Air Plan Approval; Alabama: Nonattainment New Source Review, 1124-1127 [2015-33197]
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Federal Register / Vol. 81, No. 6 / Monday, January 11, 2016 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2012–0079; FRL–9940–89–
Region 4]
Air Plan Approval; Alabama:
Nonattainment New Source Review
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve portions of a revision to the
Alabama State Implementation Plan
(SIP) submitted by the Alabama
Department of Environmental
Management (ADEM) to EPA on May 2,
2011. The SIP revision modifies
Alabama’s nonattainment new source
review (NNSR) regulations in their
entirety to be consistent with the federal
new source review (NSR) regulations for
the implementation of the criteria
pollutant national ambient air quality
standards (NAAQS). EPA is approving
portions of the NNSR rule changes in
Alabama’s May 2, 2011, SIP revision
because the Agency has determined that
the changes are consistent with the
Clean Air Act (CAA or Act) and federal
regulations regarding NNSR permitting.
DATES: This rule will be effective
February 10, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2012–0079. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday 8:30 a.m. to
4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: For
information regarding the Alabama SIP,
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SUMMARY:
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contact Mr. D. Brad Akers, Air
Regulatory Management Section, Air
Planning and Implementation Branch,
Pesticides and Toxics Management
Division, Region 4, U.S. Environmental
Protection Agency, 61 Forsyth Street
SW., Atlanta, Georgia 30303–8960. Mr.
Akers can be reached by telephone at
(404) 562–9089 or via electronic mail at
akers.brad@epa.gov. For information
regarding NSR, contact Ms. Yolanda
Adams, Air Permits Section, at the same
address above. Telephone number: (404)
562–9214; email address:
adams.yolanda@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA is taking final action to approve
the portion of Alabama’s May 2, 2011,
SIP revision that makes changes to
Alabama’s NNSR program, set forth at
ADEM Administrative Code, Division 3,
Chapter 14, Subchapter .05 (ADEM Rule
335–3–14–.05), which applies to the
construction and modification of any
major stationary source in or near a
nonattainment area (NAA) as required
by part D of title I of the CAA.
Alabama’s NNSR regulations at ADEM
Rule 335–3–14–.05 were originally
approved into the SIP on November 26,
1979 (see 44 FR 67375), with periodic
revisions approved through December 8,
2000 (see 65 FR 76938). Alabama’s May
2, 2011, SIP revision modifies the
State’s NNSR regulations in their
entirety 1 with a new version that
reflects changes to the federal NNSR
regulations at 40 Code of Federal
Regulations (CFR) 51.165,2 including
provisions promulgated in the following
federal rules: (1) ‘‘Requirements for
Preparation, Adoption and Submittal of
Implementation Plans; Approval and
Promulgation of Implementation Plans;
Standards of Performance for New
Stationary Sources,’’ Final Rule, 57 FR
32314 (July 21, 1992) (hereafter referred
to as the Wisconsin Electric Power
1 Some portions of the 2011 version of the
regulations now being approved were previously
approved by EPA. These portions remain the same
in substance but may have undergone
administrative updates and renumbering in the
2011 version.
2 EPA’s regulations governing the implementation
of NSR permitting programs are contained in 40
CFR 51.160–51.166; 52.21, 52.24; and part 51,
appendix S. The CAA NSR program is composed
of three separate programs: PSD, NNSR, and Minor
NSR. PSD is established in part C of title I of the
CAA and applies in areas that meet the NAAQS—
‘‘attainment areas’’—as well as areas where there is
insufficient information to determine if the area
meets the NAAQS—‘‘unclassifiable areas.’’ The
NNSR program is established in part D of title I of
the CAA and applies in areas that are not in
attainment of the NAAQS—‘‘nonattainment areas.’’
The Minor NSR program addresses construction or
modification activities that do not qualify as
‘‘major’’ and applies regardless of the designation
of the area in which a source is located. Together,
these programs are referred to as the NSR programs.
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Company (WEPCO) Rule); (2)
‘‘Prevention of Significant Deterioration
(PSD) and Nonattainment New Source
Review (NSR): Baseline Emissions
Determination, Actual-to-Future-Actual
Methodology, Plantwide Applicability
Limitations, Clean Units, Pollution
Control Projects,’’ Final Rule, 67 FR
80186 (December 31, 2002) (hereafter
referred to as the NSR Reform Rule); (3)
‘‘Prevention of Significant Deterioration
(PSD) and Non-Attainment New Source
Review (NSR): Reconsideration,’’ Final
Rule, 68 FR 63021 (November 7, 2003)
(hereafter referred to as the
Reconsideration Rule); (4) ‘‘Prevention
of Significant Deterioration (PSD) and
Non-Attainment New Source Review
(NSR): Removal of Vacated Elements,’’
Final Rule, 72 FR 32526 (June 13, 2007)
(hereafter referred to as the Vacated
Elements Rule); (4) ‘‘Prevention of
Significant Deterioration and
Nonattainment New Source Review:
Reasonable Possibility in
Recordkeeping,’’ Final Rule, 72 FR
72607 (December 21, 2007), (hereafter
referred to as the Reasonable Possibility
Rule); (5) ‘‘Final Rule To Implement the
8-Hour Ozone National Ambient Air
Quality Standard—Phase 2; Final Rule
To Implement Certain Aspects of the
1990 Amendments Relating to New
Source Review and Prevention of
Significant Deterioration as They Apply
in Carbon Monoxide, Particulate Matter
and Ozone NAAQS; Final Rule for
Reformulated Gasoline,’’ Final Rule, 70
FR 71612 (November 29, 2005)
(hereafter referred to as the Phase 2
Rule); (6) ‘‘Implementation of the New
Source Review (NSR) Program for
Particulate Matter Less Than 2.5
Micrometers (PM2.5),’’ Final Rule, 73 FR
28321 (May 16, 2008) (hereafter referred
to as the NSR PM2.5 Rule); (7)
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than
2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC),’’ Final Rule, 75 FR 64864
(October 20, 2010) (hereafter referred to
as the PM2.5 PSD Increments-SILs-SMC
Rule 3); and (8) ‘‘Prevention of
Significant Deterioration (PSD) and
Nonattainment New Source Review
(NSR): Reconsideration of Inclusion of
Fugitive Emissions; Interim Rule; Stay
and Revisions’’, Interim Rule, 76 FR
17548 (March 30, 2011) (hereafter
referred to as the Fugitive Emissions
Interim Rule).
3 The D.C. Circuit vacated the portions of the
PM2.5 PSD Increment-SILs-SMC Rule addressing the
SMC and SILs (and remanded the SILs portion to
EPA for further consideration) for PSD, but left the
PM2.5 SILs in place for the NSR program in the table
in § 51.165(b)(2). See Sierra Club v. EPA, 705 F.3d
458 (D.C. Cir. 2013).
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EPA is not, however, approving into
the Alabama SIP the portion of ADEM
Rule 335–3–14–.05(1)(k) stating
‘‘excluding ethanol production facilities
that produce ethanol by natural
fermentation,’’ which Alabama
promulgated pursuant to the federal rule
entitled ‘‘Prevention of Significant
Deterioration, Nonattainment New
Source Review, and Title V: Treatment
of Certain Ethanol Production Facilities
Under the ‘Major Emitting Facility’
Definition,’’ Final Rule, 72 FR 24060
(May 1, 2007) (or the Ethanol Rule).4
EPA is also not acting on the provision
at Rule 335–3–14–.05(2)(c)3 that
excludes fugitive emissions from the
determinion of creditable emission
increases and decreases.5 Finally, EPA
is not acting on changes to ADEM’s
rules regarding the PM2.5 significant
impact levels (SILs) for PSD at Rule
335–3–14–.04(8)(h)1., the NNSR
interpollutant offset ratios at ADEM
Rule 335–3–14–.05(3)(g)1–4 and the
sentence including those ratios which
states ‘‘Interpollutant offsets shall be
determined based upon the following
ratios,’’ or the ‘‘actual-to-potential’’
NNSR applicability test at ADEM Rule
335–3–14–.05(1)(h), all of which ADEM
withdrew from EPA’s consideration
subsequent to the May 2, 2011
submittal.6
On September 1, 2015, EPA published
a proposed rulemaking to approve the
aforementioned changes to the Alabama
NNSR program at ADEM Rule 335–3–
14–.05. See 80 FR 52701. Comments on
4 Alabama’s changes to its NNSR regulations (at
335–3–14–.05(1)(k)) exclude ‘‘chemical process
plants’’ that produce ethanol through a natural
fermentation process from the NSR major source
permitting requirement as promulgated in the
Ethanol Rule (as amended at 40 CFR 51.165). See
72 FR 24060 (May 1, 2007). However, due to a
petition by Natural Resources Defense Council to
reconsider the rule, EPA is not proposing to take
action to approve this provision into the Alabama
SIP at this time. Pending final resolution, EPA will
make a final determination on action regarding this
portion of Alabama’s SIP revision.
5 The provision in question was originally
approved into the CFR in the December 19, 2008
(73 FR 77882) final rule concerning the treatment
of fugitive emissions for the purposes of NSR
applicability. On April 24, 2009, EPA agreed to
reconsider the approach to handling fugitive
emissions and granted a 3-month administrative
stay of the December 19, 2008 rule. After several
stays, this provision was stayed indefinitely in the
March 30, 2011 (76 FR 17548) Fugitive Emissions
Interim Rule, pending a final reconsideration from
EPA. For more information on fugitive emissions in
NSR, see the September 1, 2015 proposed
rulemaking (80 FR 52701) or refer to the Docket for
this rulemaking.
6 For more information on the withdrawal of
these elements from the initial May 2, 2011,
submittal, see the September 1, 2015, proposed
rulemaking (80 FR 52701) or refer to the Docket for
this rulemaking.
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the proposed rulemaking were due on or
before October 1, 2015. No comments,
adverse or otherwise, were received on
EPA’s September 1, 2015, proposed
rulemaking. Pursuant to section 110 of
the CAA, EPA is now taking final action
to approve the changes to Alabama’s
NNSR program as provided in the
September 1, 2015, proposed
rulemaking. The proposed rulemaking
contains more detailed information
regarding Alabama’s SIP revision being
approved today, and the rationale for
this final action. More detailed
information on the NNSR program can
be found in the September 1, 2015,
proposed rulemaking as well as the
aforementioned final rulemakings.
II. This Action
Alabama currently has a SIP-approved
NSR program for new and modified
stationary sources found in ADEM
regulations at Chapter 335–3–14.
ADEM’s NNSR preconstruction
regulations are found at Chapter 335–3–
14–.05 and apply to major stationary
sources or modifications constructed in
or impacting upon a nonattainment area
as required under part D of title I of the
CAA with respect to the NAAQS. The
changes to Chapter 335–3–14–.05 that
EPA is now approving into the SIP were
provided to update the existing
provisions to be consistent with the
current federal NNSR rules, including
the WEPCO Rule, 2002 NSR Reform
Rule (and associated Reconsideration
Rule and Vacated Elements Rule), Phase
2 Rule, NSR PM2.5 Rule, PM2.5 PSDIncrement-SILs-SMC Rule, and Fugitive
Emissions Interim Rule. These changes
to ADEM’s regulations became state
effective on May 23, 2011.
III. Incorporation by Reference
In this rule, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation
by reference of portions of ADEM
Regulation Chapter 335–3–14–.05
entitled ‘‘Air Permits Authorizing
Construction in or Near Non-Attainment
Areas,’’ effective May 23, 2011, with
revisions and additions to applicability,
definitions, permitting requirements,
offset rules, area classifications, air
quality models, control technology
review, air quality monitoring, source
information, source obligation,
innovative control technology, and
actuals plantwide applicability limits,
and with administrative changes
throughout. EPA has made, and will
continue to make, these documents
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1125
generally available electronically
through www.regulations.gov and/or in
hard copy at the EPA Region 4 office
(see the ADDRESSES section of this
preamble for more information).
IV. Final Action
EPA is taking final action to approve
the portions of Alabama’s May 2, 2011,
submission that make changes to
Alabama’s SIP-approved NNSR
regulations set forth at ADEM Rule 335–
3–14–.05, with the exceptions noted
above. ADEM submitted the proposed
changes to its NNSR SIP to be consistent
with amendments to the federal
regulations made by the WEPCO Rule,
the 2002 NSR Reform Rule (and
associated Reconsideration Rule and
Vacated Elements Rule), Phase 2 Rule,
NSR PM2.5 Rule, PM2.5 PSD IncrementSILs-SMC Rule, and the Fugitive
Emissions Interim Rule. The Agency is
approving these changes to the Alabama
SIP because they are consistent with
section 110 of the CAA and EPA
regulations.
V. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
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Federal Register / Vol. 81, No. 6 / Monday, January 11, 2016 / Rules and Regulations
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
enforce its requirements. See section
307(b)(2).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Nitrogen oxides, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: December 18, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by March 11, 2016. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
Authority: 42 U.S.C. 7401 et seq.
Subpart B—Alabama
2. Section 52.50(c) is amended under
Chapter 335–3–14 by revising the entry
for ‘‘Section 335–3–14–.05’’ to read as
follows:
■
§ 52.50
*
Identification of plan.
*
*
(c) * * *
*
*
EPA-APPROVED ALABAMA REGULATIONS
State citation
State
effective
date
Title/subject
*
*
EPA approval date
*
*
*
Chapter No. 335–3–14
*
Section 335–3–14–.05 ...
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*
*
*
*
*
Air Permits Authorizing
Construction in or
Near Nonattainment
Areas.
*
*
*
5/23/2011
Explanation
*
*
*
With the exception of: The portion of 335–3–14–
.05(1)(k) stating ‘‘excluding ethanol production
facilities that produce ethanol by natural fermentation’’; and 335–3–14–.05(2)(c)3 (addressing fugitive emission increases and decreases). Also with the exception of the statewithdrawn elements: 335–3–14–.05(1)(h) (the
actual-to-potential test for projects that only involve existing emissions units); the last sentence at 335–3–14–.05(3)(g), stating ‘‘Interpollutant offsets shall be determined based
upon the following ratios’’; and the NNSR
interpollutant ratios at 335–3–14–.05(3)(g)1–4.
*
*
*
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Air Permits
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Federal Register / Vol. 81, No. 6 / Monday, January 11, 2016 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2013–0388; FRL–9940–86–
Region 6]
Approval and Promulgation of
Implementation Plans; Infrastructure
and Interstate Transport State
Implementation Plan for the 2010
Sulfur Dioxide National Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving elements of
a State Implementation Plan (SIP)
submission from the State of Texas for
the Sulfur Dioxide (SO2) National
Ambient Air Quality Standards
(NAAQS). The submittal addresses how
the existing SIP provides for
implementation, maintenance, and
enforcement of the 2010 SO2 NAAQS
(infrastructure SIP or i-SIP). This i-SIP
ensures that the State’s SIP is adequate
to meet the state’s responsibilities under
the Federal Clean Air Act (CAA).
DATES: This final rule is effective on
February 10, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R06–OAR–2013–0388. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
EPA Region 6, 1445 Ross Avenue, Suite
700, Dallas, Texas 75202–2733.
FOR FURTHER INFORMATION CONTACT:
Nevine Salem, 214–665–7222,
salem.nevine@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
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SUMMARY:
I. Background
The background for this action is
discussed in detail in our October 6,
2015 proposal (80 FR 60314). In that
document, we proposed to approve
portions of the SIP submittal from the
State of Texas adopted on April 23,
2013, and submitted on May 6, 2013.
The submittal addresses how the
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existing SIP provides for
implementation, maintenance, and
enforcement of the 2010 SO2 NAAQS.
This i-SIP ensures that the State’s SIP is
adequate to meet the state’s
responsibilities under the CAA. We did
not receive any comments regarding our
proposal.
II. Final Action
EPA is approving portions of the May
6, 2013, infrastructure SIP submission
from Texas, which addresses the
requirements of CAA sections 110(a)(1)
and (2) as applicable to the 2010 SO2
NAAQS. Specifically, EPA is approving
the following infrastructure elements, or
portions thereof: 110(a)(2)(A), (B), (C),
(D)(i)(II) (PSD portion), D(ii), (E), (F),
(G), (H), (J), (K), (L), and (M). EPA is not
taking action on: The portion pertaining
to section 110(a)(2)(D)(i)(I), which
concerns interstate pollution transport
affecting attainment and maintenance of
the NAAQS and the portion pertaining
to section 110(a)(2)(D)(i)(II) pertaining to
visibility protection.
III. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• 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
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1127
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 Clean Air Act;
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, the SIP is not approved to
apply on any Indian reservation land or
in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by March 11, 2016.
Filing a petition for reconsideration by
the Administrator of this final rule does
not affect the finality of this action for
the purposed of judicial review nor does
it extend the time within which a
petition for judicial review may be filed,
and shall not postpone the effectiveness
of such rule or action. This action may
not be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
E:\FR\FM\11JAR1.SGM
11JAR1
]]>Agencies
[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Rules and Regulations]
[Pages 1124-1127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33197]
[[Page 1124]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0079; FRL-9940-89-Region 4]
Air Plan Approval; Alabama: Nonattainment New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve portions of a revision to the Alabama State
Implementation Plan (SIP) submitted by the Alabama Department of
Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision
modifies Alabama's nonattainment new source review (NNSR) regulations
in their entirety to be consistent with the federal new source review
(NSR) regulations for the implementation of the criteria pollutant
national ambient air quality standards (NAAQS). EPA is approving
portions of the NNSR rule changes in Alabama's May 2, 2011, SIP
revision because the Agency has determined that the changes are
consistent with the Clean Air Act (CAA or Act) and federal regulations
regarding NNSR permitting.
DATES: This rule will be effective February 10, 2016.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0079. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama
SIP, contact Mr. D. Brad Akers, Air Regulatory Management Section, Air
Planning and Implementation Branch, Pesticides and Toxics Management
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached by
telephone at (404) 562-9089 or via electronic mail at
akers.brad@epa.gov. For information regarding NSR, contact Ms. Yolanda
Adams, Air Permits Section, at the same address above. Telephone
number: (404) 562-9214; email address: adams.yolanda@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA is taking final action to approve the portion of Alabama's May
2, 2011, SIP revision that makes changes to Alabama's NNSR program, set
forth at ADEM Administrative Code, Division 3, Chapter 14, Subchapter
.05 (ADEM Rule 335-3-14-.05), which applies to the construction and
modification of any major stationary source in or near a nonattainment
area (NAA) as required by part D of title I of the CAA. Alabama's NNSR
regulations at ADEM Rule 335-3-14-.05 were originally approved into the
SIP on November 26, 1979 (see 44 FR 67375), with periodic revisions
approved through December 8, 2000 (see 65 FR 76938). Alabama's May 2,
2011, SIP revision modifies the State's NNSR regulations in their
entirety \1\ with a new version that reflects changes to the federal
NNSR regulations at 40 Code of Federal Regulations (CFR) 51.165,\2\
including provisions promulgated in the following federal rules: (1)
``Requirements for Preparation, Adoption and Submittal of
Implementation Plans; Approval and Promulgation of Implementation
Plans; Standards of Performance for New Stationary Sources,'' Final
Rule, 57 FR 32314 (July 21, 1992) (hereafter referred to as the
Wisconsin Electric Power Company (WEPCO) Rule); (2) ``Prevention of
Significant Deterioration (PSD) and Nonattainment New Source Review
(NSR): Baseline Emissions Determination, Actual-to-Future-Actual
Methodology, Plantwide Applicability Limitations, Clean Units,
Pollution Control Projects,'' Final Rule, 67 FR 80186 (December 31,
2002) (hereafter referred to as the NSR Reform Rule); (3) ``Prevention
of Significant Deterioration (PSD) and Non-Attainment New Source Review
(NSR): Reconsideration,'' Final Rule, 68 FR 63021 (November 7, 2003)
(hereafter referred to as the Reconsideration Rule); (4) ``Prevention
of Significant Deterioration (PSD) and Non-Attainment New Source Review
(NSR): Removal of Vacated Elements,'' Final Rule, 72 FR 32526 (June 13,
2007) (hereafter referred to as the Vacated Elements Rule); (4)
``Prevention of Significant Deterioration and Nonattainment New Source
Review: Reasonable Possibility in Recordkeeping,'' Final Rule, 72 FR
72607 (December 21, 2007), (hereafter referred to as the Reasonable
Possibility Rule); (5) ``Final Rule To Implement the 8-Hour Ozone
National Ambient Air Quality Standard--Phase 2; Final Rule To Implement
Certain Aspects of the 1990 Amendments Relating to New Source Review
and Prevention of Significant Deterioration as They Apply in Carbon
Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for
Reformulated Gasoline,'' Final Rule, 70 FR 71612 (November 29, 2005)
(hereafter referred to as the Phase 2 Rule); (6) ``Implementation of
the New Source Review (NSR) Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5),'' Final Rule, 73 FR 28321 (May 16,
2008) (hereafter referred to as the NSR PM2.5 Rule); (7)
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC),''
Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as
the PM2.5 PSD Increments-SILs-SMC Rule \3\); and (8)
``Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NSR): Reconsideration of Inclusion of Fugitive
Emissions; Interim Rule; Stay and Revisions'', Interim Rule, 76 FR
17548 (March 30, 2011) (hereafter referred to as the Fugitive Emissions
Interim Rule).
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\1\ Some portions of the 2011 version of the regulations now
being approved were previously approved by EPA. These portions
remain the same in substance but may have undergone administrative
updates and renumbering in the 2011 version.
\2\ EPA's regulations governing the implementation of NSR
permitting programs are contained in 40 CFR 51.160-51.166; 52.21,
52.24; and part 51, appendix S. The CAA NSR program is composed of
three separate programs: PSD, NNSR, and Minor NSR. PSD is
established in part C of title I of the CAA and applies in areas
that meet the NAAQS--``attainment areas''--as well as areas where
there is insufficient information to determine if the area meets the
NAAQS--``unclassifiable areas.'' The NNSR program is established in
part D of title I of the CAA and applies in areas that are not in
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR
program addresses construction or modification activities that do
not qualify as ``major'' and applies regardless of the designation
of the area in which a source is located. Together, these programs
are referred to as the NSR programs.
\3\ The D.C. Circuit vacated the portions of the
PM2.5 PSD Increment-SILs-SMC Rule addressing the SMC and
SILs (and remanded the SILs portion to EPA for further
consideration) for PSD, but left the PM2.5 SILs in place
for the NSR program in the table in Sec. 51.165(b)(2). See Sierra
Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013).
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[[Page 1125]]
EPA is not, however, approving into the Alabama SIP the portion of
ADEM Rule 335-3-14-.05(1)(k) stating ``excluding ethanol production
facilities that produce ethanol by natural fermentation,'' which
Alabama promulgated pursuant to the federal rule entitled ``Prevention
of Significant Deterioration, Nonattainment New Source Review, and
Title V: Treatment of Certain Ethanol Production Facilities Under the
`Major Emitting Facility' Definition,'' Final Rule, 72 FR 24060 (May 1,
2007) (or the Ethanol Rule).\4\ EPA is also not acting on the provision
at Rule 335-3-14-.05(2)(c)3 that excludes fugitive emissions from the
determinion of creditable emission increases and decreases.\5\ Finally,
EPA is not acting on changes to ADEM's rules regarding the
PM2.5 significant impact levels (SILs) for PSD at Rule 335-
3-14-.04(8)(h)1., the NNSR interpollutant offset ratios at ADEM Rule
335-3-14-.05(3)(g)1-4 and the sentence including those ratios which
states ``Interpollutant offsets shall be determined based upon the
following ratios,'' or the ``actual-to-potential'' NNSR applicability
test at ADEM Rule 335-3-14-.05(1)(h), all of which ADEM withdrew from
EPA's consideration subsequent to the May 2, 2011 submittal.\6\
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\4\ Alabama's changes to its NNSR regulations (at 335-3-
14-.05(1)(k)) exclude ``chemical process plants'' that produce
ethanol through a natural fermentation process from the NSR major
source permitting requirement as promulgated in the Ethanol Rule (as
amended at 40 CFR 51.165). See 72 FR 24060 (May 1, 2007). However,
due to a petition by Natural Resources Defense Council to reconsider
the rule, EPA is not proposing to take action to approve this
provision into the Alabama SIP at this time. Pending final
resolution, EPA will make a final determination on action regarding
this portion of Alabama's SIP revision.
\5\ The provision in question was originally approved into the
CFR in the December 19, 2008 (73 FR 77882) final rule concerning the
treatment of fugitive emissions for the purposes of NSR
applicability. On April 24, 2009, EPA agreed to reconsider the
approach to handling fugitive emissions and granted a 3-month
administrative stay of the December 19, 2008 rule. After several
stays, this provision was stayed indefinitely in the March 30, 2011
(76 FR 17548) Fugitive Emissions Interim Rule, pending a final
reconsideration from EPA. For more information on fugitive emissions
in NSR, see the September 1, 2015 proposed rulemaking (80 FR 52701)
or refer to the Docket for this rulemaking.
\6\ For more information on the withdrawal of these elements
from the initial May 2, 2011, submittal, see the September 1, 2015,
proposed rulemaking (80 FR 52701) or refer to the Docket for this
rulemaking.
---------------------------------------------------------------------------
On September 1, 2015, EPA published a proposed rulemaking to
approve the aforementioned changes to the Alabama NNSR program at ADEM
Rule 335-3-14-.05. See 80 FR 52701. Comments on the proposed rulemaking
were due on or before October 1, 2015. No comments, adverse or
otherwise, were received on EPA's September 1, 2015, proposed
rulemaking. Pursuant to section 110 of the CAA, EPA is now taking final
action to approve the changes to Alabama's NNSR program as provided in
the September 1, 2015, proposed rulemaking. The proposed rulemaking
contains more detailed information regarding Alabama's SIP revision
being approved today, and the rationale for this final action. More
detailed information on the NNSR program can be found in the September
1, 2015, proposed rulemaking as well as the aforementioned final
rulemakings.
II. This Action
Alabama currently has a SIP-approved NSR program for new and
modified stationary sources found in ADEM regulations at Chapter 335-3-
14. ADEM's NNSR preconstruction regulations are found at Chapter 335-3-
14-.05 and apply to major stationary sources or modifications
constructed in or impacting upon a nonattainment area as required under
part D of title I of the CAA with respect to the NAAQS. The changes to
Chapter 335-3-14-.05 that EPA is now approving into the SIP were
provided to update the existing provisions to be consistent with the
current federal NNSR rules, including the WEPCO Rule, 2002 NSR Reform
Rule (and associated Reconsideration Rule and Vacated Elements Rule),
Phase 2 Rule, NSR PM2.5 Rule, PM2.5 PSD-
Increment-SILs-SMC Rule, and Fugitive Emissions Interim Rule. These
changes to ADEM's regulations became state effective on May 23, 2011.
III. Incorporation by Reference
In this rule, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of portions of
ADEM Regulation Chapter 335-3-14-.05 entitled ``Air Permits Authorizing
Construction in or Near Non-Attainment Areas,'' effective May 23, 2011,
with revisions and additions to applicability, definitions, permitting
requirements, offset rules, area classifications, air quality models,
control technology review, air quality monitoring, source information,
source obligation, innovative control technology, and actuals plantwide
applicability limits, and with administrative changes throughout. EPA
has made, and will continue to make, these documents generally
available electronically through www.regulations.gov and/or in hard
copy at the EPA Region 4 office (see the ADDRESSES section of this
preamble for more information).
IV. Final Action
EPA is taking final action to approve the portions of Alabama's May
2, 2011, submission that make changes to Alabama's SIP-approved NNSR
regulations set forth at ADEM Rule 335-3-14-.05, with the exceptions
noted above. ADEM submitted the proposed changes to its NNSR SIP to be
consistent with amendments to the federal regulations made by the WEPCO
Rule, the 2002 NSR Reform Rule (and associated Reconsideration Rule and
Vacated Elements Rule), Phase 2 Rule, NSR PM2.5 Rule,
PM2.5 PSD Increment-SILs-SMC Rule, and the Fugitive
Emissions Interim Rule. The Agency is approving these changes to the
Alabama SIP because they are consistent with section 110 of the CAA and
EPA regulations.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
[[Page 1126]]
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by March 11, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: December 18, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart B--Alabama
0
2. Section 52.50(c) is amended under Chapter 335-3-14 by revising the
entry for ``Section 335-3-14-.05'' to read as follows:
Sec. 52.50 Identification of plan.
* * * * *
(c) * * *
EPA-Approved Alabama Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Chapter No. 335-3-14 Air Permits
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 335-3-14-.05.............. Air Permits 5/23/2011 1/11/2016 [Insert With the exception of:
Authorizing citation of The portion of 335-3-
Construction in publication]. 14-.05(1)(k) stating
or Near ``excluding ethanol
Nonattainment production facilities
Areas. that produce ethanol
by natural
fermentation''; and
335-3-14-.05(2)(c)3
(addressing fugitive
emission increases and
decreases). Also with
the exception of the
state-withdrawn
elements: 335-3-14-
.05(1)(h) (the actual-
to-potential test for
projects that only
involve existing
emissions units); the
last sentence at 335-3-
14-.05(3)(g), stating
``Interpollutant
offsets shall be
determined based upon
the following
ratios''; and the NNSR
interpollutant ratios
at 335-3-14-.05(3)(g)1-
4.
* * * * * * *
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* * * * *
[FR Doc. 2015-33197 Filed 1-8-16; 8:45 am]
BILLING CODE 6560-50-P
