[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Rules and Regulations]
[Pages 1124-1127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33197]
[[Page 1124]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0079; FRL-9940-89-Region 4]
Air Plan Approval; Alabama: Nonattainment New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve portions of a revision to the Alabama State
Implementation Plan (SIP) submitted by the Alabama Department of
Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision
modifies Alabama's nonattainment new source review (NNSR) regulations
in their entirety to be consistent with the federal new source review
(NSR) regulations for the implementation of the criteria pollutant
national ambient air quality standards (NAAQS). EPA is approving
portions of the NNSR rule changes in Alabama's May 2, 2011, SIP
revision because the Agency has determined that the changes are
consistent with the Clean Air Act (CAA or Act) and federal regulations
regarding NNSR permitting.
DATES: This rule will be effective February 10, 2016.
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 Air Regulatory Management Section, Air Planning and
Implementation Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. 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 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama
SIP, contact Mr. D. Brad Akers, Air Regulatory Management Section, Air
Planning and Implementation Branch, Pesticides and Toxics Management
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached by
telephone at (404) 562-9089 or via electronic mail at
[email protected]. For information regarding NSR, contact Ms. Yolanda
Adams, Air Permits Section, at the same address above. Telephone
number: (404) 562-9214; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
EPA is taking final action to approve the portion of Alabama's May
2, 2011, SIP revision that makes changes to Alabama's NNSR program, set
forth at ADEM Administrative Code, Division 3, Chapter 14, Subchapter
.05 (ADEM Rule 335-3-14-.05), which applies to the construction and
modification of any major stationary source in or near a nonattainment
area (NAA) as required by part D of title I of the CAA. Alabama's NNSR
regulations at ADEM Rule 335-3-14-.05 were originally approved into the
SIP on November 26, 1979 (see 44 FR 67375), with periodic revisions
approved through December 8, 2000 (see 65 FR 76938). Alabama's May 2,
2011, SIP revision modifies the State's NNSR regulations in their
entirety \1\ with a new version that reflects changes to the federal
NNSR regulations at 40 Code of Federal Regulations (CFR) 51.165,\2\
including provisions promulgated in the following federal rules: (1)
``Requirements for Preparation, Adoption and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans; Standards of Performance for New Stationary Sources,'' Final
Rule, 57 FR 32314 (July 21, 1992) (hereafter referred to as the
Wisconsin Electric Power Company (WEPCO) Rule); (2) ``Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NSR): Baseline Emissions Determination, Actual-to-Future-Actual
Methodology, Plantwide Applicability Limitations, Clean Units,
Pollution Control Projects,'' Final Rule, 67 FR 80186 (December 31,
2002) (hereafter referred to as the NSR Reform Rule); (3) ``Prevention
of Significant Deterioration (PSD) and Non-Attainment New Source Review
(NSR): Reconsideration,'' Final Rule, 68 FR 63021 (November 7, 2003)
(hereafter referred to as the Reconsideration Rule); (4) ``Prevention
of Significant Deterioration (PSD) and Non-Attainment New Source Review
(NSR): Removal of Vacated Elements,'' Final Rule, 72 FR 32526 (June 13,
2007) (hereafter referred to as the Vacated Elements Rule); (4)
``Prevention of Significant Deterioration and Nonattainment New Source
Review: Reasonable Possibility in Recordkeeping,'' Final Rule, 72 FR
72607 (December 21, 2007), (hereafter referred to as the Reasonable
Possibility Rule); (5) ``Final Rule To Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Phase 2; Final Rule To Implement
Certain Aspects of the 1990 Amendments Relating to New Source Review
and Prevention of Significant Deterioration as They Apply in Carbon
Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for
Reformulated Gasoline,'' Final Rule, 70 FR 71612 (November 29, 2005)
(hereafter referred to as the Phase 2 Rule); (6) ``Implementation of
the New Source Review (NSR) Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5),'' Final Rule, 73 FR 28321 (May 16,
2008) (hereafter referred to as the NSR PM2.5 Rule); (7)
``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),''
Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as
the PM2.5 PSD Increments-SILs-SMC Rule \3\); and (8)
``Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Reconsideration of Inclusion of Fugitive
Emissions; Interim Rule; Stay and Revisions'', Interim Rule, 76 FR
17548 (March 30, 2011) (hereafter referred to as the Fugitive Emissions
Interim Rule).
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\1\ Some portions of the 2011 version of the regulations now
being approved were previously approved by EPA. These portions
remain the same in substance but may have undergone administrative
updates and renumbering in the 2011 version.
\2\ EPA's regulations governing the implementation of NSR
permitting programs are contained in 40 CFR 51.160-51.166; 52.21,
52.24; and part 51, appendix S. The CAA NSR program is composed of
three separate programs: PSD, NNSR, and Minor NSR. PSD is
established in part C of title I of the CAA and applies in areas
that meet the NAAQS--``attainment areas''--as well as areas where
there is insufficient information to determine if the area meets the
NAAQS--``unclassifiable areas.'' The NNSR program is established in
part D of title I of the CAA and applies in areas that are not in
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR
program addresses construction or modification activities that do
not qualify as ``major'' and applies regardless of the designation
of the area in which a source is located. Together, these programs
are referred to as the NSR programs.
\3\ The D.C. Circuit vacated the portions of the
PM2.5 PSD Increment-SILs-SMC Rule addressing the SMC and
SILs (and remanded the SILs portion to EPA for further
consideration) for PSD, but left the PM2.5 SILs in place
for the NSR program in the table in Sec. 51.165(b)(2). See Sierra
Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013).
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[[Page 1125]]
EPA is not, however, approving into the Alabama SIP the portion of
ADEM Rule 335-3-14-.05(1)(k) stating ``excluding ethanol production
facilities that produce ethanol by natural fermentation,'' which
Alabama promulgated pursuant to the federal rule entitled ``Prevention
of Significant Deterioration, Nonattainment New Source Review, and
Title V: Treatment of Certain Ethanol Production Facilities Under the
`Major Emitting Facility' Definition,'' Final Rule, 72 FR 24060 (May 1,
2007) (or the Ethanol Rule).\4\ EPA is also not acting on the provision
at Rule 335-3-14-.05(2)(c)3 that excludes fugitive emissions from the
determinion of creditable emission increases and decreases.\5\ Finally,
EPA is not acting on changes to ADEM's rules regarding the
PM2.5 significant impact levels (SILs) for PSD at Rule 335-
3-14-.04(8)(h)1., the NNSR interpollutant offset ratios at ADEM Rule
335-3-14-.05(3)(g)1-4 and the sentence including those ratios which
states ``Interpollutant offsets shall be determined based upon the
following ratios,'' or the ``actual-to-potential'' NNSR applicability
test at ADEM Rule 335-3-14-.05(1)(h), all of which ADEM withdrew from
EPA's consideration subsequent to the May 2, 2011 submittal.\6\
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\4\ Alabama's changes to its NNSR regulations (at 335-3-
14-.05(1)(k)) exclude ``chemical process plants'' that produce
ethanol through a natural fermentation process from the NSR major
source permitting requirement as promulgated in the Ethanol Rule (as
amended at 40 CFR 51.165). See 72 FR 24060 (May 1, 2007). However,
due to a petition by Natural Resources Defense Council to reconsider
the rule, EPA is not proposing to take action to approve this
provision into the Alabama SIP at this time. Pending final
resolution, EPA will make a final determination on action regarding
this portion of Alabama's SIP revision.
\5\ The provision in question was originally approved into the
CFR in the December 19, 2008 (73 FR 77882) final rule concerning the
treatment of fugitive emissions for the purposes of NSR
applicability. On April 24, 2009, EPA agreed to reconsider the
approach to handling fugitive emissions and granted a 3-month
administrative stay of the December 19, 2008 rule. After several
stays, this provision was stayed indefinitely in the March 30, 2011
(76 FR 17548) Fugitive Emissions Interim Rule, pending a final
reconsideration from EPA. For more information on fugitive emissions
in NSR, see the September 1, 2015 proposed rulemaking (80 FR 52701)
or refer to the Docket for this rulemaking.
\6\ For more information on the withdrawal of these elements
from the initial May 2, 2011, submittal, see the September 1, 2015,
proposed rulemaking (80 FR 52701) or refer to the Docket for this
rulemaking.
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On September 1, 2015, EPA published a proposed rulemaking to
approve the aforementioned changes to the Alabama NNSR program at ADEM
Rule 335-3-14-.05. See 80 FR 52701. Comments on the proposed rulemaking
were due on or before October 1, 2015. No comments, adverse or
otherwise, were received on EPA's September 1, 2015, proposed
rulemaking. Pursuant to section 110 of the CAA, EPA is now taking final
action to approve the changes to Alabama's NNSR program as provided in
the September 1, 2015, proposed rulemaking. The proposed rulemaking
contains more detailed information regarding Alabama's SIP revision
being approved today, and the rationale for this final action. More
detailed information on the NNSR program can be found in the September
1, 2015, proposed rulemaking as well as the aforementioned final
rulemakings.
II. This Action
Alabama currently has a SIP-approved NSR program for new and
modified stationary sources found in ADEM regulations at Chapter 335-3-
14. ADEM's NNSR preconstruction regulations are found at Chapter 335-3-
14-.05 and apply to major stationary sources or modifications
constructed in or impacting upon a nonattainment area as required under
part D of title I of the CAA with respect to the NAAQS. The changes to
Chapter 335-3-14-.05 that EPA is now approving into the SIP were
provided to update the existing provisions to be consistent with the
current federal NNSR rules, including the WEPCO Rule, 2002 NSR Reform
Rule (and associated Reconsideration Rule and Vacated Elements Rule),
Phase 2 Rule, NSR PM2.5 Rule, PM2.5 PSD-
Increment-SILs-SMC Rule, and Fugitive Emissions Interim Rule. These
changes to ADEM's regulations became state effective on May 23, 2011.
III. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of portions of
ADEM Regulation Chapter 335-3-14-.05 entitled ``Air Permits Authorizing
Construction in or Near Non-Attainment Areas,'' effective May 23, 2011,
with revisions and additions to applicability, definitions, permitting
requirements, offset rules, area classifications, air quality models,
control technology review, air quality monitoring, source information,
source obligation, innovative control technology, and actuals plantwide
applicability limits, and with administrative changes throughout. EPA
has made, and will continue to make, these documents generally
available electronically through www.regulations.gov and/or in hard
copy at the EPA Region 4 office (see the ADDRESSES section of this
preamble for more information).
IV. Final Action
EPA is taking final action to approve the portions of Alabama's May
2, 2011, submission that make changes to Alabama's SIP-approved NNSR
regulations set forth at ADEM Rule 335-3-14-.05, with the exceptions
noted above. ADEM submitted the proposed changes to its NNSR SIP to be
consistent with amendments to the federal regulations made by the WEPCO
Rule, the 2002 NSR Reform Rule (and associated Reconsideration Rule and
Vacated Elements Rule), Phase 2 Rule, NSR PM2.5 Rule,
PM2.5 PSD Increment-SILs-SMC Rule, and the Fugitive
Emissions Interim Rule. The Agency is approving these changes to the
Alabama SIP because they are consistent with section 110 of the CAA and
EPA regulations.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
[[Page 1126]]
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
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 March 11, 2016. 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, Carbon monoxide,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 18, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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 Chapter 335-3-14 by revising the
entry for ``Section 335-3-14-.05'' to read as follows:
Sec. 52.50 Identification of plan.
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(c) * * *
EPA-Approved Alabama Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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* * * * * * *
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Chapter No. 335-3-14 Air Permits
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* * * * * * *
Section 335-3-14-.05.............. Air Permits 5/23/2011 1/11/2016 [Insert With the exception of:
Authorizing citation of The portion of 335-3-
Construction in publication]. 14-.05(1)(k) stating
or Near ``excluding ethanol
Nonattainment production facilities
Areas. that produce ethanol
by natural
fermentation''; and
335-3-14-.05(2)(c)3
(addressing fugitive
emission increases and
decreases). Also with
the exception of the
state-withdrawn
elements: 335-3-14-
.05(1)(h) (the actual-
to-potential test for
projects that only
involve existing
emissions units); the
last sentence at 335-3-
14-.05(3)(g), stating
``Interpollutant
offsets shall be
determined based upon
the following
ratios''; and the NNSR
interpollutant ratios
at 335-3-14-.05(3)(g)1-
4.
* * * * * * *
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[FR Doc. 2015-33197 Filed 1-8-16; 8:45 am]
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