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, 41100-41111 [2011-17470]
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EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
Applicable geographic
or nonattainment area
Name of non-regulatory SIP provision
*
*
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone National Ambient Air Quality Standards.
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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.
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*
Commonwealth of
Kentucky.
*
12/13/2007
EPA approval date
Explanations
*
*
7/13/2011 [Insert citation of publication].
*
For the 1997 8-hour ozone
NAAQS.
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 https://
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 https://
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 ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
[FR Doc. 2011–17468 Filed 7–12–11; 8:45 am]
SUMMARY:
State submittal
date/effective date
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
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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
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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 8Hour Ozone and PM2.5 National
Ambient Air Quality Standards.’’
• 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
• 110(a)(2)(D): Interstate transport.3
• 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
• 110(a)(2)(J): Consultation with
government officials; public
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).
2 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
3 Today’s final rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8hour 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.
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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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.
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 SIPapproved 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
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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
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
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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
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
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’’).
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.
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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
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.
10 For example, implementation of the 1997 PM
2.5
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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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
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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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.
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
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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
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 EmittingSources 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).
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bases that the Agency cites in the course
of addressing the issue in a subsequent
action.17
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
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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
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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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 8hour 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 8hour 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
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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
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 § 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
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.
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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 repropose to approve the disapproved part
with a Clean Air Act § 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 § 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
§ 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
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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 § 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] § 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
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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 8hour 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
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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
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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
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.
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submission. These attachments were as
follows:
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
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‘‘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.
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
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.
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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
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
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41107
(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:
(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 § 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.
an ambient impact analysis, including the gathering
of ambient air quality data.’’
22 Id.
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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).
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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
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 (https://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
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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.
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
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).
27 Alabama Administrative Code 335–3–14–
.04(2)(w), (8)(a), (8)(h)(1), (10)(a), and (12).
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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.
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
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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
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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
28 40 CFR part 51Appendix W, Sections 3.0, 3.2.,
3.3, 5.2.1.c and commenter Exhibit 13.
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source impact analyses for ozone in
Appendix A of Appendix W.
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
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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.
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
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.
30 ‘‘AERMOD: Model Formulation Document’’,
https://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-bycase basis to determine what analysis to
require.
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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
E:\FR\FM\13JYR1.SGM
13JYR1
Federal Register / Vol. 76, No. 134 / Wednesday, July 13, 2011 / Rules and Regulations
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)).
41111
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]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart B—Alabama
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:
■
List of Subjects in 40 CFR Part 52
§ 52.50
Environmental protection, Air
pollution control, Incorporation by
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED ALABAMA NON-REGULATORY PROVISIONS
Applicable geographic
or nonattainment area
State submittal
date/effective
date
EPA approval date
*
*
*
*
110(a)(1) and (2) Infrastructure Requirements for Alabama ....................
the 1997 8-Hour Ozone National Ambient Air
Quality Standards.
12/10/2007
*
*
7/13/2011; [Insert citation of publication].
Name of nonregulatory SIP provision
[FR Doc. 2011–17470 Filed 7–12–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2010–0721–201126 FRL–
9436–4]
Approval and Promulgation of
Implementation Plans; South Carolina;
110(a)(1) and (2) Infrastructure
Requirements for the 1997 8-Hour
Ozone National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
mstockstill on DSK4VPTVN1PROD with RULES
AGENCY:
EPA is taking final action to
approve the December 13, 2007,
submission submitted by the State of
South Carolina, through the South
Carolina Department of Health and
Environmental Control (SC DHEC) as
demonstrating that the State meets the
SUMMARY:
VerDate Mar<15>2010
16:32 Jul 12, 2011
Jkt 223001
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. South Carolina
certified that the South Carolina SIP
contains provisions that ensure the 1997
8-hour ozone NAAQS is implemented,
enforced, and maintained in South
Carolina (hereafter referred to as
‘‘infrastructure submission’’). South
Carolina’s infrastructure submission,
provided to EPA on December 13, 2007,
addressed all the required infrastructure
elements for the 1997 8-hour ozone
NAAQS. Additionally, EPA is correcting
an inadvertent error and responding to
adverse comments received on EPA’s
March 17, 2011, proposed approval of
South Carolina’s December 13, 2007,
infrastructure submission.
PO 00000
Frm 00071
Fmt 4700
Sfmt 4700
Explanation
*
For the 1997 8-hour
ozone NAAQS.
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–
2010–0721. 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
DATES:
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13JYR1
]]>Agencies
[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Rules and Regulations]
[Pages 41100-41111]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17470]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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 https://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
ward.nacosta@epa.gov.
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.''
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
---------------------------------------------------------------------------
110(a)(2)(D): Interstate transport.\3\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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:
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\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:
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\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 w
