Approval and Promulgation of Implementation Plans; State of Alabama: General and Transportation Conformity & New Source Review Prevention of Significant Deterioration for Fine Particulate Matter (PM2.5, 46664-46672 [2012-19048]

Download as PDF tkelley on DSK3SPTVN1PROD with PROPOSALS 46664 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. We have also reviewed this regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency— (1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations; (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices. Executive Order 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ We are taking this regulatory action only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563. In accordance with both Executive orders, the Department has assessed the potential costs and benefits of this regulatory action. The potential costs associated with this regulatory action VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 are those resulting from statutory requirements and those we have determined as necessary for administering the Department’s programs and activities. We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened Federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Dated: August 1, 2012. Alexa Posny, Assistant Secretary for Special Education and Rehabilitative Services. [FR Doc. 2012–19162 Filed 8–3–12; 8:45 am] BILLING CODE 4000–01–P PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2012–0079; FRL–9708–6] Approval and Promulgation of Implementation Plans; State of Alabama: General and Transportation Conformity & New Source Review Prevention of Significant Deterioration for Fine Particulate Matter (PM2.5) Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to approve changes to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision modifies Alabama’s New Source Review (NSR), Prevention of Significant Deterioration (PSD), and Nonattainment New Source Review (NNSR) programs as well as general and transportation conformity regulations. Specifically, the May 2, 2011, SIP revision adopts federal NSR permitting requirements provisions into the Alabama SIP regarding implementation of the PM2.5 national ambient air quality standards (NAAQS), revises the State’s NNSR rules, and updates the State’s general and transportation conformity regulations. All changes in the May 2, 2011, SIP revision are necessary to comply with federal requirements. EPA is proposing approval of Alabama’s May 2, 2011, revision to the Alabama SIP because the Agency has preliminarily determined that the changes are consistent with the Clean Air Act (CAA or Act). DATES: Comments must be received on or before September 5, 2012. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2012–0079, by one of the following methods: 1. www.regulations.gov: Follow the online instructions for submitting comments. 2. Email: R4-RDS@epa.gov. 3. Fax: (404) 562–9019. 4. Mail: EPA–R04–OAR–2012–0079 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. 5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. SUMMARY: E:\FR\FM\06AUP1.SGM 06AUP1 tkelley on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Such deliveries are only accepted during the Regional Office’s normal hours of operation. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. Instructions: Direct your comments to Docket ID No. EPA–R04–OAR–2012– 0079. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI 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 in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama SIP, contact Ms. Twunjala Bradley, 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. Telephone number: (404) 562–9352; email address: bradley.twunjala@epa.gov. For information regarding NSR, contact Mrs. Yolanda Adams, Air Permits Section, at the same address above. Telephone number: (404) 562–9214; email address: adams.yolanda@epa.gov. For information regarding PM2.5 NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the same address above. Telephone number: (404) 562–9104; email address: huey.joel@epa.gov. SUPPLEMENTARY INFORMATION: I. What actions are EPA proposing? II. What is EPA’s proposed action for the NSR implementation requirements for the PM2.5 NAAQS? III. What is EPA’s proposed action for changes to Alabama’s general and transportation conformity regulations? IV. Proposed Action V. Statutory and Executive Order Reviews I. What actions are EPA proposing? On May 2, 2011, ADEM submitted a SIP revision to EPA for approval into the Alabama SIP to adopt federal requirements for NSR permitting, and general and transportation conformity.1 Alabama’s SIP revision makes changes to the regulations at Administrative Code for Division 3: Chapter 335–3– 14—Permits and Chapter 335–3–17— Conformity of Federal Actions to State Implementation Plans to comply with federal NSR permitting and conformity regulations respectively. First, the May 1 Alabama’s May 2, 2011, SIP revision also made changes to the state’s New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) (at Chapters 335–3–10 and 11 respectively) and title V regulations at Chapter 335–3–16 to adopt recent federal changes to the NSPS and NESHAP and major source operating permits regulations respectively. However, EPA is not proposing action to approve these revisions as they are not part of the Alabama federally approved SIP. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 46665 2, 2011, SIP revision addresses NSR requirements amended in the May 16, 2008, final rulemaking entitled ‘‘Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers’’ (73 FR 28321) and the October 20, 2010, final rulemaking entitled ‘‘Final Rule Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC): Final Rule, (PM2.5 PSD Increment-SILs-SMC Rule)’’ (75 FR 64864). Second, the submission revises the State’s NNSR regulations to be consistent with federal NSR regulations. Lastly, Alabama’s SIP revision changes the State’s general and transportation conformity regulations which incorporate by reference (IBR) 2 the federal conformity updates. Pursuant to section 110 of the CAA, EPA is proposing to approve these changes, with the exception of the three elements below, into the Alabama SIP. The three elements of ADEM’s May 2, 2011, SIP revision which EPA is not proposing to approve in this action are: (1) The NNSR changes amended at rule 335–3–14–.05; 3 (2) SIL thresholds and provisions promulgated in EPA’s PM2.5 PSD Increment-SILs-SMC Rule (75 FR 64864, October 20, 2010); 4 and (3) the term ‘‘particulate matter emissions’’ when accounting for condensable particles for PM2.5 emission limits for the definition of ‘‘regulated NSR pollutant’’ (77 FR 15656, March 16, 2012). EPA will consider action on the NNSR changes and SILs provisions separate from this rulemaking. II. What is EPA’s proposed action for the NSR implementation requirements for the PM2.5 NAAQS? Today’s proposed action to revise Alabama’s SIP relates to EPA’s NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC Rule. In the NSR PM2.5 Rule, EPA finalized regulations to implement the NSR program for the PM2.5 NAAQS. As a result of EPA’s final NSR PM2.5 Rule, states were required to 2 In this document IBR means incorporate or incorporates by reference. 3 Alabama’s May 2, 2011, SIP revision also made changes to its NNSR regulations to be consistent with federal NSR regulations including provisions promulgated in the NSR PM2.5 Rule, PM2.5 PSD Increment-SILs-SMC Rule and other NSR rulemakings. EPA will consider action on this portion of Alabama’s May 2, 2011, SIP in a separate rulemaking. 4 EPA’s authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. Sierra Club v. EPA, Case No. 10–1413 United States Court of Appeals for the District of Columbia (D.C. Circuit Court). E:\FR\FM\06AUP1.SGM 06AUP1 46666 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS submit SIP revisions to EPA no later than May 16, 2011, to address these requirements for both the PSD and NNSR programs. EPA’s PM2.5 PSD Increment-SILs-SMC Rule established PSD increments, SILs and SMC which address additional components for making PSD permitting determinations for PM2.5 NAAQS. These requirements address air quality modeling and monitoring provisions for fine particle pollution in areas protected by the PSD program (that is attainment or unclassifiable/attainment areas for the NAAQS). The PM2.5 PSD IncrementSILs-SMC Rule required states to submit SIP revisions to adopt the required PSD increments by July 20, 2012. Together these two rules address the NSR permitting requirements needed to implement the PM2.5 NAAQS. Alabama’s May 2, 2011, SIP revision adopts into the Alabama SIP the PSD and NNSR 5 requirements promulgated in these two rules to be consistent with federal regulations. More detail on the NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA’s May 16, 2008 (73 FR 28321), and October 20, 2010 (75 FR 64864), final rules respectively and are summarized below. A. Fine Particulate Matter and the NAAQS Fine particles in the atmosphere are made up of a complex mixture of components. Common constituents include sulfate; nitrate; ammonium; elemental carbon; a great variety of organic compounds; and inorganic material (including metals, dust, sea salt, and other trace elements) generally referred to as ‘‘crustal’’ material, although it may contain material from other sources. Airborne particulate matter (PM) with a nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer is one-millionth of a meter, and 2.5 micrometers is less than one-seventh the average width of a human hair) are considered to be ‘‘fine particles’’ and are also known as PM2.5. ‘‘Primary’’ particles are emitted directly into the air as a solid or liquid particle (e.g., elemental carbon from diesel engines or fire activities, or condensable organic particles from gasoline engines). ‘‘Secondary’’ particles (e.g., sulfate and nitrate) form in the atmosphere as a result of various chemical reactions. The health effects associated with exposure to PM2.5 include potential aggravation of respiratory and 5 EPA anticipates taking action on Alabama’s May 2, 2011, SIP revision NNSR changes in a separate rulemaking. VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 cardiovascular disease (i.e., lung disease, decreased lung function, asthma attacks and certain cardiovascular issues). Epidemiological studies have indicated a correlation between elevated PM2.5 levels and premature mortality. Groups considered especially sensitive to PM2.5 exposure include older adults, children, and individuals with heart and lung diseases. For more details regarding health effects and PM2.5 see EPA’s Web site at https://www.epa.gov/oar/ particlepollution/ (See heading ‘‘Health and Welfare’’). On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for PM to add new standards for fine particles, using PM2.5 as the indicator. Previously, EPA used PM10 (inhalable particles smaller than or equal to 10 micrometers in diameter) as the indicator for the PM NAAQS. EPA established health-based (primary) annual and 24-hour standards for PM2.5, setting an annual standard at a level of 15.0 micrograms per cubic meter (mg/ m3) and a 24-hour standard at a level of 65 mg/m3. At the time the 1997 primary standards were established, EPA also established welfare-based (secondary) standards identical to the primary standards. The secondary standards are designed to protect against major environmental effects of PM2.5, such as visibility impairment, soiling, and materials damage. On October 17, 2006 (71 FR 61236), EPA revised the primary and secondary 24-hour NAAQS for PM2.5 to 35 mg/m3 and retained the existing annual PM2.5 NAAQS of 15.0 mg/m3. B. What is the NSR program? The CAA NSR program is a preconstruction review and permitting program applicable to certain new and modified stationary sources of air pollutants regulated under the CAA. The program includes a combination of air quality planning and air pollution control technology requirements. The CAA NSR program is composed of three separate programs: PSD, NNSR, and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that meet the NAAQS— ‘‘attainment areas’’—as well as areas where there is insufficient information to determine if the area meets the NAAQS—‘‘unclassifiable areas.’’ The NNSR program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS—‘‘nonattainment areas.’’ The Minor NSR program addresses construction or modification activities that do not qualify as ‘‘major’’ and applies regardless of the designation of the area in which a source is located. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 Together, these programs are referred to as the NSR program. EPA regulations governing the implementation of these programs are contained in 40 CFR sections 51.160–.166; 52.21, .24; and part 51, appendix S. Section 109 of the CAA requires EPA to promulgate a primary NAAQS to protect public health and a secondary NAAQS to protect public welfare. Once EPA sets those standards, states must develop, adopt, and submit a SIP to EPA for approval that includes emission limitations and other control measures to attain and maintain the NAAQS. See CAA section 110. Each SIP is also required to include a preconstruction review program for the construction and modification of any stationary source of air pollution to assure the maintenance of the NAAQS. The applicability of the PSD program to a major stationary source must be determined in advance of construction and is a pollutantspecific determination. Once a major source is determined to be subject to the PSD program (and thus is a PSD source), among other requirements, it must undertake a series of analyses to demonstrate that it will use the best available control technology (BACT) and will not cause or contribute to a violation of any NAAQS or increment. Alabama’s May 2, 2011, SIP submittal revises the state’s PSD and NNSR permitting regulations. C. NSR PM2.5 Implementation Rule On May 16, 2008, EPA finalized the NSR PM2.5 Rule to implement the PM2.5 NAAQS, including changes to the NSR program (73 FR 28321). The NSR PM2.5 Rule revised the federal NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. Specifically, the NSR PM2.5 Rule established the following NSR requirements to implement the PM2.5 NAAQS: (1) Require NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) establish significant emission rates for direct PM2.5 and precursor pollutants (including sulfur dioxide (SO2) and nitrogen oxides (NOx)); (3) establish PM2.5 emission offsets; (4) provide exceptions to PM10 grandfathering policy; and (5) require states to account for gases that condense to form particles (condensables) in PM2.5 and PM10 emission limits in PSD or NNSR permits. Additionally, the NSR PM2.5 Rule authorized states to adopt provisions in their NNSR rules that would allow interpollutant offset trading. Alabama’s May 2, 2011, SIP revision addresses the PSD and NNSR E:\FR\FM\06AUP1.SGM 06AUP1 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules approved PSD programs could continue to implement the Seitz Memo’s PM10 Surrogate Policy for up to three years (until May 2011) or until the individual revised state PSD programs for PM2.5 are approved by EPA, whichever came first. For additional information on the NSR 1. PM10 Surrogate and Grandfathering PM2.5 Rule, see 73 FR 28321.6 Policy On February 11, 2010, EPA proposed After EPA promulgated the NAAQS to repeal the grandfathering provision for PM2.5 in 1997, (62 FR 38652, July 18, for PM2.5 contained in the federal PSD 1997) the Agency issued a guidance program at 40 CFR 52.21(i)(1)(xi) and to document entitled ‘‘Interim end early the PM10 Surrogate Policy Implementation of New Source Review applicable in states that have a SIPRequirements for PM2.5.’’ John S. Seitz, approved PSD program. See 75 FR 6827. EPA, October 23, 1997 (the ‘‘Seitz In support of this proposal, EPA Memo’’). The Seitz Memo was designed explained that the PM2.5 to help states implement NSR implementation issues that led to the requirements pertaining to the new adoption of the PM10 Surrogate Policy in PM2.5 NAAQS in light of technical 1997 have been largely resolved to a difficulties posed by PM2.5 at that time. degree sufficient for sources and Specifically, the Seitz Memo stated: permitting authorities to conduct ‘‘PM–10 may properly be used as a meaningful permit-related PM2.5 surrogate for PM–2.5 in meeting NSR analyses. requirements until these difficulties are On May 18, 2011 (76 FR 28646), EPA resolved.’’ took final action to repeal the PM2.5 EPA also issued a guidance document grandfathering provision at 40 CFR entitled ‘‘Implementation of New 52.21(i)(1)(xi). This final action ended Source Review Requirements in PM–2.5 the use of the 1997 PM10 Surrogate Nonattainment Areas’’ (the ‘‘2005 PM2.5 Policy for PSD permits under the federal NNSR Guidance’’)) on April 5, 2005, the PSD program at 40 CFR 52.21. In effect, date that EPA’s PM2.5 nonattainment any PSD permit applicant previously area designations became effective for covered by the grandfathering provision the 1997 NAAQS. The 2005 PM2.5 NNSR (for sources that completed and Guidance provided direction regarding submitted a permit application before implementation of the nonattainment July 15, 2008) 7 that did not have a final major NSR provisions in PM2.5 and effective PSD permit before the nonattainment areas in the interim effective date of the repeal would no period between the effective date of the longer be able to rely on the 1997 PM10 PM2.5 nonattainment area designations Surrogate Policy to satisfy the PSD (April 5, 2005) and EPA’s promulgation requirements for PM2.5 unless the of final PM2.5 NNSR regulations. Besides application included a valid surrogacy re-affirming the continuation of the demonstration. See 76 FR 28646. PM10 Surrogate Policy for PM2.5 Alabama’s May 2, 2011, SIP revision did attainment areas set forth in the Seitz not adopt the grandfathering provision Memo, the 2005 PM2.5 NNSR Guidance at 40 CFR 52.21(i)(1)(xi) in accordance recommended that until EPA with the repeal of the PM2.5 promulgated the PM2.5 major NSR grandfathering provision. regulations, ‘‘States should use a PM10 2. ‘‘Condensable’’ Provision nonattainment major NSR program as a In the NSR PM2.5 Rule, EPA revised surrogate to address the requirements of the definition of ‘‘regulated NSR nonattainment major NSR for the PM2.5 pollutant’’ for PSD to add a paragraph NAAQS.’’ providing that ‘‘particulate matter (PM) In the NSR PM2.5 Rule, EPA required emissions, PM2.5 emissions and PM10 that major stationary sources seeking emissions’’ shall include gaseous permits must begin directly satisfying emissions from a source or activity the PM2.5 requirements, as of the which condense to form particulate effective date of the rule, rather than relying on PM10 as a surrogate, with two matter at ambient temperatures and that exceptions. The first exception is the 6 Additional information on this issue can also be ‘‘grandfathering’’ provision in the found in an August 12, 2009, final order on a title federal PSD program at 40 CFR V petition describing the use of PM10 as a surrogate 52.21(i)(1)(xi). This grandfathering for PM2.5. In the Matter of Louisville Gas & Electric provision applied to sources that had Company, Petition No. IV–2008–3, Order on Petition (August 12, 2009). applied for, but had not yet received, a 7 Sources that applied for a PSD permit under the final and effective PSD permit before the federal PSD program on or after July 15, 2008, are July 15, 2008, effective date of the May already excluded from using the 1997 PM10 16, 2008, final rule. The second Surrogate Policy as a means of satisfying the PSD requirements for PM2.5. See 76 FR 28321. exception was that states with SIP- tkelley on DSK3SPTVN1PROD with PROPOSALS requirements related to EPA’s May 16, 2008, NSR PM2.5 Rule. A few key issues described in greater detail below include the PM10 surrogate and grandfathering policy and the condensable provision. VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 46667 on or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM2.5 and PM10 in permits. See 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) and ‘‘Emissions Offset Interpretative Ruling’’ (40 CFR part 51, appendix S). A similar paragraph added to the NNSR rule does not include ‘‘particulate matter (PM) emissions.’’ See 40 CFR 51.165(a)(1)(xxxvii)(D). On March 16, 2012 (77 FR 15656), EPA proposed a rulemaking to amend the definition of ‘‘regulated NSR pollutant’’ promulgated in the NSR PM2.5 Rule regarding the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA’s Emissions Offset Interpretative Ruling.8 The rulemaking proposes to remove the inadvertent requirement in the NSR PM2.5 Rule that the measurement of condensable ‘‘particulate matter emissions’’ be included as part of the measurement and regulation of ‘‘particulate matter emissions.’’ The term ‘‘particulate matter emissions’’ includes particles that are larger than PM2.5 and PM10 and is an indicator measured under various New Source Performance Standards (NSPS) (40 CFR part 60).9 Alabama’s May 2, 2011, SIP revision adopts EPA’s definition for regulated NSR pollutant for condensables (at 40 CFR 51.166(b)(49)(vi)), including the term ‘‘particulate matter emissions,’’ as promulgated in the NSR PM2.5 Rule. EPA’s review of Alabama’s May 2, 2011, SIP revision with regard to the NSR PM2.5 Rule condensable provision is provided below in Section II.E. D. PM2.5 PSD-Increment-SILs-SMC Rule As mentioned above, EPA finalized the PM2.5 PSD Increment-SILs-SMC Rule to provide additional regulatory requirements under the PSD program regarding the implementation of the PM2.5 NAAQS for NSR.10 Specifically, the rule establishes the following to implement the PM2.5 NAAQS for the PSD program: (1) PM2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS; (2) 8 The comment period for this proposed rulemaking ended May 15, 2012. 9 In addition to the NSPS for PM, it is noted that states regulated ‘‘particulate matter emissions’’ for many years in their SIPs for PM, and the same indicator has been used as a surrogate for determining compliance with certain standards contained in 40 CFR part 63, regarding National Emission Standards for Hazardous Air Pollutants. 10 EPA proposed approval of the PSD IncrementsSILs-SMC Rule on September 21, 2007 (72 FR 54112). E:\FR\FM\06AUP1.SGM 06AUP1 46668 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules SILs used as a screening tool (by a major source subject to PSD) to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) a SMC, (also a screening tool) used by a major source subject to PSD to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM2.5. Alabama’s May 2, 2011, SIP revision adopts the NSR changes promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be consistent with the federal NSR regulations and to implement the state’s NSR program for the PM2.5 NAAQS. More detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA’s final rule (75 FR 64864, October 20, 2010) and is summarized below. More details regarding Alabama’s revision to its NSR regulations are also summarized below in Section II.E.2. tkelley on DSK3SPTVN1PROD with PROPOSALS 1. What are PSD increments? As established in part C of title I of the CAA, EPA’s PSD program protects public health from adverse effects of air pollution by ensuring that construction of new or modified sources in attainment or unclassifiable/attainment areas does not lead to significant deterioration of air quality while simultaneously ensuring that economic growth will occur in a manner consistent with preservation of clean air resources. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility ‘‘will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.’’ In other words, when a source applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the ‘‘maximum allowable increase’’ of an air pollutant allowed to occur above the applicable baseline concentration 11 for that pollutant. PSD increments prevent air quality in clean areas from deteriorating to the level set by the NAAQS. Therefore an increment is the mechanism used to estimate 11 Section 169(4) of the CAA provides that the baseline concentration of a pollutant for a particular baseline area is generally the same air quality at the time of the first application for a PSD permit in the area. VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 ‘‘significant deterioration’’ of air quality for a pollutant in an area. For PSD baseline purposes, a baseline area for a particular pollutant emitted from a source includes the attainment or unclassifiable/attainment area in which the source is located as well as any other attainment or unclassifiable/ attainment area in which the source’s emissions of that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 mg/m3 (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA’s existing regulations, the establishment of a baseline area for any PSD increment results from the submission of the first complete PSD permit application and is based on the location of the proposed source and its emissions impact on the area. Once the baseline area is established, subsequent PSD sources locating in that area need to consider that a portion of the available increment may have already been consumed by previous emissions increases. In general, the submittal date of the first complete PSD permit application in a particular area is the operative ‘‘baseline date.’’ 12 On or before the date of the first complete PSD application, emissions generally are considered to be part of the baseline concentration, except for certain emissions from major stationary sources. Most emissions increases that occur after the baseline date will be counted toward the amount of increment consumed. Similarly, emissions decreases after the baseline date restore or expand the amount of increment that is available. See 75 FR 64864. As described in the PM2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical increments for PM2.5 as a new pollutant 13 for which the NAAQS were established after August 7, 1977,14 and derived 24-hour and annual PM2.5 increments for the three area classifications (Class I, II and III) using 12 Baseline dates are pollutant specific. That is, a complete PSD application establishes the baseline date only for those regulated NSR pollutants that are projected to be emitted in significant amounts (as defined in the regulations) by the applicant’s new source or modification. Thus, an area may have different baseline dates for different pollutants. 13 EPA generally characterized the PM 2.5 NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10 NAAQs with the NAAQS for PM2.5 when the PM2.5 NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM2.5 as if PM2.5 was a new pollutant even though EPA had already developed air quality criteria for PM generally. See 75 FR 64864 (October 20, 2012). 14 EPA interprets 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 the ‘‘contingent safe harbor’’ approach. See 75 FR 64864 (October 20, 2010) and table at 40 CFR 51.166(c)(1). In addition to PSD increments for the PM2.5 NAAQS, the PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for ‘‘major source baseline date’’ and ‘‘minor source baseline date’’ (including trigger dates) to establish the PM2.5 NAAQS specific dates associated with the implementation of PM2.5 PSD increments (75 FR 64864, October 20, 2010). In accordance with section 166(b) of the CAA, EPA required the states to submit revised implementation plans to EPA for approval (to adopt the PM2.5 PSD increments) within 21 months from promulgation of the final rule (by July 20, 2012). Each state was responsible for determining how increment consumption and the setting of the minor source baseline date for PM2.5 would occur under its own PSD program. Regardless of when a State begins to require PM2.5 increment analysis and how it chooses to set the PM2.5 minor source baseline date, the emissions from sources subject to PSD for PM2.5 for which construction commenced after October 20, 2010, (major source baseline date) consume the PM2.5 increment and should be included in the increment analyses occurring after the minor source baseline date is established for an area under the state’s revised PSD program. As discussed in detail in Section II.E.2, Alabama’s May 2, 2011, SIP revision adopts the PM2.5 increment permitting requirements promulgated in the PM2.5 PSD Increment-SILs-SMC Rule. 2. What are SILs and SMCs? EPA’s PM2.5 PSD Increment-SILs-SMC Rule, also established SILs and SMC for the PM2.5 NAAQS to address air quality modeling and monitoring provisions for fine particle pollution in areas protected by the PSD program (that is areas that are designated attainment or unclassifiable/attainment for the NAAQS). The SILs and SMC are numerical values that represent thresholds of insignificant, i.e., de minimis, modeled source impacts or monitored (ambient) concentrations, respectively. The de minimis principle is grounded in a decision described by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1980). In this case, reviewing EPA’s 1978 PSD regulations, the court recognized that ‘‘there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.’’ 636 F.2d at 360. See 75 FR 64864 (October 20, 2010). EPA E:\FR\FM\06AUP1.SGM 06AUP1 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules tkelley on DSK3SPTVN1PROD with PROPOSALS established such values for PM2.5 in the PM2.5 PSD Increment-SILs-SMC rule to be used as screening tools by a major source subject to PSD to determine the subsequent level of analysis and data gathering required for a PSD permit application for emissions of PM2.5. As part of the response to comments on October 20, 2010, final rulemaking, EPA explained that the agency agrees that the SILs and SMC used as de minimis thresholds for the various pollutants are useful tools that enable permitting authorities and PSD applicants to screen out ‘‘insignificant’’ activities; however, the fact remains that these values are not required by the Act as part of an approvable SIP program. EPA believes that most states are likely to adopt the SILs and SMC because of the useful purpose they serve regardless of our position that the values are not mandatory. Alternatively, states may develop more stringent values if they desire to do so. In any case, states are not under any SIP-related deadline for revising their PSD programs to add these screening tools. See 75 FR 64864, 64900 (October 20, 2010). EPA is not proposing to approve the SILs provisions promulgated in the PSD portion of the PM2.5 PSD IncrementSILs-SMC Rule into the Alabama SIP PSD program in this rulemaking. EPA’s authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. See Sierra Club v. EPA, Case No. 10–1413 (D.C. Circuit Court).15 More details regarding Alabama’s changes to its NSR regulations are also summarized below in Section II.E. a. Significant Impact Levels SILs are numeric values derived by EPA that may be used to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment. The primary purpose of the SILs is to identify a level of ambient impact that is sufficiently low relative to the NAAQS or increments that such impact can be considered insignificant or de minimis. EPA’s policy has been to allow the use of the SILs as de minimis thresholds under the NSR programs at 40 CFR 51.165(b) and part 51, appendix S, to determine whether the predicted ambient impact resulting from the emissions increase at a proposed major new stationary source or modification is considered to cause or contribute to a violation of the NAAQS. EPA has also allowed the SILs under the PSD program to determine: (1) 15 On April 6, 2012, EPA filed a brief with the D.C. Circuit court defending the Agency’s authority to implement SILs and SMC for PSD purposes. VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 When a proposed source’s ambient impacts warrants a comprehensive (cumulative) source impact analysis 16 and; (2) the size of the impact area within which the air quality analysis is completed (75 FR 64864, October 20, 2010). In the PM2.5 PSD Increment-SILs-SMC Rule, EPA established the SILs threshold which reflects the degree of ambient impact on PM2.5 concentrations that can be considered de minimis and would justify no further analysis or modeling of the air quality impact of a source in combination with other sources in the area because the source would not cause or contribute to an exceedance of the PM2.5 NAAQS or the PM2.5 increments (75 FR 64864, October 20, 2010). The PM2.5 PSD IncrementSILs-SMC Rule established SILs to evaluate the impact that a proposed new source or modification may have on the PM2.5 NAAQS or increment. When a proposed major new source or major modification of PM2.5 projects (using air quality modeling) has an impact less than the PM2.5 SILs, the proposed construction or modification is considered to not have a significant air quality impact and would not need to complete a cumulative impact analysis involving an analysis of other sources in the area. Additionally, a source with a de minimis ambient impact would not be considered to cause or contribute to a violation of the PM2.5 NAAQS or increments. The October 20, 2010, rule established the PM2.5 SILs at EPA’s existing NNSR regulations at 51.165(b) and the PSD regulations at 40 CFR 51.166(k)(2), 52.21(k)(2) and part 51, appendix S as optional screening tools that became effective on December 20, 2010. Prior to the October 20, 2010, rule, the concept of a SIL was not previously incorporated into the PSD regulations. The regulations in 40 CFR 51.165(b) 17 establish the minimum requirements for nonattainment NSR programs in SIPs but apply specifically to major stationary sources and major modifications located in attainment or unclassifiable/attainment areas. See 40 CFR 51.165(b). Where a PSD source located in such areas may have an impact on an adjacent nonattainment area, the PSD source must still 16 A cumulative analysis is a modeling analysis used to show that the allowable emissions increase from the proposed source along with other emission increases from existing sources, will not result in a violation of either the NAAQS or increment. 17 40 CFR 51.165(b) require states to operate a preconstruction review permit program for major stationary sources that wish to locate in an attainment or unclassifiable area but would cause or contribute to a violation of the NAAQS. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 46669 demonstrate that it will not cause or contribute to a violation of the NAAQS in the adjacent area. Where emissions from a proposed PSD source or modification would have an ambient impact in a nonattainment area that would exceed the SILs, the source is considered to cause or contribute to a violation of the NAAQS and may not be issued a PSD permit without obtaining emissions reductions to compensate for its impact. See 40 CFR 51.165(b)(2)–(3). Alabama’s May 2, 2011, SIP submittal addresses the PM2.5 SILS thresholds and provisions promulgated in the October 20, 2010, rule at 40 CFR 51.165(b)(2) and 51.166(k)(2). Further analysis of Alabama’s submission is explained below in Section II.E.2. b. Significant Monitoring Concentrations Under the CAA and EPA regulations, an applicant for a PSD permit is required to gather preconstruction monitoring data in certain circumstances. Section 165(a)(7) calls for ‘‘such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any areas which may be affected by emissions from such source.’’ In addition, section 165(e) requires an analysis of the air quality in areas affected by a proposed major facility or major modification and calls for gathering one year of monitoring data unless the reviewing authority determines that a complete and adequate analysis may be accomplished in a shorter period. These requirements are codified in EPA’s PSD regulations at 40 CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA’s Guideline for Air Quality Modeling (40 CFR part 51, Appendix W), the preconstruction monitoring data is primarily used to determine background concentrations in modeling conducted to demonstrate that the proposed source or modification will not cause or contribute to a violation of the NAAQS. See 40 CFR part 51, Appendix W, section 9.2. SMC are numerical values that represent thresholds of insignificant, i.e., de minimis, monitored (ambient) impacts on pollutant concentrations. In EPA’s PM2.5 PSD Increment-SILs-SMC Rule, EPA established a SMC of 4 mg/m3 for PM2.5 to be used as a screening tool by a major source subject to PSD to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM2.5. Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or E:\FR\FM\06AUP1.SGM 06AUP1 46670 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules modification, or the existing air quality level in the area where the source would construct, is less than the SMC, i.e., de minimis, and may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority. See 75 FR 64864 (October 20, 2010) and 40 CFR 51.166(i)(5) and 52.21(i)(5). As mentioned above, SMCs are not minimum required elements of an approvable SIP under the CAA. This de minimis value is widely considered to be a useful component for implementing the PSD program, but is not absolutely necessary for the states to implement PSD programs. States can satisfy the statutory requirements for a PSD program by requiring each PSD applicant to submit air quality monitoring data for PM2.5 without using de minimis thresholds to exempt certain sources from such requirements. The SMC became effective under the Federal PSD program on December 20, 2010. However, states with EPA-approved PSD programs that adopt the SMC for PM2.5 may use the SMC, once it is part of an approved SIP, to determine when it may be appropriate to exempt a particular major stationary source or major modification from the monitoring requirements under its State PSD program. Alabama’s May 2, 2011, SIP revision adopts the SMC threshold into the Alabama SIP. More detail on Alabama’s SIP is discussed below in Section II.E.2 tkelley on DSK3SPTVN1PROD with PROPOSALS c. SILs-SMC Litigation Recently, the Sierra Club filed suit challenging EPA’s authority to promulgate the PM2.5 SILs and SMC for PSD purposes as promulgated in the PM2.5 PSD Increment-SILs-SMC Rule. Sierra Club v. EPA, Case No. 10–1413 (D.C. Circuit Court). Specifically, Sierra Club claims that the SILs and SMC screening tools adopted in the October 20, 2010, rule are inconsistent with the CAA and EPA’s de minimis authority.18 See Sierra Club v. EPA, Case No. 10– 1413 (D.C. Circuit). EPA responded to Sierra Club’s claims in a Brief dated April 6, 2012, which described the Agency’s authority to develop and promulgate SILs and SMC.19 A copy of 18 EPA interprets section 165(a)(3) of the CAA to allow the use of significance levels as a means to demonstrate that a source will not cause or contribute to any violation of the NAAQS or increments. The terms ‘‘cause or contribute to’’ and ‘‘demonstrate’’ are ambiguous and EPA reasonably interprets the statue to allow sources that do not contribute significantly to ambient air concentrations of PM2.5 to demonstrate compliance through modeling of the source’s impact measured against the SILs. 19 Additional information on this issue can also be found in an April 25, 2010, comment letter from VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 EPA’s April 6, 2012, Brief can be found in the docket for today’s rulemaking at www.regulations.gov using docket ID: EPA–R04–OAR–2012–0079. E. What is EPA’s analysis of Alabama’s SIP revision adopting NSR PM2.5 implementation provisions? Alabama currently has a SIP-approved NSR program for new and modified stationary sources found at Chapter 335–3–14. ADEM’s PSD preconstruction regulations are found at Rule 335–3–14– .04—Air Permits Authorizing Construction in Clean Air Areas (Prevention of Significant Deterioration (PSD)) and apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/attainment as required under part C of title I of the CAA with respect to the NAAQS.20 Additionally, rule 335–3–14-.03 establishes general standards for granting permits in the state. ADEM’s May 2, 2011, changes to Chapter 335–3–14 were submitted to adopt into the State’s NSR permitting program PSD provisions promulgated in the NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC rule. These changes to Alabama’s regulations became state effective on May 23, 2011. EPA is proposing to approve the changes at rule 335–3–14–.03 and .04 into the Alabama SIP to be consistent with federal NSR regulations (at 40 CFR 51.166 and 52.21) and the CAA. As mentioned earlier, EPA anticipates taking action on the May 2, 2011, SIP revision NNSR amendments in a separate rulemaking. 1. NSR PM2.5 Implementation Rule Alabama’s May 2, 2011, SIP revision establishes that the State’s existing NSR permitting program requirements for PSD apply to the PM2.5 NAAQS and its precursors. Specifically, the SIP revision adopts the following NSR PM2.5 Rule PSD provisions into the Alabama SIP: (1) The requirement for NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) significant emission rates for direct PM2.5 and precursor pollutants (SO2 and NOX) and EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today’s rulemaking at www.regulations.gov using docket ID: EPA–R04– OAR–2012–0079. 20 ADEM’s Rule 335–3–14–.05—Air Permits Authorizing Construction in or Near NonAttainment Areas applies to major stationary sources or modifications constructed in areas designated nonattainment as required under part D of title I of the CAA with respect to the NAAQS. However, in today’s rulemaking, EPA is only proposing to take action on the PSD provision and will take action on the NNSR changes in a separate action. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 (3) the requirement that conde dinsable PM be addressed in enforceable PM10 and PM2.5 emission limits included in PSD permits. The May 2, 2011, SIP revision changes (1) establish that the State’s NSR permitting program requirements for PSD apply to the PM2.5 NAAQS and its precursors; (2) recognize PM2.5 precursors at 335–3–14–.04(2)(b) and 335–3–14–.04(2)(w) (as amended at 40 CFR 51.166(b)(23)(i)); (3) sets significant emission rates for both direct PM2.5 and PM2.5 precursors for major modifications at existing sources at 335– 3–14–.04(2)(w) (as amended at 51.166(b)(23)(i)); and (4) adopt the requirement that condensable PM10 and PM2.5 emissions be accounted for in PSD applicability determinations and in establishing emissions limitations for PM at 353–14–.04(2)(ww)(5) (as amended at 40 CFR 51.166(b)(49)). As mentioned above, Alabama’s May 2, 2011, SIP revision also adopts into the State’s NSR regulations the requirement to address condensable PM in making applicability determinations and in establishing enforceable emission limits in PSD permits, as required under the NSR PM2.5 Rule. As discussed in Section II.C.2, under a separate action, EPA has proposed to correct the inadvertent inclusion of ‘‘particulate matter emissions’’ in the definition of ‘‘regulated NSR pollutant’’ as an indicator for which condensable emissions must be addressed (77 FR 75656, March 16, 2012). Further, on June 18, 2012, the State of Alabama provided a letter to EPA clarifying the State’s intent in light of EPA’s March 16, 2012, proposed rulemaking. A copy of this letter can be found in the docket for today’s rulemaking at www.regulations.gov using docket ID: EPA–R04–OAR–2012–0079. Specifically, Alabama requested that EPA not approve the term ‘‘particulate matter emissions’’ (at rule 335–3–14– .04(ww)(5) and.05(ww)(2)) as part of the definition for ‘‘regulated NSR pollutant’’ regarding the inclusion of condensable emissions in applicability determinations and in establishing emissions limitations for PM. Therefore, given the State’s request and EPA’s intention to amend the definition of ‘‘regulated NSR pollutant,’’ EPA is not proposing action to approve the terminology ‘‘particulate matter emissions’’ into the PSD regulations of the Alabama SIP for the condensable provision in the definition of ‘‘regulated NSR pollutant.’’ EPA is, however, proposing to approve into the Alabama SIP at 335–3–14–.04(ww)(5) the remaining condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires E:\FR\FM\06AUP1.SGM 06AUP1 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules 46671 Agency’s authority under the CAA to promulgate and implement the SMC and SILs de minimis thresholds. With respect to the SMCs, Alabama’s SIP revision includes the SMC of 4 mg/m3 for PM2.5 NAAQS at rule 335–3– 14.04(8)(h) that was added to the existing monitoring exemption at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). EPA is proposing to approve the PM2.5 SMC into the Alabama SIP as EPA believes the use of the SMC is a valid exercise of the Agency’s de minimis authority. Furthermore, Alabama’s May 2, 2011, SIP revision is consistent with EPA’s current promulgated provisions in the October 20, 2010, rule. However, EPA notes that future Court action may require subsequent rule revisions and SIP revisions from Alabama. Alabama’s SIP revision to adopt the new PSD requirements for PM2.5 pursuant to the PM2.5 PSD IncrementSILs-SMC Rule also includes the new regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2), concerning the implementation of SILs for PM2.5. EPA stated in the preamble to the PM2.5 PSD Increment-SILs-SMC Rule that we do not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of regulating authority for use in the PSD permitting process. Nevertheless, as mentioned above, the PM2.5 SILs are currently the subject of litigation before the U.S. Court of Appeals. (Sierra Club v. EPA, Case No 10–1413, D.C. Circuit). In response to that litigation, EPA has requested that the Court remand and vacate the regulatory text in the EPA’s PSD regulations at paragraph (k)(2) so that EPA can make necessary rulemaking revisions to that text. In light of EPA’s request for remand and vacatur and the agency’s acknowledgement of the need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does not believe that it is appropriate at this time to approve that portion of the State’s implementation plan revision that contains the affected regulatory text in the State’s PSD regulations, at rule 335– 3–14–04(10)(b). Instead, EPA is taking no action at this time with regard to these specific provisions contained in the SIP revision. EPA anticipates taking action on the SILs portion of Alabama’s May 2, 2011, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved. The PM2.5 PSD Increment-SILs-SMC rule promulgated PM2.5 SILs thresholds in the NNSR regulations at 40 CFR 51.165(b)(2). Alabama’s May 2, 2011 submission also adopts the PM2.5 SILs Continued tkelley on DSK3SPTVN1PROD with PROPOSALS that condensable emissions be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10. Alabama’s condensable provision will be consistent with the federal rule once EPA finalizes the March 16, 2012, rulemaking. EPA’s May 18, 2011 (76 FR 28646), final rulemaking repealed the PM10 ‘‘grandfathering’’ provision, as noted in Section II.C above. Alabama’s May 2, 2011, SIP revision does not address 40 CFR 52.21(i)(1)(ix) promulgated in the NSR PM2.5 Rule and is in accordance with the repeal of the PM2.5 grandfathering provision. EPA has preliminarily determined that Alabama’s May 2, 2011, SIP revision is consistent with the NSR PM2.5 Rule for PSD and section 110 of the CAA. See 73 FR 28321 (May 16, 2008). 2. PM2.5 PSD Increment-SILs-SMC Rule Provisions Alabama’s May 2, 2011, SIP revision adopts, into the Alabama SIP, at Chapter 335–3–14 the following PSD provisions promulgated in the PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for PM2.5 annual and 24hour NAAQS pursuant to section 166(a) of the CAA; (2) SILs to be used as a screening tool to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) SMC, also used as a screening tool, to determine the level of data gathering required of a major source in support of its PSD permit application for PM2.5 emissions. Specifically, regarding the PSD increments, the SIP revision changes include: (1) The PM2.5 increments as promulgated in at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances) and (2) amendments to the terms ‘‘major source baseline date’’ (at 40 CFR 51.166(b)(14)(i)(c)) and 52.21(b)(14)(i)(c)), ‘‘minor source baseline date’’(including establishment of the ‘‘trigger date’’) and ‘‘baseline area’’ (as amended at 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i)). These changes provide for the implementation of the PM2.5 PSD increments for the PM2.5 NAAQS in the state’s PSD program. In today’s action, EPA is proposing to approve Alabama’s May 2, 2011, SIP revision provisions to address the PM2.5 PSD increment provisions promulgated in the PM2.5 PSD Increments SILs-SMC Rule. Regarding the SILs and SMC established in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has challenged EPA’s authority to implement SILs and SMC. In a brief filed in the D.C. Circuit on April 6, 2012, EPA described the VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 thresholds in their general permits provisions at rule 335–3–14–.03(1)(g) 21 to be consistent with amendments to 40 CFR 51.165(b) in the PM2.5 PSD Increment-SILs-SMC Rule. In light of the fact that EPA did not request the court to remand and vacate language at 51.165(b) and the agency has explained its authority to develop and promulgate SILs in the brief filed with the D.C. Circuit Court concerning the litigation, EPA is proposing to approve Alabama’s adoption of the PM2.5 SILs thresholds at 335–3–14–.03(1)(g). EPA notes, however, that the SILs-SMC litigation is ongoing and therefore future Court action may require subsequent rule revisions and SIP submittals from the State of Alabama. The aforementioned amendments to Alabama’s SIP provide the framework for implementation of PM2.5 NAAQS in the states NSR permitting. Based on review and consideration of Alabama’s May 2, 2011, SIP revision, EPA has made the preliminary determination to approve the aforementioned PSD permitting provisions promulgated in the NSR PM2.5 Rule and PM2.5 PSD Increment-SILs-SMC Rule into the Alabama SIP to implement the NSR program for the PM2.5 NAAQS. III. What is EPA’s proposed action for changes to Alabama’s general and transportation conformity regulations? In addition to the adoption of NSR federal regulations mentioned above, Alabama’s SIP revision updates the State’s General Conformity regulations at Chapter 335–3–17—Conformity of Federal Actions to State Implementation Plans to be consistent with recent updates to federal General Conformity regulations promulgated on April 5, 2010 (75 FR 17254). Alabama’s Conformity regulations at 335–3–17 include Transportation Conformity rules at 335–3–17.01 and General Conformity rules at 335–3–17.02. Pursuant to section 176(c) of the CAA, General Conformity ensures that federal actions comply with the NAAQS. In order to meet this CAA requirement, a federal agency must demonstrate that every action that it undertakes, approves, permits or supports will conform to the appropriate State, Tribal or Federal Implementation Plan.22 Alabama IBR 21 The provisions at 335–3–14–.03(1)(g) are consistent with SILs provisions at 40 CFR 51.165(b). 22 In November 1993, EPA promulgated two sets of regulations to implement section 176(c). First, on November 24, EPA promulgated the Transportation Conformity Regulations (applicable to highways and mass transit) to establish the criteria and procedures for determining that transportation plans, programs, and projects which are funded under title 23 U.S.C. or the Federal Transit Act E:\FR\FM\06AUP1.SGM 06AUP1 46672 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules the federal General Conformity regulations at 40 CFR 93, Subpart B. Particularly, Alabama’s May 2, 2011, SIP submission updates the IBR date at 335–3–17.02 to July 1, 2010, to be consistent with federal General Conformity rules (as promulgated on April 5, 2010) and updates its Transportation Conformity SIP at 335– 3–17–.01 effective May 23, 2011, to include EPA’s transportation conformity rule updates regarding implementation of the PM2.5 and PM10 nonattainment and maintenance areas. EPA has preliminarily determined that Alabama’s May 2, 2011, updates to Alabama’s general and transportation Conformity regulations are consistent with CAA and EPA’s regulations governing conformity. IV. Proposed Action EPA is proposing to approve portions of Alabama’s May 2, 2011, SIP revision adopting federal regulations amended in the May 16, 2008, NSR PM2.5 Rule; the October 20, 2010, PM2.5 PSD IncrementSILs-SMC rule; and updates to the State’s general and transportation conformity regulations into the Alabama SIP with the exception of the provisions listed in Section I. EPA has made the preliminary determination that this SIP revision, with regard to aforementioned proposed actions, is approvable because it is consistent with section 110 of the CAA and EPA regulations regarding NSR permitting and conformity. tkelley on DSK3SPTVN1PROD with PROPOSALS V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed 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 conform with the SIP. See 58 FR 62188. On November 30, 1993, EPA promulgated regulations, known as the General Conformity Regulations (applicable to everything else), to ensure that other federal actions also conformed to the SIPs. See 58 FR 63214). VerDate Mar<15>2010 16:04 Aug 03, 2012 Jkt 226001 of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 20, 2012. A. Stanley Meiburg, Acting Regional Administrator, Region 4. [FR Doc. 2012–19048 Filed 8–3–12; 8:45 am] BILLING CODE 6560–50–P PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R03–OAR–2012–0444; FRL–9711–7] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Fredericksburg 8-Hour Ozone Maintenance Area Revision to Approved Motor Vehicle Emissions Budgets Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing to approve the Commonwealth of Virginia’s State Implementation Plan (SIP) submitted by the Virginia Department of Environmental Quality (VADEQ) on September 26, 2011. The SIP revision consists of updating the 2009 and 2015 motor vehicle emission budgets (MVEBs) in the Fredericksburg 8-Hour Ozone Maintenance Area (Fredericksburg Area) by replacing the previously approved MVEBs with budgets developed using EPA’s Motor Vehicle Emissions Simulator emissions model (MOVES2010a). This action is being taken under the Clean Air Act (CAA). SUMMARY: Written comments must be received on or before September 5, 2012. DATES: Submit your comments, identified by Docket ID Number EPA– R03–OAR–2012–0444 by one of the following methods: A. www.regulations.gov. Follow the on-line instructions for submitting comments. B. Email: mastro.donna@epa.gov. C. Mail: EPA–R03–OAR–2012–0444, Donna Mastro, Acting Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previouslylisted EPA Region III address. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–R03–OAR–2012– 0444. EPA’s policy is that all comments received will be included in the public docket without change, and may be made available online at www. regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information ADDRESSES: E:\FR\FM\06AUP1.SGM 06AUP1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Proposed Rules]
[Pages 46664-46672]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19048]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0079; FRL-9708-6]

Approval and Promulgation of Implementation Plans; State of
Alabama: General and Transportation Conformity & New Source Review
Prevention of Significant Deterioration for Fine Particulate Matter
(PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve changes to the Alabama State
Implementation Plan (SIP), submitted by the Alabama Department of
Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision
modifies Alabama's New Source Review (NSR), Prevention of Significant
Deterioration (PSD), and Nonattainment New Source Review (NNSR)
programs as well as general and transportation conformity regulations.
Specifically, the May 2, 2011, SIP revision adopts federal NSR
permitting requirements provisions into the Alabama SIP regarding
implementation of the PM2.5 national ambient air quality
standards (NAAQS), revises the State's NNSR rules, and updates the
State's general and transportation conformity regulations. All changes
in the May 2, 2011, SIP revision are necessary to comply with federal
requirements. EPA is proposing approval of Alabama's May 2, 2011,
revision to the Alabama SIP because the Agency has preliminarily
determined that the changes are consistent with the Clean Air Act (CAA
or Act).

DATES: Comments must be received on or before September 5, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0079, by one of the following methods:
1. www.regulations.gov: Follow the online instructions for
submitting comments.
2. Email: R4-RDS@epa.gov.
3. Fax: (404) 562-9019.
4. Mail: EPA-R04-OAR-2012-0079 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.
5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S.

[[Page 46665]]

Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0079. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at https://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI 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 in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama
SIP, contact Ms. Twunjala Bradley, 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. Telephone number: (404) 562-9352; email
address: bradley.twunjala@epa.gov. For information regarding NSR,
contact Mrs. Yolanda Adams, Air Permits Section, at the same address
above. Telephone number: (404) 562-9214; email address:
adams.yolanda@epa.gov. For information regarding PM2.5
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the
same address above. Telephone number: (404) 562-9104; email address:
huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What actions are EPA proposing?
II. What is EPA's proposed action for the NSR implementation
requirements for the PM2.5 NAAQS?
III. What is EPA's proposed action for changes to Alabama's general
and transportation conformity regulations?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What actions are EPA proposing?

On May 2, 2011, ADEM submitted a SIP revision to EPA for approval
into the Alabama SIP to adopt federal requirements for NSR permitting,
and general and transportation conformity.\1\ Alabama's SIP revision
makes changes to the regulations at Administrative Code for Division 3:
Chapter 335-3-14--Permits and Chapter 335-3-17--Conformity of Federal
Actions to State Implementation Plans to comply with federal NSR
permitting and conformity regulations respectively. First, the May 2,
2011, SIP revision addresses NSR requirements amended in the May 16,
2008, final rulemaking entitled ``Implementation of the New Source
Review Program for Particulate Matter Less Than 2.5 Micrometers'' (73
FR 28321) and the October 20, 2010, final rulemaking entitled ``Final
Rule Prevention of Significant Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers (PM2.5)--Increments,
Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC): Final Rule, (PM2.5 PSD Increment-SILs-
SMC Rule)'' (75 FR 64864). Second, the submission revises the State's
NNSR regulations to be consistent with federal NSR regulations. Lastly,
Alabama's SIP revision changes the State's general and transportation
conformity regulations which incorporate by reference (IBR) \2\ the
federal conformity updates. Pursuant to section 110 of the CAA, EPA is
proposing to approve these changes, with the exception of the three
elements below, into the Alabama SIP.
---------------------------------------------------------------------------

\1\ Alabama's May 2, 2011, SIP revision also made changes to the
state's New Source Performance Standards (NSPS) and National
Emission Standards for Hazardous Air Pollutants (NESHAP) (at
Chapters 335-3-10 and 11 respectively) and title V regulations at
Chapter 335-3-16 to adopt recent federal changes to the NSPS and
NESHAP and major source operating permits regulations respectively.
However, EPA is not proposing action to approve these revisions as
they are not part of the Alabama federally approved SIP.
\2\ In this document IBR means incorporate or incorporates by
reference.
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The three elements of ADEM's May 2, 2011, SIP revision which EPA is
not proposing to approve in this action are: (1) The NNSR changes
amended at rule 335-3-14-.05; \3\ (2) SIL thresholds and provisions
promulgated in EPA's PM2.5 PSD Increment-SILs-SMC Rule (75
FR 64864, October 20, 2010); \4\ and (3) the term ``particulate matter
emissions'' when accounting for condensable particles for
PM2.5 emission limits for the definition of ``regulated NSR
pollutant'' (77 FR 15656, March 16, 2012). EPA will consider action on
the NNSR changes and SILs provisions separate from this rulemaking.
---------------------------------------------------------------------------

\3\ Alabama's May 2, 2011, SIP revision also made changes to its
NNSR regulations to be consistent with federal NSR regulations
including provisions promulgated in the NSR PM2.5 Rule,
PM2.5 PSD Increment-SILs-SMC Rule and other NSR
rulemakings. EPA will consider action on this portion of Alabama's
May 2, 2011, SIP in a separate rulemaking.
\4\ EPA's authority to implement the SILs and SMC for PSD
purposes has been challenged by the Sierra Club. Sierra Club v. EPA,
Case No. 10-1413 United States Court of Appeals for the District of
Columbia (D.C. Circuit Court).
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II. What is EPA's proposed action for the NSR implementation
requirements for the PM2.5 NAAQS?

Today's proposed action to revise Alabama's SIP relates to EPA's
NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC Rule. In the NSR PM2.5 Rule, EPA finalized regulations
to implement the NSR program for the PM2.5 NAAQS. As a
result of EPA's final NSR PM2.5 Rule, states were required
to

[[Page 46666]]

submit SIP revisions to EPA no later than May 16, 2011, to address
these requirements for both the PSD and NNSR programs. EPA's
PM2.5 PSD Increment-SILs-SMC Rule established PSD
increments, SILs and SMC which address additional components for making
PSD permitting determinations for PM2.5 NAAQS. These
requirements address air quality modeling and monitoring provisions for
fine particle pollution in areas protected by the PSD program (that is
attainment or unclassifiable/attainment areas for the NAAQS). The
PM2.5 PSD Increment-SILs-SMC Rule required states to submit
SIP revisions to adopt the required PSD increments by July 20, 2012.
Together these two rules address the NSR permitting requirements needed
to implement the PM2.5 NAAQS. Alabama's May 2, 2011, SIP
revision adopts into the Alabama SIP the PSD and NNSR \5\ requirements
promulgated in these two rules to be consistent with federal
regulations. More detail on the NSR PM2.5 Rule and the
PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's May
16, 2008 (73 FR 28321), and October 20, 2010 (75 FR 64864), final rules
respectively and are summarized below.
---------------------------------------------------------------------------

\5\ EPA anticipates taking action on Alabama's May 2, 2011, SIP
revision NNSR changes in a separate rulemaking.
---------------------------------------------------------------------------

A. Fine Particulate Matter and the NAAQS

Fine particles in the atmosphere are made up of a complex mixture
of components. Common constituents include sulfate; nitrate; ammonium;
elemental carbon; a great variety of organic compounds; and inorganic
material (including metals, dust, sea salt, and other trace elements)
generally referred to as ``crustal'' material, although it may contain
material from other sources. Airborne particulate matter (PM) with a
nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer
is one-millionth of a meter, and 2.5 micrometers is less than one-
seventh the average width of a human hair) are considered to be ``fine
particles'' and are also known as PM2.5. ``Primary''
particles are emitted directly into the air as a solid or liquid
particle (e.g., elemental carbon from diesel engines or fire
activities, or condensable organic particles from gasoline engines).
``Secondary'' particles (e.g., sulfate and nitrate) form in the
atmosphere as a result of various chemical reactions.
The health effects associated with exposure to PM2.5
include potential aggravation of respiratory and cardiovascular disease
(i.e., lung disease, decreased lung function, asthma attacks and
certain cardiovascular issues). Epidemiological studies have indicated
a correlation between elevated PM2.5 levels and premature
mortality. Groups considered especially sensitive to PM2.5
exposure include older adults, children, and individuals with heart and
lung diseases. For more details regarding health effects and
PM2.5 see EPA's Web site at https://www.epa.gov/oar/particlepollution/ (See heading ``Health and Welfare'').
On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for PM to add
new standards for fine particles, using PM2.5 as the
indicator. Previously, EPA used PM10 (inhalable particles
smaller than or equal to 10 micrometers in diameter) as the indicator
for the PM NAAQS. EPA established health-based (primary) annual and 24-
hour standards for PM2.5, setting an annual standard at a
level of 15.0 micrograms per cubic meter ([micro]g/m\3\) and a 24-hour
standard at a level of 65 [micro]g/m\3\. At the time the 1997 primary
standards were established, EPA also established welfare-based
(secondary) standards identical to the primary standards. The secondary
standards are designed to protect against major environmental effects
of PM2.5, such as visibility impairment, soiling, and
materials damage. On October 17, 2006 (71 FR 61236), EPA revised the
primary and secondary 24-hour NAAQS for PM2.5 to 35
[micro]g/m\3\ and retained the existing annual PM2.5 NAAQS
of 15.0 [micro]g/m\3\.

B. What is the NSR program?

The CAA NSR program is a preconstruction review and permitting
program applicable to certain new and modified stationary sources of
air pollutants regulated under the CAA. The program includes a
combination of air quality planning and air pollution control
technology requirements. The CAA NSR program is composed of three
separate programs: PSD, NNSR, and Minor NSR. PSD is established in part
C of title I of the CAA and applies in areas that meet the NAAQS--
``attainment areas''--as well as areas where there is insufficient
information to determine if the area meets the NAAQS--``unclassifiable
areas.'' The NNSR program is established in part D of title I of the
CAA and applies in areas that are not in attainment of the NAAQS--
``nonattainment areas.'' The Minor NSR program addresses construction
or modification activities that do not qualify as ``major'' and applies
regardless of the designation of the area in which a source is located.
Together, these programs are referred to as the NSR program. EPA
regulations governing the implementation of these programs are
contained in 40 CFR sections 51.160-.166; 52.21, .24; and part 51,
appendix S.
Section 109 of the CAA requires EPA to promulgate a primary NAAQS
to protect public health and a secondary NAAQS to protect public
welfare. Once EPA sets those standards, states must develop, adopt, and
submit a SIP to EPA for approval that includes emission limitations and
other control measures to attain and maintain the NAAQS. See CAA
section 110. Each SIP is also required to include a preconstruction
review program for the construction and modification of any stationary
source of air pollution to assure the maintenance of the NAAQS. The
applicability of the PSD program to a major stationary source must be
determined in advance of construction and is a pollutant-specific
determination. Once a major source is determined to be subject to the
PSD program (and thus is a PSD source), among other requirements, it
must undertake a series of analyses to demonstrate that it will use the
best available control technology (BACT) and will not cause or
contribute to a violation of any NAAQS or increment. Alabama's May 2,
2011, SIP submittal revises the state's PSD and NNSR permitting
regulations.

C. NSR PM2.5 Implementation Rule

On May 16, 2008, EPA finalized the NSR PM2.5 Rule to
implement the PM2.5 NAAQS, including changes to the NSR
program (73 FR 28321). The NSR PM2.5 Rule revised the
federal NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM2.5
NAAQS in both attainment and nonattainment areas. Specifically, the NSR
PM2.5 Rule established the following NSR requirements to
implement the PM2.5 NAAQS: (1) Require NSR permits to
address directly emitted PM2.5 and precursor pollutants; (2)
establish significant emission rates for direct PM2.5 and
precursor pollutants (including sulfur dioxide (SO2) and
nitrogen oxides (NOx)); (3) establish PM2.5 emission
offsets; (4) provide exceptions to PM10 grandfathering
policy; and (5) require states to account for gases that condense to
form particles (condensables) in PM2.5 and PM10
emission limits in PSD or NNSR permits. Additionally, the NSR
PM2.5 Rule authorized states to adopt provisions in their
NNSR rules that would allow interpollutant offset trading. Alabama's
May 2, 2011, SIP revision addresses the PSD and NNSR

[[Page 46667]]

requirements related to EPA's May 16, 2008, NSR PM2.5 Rule.
A few key issues described in greater detail below include the
PM10 surrogate and grandfathering policy and the condensable
provision.
1. PM10 Surrogate and Grandfathering Policy
After EPA promulgated the NAAQS for PM2.5 in 1997, (62
FR 38652, July 18, 1997) the Agency issued a guidance document entitled
``Interim Implementation of New Source Review Requirements for
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the ``Seitz
Memo''). The Seitz Memo was designed to help states implement NSR
requirements pertaining to the new PM2.5 NAAQS in light of
technical difficulties posed by PM2.5 at that time.
Specifically, the Seitz Memo stated: ``PM-10 may properly be used as a
surrogate for PM-2.5 in meeting NSR requirements until these
difficulties are resolved.''
EPA also issued a guidance document entitled ``Implementation of
New Source Review Requirements in PM-2.5 Nonattainment Areas'' (the
``2005 PM2.5 NNSR Guidance'')) on April 5, 2005, the date
that EPA's PM2.5 nonattainment area designations became
effective for the 1997 NAAQS. The 2005 PM2.5 NNSR Guidance
provided direction regarding implementation of the nonattainment major
NSR provisions in PM2.5 nonattainment areas in the interim
period between the effective date of the PM2.5 nonattainment
area designations (April 5, 2005) and EPA's promulgation of final
PM2.5 NNSR regulations. Besides re-affirming the
continuation of the PM10 Surrogate Policy for
PM2.5 attainment areas set forth in the Seitz Memo, the 2005
PM2.5 NNSR Guidance recommended that until EPA promulgated
the PM2.5 major NSR regulations, ``States should use a
PM10 nonattainment major NSR program as a surrogate to
address the requirements of nonattainment major NSR for the
PM2.5 NAAQS.''
In the NSR PM2.5 Rule, EPA required that major
stationary sources seeking permits must begin directly satisfying the
PM2.5 requirements, as of the effective date of the rule,
rather than relying on PM10 as a surrogate, with two
exceptions. The first exception is the ``grandfathering'' provision in
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering
provision applied to sources that had applied for, but had not yet
received, a final and effective PSD permit before the July 15, 2008,
effective date of the May 16, 2008, final rule. The second exception
was that states with SIP-approved PSD programs could continue to
implement the Seitz Memo's PM10 Surrogate Policy for up to
three years (until May 2011) or until the individual revised state PSD
programs for PM2.5 are approved by EPA, whichever came
first. For additional information on the NSR PM2.5 Rule, see
73 FR 28321.\6\
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\6\ Additional information on this issue can also be found in an
August 12, 2009, final order on a title V petition describing the
use of PM10 as a surrogate for PM2.5. In the
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3,
Order on Petition (August 12, 2009).
---------------------------------------------------------------------------

On February 11, 2010, EPA proposed to repeal the grandfathering
provision for PM2.5 contained in the federal PSD program at
40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate
Policy applicable in states that have a SIP-approved PSD program. See
75 FR 6827. In support of this proposal, EPA explained that the
PM2.5 implementation issues that led to the adoption of the
PM10 Surrogate Policy in 1997 have been largely resolved to
a degree sufficient for sources and permitting authorities to conduct
meaningful permit-related PM2.5 analyses.
On May 18, 2011 (76 FR 28646), EPA took final action to repeal the
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi).
This final action ended the use of the 1997 PM10 Surrogate
Policy for PSD permits under the federal PSD program at 40 CFR 52.21.
In effect, any PSD permit applicant previously covered by the
grandfathering provision (for sources that completed and submitted a
permit application before July 15, 2008) \7\ that did not have a final
and effective PSD permit before the effective date of the repeal would
no longer be able to rely on the 1997 PM10 Surrogate Policy
to satisfy the PSD requirements for PM2.5 unless the
application included a valid surrogacy demonstration. See 76 FR 28646.
Alabama's May 2, 2011, SIP revision did not adopt the grandfathering
provision at 40 CFR 52.21(i)(1)(xi) in accordance with the repeal of
the PM2.5 grandfathering provision.
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\7\ Sources that applied for a PSD permit under the federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 PM10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 76 FR 28321.
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2. ``Condensable'' Provision
In the NSR PM2.5 Rule, EPA revised the definition of
``regulated NSR pollutant'' for PSD to add a paragraph providing that
``particulate matter (PM) emissions, PM2.5 emissions and
PM10 emissions'' shall include gaseous emissions from a
source or activity which condense to form particulate matter at ambient
temperatures and that on or after January 1, 2011, such condensable
particulate matter shall be accounted for in applicability
determinations and in establishing emissions limitations for PM,
PM2.5 and PM10 in permits. See 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset
Interpretative Ruling'' (40 CFR part 51, appendix S). A similar
paragraph added to the NNSR rule does not include ``particulate matter
(PM) emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
On March 16, 2012 (77 FR 15656), EPA proposed a rulemaking to amend
the definition of ``regulated NSR pollutant'' promulgated in the NSR
PM2.5 Rule regarding the PM condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset
Interpretative Ruling.\8\ The rulemaking proposes to remove the
inadvertent requirement in the NSR PM2.5 Rule that the
measurement of condensable ``particulate matter emissions'' be included
as part of the measurement and regulation of ``particulate matter
emissions.'' The term ``particulate matter emissions'' includes
particles that are larger than PM2.5 and PM10 and
is an indicator measured under various New Source Performance Standards
(NSPS) (40 CFR part 60).\9\ Alabama's May 2, 2011, SIP revision adopts
EPA's definition for regulated NSR pollutant for condensables (at 40
CFR 51.166(b)(49)(vi)), including the term ``particulate matter
emissions,'' as promulgated in the NSR PM2.5 Rule. EPA's
review of Alabama's May 2, 2011, SIP revision with regard to the NSR
PM2.5 Rule condensable provision is provided below in
Section II.E.
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\8\ The comment period for this proposed rulemaking ended May
15, 2012.
\9\ In addition to the NSPS for PM, it is noted that states
regulated ``particulate matter emissions'' for many years in their
SIPs for PM, and the same indicator has been used as a surrogate for
determining compliance with certain standards contained in 40 CFR
part 63, regarding National Emission Standards for Hazardous Air
Pollutants.
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D. PM2.5 PSD-Increment-SILs-SMC Rule

As mentioned above, EPA finalized the PM2.5 PSD
Increment-SILs-SMC Rule to provide additional regulatory requirements
under the PSD program regarding the implementation of the
PM2.5 NAAQS for NSR.\10\ Specifically, the rule establishes
the following to implement the PM2.5 NAAQS for the PSD
program: (1) PM2.5 increments pursuant to section 166(a) of
the CAA to prevent significant deterioration of air quality in areas
meeting the NAAQS; (2)

[[Page 46668]]

SILs used as a screening tool (by a major source subject to PSD) to
evaluate the impact a proposed major source or modification may have on
the NAAQS or PSD increment; and (3) a SMC, (also a screening tool) used
by a major source subject to PSD to determine the subsequent level of
data gathering required for a PSD permit application for emissions of
PM2.5.
---------------------------------------------------------------------------

\10\ EPA proposed approval of the PSD Increments-SILs-SMC Rule
on September 21, 2007 (72 FR 54112).
---------------------------------------------------------------------------

Alabama's May 2, 2011, SIP revision adopts the NSR changes
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be
consistent with the federal NSR regulations and to implement the
state's NSR program for the PM2.5 NAAQS. More detail on the
PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's
final rule (75 FR 64864, October 20, 2010) and is summarized below.
More details regarding Alabama's revision to its NSR regulations are
also summarized below in Section II.E.2.
1. What are PSD increments?
As established in part C of title I of the CAA, EPA's PSD program
protects public health from adverse effects of air pollution by
ensuring that construction of new or modified sources in attainment or
unclassifiable/attainment areas does not lead to significant
deterioration of air quality while simultaneously ensuring that
economic growth will occur in a manner consistent with preservation of
clean air resources. Under section 165(a)(3) of the CAA, a PSD permit
applicant must demonstrate that emissions from the proposed
construction and operation of a facility ``will not cause, or
contribute to, air pollution in excess of any maximum allowable
increase or allowable concentration for any pollutant.'' In other
words, when a source applies for a permit to emit a regulated pollutant
in an area that meets the NAAQS, the state and EPA must determine if
emissions of the regulated pollutant from the source will cause
significant deterioration in air quality. Significant deterioration
occurs when the amount of the new pollution exceeds the applicable PSD
increment, which is the ``maximum allowable increase'' of an air
pollutant allowed to occur above the applicable baseline concentration
\11\ for that pollutant. PSD increments prevent air quality in clean
areas from deteriorating to the level set by the NAAQS. Therefore an
increment is the mechanism used to estimate ``significant
deterioration'' of air quality for a pollutant in an area.
---------------------------------------------------------------------------

\11\ Section 169(4) of the CAA provides that the baseline
concentration of a pollutant for a particular baseline area is
generally the same air quality at the time of the first application
for a PSD permit in the area.
---------------------------------------------------------------------------

For PSD baseline purposes, a baseline area for a particular
pollutant emitted from a source includes the attainment or
unclassifiable/attainment area in which the source is located as well
as any other attainment or unclassifiable/attainment area in which the
source's emissions of that pollutant are projected (by air quality
modeling) to result in an ambient pollutant increase of at least 1
[mu]g/m\3\ (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's
existing regulations, the establishment of a baseline area for any PSD
increment results from the submission of the first complete PSD permit
application and is based on the location of the proposed source and its
emissions impact on the area. Once the baseline area is established,
subsequent PSD sources locating in that area need to consider that a
portion of the available increment may have already been consumed by
previous emissions increases. In general, the submittal date of the
first complete PSD permit application in a particular area is the
operative ``baseline date.'' \12\ On or before the date of the first
complete PSD application, emissions generally are considered to be part
of the baseline concentration, except for certain emissions from major
stationary sources. Most emissions increases that occur after the
baseline date will be counted toward the amount of increment consumed.
Similarly, emissions decreases after the baseline date restore or
expand the amount of increment that is available. See 75 FR 64864. As
described in the PM2.5 PSD Increment-SILs-SMC Rule, pursuant
to the authority under section 166(a) of the CAA, EPA promulgated
numerical increments for PM2.5 as a new pollutant \13\ for
which the NAAQS were established after August 7, 1977,\14\ and derived
24-hour and annual PM2.5 increments for the three area
classifications (Class I, II and III) using the ``contingent safe
harbor'' approach. See 75 FR 64864 (October 20, 2010) and table at 40
CFR 51.166(c)(1).
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\12\ Baseline dates are pollutant specific. That is, a complete
PSD application establishes the baseline date only for those
regulated NSR pollutants that are projected to be emitted in
significant amounts (as defined in the regulations) by the
applicant's new source or modification. Thus, an area may have
different baseline dates for different pollutants.
\13\ EPA generally characterized the PM2.5 NAAQS as a
NAAQS for a new indicator of PM. EPA did not replace the
PM10 NAAQs with the NAAQS for PM2.5 when the
PM2.5 NAAQS were promulgated in 1997. EPA rather retained
the annual and 24-hour NAAQS for PM2.5 as if
PM2.5 was a new pollutant even though EPA had already
developed air quality criteria for PM generally. See 75 FR 64864
(October 20, 2012).
\14\ EPA interprets 166(a) to authorize EPA to promulgate
pollutant-specific PSD regulations meeting the requirements of
section 166(c) and 166(d) for any pollutant for which EPA
promulgates a NAAQS after 1977.
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In addition to PSD increments for the PM2.5 NAAQS, the
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor
source baseline date'' (including trigger dates) to establish the
PM2.5 NAAQS specific dates associated with the
implementation of PM2.5 PSD increments (75 FR 64864, October
20, 2010). In accordance with section 166(b) of the CAA, EPA required
the states to submit revised implementation plans to EPA for approval
(to adopt the PM2.5 PSD increments) within 21 months from
promulgation of the final rule (by July 20, 2012). Each state was
responsible for determining how increment consumption and the setting
of the minor source baseline date for PM2.5 would occur
under its own PSD program. Regardless of when a State begins to require
PM2.5 increment analysis and how it chooses to set the
PM2.5 minor source baseline date, the emissions from sources
subject to PSD for PM2.5 for which construction commenced
after October 20, 2010, (major source baseline date) consume the
PM2.5 increment and should be included in the increment
analyses occurring after the minor source baseline date is established
for an area under the state's revised PSD program. As discussed in
detail in Section II.E.2, Alabama's May 2, 2011, SIP revision adopts
the PM2.5 increment permitting requirements promulgated in
the PM2.5 PSD Increment-SILs-SMC Rule.
2. What are SILs and SMCs?
EPA's PM2.5 PSD Increment-SILs-SMC Rule, also
established SILs and SMC for the PM2.5 NAAQS to address air
quality modeling and monitoring provisions for fine particle pollution
in areas protected by the PSD program (that is areas that are
designated attainment or unclassifiable/attainment for the NAAQS). The
SILs and SMC are numerical values that represent thresholds of
insignificant, i.e., de minimis, modeled source impacts or monitored
(ambient) concentrations, respectively. The de minimis principle is
grounded in a decision described by the court case Alabama Power Co. v.
Costle, 636 F.2d 323, 360 (D.C. Cir. 1980). In this case, reviewing
EPA's 1978 PSD regulations, the court recognized that ``there is likely
a basis for an implication of de minimis authority to provide exemption
when the burdens of regulation yield a gain of trivial or no value.''
636 F.2d at 360. See 75 FR 64864 (October 20, 2010). EPA

[[Page 46669]]

established such values for PM2.5 in the PM2.5
PSD Increment-SILs-SMC rule to be used as screening tools by a major
source subject to PSD to determine the subsequent level of analysis and
data gathering required for a PSD permit application for emissions of
PM2.5. As part of the response to comments on October 20,
2010, final rulemaking, EPA explained that the agency agrees that the
SILs and SMC used as de minimis thresholds for the various pollutants
are useful tools that enable permitting authorities and PSD applicants
to screen out ``insignificant'' activities; however, the fact remains
that these values are not required by the Act as part of an approvable
SIP program. EPA believes that most states are likely to adopt the SILs
and SMC because of the useful purpose they serve regardless of our
position that the values are not mandatory. Alternatively, states may
develop more stringent values if they desire to do so. In any case,
states are not under any SIP-related deadline for revising their PSD
programs to add these screening tools. See 75 FR 64864, 64900 (October
20, 2010). EPA is not proposing to approve the SILs provisions
promulgated in the PSD portion of the PM2.5 PSD Increment-
SILs-SMC Rule into the Alabama SIP PSD program in this rulemaking.
EPA's authority to implement the SILs and SMC for PSD purposes has been
challenged by the Sierra Club. See Sierra Club v. EPA, Case No. 10-1413
(D.C. Circuit Court).\15\ More details regarding Alabama's changes to
its NSR regulations are also summarized below in Section II.E.
---------------------------------------------------------------------------

\15\ On April 6, 2012, EPA filed a brief with the D.C. Circuit
court defending the Agency's authority to implement SILs and SMC for
PSD purposes.
---------------------------------------------------------------------------

a. Significant Impact Levels
SILs are numeric values derived by EPA that may be used to evaluate
the impact a proposed major source or modification may have on the
NAAQS or PSD increment. The primary purpose of the SILs is to identify
a level of ambient impact that is sufficiently low relative to the
NAAQS or increments that such impact can be considered insignificant or
de minimis. EPA's policy has been to allow the use of the SILs as de
minimis thresholds under the NSR programs at 40 CFR 51.165(b) and part
51, appendix S, to determine whether the predicted ambient impact
resulting from the emissions increase at a proposed major new
stationary source or modification is considered to cause or contribute
to a violation of the NAAQS. EPA has also allowed the SILs under the
PSD program to determine: (1) When a proposed source's ambient impacts
warrants a comprehensive (cumulative) source impact analysis \16\ and;
(2) the size of the impact area within which the air quality analysis
is completed (75 FR 64864, October 20, 2010).
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\16\ A cumulative analysis is a modeling analysis used to show
that the allowable emissions increase from the proposed source along
with other emission increases from existing sources, will not result
in a violation of either the NAAQS or increment.
---------------------------------------------------------------------------

In the PM2.5 PSD Increment-SILs-SMC Rule, EPA
established the SILs threshold which reflects the degree of ambient
impact on PM2.5 concentrations that can be considered de
minimis and would justify no further analysis or modeling of the air
quality impact of a source in combination with other sources in the
area because the source would not cause or contribute to an exceedance
of the PM2.5 NAAQS or the PM2.5 increments (75 FR
64864, October 20, 2010). The PM2.5 PSD Increment-SILs-SMC
Rule established SILs to evaluate the impact that a proposed new source
or modification may have on the PM2.5 NAAQS or increment.
When a proposed major new source or major modification of
PM2.5 projects (using air quality modeling) has an impact
less than the PM2.5 SILs, the proposed construction or
modification is considered to not have a significant air quality impact
and would not need to complete a cumulative impact analysis involving
an analysis of other sources in the area. Additionally, a source with a
de minimis ambient impact would not be considered to cause or
contribute to a violation of the PM2.5 NAAQS or increments.
The October 20, 2010, rule established the PM2.5 SILs at
EPA's existing NNSR regulations at 51.165(b) and the PSD regulations at
40 CFR 51.166(k)(2), 52.21(k)(2) and part 51, appendix S as optional
screening tools that became effective on December 20, 2010. Prior to
the October 20, 2010, rule, the concept of a SIL was not previously
incorporated into the PSD regulations. The regulations in 40 CFR
51.165(b) \17\ establish the minimum requirements for nonattainment NSR
programs in SIPs but apply specifically to major stationary sources and
major modifications located in attainment or unclassifiable/attainment
areas. See 40 CFR 51.165(b). Where a PSD source located in such areas
may have an impact on an adjacent nonattainment area, the PSD source
must still demonstrate that it will not cause or contribute to a
violation of the NAAQS in the adjacent area. Where emissions from a
proposed PSD source or modification would have an ambient impact in a
nonattainment area that would exceed the SILs, the source is considered
to cause or contribute to a violation of the NAAQS and may not be
issued a PSD permit without obtaining emissions reductions to
compensate for its impact. See 40 CFR 51.165(b)(2)-(3). Alabama's May
2, 2011, SIP submittal addresses the PM2.5 SILS thresholds
and provisions promulgated in the October 20, 2010, rule at 40 CFR
51.165(b)(2) and 51.166(k)(2). Further analysis of Alabama's submission
is explained below in Section II.E.2.
---------------------------------------------------------------------------

\17\ 40 CFR 51.165(b) require states to operate a
preconstruction review permit program for major stationary sources
that wish to locate in an attainment or unclassifiable area but
would cause or contribute to a violation of the NAAQS.
---------------------------------------------------------------------------

b. Significant Monitoring Concentrations
Under the CAA and EPA regulations, an applicant for a PSD permit is
required to gather preconstruction monitoring data in certain
circumstances. Section 165(a)(7) calls for ``such monitoring as may be
necessary to determine the effect which emissions from any such
facility may have, or is having, on air quality in any areas which may
be affected by emissions from such source.'' In addition, section
165(e) requires an analysis of the air quality in areas affected by a
proposed major facility or major modification and calls for gathering
one year of monitoring data unless the reviewing authority determines
that a complete and adequate analysis may be accomplished in a shorter
period. These requirements are codified in EPA's PSD regulations at 40
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline
for Air Quality Modeling (40 CFR part 51, Appendix W), the
preconstruction monitoring data is primarily used to determine
background concentrations in modeling conducted to demonstrate that the
proposed source or modification will not cause or contribute to a
violation of the NAAQS. See 40 CFR part 51, Appendix W, section 9.2.
SMC are numerical values that represent thresholds of insignificant,
i.e., de minimis, monitored (ambient) impacts on pollutant
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule,
EPA established a SMC of 4 [micro]g/m\3\ for PM2.5 to be
used as a screening tool by a major source subject to PSD to determine
the subsequent level of data gathering required for a PSD permit
application for emissions of PM2.5.
Using the SMC as a screening tool, sources may be able to
demonstrate that the modeled air quality impact of emissions from the
new source or

[[Page 46670]]

modification, or the existing air quality level in the area where the
source would construct, is less than the SMC, i.e., de minimis, and may
be allowed to forego the preconstruction monitoring requirement for a
particular pollutant at the discretion of the reviewing authority. See
75 FR 64864 (October 20, 2010) and 40 CFR 51.166(i)(5) and 52.21(i)(5).
As mentioned above, SMCs are not minimum required elements of an
approvable SIP under the CAA. This de minimis value is widely
considered to be a useful component for implementing the PSD program,
but is not absolutely necessary for the states to implement PSD
programs. States can satisfy the statutory requirements for a PSD
program by requiring each PSD applicant to submit air quality
monitoring data for PM2.5 without using de minimis
thresholds to exempt certain sources from such requirements. The SMC
became effective under the Federal PSD program on December 20, 2010.
However, states with EPA-approved PSD programs that adopt the SMC for
PM2.5 may use the SMC, once it is part of an approved SIP,
to determine when it may be appropriate to exempt a particular major
stationary source or major modification from the monitoring
requirements under its State PSD program. Alabama's May 2, 2011, SIP
revision adopts the SMC threshold into the Alabama SIP. More detail on
Alabama's SIP is discussed below in Section II.E.2
c. SILs-SMC Litigation
Recently, the Sierra Club filed suit challenging EPA's authority to
promulgate the PM2.5 SILs and SMC for PSD purposes as
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule. Sierra
Club v. EPA, Case No. 10-1413 (D.C. Circuit Court). Specifically,
Sierra Club claims that the SILs and SMC screening tools adopted in the
October 20, 2010, rule are inconsistent with the CAA and EPA's de
minimis authority.\18\ See Sierra Club v. EPA, Case No. 10-1413 (D.C.
Circuit). EPA responded to Sierra Club's claims in a Brief dated April
6, 2012, which described the Agency's authority to develop and
promulgate SILs and SMC.\19\ A copy of EPA's April 6, 2012, Brief can
be found in the docket for today's rulemaking at www.regulations.gov
using docket ID: EPA-R04-OAR-2012-0079.
---------------------------------------------------------------------------

\18\ EPA interprets section 165(a)(3) of the CAA to allow the
use of significance levels as a means to demonstrate that a source
will not cause or contribute to any violation of the NAAQS or
increments. The terms ``cause or contribute to'' and ``demonstrate''
are ambiguous and EPA reasonably interprets the statue to allow
sources that do not contribute significantly to ambient air
concentrations of PM2.5 to demonstrate compliance through
modeling of the source's impact measured against the SILs.
\19\ Additional information on this issue can also be found in
an April 25, 2010, comment letter from EPA Region 6 to the Louisiana
Department of Environmental Quality regarding the SILs-SMC
litigation. A copy of this letter can be found in the docket for
today's rulemaking at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0079.
---------------------------------------------------------------------------

E. What is EPA's analysis of Alabama's SIP revision adopting NSR PM2.5
implementation provisions?

Alabama currently has a SIP-approved NSR program for new and
modified stationary sources found at Chapter 335-3-14. ADEM's PSD
preconstruction regulations are found at Rule 335-3-14-.04--Air Permits
Authorizing Construction in Clean Air Areas (Prevention of Significant
Deterioration (PSD)) and apply to major stationary sources or
modifications constructed in areas designated attainment or
unclassifiable/attainment as required under part C of title I of the
CAA with respect to the NAAQS.\20\ Additionally, rule 335-3-14-.03
establishes general standards for granting permits in the state. ADEM's
May 2, 2011, changes to Chapter 335-3-14 were submitted to adopt into
the State's NSR permitting program PSD provisions promulgated in the
NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC rule. These changes to Alabama's regulations became state effective
on May 23, 2011. EPA is proposing to approve the changes at rule 335-3-
14-.03 and .04 into the Alabama SIP to be consistent with federal NSR
regulations (at 40 CFR 51.166 and 52.21) and the CAA. As mentioned
earlier, EPA anticipates taking action on the May 2, 2011, SIP revision
NNSR amendments in a separate rulemaking.
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\20\ ADEM's Rule 335-3-14-.05--Air Permits Authorizing
Construction in or Near Non-Attainment Areas applies to major
stationary sources or modifications constructed in areas designated
nonattainment as required under part D of title I of the CAA with
respect to the NAAQS. However, in today's rulemaking, EPA is only
proposing to take action on the PSD provision and will take action
on the NNSR changes in a separate action.
---------------------------------------------------------------------------

1. NSR PM2.5 Implementation Rule
Alabama's May 2, 2011, SIP revision establishes that the State's
existing NSR permitting program requirements for PSD apply to the
PM2.5 NAAQS and its precursors. Specifically, the SIP
revision adopts the following NSR PM2.5 Rule PSD provisions
into the Alabama SIP: (1) The requirement for NSR permits to address
directly emitted PM2.5 and precursor pollutants; (2)
significant emission rates for direct PM2.5 and precursor
pollutants (SO2 and NOX) and (3) the requirement
that conde dinsable PM be addressed in enforceable PM10 and
PM2.5 emission limits included in PSD permits. The May 2,
2011, SIP revision changes (1) establish that the State's NSR
permitting program requirements for PSD apply to the PM2.5
NAAQS and its precursors; (2) recognize PM2.5 precursors at
335-3-14-.04(2)(b) and 335-3-14-.04(2)(w) (as amended at 40 CFR
51.166(b)(23)(i)); (3) sets significant emission rates for both direct
PM2.5 and PM2.5 precursors for major
modifications at existing sources at 335-3-14-.04(2)(w) (as amended at
51.166(b)(23)(i)); and (4) adopt the requirement that condensable
PM10 and PM2.5 emissions be accounted for in PSD
applicability determinations and in establishing emissions limitations
for PM at 353-14-.04(2)(ww)(5) (as amended at 40 CFR 51.166(b)(49)).
As mentioned above, Alabama's May 2, 2011, SIP revision also adopts
into the State's NSR regulations the requirement to address condensable
PM in making applicability determinations and in establishing
enforceable emission limits in PSD permits, as required under the NSR
PM2.5 Rule. As discussed in Section II.C.2, under a separate
action, EPA has proposed to correct the inadvertent inclusion of
``particulate matter emissions'' in the definition of ``regulated NSR
pollutant'' as an indicator for which condensable emissions must be
addressed (77 FR 75656, March 16, 2012). Further, on June 18, 2012, the
State of Alabama provided a letter to EPA clarifying the State's intent
in light of EPA's March 16, 2012, proposed rulemaking. A copy of this
letter can be found in the docket for today's rulemaking at
www.regulations.gov using docket ID: EPA-R04-OAR-2012-0079.
Specifically, Alabama requested that EPA not approve the term
``particulate matter emissions'' (at rule 335-3-14-.04(ww)(5)
and.05(ww)(2)) as part of the definition for ``regulated NSR
pollutant'' regarding the inclusion of condensable emissions in
applicability determinations and in establishing emissions limitations
for PM. Therefore, given the State's request and EPA's intention to
amend the definition of ``regulated NSR pollutant,'' EPA is not
proposing action to approve the terminology ``particulate matter
emissions'' into the PSD regulations of the Alabama SIP for the
condensable provision in the definition of ``regulated NSR pollutant.''
EPA is, however, proposing to approve into the Alabama SIP at 335-3-
14-.04(ww)(5) the remaining condensable requirement at 40 CFR
51.166(b)(49)(vi), which requires

[[Page 46671]]

that condensable emissions be accounted for in applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10. Alabama's condensable provision
will be consistent with the federal rule once EPA finalizes the March
16, 2012, rulemaking. EPA's May 18, 2011 (76 FR 28646), final
rulemaking repealed the PM10 ``grandfathering'' provision,
as noted in Section II.C above. Alabama's May 2, 2011, SIP revision
does not address 40 CFR 52.21(i)(1)(ix) promulgated in the NSR
PM2.5 Rule and is in accordance with the repeal of the
PM2.5 grandfathering provision. EPA has preliminarily
determined that Alabama's May 2, 2011, SIP revision is consistent with
the NSR PM2.5 Rule for PSD and section 110 of the CAA. See
73 FR 28321 (May 16, 2008).
2. PM2.5 PSD Increment-SILs-SMC Rule Provisions
Alabama's May 2, 2011, SIP revision adopts, into the Alabama SIP,
at Chapter 335-3-14 the following PSD provisions promulgated in the
PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for
PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of
the CAA; (2) SILs to be used as a screening tool to evaluate the impact
a proposed major source or modification may have on the NAAQS or PSD
increment; and (3) SMC, also used as a screening tool, to determine the
level of data gathering required of a major source in support of its
PSD permit application for PM2.5 emissions.
Specifically, regarding the PSD increments, the SIP revision
changes include: (1) The PM2.5 increments as promulgated in
at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances) and (2)
amendments to the terms ``major source baseline date'' (at 40 CFR
51.166(b)(14)(i)(c)) and 52.21(b)(14)(i)(c)), ``minor source baseline
date''(including establishment of the ``trigger date'') and ``baseline
area'' (as amended at 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i)).
These changes provide for the implementation of the PM2.5
PSD increments for the PM2.5 NAAQS in the state's PSD
program. In today's action, EPA is proposing to approve Alabama's May
2, 2011, SIP revision provisions to address the PM2.5 PSD
increment provisions promulgated in the PM2.5 PSD Increments
SILs-SMC Rule.
Regarding the SILs and SMC established in the October 20, 2010,
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has
challenged EPA's authority to implement SILs and SMC. In a brief filed
in the D.C. Circuit on April 6, 2012, EPA described the Agency's
authority under the CAA to promulgate and implement the SMC and SILs de
minimis thresholds. With respect to the SMCs, Alabama's SIP revision
includes the SMC of 4 [mu]g/m\3\ for PM2.5 NAAQS at rule
335-3-14.04(8)(h) that was added to the existing monitoring exemption
at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). EPA is proposing to
approve the PM2.5 SMC into the Alabama SIP as EPA believes
the use of the SMC is a valid exercise of the Agency's de minimis
authority. Furthermore, Alabama's May 2, 2011, SIP revision is
consistent with EPA's current promulgated provisions in the October 20,
2010, rule. However, EPA notes that future Court action may require
subsequent rule revisions and SIP revisions from Alabama.
Alabama's SIP revision to adopt the new PSD requirements for
PM2.5 pursuant to the PM2.5 PSD Increment-SILs-
SMC Rule also includes the new regulatory text at 40 CFR 51.166(k)(2)
and 52.21(k)(2), concerning the implementation of SILs for
PM2.5. EPA stated in the preamble to the PM2.5
PSD Increment-SILs-SMC Rule that we do not consider the SILs to be a
mandatory SIP element, but regard them as discretionary on the part of
regulating authority for use in the PSD permitting process.
Nevertheless, as mentioned above, the PM2.5 SILs are
currently the subject of litigation before the U.S. Court of Appeals.
(Sierra Club v. EPA, Case No 10-1413, D.C. Circuit). In response to
that litigation, EPA has requested that the Court remand and vacate the
regulatory text in the EPA's PSD regulations at paragraph (k)(2) so
that EPA can make necessary rulemaking revisions to that text. In light
of EPA's request for remand and vacatur and the agency's
acknowledgement of the need to revise the regulatory text presently
contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does
not believe that it is appropriate at this time to approve that portion
of the State's implementation plan revision that contains the affected
regulatory text in the State's PSD regulations, at rule 335-3-14-
04(10)(b). Instead, EPA is taking no action at this time with regard to
these specific provisions contained in the SIP revision. EPA
anticipates taking action on the SILs portion of Alabama's May 2, 2011,
SIP revision in a separate rulemaking once the issue regarding the
court case has been resolved.
The PM2.5 PSD Increment-SILs-SMC rule promulgated
PM2.5 SILs thresholds in the NNSR regulations at 40 CFR
51.165(b)(2). Alabama's May 2, 2011 submission also adopts the
PM2.5 SILs thresholds in their general permits provisions at
rule 335-3-14-.03(1)(g) \21\ to be consistent with amendments to 40 CFR
51.165(b) in the PM2.5 PSD Increment-SILs-SMC Rule. In light
of the fact that EPA did not request the court to remand and vacate
language at 51.165(b) and the agency has explained its authority to
develop and promulgate SILs in the brief filed with the D.C. Circuit
Court concerning the litigation, EPA is proposing to approve Alabama's
adoption of the PM2.5 SILs thresholds at 335-3-14-.03(1)(g).
EPA notes, however, that the SILs-SMC litigation is ongoing and
therefore future Court action may require subsequent rule revisions and
SIP submittals from the State of Alabama.
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\21\ The provisions at 335-3-14-.03(1)(g) are consistent with
SILs provisions at 40 CFR 51.165(b).
---------------------------------------------------------------------------

The aforementioned amendments to Alabama's SIP provide the
framework for implementation of PM2.5 NAAQS in the states
NSR permitting. Based on review and consideration of Alabama's May 2,
2011, SIP revision, EPA has made the preliminary determination to
approve the aforementioned PSD permitting provisions promulgated in the
NSR PM2.5 Rule and PM2.5 PSD Increment-SILs-SMC
Rule into the Alabama SIP to implement the NSR program for the
PM2.5 NAAQS.

III. What is EPA's proposed action for changes to Alabama's general and
transportation conformity regulations?

In addition to the adoption of NSR federal regulations mentioned
above, Alabama's SIP revision updates the State's General Conformity
regulations at Chapter 335-3-17--Conformity of Federal Actions to State
Implementation Plans to be consistent with recent updates to federal
General Conformity regulations promulgated on April 5, 2010 (75 FR
17254). Alabama's Conformity regulations at 335-3-17 include
Transportation Conformity rules at 335-3-17.01 and General Conformity
rules at 335-3-17.02. Pursuant to section 176(c) of the CAA, General
Conformity ensures that federal actions comply with the NAAQS. In order
to meet this CAA requirement, a federal agency must demonstrate that
every action that it undertakes, approves, permits or supports will
conform to the appropriate State, Tribal or Federal Implementation
Plan.\22\ Alabama IBR

[[Page 46672]]

the federal General Conformity regulations at 40 CFR 93, Subpart B.
Particularly, Alabama's May 2, 2011, SIP submission updates the IBR
date at 335-3-17.02 to July 1, 2010, to be consistent with federal
General Conformity rules (as promulgated on April 5, 2010) and updates
its Transportation Conformity SIP at 335-3-17-.01 effective May 23,
2011, to include EPA's transportation conformity rule updates regarding
implementation of the PM2.5 and PM10
nonattainment and maintenance areas. EPA has preliminarily determined
that Alabama's May 2, 2011, updates to Alabama's general and
transportation Conformity regulations are consistent with CAA and EPA's
regulations governing conformity.
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\22\ In November 1993, EPA promulgated two sets of regulations
to implement section 176(c). First, on November 24, EPA promulgated
the Transportation Conformity Regulations (applicable to highways
and mass transit) to establish the criteria and procedures for
determining that transportation plans, programs, and projects which
are funded under title 23 U.S.C. or the Federal Transit Act conform
with the SIP. See 58 FR 62188. On November 30, 1993, EPA promulgated
regulations, known as the General Conformity Regulations (applicable
to everything else), to ensure that other federal actions also
conformed to the SIPs. See 58 FR 63214).
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IV. Proposed Action

EPA is proposing to approve portions of Alabama's May 2, 2011, SIP
revision adopting federal regulations amended in the May 16, 2008, NSR
PM2.5 Rule; the October 20, 2010, PM2.5 PSD
Increment-SILs-SMC rule; and updates to the State's general and
transportation conformity regulations into the Alabama SIP with the
exception of the provisions listed in Section I. EPA has made the
preliminary determination that this SIP revision, with regard to
aforementioned proposed actions, is approvable because it is consistent
with section 110 of the CAA and EPA regulations regarding NSR
permitting and conformity.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed 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 proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the
SIP is not approved to apply in Indian country located in the State,
and EPA notes that it will not impose substantial direct costs on
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen oxides, Particulate
matter, Reporting and recordkeeping requirements.

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

Dated: July 20, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-19048 Filed 8-3-12; 8:45 am]
BILLING CODE 6560-50-P

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