52.21 for ``major source baseline date'' and
``minor source baseline date'' (including trigger date) to establish
the PM2.5 NAAQS specific dates associated with the
implementation of PM2.5 PSD increments. See 75 FR 64864.
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\10\ Significant deterioration occurs when the amount of the new
pollution exceeds the applicable PSD increment, which is the
``maximum allowable increase'' of an air pollutant allowed to occur
above the applicable baseline concentration for that pollutant.
Section 169(4) of the CAA provides that the baseline concentration
of a pollutant for a particular baseline area is generally the air
quality at the time of the first application for a PSD permit in the
area.
\11\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQS with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2012).
\12\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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2. Significant Impact Levels
The primary purpose of the SILs is to identify a level of ambient
impact that is sufficiently low relative to the NAAQS or increments
that such impact can be considered insignificant or de minimis. EPA's
policy has been to allow the use of the SILs as de minimis thresholds
under the NSR programs at 40 CFR 51.165(b) and part 51, appendix
[[Page 59103]]
S, to determine whether the predicted ambient impact resulting from the
emissions increase at a proposed major new stationary source or
modification is considered to cause or contribute to a violation of the
NAAQS.\13\
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\13\ EPA has also allowed the SILs under the PSD program to
determine: (1) when a proposed source's ambient impacts warrants a
comprehensive (cumulative) source impact analysis and; (2) the size
of the impact area within which the air quality analysis is
completed. See 75 FR 64864. A cumulative analysis is a modeling
analysis used to show that the allowable emissions increase from the
proposed source, along with other emission increases from existing
sources, will not result in a violation of either the NAAQS or
increment.
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In the PM2.5 PSD Increment-SILs-SMC Rule, EPA
established the SILs threshold which reflects the degree of ambient
impact on PM2.5 concentrations that can be considered de
minimis and would justify no further analysis or modeling of the air
quality impact of a source in combination with other sources in the
area because the source would not cause or contribute to an exceedance
of the PM2.5 NAAQS or the PM2.5 increments. See
75 FR 64864. When a proposed major new source or major modification
projects (using air quality modeling) a PM2.5 impact less
than the PM2.5 SILs, the proposed construction or
modification is considered to not have a significant air quality impact
and would not need to complete a cumulative impact analysis involving
an analysis of other sources in the area. Additionally, a source with a
de minimis ambient impact would not be considered to cause or
contribute to a violation of the PM2.5 NAAQS or increments.
The October 20, 2010, rule established the PM2.5 SILs in
EPA's existing NNSR regulations at 51.165(b)\14\ and the PSD
regulations at 40 CFR 51.166(k)(2), 52.21(k)(2) and part 51, appendix
S, as optional screening tools that became effective on December 20,
2010. Prior to the October 20, 2010, rule, the concept of a SIL was not
previously incorporated into the PSD regulations. Where a PSD source
located in such areas may have an impact on an adjacent nonattainment
area, the PSD source must still demonstrate that it will not cause or
contribute to a violation of the NAAQS in the adjacent area. Where
emissions from a proposed PSD source or modification would have an
ambient impact in a nonattainment area that would exceed the SILs, the
source is considered to cause or contribute to a violation of the NAAQS
and may not be issued a PSD permit without obtaining emissions
reductions to compensate for its impact. See 40 CFR 51.165(b)(2)-(3).
Alabama's May 2, 2011, SIP submittal addresses the PM2.5
SILs thresholds and provisions promulgated in the October 20, 2010,
rule at 40 CFR 51.165(b)(2) and 51.166(k)(2).
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\14\ 40 CFR 51.165(b) require states to operate a
preconstruction review permit program for major stationary sources
that wish to locate in an attainment or unclassifiable area but
would cause or contribute to a violation of the NAAQS. The
regulations in 40 CFR 51.165(b) establish the minimum requirements
for nonattainment NSR programs in SIPs but apply specifically to
major stationary sources and major modifications located in
attainment or unclassifiable/attainment areas. See 40 CFR 51.165(b).
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3. Significant Monitoring Concentrations
As mentioned above, the SMC numerical value represents a threshold
of insignificant (i.e., de minimis) monitored ambient impacts on
pollutant concentrations. In the PM2.5 PSD Increment-SILs-
SMC Rule, EPA established a PM2.5 SMC of 4 [micro]g/m\3\ to
be used as a screening tool by a major source subject to PSD to
determine the subsequent level of PM2.5 data gathering
required for a PSD permit application. Using the SMC as a screening
tool, sources may be able to demonstrate that the modeled air quality
impact of emissions from the new source or modification, or the
existing air quality level in the area where the source would
construct, is less than the SMC (i.e., de minimis), and as such, may be
allowed to forego the preconstruction monitoring requirement for a
particular pollutant at the discretion of the reviewing authority.
Recently, the Sierra Club filed suit challenging EPA's authority to
implement the PM2.5 SILs \15\ as well as the SMC for PSD
purposes as promulgated in the October 20, 2012, rule. Sierra Club v.
EPA, Case No 10-1413, D.C. Circuit Court. Specifically, regarding the
SMC, Sierra Club claims that the use of SMCs to exempt a source from
submitting a year's worth of monitoring data is inconsistent with the
CAA. EPA responded to Sierra Club's claims in a Brief dated April 6,
2012, which describes the Agency's authority to develop and promulgate
SMC.\16\ A copy of EPA's April 6, 2010, Brief can be found in the
docket for today's final rulemaking at www.regulations.gov using docket
ID: EPA-R04-OAR-2012-0079.
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\15\ As mentioned earlier, due to litigation by the Sierra Club,
EPA is not taking final action on the SILs portion of the Alabama's
May 2, 2011, SIP revision at this time but will take action once the
court case regarding SILs implementation is resolved.
\16\ Additional information on this issue can also be found in
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0079.
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C. General and Transportation Conformity
In addition to the adoption of NSR Federal regulations mentioned
above, Alabama's SIP revision updates the State's General and
Transportation Conformity regulations \17\ at Chapter 335-3-17--
Conformity of Federal Actions to State Implementation Plans. Alabama's
Conformity regulations at 335-3-17 include Transportation Conformity
rules at 335-3-17.01 and General Conformity rules at 335-3-17.02. The
May 2, 2011, SIP revision updates Alabama conformity regulations at
Chapter 335-3-17 to be consistent with recent updates to federal
General Conformity \18\ regulations promulgated on April 5, 2010 (See
75 FR 17254) and transportation conformity regulations regarding
implementation of the PM2.5 and PM10
nonattainment and maintenance areas.
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\17\ In November 1993, EPA promulgated two sets of regulations
to implement section 176(c). First, on November 24, EPA promulgated
the Transportation Conformity Regulations (applicable to highways
and mass transit) to establish the criteria and procedures for
determining that transportation plans, programs, and projects which
are funded under title 23 U.S. C. or the Federal Transit Act conform
with the SIP. See 58 FR 62188. On November 30, 1993, EPA promulgated
regulations, known as the General Conformity Regulations (applicable
to everything else), to ensure that other Federal actions also
conformed to the SIPs. See 58 FR 62314). Pursuant to section 176(c)
of the CAA, General Conformity ensures that Federal actions comply
with the NAAQS. In order to meet this CAA requirement, a Federal
agency must demonstrate that every action that it undertakes,
approves, permits or supports will conform to the appropriate State,
Tribal or Federal Implementation Plan.
\18\ Alabama IBR the federal General Conformity regulations at
40 CFR 93, Subpart B.
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II. This Action
As was noted previously, EPA proposed approval of portions of
Alabama's May 2, 2011, SIP revision on August 6, 2012, and EPA received
one off-topic comment. Although EPA is not obligated to respond to off-
topic comments, EPA is nonetheless providing a brief response below.
The complete comment is available in the docket for this rulemaking
action, but a summary of the comment is as follows. The Commenter
states that s/he ``would like to see the science research they put into
this'' and suggested that, ``an independent review board to look into
this with an unbiased opinion.'' As was explained in the detailed
August 6, 2012, proposed rulemaking and supporting docketed
information, EPA is obligated to take action on Alabama's May 2, 2011,
SIP revision. The technical and legal basis for today's action was
[[Page 59104]]
explained in the August 6, 2012, rulemaking, summarized in this final
action, and further supported by the additional information provided in
the docket for today's rulemaking action. Nothing in the CAA mandates
that an independent review board look into today's SIP action. Notably,
the comment raises nothing substantively on-point regarding this
rulemaking action; but rather, makes broad generalizations that do not
appear relevant to today's action.
EPA is now taking final action to approve into the Alabama SIP
portions of the State's May 2, 2011, SIP revision to adopt the PSD
permitting regulations to implement the PM2.5 NAAQS,
including the NSR PM2.5 and PM2.5 Increment-SILs-
SMC Rules and changes to the State's General and Transportation
Conformity regulations as proposed on August 6, 2012. See 77 FR 46664.
ADEM's PSD preconstruction regulations are found at rule 335-3-14-.04
and apply to major stationary sources or modifications constructed in
areas designated attainment or unclassifiable/attainment as required
under part C of title I of the CAA with respect to the NAAQS.
Additionally, rule 335-3-14-.03 establishes general standards for
granting permits in the State. ADEM's May 2, 2011, changes to Chapter
335-3-14 were submitted to adopt into the State's NSR permitting
program PSD provisions promulgated in the NSR PM2.5 Rule and
the PM2.5 PSD Increment-SILs-SMC rule. These changes to
Alabama's regulations became state effective on May 23, 2011. ADEM's
SIP revision adopts the NSR PM2.5 Rule PSD provisions,
including: (1) The requirement for NSR permits to address directly
emitted PM2.5 and precursor pollutants; (2) the amendment
establishing significant emission rates for direct PM2.5 and
precursor pollutants (SO2 and NOX) (at 335-3-
14-.04(2)(w)) and recognizing PM2.5 precursors (at 335-3-
14-.04(2)(b) and 335-3-14-.04(2)(w)) as amended at 40 CFR
51.166(b)(23)(i); and (3) the PSD requirement for states to address
condensable PM in establishing enforceable emission limits for
PM10 and PM2.5 (at 353-14-.04(2)(ww)(5)) as
amended at 40 CFR 51.166(b)(49). Additionally, Alabama's May 2, 2011,
SIP revision did not adopt the grandfathering provision at 40 CFR
52.21(i)(1)(xi) in accordance with the repeal of the PM2.5
grandfathering provision. As mentioned earlier, EPA anticipates taking
action on the May 2, 2011, SIP revision NNSR amendments in a separate
rulemaking. Regarding the condensable provision, in light of Alabama's
request in its June 18, 2012, letter and EPA's intention to amend the
definition of ``regulated NSR pollutant'' as discussed in the March 16,
2012, correction rulemaking, EPA is not taking final action to approve
the terminology ``particulate matter emissions'' into the Alabama SIP
(at 353-14-.04(2)(ww)(5)) for the condensable provision in the
definition of ``regulated NSR pollutant.'' See 77 FR 15656. EPA is,
however, taking final action to approve into the Alabama SIP the
remaining condensable requirement at 40 CFR 51.166(b)(49)(vi), which
requires that condensable emissions be accounted for in applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10.
With respect to the PM2.5 PSD Increment-SILs SMC Rule,
EPA is taking final action to also approve into the Alabama SIP the PSD
increments for the PM2.5 annual and 24-hour NAAQS pursuant
to section 166(a) of the CAA and the SMC of 4 [micro]g/m\3\ for the
PM2.5 NAAQS. The May 2, 2011, SIP revision includes: (1) The
PM2.5 increments as promulgated at 40 CFR 51.166(c)(1) and
(p)(4) (for Class I Variances) and (2) amendments to the terms ``major
source baseline date'' (at 353-14-.04(2)(m)) as amended at 40 CFR
51.166(b)(14)(i)(c) and 52.21(b)(14)(i)(c), ``minor source baseline
date'' (including establishment of the ``trigger date'') (at 353-
14-.04(2)(n)1), and ``baseline area'' (at 353-14-.04(2)(o)) as amended
at 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i).
Regarding the SILs and SMC, EPA's authority to implement the
PM2.5 SILs and SMC is currently the subject of litigation by
the Sierra Club. In a brief filed in the D.C. Circuit on April 6, 2012,
EPA described the Agency's authority under the CAA to promulgate and
implement the SMCs and SILs de minimis thresholds. Sierra Club v. EPA,
Case No. 10-1413 D.C. Circuit. However, EPA is finalizing approval of
the promulgated SMC thresholds into the Alabama SIP (at rule 335-3-
14.04(8)(h)) because the Agency believes the SMC is a valid exercise of
the Agency's de minimis authority as well as the fact they are
consistent with EPA's promulgated levels in the PM2.5 PSD
Increment-SILs-SMC Rule. The ongoing litigation may result in the court
decision that may require subsequent rule revisions and SIP revisions
from Alabama.
In response to the litigation, EPA requested that the court remand
and vacate the new regulatory text at 40 CFR 51.166(k)(2) and
52.21(k)(2) concerning the implementation of SILs for PM2.5
so that EPA can make necessary rulemaking revisions to that text.\19\
In light of EPA's request for remand and vacatur and our
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency
has determined at this time not to approve the SILs portion of ADEM's
May 2, 2011, SIP revision that contains the affected regulatory text in
Alabama's PSD regulations at rule at rule 335-3-14-04(10)(b). EPA will
take action on the SILs portion of Alabama's May 2, 2011, SIP revision
in a separate rulemaking once the issue regarding the court case has
been resolved.\20\ The PM2.5 PSD Increment-SILs-SMC rule
promulgated PM2.5 SILs thresholds in the NNSR regulations at
40 CFR 51.165(b)(2). Alabama's May 2, 2011, submission also adopts the
PM2.5 SILs thresholds in their general permits provisions at
rule 335-3-14-.03(1)(g) \21\ to be consistent with amendments to 40 CFR
51.165(b) in the PM2.5 PSD Increment-SILs-SMC Rule. In light
of the facts that EPA did not request the court to remand and vacate
language at 51.165(b) and that the agency has explained its authority
to develop and promulgate SILs in the brief filed with the D.C. Circuit
Court concerning the litigation, EPA is taking final action to approve
Alabama's adoption of the PM2.5 SILs thresholds at 335-3-
14-.03(1)(g). EPA notes, however, that the SILs-SMC litigation is
ongoing and therefore future Court action may require subsequent rule
revisions and SIP submittals from the State of Alabama.
---------------------------------------------------------------------------
\19\ In the preamble to the October 20, 2010, final rule EPA
indicates that the Agency does not consider the SILs to be a
mandatory SIP element, but regard them as discretionary on the part
of regulating authority for use in the PSD permitting process. See
75 FR 64864 at 64899.
\20\ EPA is currently developing guidance to provide a
provisional course of action to implement the PM2.5 SILs
pending revision to implementing (k)(2) provisions and the
litigation. The guidance will ensure that the PM2.5 SILs
are properly applied as part of a PSD compliance demonstration to
show that a source's impact will not cause or contribute to a
violation of the PM2.5 NAAQS or increment.
\21\ The provisions at 335-3-14-.03(1)(g) are consistent with
SILs provisions at 40 CFR 51.165(b).
---------------------------------------------------------------------------
Finally, EPA is taking final action to approve Alabama's changes to
the State's General and Transportation conformity regulations to be
consistent with Federal regulations. These changes include updating the
IBR date at 335-3-17.02 to July 1, 2010, to be consistent with Federal
General Conformity rules (as promulgated on April 5, 2010) and to
update the Transportation Conformity SIP at 335-3-17-.01 effective May
23, 2011, to include EPA's transportation conformity rule updates
regarding
[[Page 59105]]
implementation of the PM2.5 and PM10
nonattainment and maintenance areas.
III. Final Action
EPA is taking final action to approve portions of Alabama's May 2,
2011, SIP revisions (with the exception of the term ``particulate
matter emissions,'' the NNSR revisions and the SILs threshold and
provisions) adopting federal regulations amended in the NSR
PM2.5 and the PM2.5 PSD Increment-SILs-SMC Rules
to implement the PM2.5 NAAQS for the NSR program because
they are consistent with section 110 of the CAA and its regulations
regarding NSR permitting.
IV. 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 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 November 26, 2012. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements and Volatile organic compounds.
Dated: September 10, 2012.
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(c) is amended under Chapters 335-3-14 and 335-3-17 by
revising the entries for ``Section 335-3-14-.03,'' ``Section 335-3-
14-.04,'' ``Section 335-3-17-.01,'' and ``Section 335-3-17-.02'' to
read as follows:
Sec. 52.520 Identification of plan
* * * * *
(c) * * *
EPA Approved Alabama Regulations
----------------------------------------------------------------------------------------------------------------
State citation Title/subject State effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter No. 335-3-14 Air Permits
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 335-3-14-.03.. Standards for May 23, 2011......... 9-26-12.............
Granting Permits. [Insert citation of
publication]..
[[Page 59106]]
Section 335-3-14-.04.. Air Permits May 23, 2011......... 9-26-12............. As of [Insert date
Authorizing [Insert citation of of publication in
Construction in publication].. Federal Register]
Clean Air Areas Section 335-3-14-
[:prevention of .04 does not
Significant include Alabama's
Deterioration (PSD)]. revision to adopt
the PM2.5 SILs
threshold and
provisions (as
promulgated in the
October 20, 2010
PM2.5 PSD Increment-
SILs-SMC Rule at 40
CFR 1.166(k)(2) and
the term
``particulate
matter emissions''
(as promulgated in
the May 16, 2008
NSR PM2.5 Rule (at
40 CFR
51.166(b)(49)(vi)).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter No. 335-3-17 Conformity of Federal Actions to State Implementation Plans
----------------------------------------------------------------------------------------------------------------
Section 335-3-17.01... Transportation May 23, 2011......... 9-26-12............. ....................
Conformity. [Insert citation of
publication]..
Section 335-3-17-.02.. General Conformity... May 23, 2011......... 9-26-12............. ....................
[Insert citation of
publication]..
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2012-23586 Filed 9-25-12; 8:45 am]
BILLING CODE 6560-50-P