Air Plan Approval; Alabama: PSD Replacement Units, 31741-31743 [2019-14142]
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Federal Register / Vol. 84, No. 128 / Wednesday, July 3, 2019 / Rules and Regulations
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[FR Doc. 2019–14136 Filed 7–2–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0371; FRL–9995–84–
Region 4]
Air Plan Approval; Alabama: PSD
Replacement Units
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing approval of
revisions to the Alabama State
Implementation Plan (SIP), submitted
by the State of Alabama, through the
Alabama Department of Environmental
Management (ADEM), via two letters
dated May 7, 2012, and August 27,
2018. The SIP revisions relate to the
State’s Prevention of Significant
Deterioration (PSD) permitting
regulations. In particular, the revisions
add a definition of ‘‘replacement unit’’
and provide that a replacement unit is
a type of existing emissions unit under
the definition of ‘‘emissions unit.’’ This
action is being taken pursuant to the
Clean Air Act (CAA or Act).
DATES: This rule is effective August 2,
2019.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2017–0371. All documents in the docket
are listed on the www.regulations.gov
website. 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 and Radiation Division
(formerly the 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
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SUMMARY:
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through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Andres Febres, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air and
Radiation Division (formerly the Air,
Pesticides and Toxics Management
Division), Region 4, U.S. Environmental
Protection Agency, 61 Forsyth Street
SW, Atlanta, Georgia 30303–8960. The
telephone number is (404) 562–8966.
Mr. Febres can also be reached via
electronic mail at febresmartinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
On May 7, 2012, Alabama submitted
for EPA approval amendments to its
PSD permitting regulations as part of the
State’s New Source Review (NSR)
permitting program, found in ADEM
Administrative Code Rule 335–3–14–
.04—Air Permits Authorizing
Construction in Clean Air Areas
[Prevention of Significant Deterioration
Permitting (PSD)].1 2 Subsequently,
Alabama submitted a May 5, 2017,
withdrawal letter clarifying the May 7,
2012, submittal. EPA issued a direct
final rule—with a concurrent Notice of
Proposed Rulemaking (NPRM)—on
August 24, 2017, approving those
changes. See 82 FR 40072 and 82 FR
40085, respectively. However, EPA
received an adverse comment on that
action, and subsequently withdrew its
direct final rule approval of the May 7,
2012, submittal. See 82 FR 47397
(October 12, 2017). EPA is not finalizing
the August 24, 2017, proposed rule.
Alabama later submitted a second
revision to Rule 335–3–14–.04 on
August 27, 2018.3 Together, the May 7,
2012, and August 27, 2018, submittals,
along with the State’s May 5, 2017,
withdrawal letter, include revisions to
1 EPA’s regulations governing the implementation
of the NSR permitting programs are contained in 40
CFR 51.160 through 51.166; 52.21, 52.24; and part
51, Appendix S. The CAA NSR program is
composed of three separate programs: PSD,
Nonattainment (NNSR), and Minor NSR. PSD is
established in part C of title I of the CAA and
applies in areas that meet the NAAQS—or
‘‘attainment areas’’—as well as areas where there is
insufficient information to determine if the area
meets the NAAQS—or ‘‘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—or ‘‘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.
2 EPA notes that it received this SIP revision on
May 16, 2012.
3 EPA notes that it received this SIP revision on
September 4, 2018.
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31741
Alabama’s PSD permitting regulations
by adding a definition of ‘‘replacement
unit’’ at Alabama Rule 335–3–14–
.04(2)(bbb), and by modifying the
definition of ‘‘emissions unit’’ to
expressly include replacement units as
existing emissions units at Alabama
Rule 335–3–14–.04(2)(g). 4 In addition,
Alabama’s August 27, 2018, SIP revision
adds a fifth condition to the new
definition of a ‘‘Replacement Unit’’
requiring any source qualifying as a
replacement unit to use the actual-toprojected-actual test for PSD
applicability at Alabama Rule 335–3–
14–.04(1)(f). Alabama’s definition of
‘‘replacement unit,’’ and its provision
defining a replacement unit as an
‘‘existing emissions unit’’ for purposes
of PSD applicability, are consistent with
Federal PSD regulations at 40 CFR
51.166.
In a NPRM published on March 29,
2019 (84 FR 11914), EPA proposed to
approve the revisions to Alabama Rule
335–3–14–.04 included in the State’s
May 7, 2012, submittal, as amended by
the May 5, 2017, withdrawal letter, and
the August 27, 2018, submittal.
Comments on the NPRM were due on or
before April 29, 2019. EPA received one
adverse comment during the comment
period for this action and offers a
response below.
II. Response to Comments
The Commenter generally supports
EPA’s proposed approval of revisions to
Alabama Rule 335–3–14–.04(2)(bbb) and
Rule 335–3–14–.04(2)(g). However, the
Commenter states that EPA must require
revision of Alabama’s SIP to remove a
separate definition—the definition of
‘‘actual emissions’’ at Alabama Rule
335–3–14–.04(2)(u)—because that
definition is ‘‘unlawful and arbitrary.’’
The Commenter further states that EPA
constructively reopened its approval of
the ‘‘actual emissions’’ definition when
it proposed approval of the May 7, 2012,
version of Alabama Rule 335–3–14–
.04(2)(bbb) on August 24, 2017 (82 FR
40072).
EPA approved Alabama’s definition of
‘‘actual emissions’’ on May 1, 2008 (73
FR 23957), and that approval is outside
the scope of this action. Additionally,
EPA disagrees that it constructively
reopened its prior approval of the
4 EPA is not taking action on the portions of
Alabama’s May 7, 2012, and August 27, 2018,
submittals regarding ADEM Administrative Code
Chapter 335–3–10—Standards of Performance for
New Stationary Sources, and Chapter 335–3–11—
National Emission Standards for Hazardous Air
Pollutants. In the cover letter for these SIP
revisions, Alabama acknowledges that these
regulations are not part of Alabama’s SIP and states
that these regulations are not to be incorporated
into the SIP.
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‘‘actual emissions’’ definition through
this action. Courts have explained that
an agency reopens a prior action in two
circumstances: (1) When it implicitly or
explicitly solicits comment or otherwise
indicates its willingness to reconsider
such regulation by inviting and
responding to comments; or (2) when
the new rule increases the significance
of the preexisting regulation, and thus
significantly alters the stakes of judicial
review. See Natural Resources Defense
Council v. EPA, 571 F.3d 1245 (D.C. Cir.
2009).
Neither of these circumstances is
present here. First, as explained in our
March 29, 2019, proposal, EPA
withdrew the August 24, 2017, direct
final rule and is not finalizing it, so the
Commenter’s assertions regarding that
action are moot. Moreover, EPA did not
cite to or otherwise refer to the
provision raised in the comment, nor
did it request public input on that
provision in either its August 24, 2017,
or March 29, 2019, proposals.
Second, EPA’s action here does not
increase the significance of Alabama’s
definition of ‘‘actual emissions,’’ nor
does it alter the stakes of judicial review
of EPA’s May 1, 2008 approval of that
provision. Under the SIP revision EPA
is finalizing here, sources qualifying as
replacement units must use the actualto-projected-actual test for determining
PSD applicability, which relies on the
‘‘baseline actual emissions’’ of the
source, rather than the ‘‘actual
emissions’’ definition raised by the
Commenter. In other words, no aspect of
EPA’s action today relies on or
otherwise impacts the applicability or
effect of Alabama’s ‘‘actual emissions’’
definition. EPA also notes that, because
it withdrew its August 24, 2017, direct
final rule and is not finalizing that
action, the action considered in EPA’s
August 24, 2017, proposed rule also
does not impact the significance of
Alabama’s ‘‘actual emissions’’
definition.
For these reasons, EPA has not
constructively reopened its May 1, 2008,
approval of Alabama’s definition of
‘‘actual emissions’’ and, therefore, that
rulemaking is outside the scope of this
action.
III. Incorporation by Reference
In this document, 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 ADEM Administrative
Code Rule 335–3–14–.04(2)(g) and 335–
3–14–.04(2)(bbb), state effective on
October 5, 2018. EPA has made, and
will continue to make, these materials
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generally available through
www.regulations.gov and at the EPA
Region 4 office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, these materials have been
approved by EPA for inclusion in the
State implementation plan, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference in the next
update to the SIP compilation.5
IV. Final Action
EPA is approving changes to the
Alabama SIP, that were provided to EPA
through Alabama’s May 7, 2012 and
August 27, 2018 SIP revisions, as well
as the May 7, 2017 withdrawal letter.
Specifically, EPA is finalizing approval
of changes to ADEM Administrative
Code Rule 335–3–14–.04(2)(g) and 335–
3–14–.04(2)(bbb), in order to make
Alabama’s PSD program consistent with
Federal provisions and the CAA. This
action is limited to the two rules
currently before the Agency and does
not modify any other PSD rules in
Alabama’s SIP.
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. These actions merely approve
state law as meeting Federal
requirements and do not impose
additional requirements beyond those
imposed by state law. For that reason,
these actions:
• Are 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);
• Are not an Executive Order 13771
(82 FR 9339, February 2, 2017)
regulatory action because SIP approvals
are exempted under Executive Order
12866;
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are certified as not having a
significant economic impact on a
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5 See
62 FR 27968 (May 22, 1997).
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substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Do 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);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory
action subject to Executive Order 13211
(66 FR 28355, May 22, 2001);
• Are 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
• Do 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, these rules do 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 these actions 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. These actions are not
‘‘major rules’’ as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of these
actions must be filed in the United
States Court of Appeals for the
appropriate circuit by September 3,
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Federal Register / Vol. 84, No. 128 / Wednesday, July 3, 2019 / Rules and Regulations
2019. Filing a petition for
reconsideration by the Administrator of
these final rules does not affect the
finality of these actions 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 rules
or actions. These actions may not be
challenged later in proceedings to
enforce their requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Authority: 42.U.S.C. 7401 et seq.
Incorporation by reference, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Subpart B—Alabama
2. In § 52.50, the table in paragraph (c)
is amended under Chapter No. 335–3–
14 Air Permits by revising the entry for
‘‘Section 335–3–14-.04’’ to read as
follows:
■
Dated: June 7, 2019.
Mary S. Walker,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
§ 52.50
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
*
Identification of plan.
*
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(c) * * *
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1. The authority citation for part 52
continues to read as follows:
■
EPA-APPROVED ALABAMA REGULATIONS
State citation
State
effective
date
Title/subject
*
*
*
EPA approval date
*
*
Chapter No. 335–3–14
*
Section 335–3–14–.04 .......
*
*
*
*
*
Air Permits Authorizing
Construction in in Clean
Air Areas [Prevention of
Significant Deterioration
Permitting (PSD)].
*
*
*
*
*
Air Permits
*
*
10/5/2018 7/3/2019 [Insert citation of
publication].
*
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Explanation
*
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*
Except for changes to 335–3–14–
.04(2)(w)1., state effective July 11,
2006, which lists a 100 ton per year
significant net emissions increase for
regulated NSR pollutants not otherwise specified at 335–3–14–.04(2)(w).
Except for the significant impact levels at
335–3–14–.04(10)(b) which were withdrawn from EPA consideration on October 9, 2014.
Except for the second sentence of paragraph 335–3–14–.04(2)(bbb)2., as well
as the second and fourth sentences of
paragraph
335–3–14–.04(2)(bbb)3.,
which include changes from the vacated federal ERP rule and were withdrawn from EPA consideration by the
State on May 5, 2017.
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Final rule.
DEPARTMENT OF COMMERCE
ACTION:
National Oceanic and Atmospheric
Administration
SUMMARY:
[FR Doc. 2019–14142 Filed 7–2–19; 8:45 am]
BILLING CODE 6560–50–P
50 CFR Part 648
[Docket No. 190415375–9498–02]
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RIN 0648–BI92
Fisheries of the Northeastern United
States; Recreational Management
Measures for the Summer Flounder
Fishery; Fishing Year 2019
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
AGENCY:
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NMFS announces
management measures for the 2019
summer flounder recreational fishery.
The implementing regulations for this
fishery require NMFS to publish
recreational measures for the fishing
year. The intent of this action is to
achieve, but not exceed, the 2019
summer flounder recreational harvest
limit and thereby prevent overfishing on
the summer flounder stock.
DATES:
This rule is effective July 3,
2019.
FOR FURTHER INFORMATION CONTACT:
Emily Gilbert, Fishery Policy Analyst,
(978) 281–9244.
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]]>Agencies
[Federal Register Volume 84, Number 128 (Wednesday, July 3, 2019)]
[Rules and Regulations]
[Pages 31741-31743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14142]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0371; FRL-9995-84-Region 4]
Air Plan Approval; Alabama: PSD Replacement Units
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is finalizing
approval of revisions to the Alabama State Implementation Plan (SIP),
submitted by the State of Alabama, through the Alabama Department of
Environmental Management (ADEM), via two letters dated May 7, 2012, and
August 27, 2018. The SIP revisions relate to the State's Prevention of
Significant Deterioration (PSD) permitting regulations. In particular,
the revisions add a definition of ``replacement unit'' and provide that
a replacement unit is a type of existing emissions unit under the
definition of ``emissions unit.'' This action is being taken pursuant
to the Clean Air Act (CAA or Act).
DATES: This rule is effective August 2, 2019.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2017-0371. All documents in the docket
are listed on the www.regulations.gov website. 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 and Radiation Division (formerly the 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: Andres Febres, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division (formerly the Air, Pesticides and Toxics Management
Division), Region 4, U.S. Environmental Protection Agency, 61 Forsyth
Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404)
562-8966. Mr. Febres can also be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 7, 2012, Alabama submitted for EPA approval amendments to
its PSD permitting regulations as part of the State's New Source Review
(NSR) permitting program, found in ADEM Administrative Code Rule 335-3-
14-.04--Air Permits Authorizing Construction in Clean Air Areas
[Prevention of Significant Deterioration Permitting
(PSD)].1 2 Subsequently, Alabama submitted a May 5, 2017,
withdrawal letter clarifying the May 7, 2012, submittal. EPA issued a
direct final rule--with a concurrent Notice of Proposed Rulemaking
(NPRM)--on August 24, 2017, approving those changes. See 82 FR 40072
and 82 FR 40085, respectively. However, EPA received an adverse comment
on that action, and subsequently withdrew its direct final rule
approval of the May 7, 2012, submittal. See 82 FR 47397 (October 12,
2017). EPA is not finalizing the August 24, 2017, proposed rule.
---------------------------------------------------------------------------
\1\ EPA's regulations governing the implementation of the NSR
permitting programs are contained in 40 CFR 51.160 through 51.166;
52.21, 52.24; and part 51, Appendix S. The CAA NSR program is
composed of three separate programs: PSD, Nonattainment (NNSR), and
Minor NSR. PSD is established in part C of title I of the CAA and
applies in areas that meet the NAAQS--or ``attainment areas''--as
well as areas where there is insufficient information to determine
if the area meets the NAAQS--or ``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--or ``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.
\2\ EPA notes that it received this SIP revision on May 16,
2012.
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Alabama later submitted a second revision to Rule 335-3-14-.04 on
August 27, 2018.\3\ Together, the May 7, 2012, and August 27, 2018,
submittals, along with the State's May 5, 2017, withdrawal letter,
include revisions to Alabama's PSD permitting regulations by adding a
definition of ``replacement unit'' at Alabama Rule 335-3-
14-.04(2)(bbb), and by modifying the definition of ``emissions unit''
to expressly include replacement units as existing emissions units at
Alabama Rule 335-3-14-.04(2)(g). \4\ In addition, Alabama's August 27,
2018, SIP revision adds a fifth condition to the new definition of a
``Replacement Unit'' requiring any source qualifying as a replacement
unit to use the actual-to-projected-actual test for PSD applicability
at Alabama Rule 335-3-14-.04(1)(f). Alabama's definition of
``replacement unit,'' and its provision defining a replacement unit as
an ``existing emissions unit'' for purposes of PSD applicability, are
consistent with Federal PSD regulations at 40 CFR 51.166.
---------------------------------------------------------------------------
\3\ EPA notes that it received this SIP revision on September 4,
2018.
\4\ EPA is not taking action on the portions of Alabama's May 7,
2012, and August 27, 2018, submittals regarding ADEM Administrative
Code Chapter 335-3-10--Standards of Performance for New Stationary
Sources, and Chapter 335-3-11--National Emission Standards for
Hazardous Air Pollutants. In the cover letter for these SIP
revisions, Alabama acknowledges that these regulations are not part
of Alabama's SIP and states that these regulations are not to be
incorporated into the SIP.
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In a NPRM published on March 29, 2019 (84 FR 11914), EPA proposed
to approve the revisions to Alabama Rule 335-3-14-.04 included in the
State's May 7, 2012, submittal, as amended by the May 5, 2017,
withdrawal letter, and the August 27, 2018, submittal. Comments on the
NPRM were due on or before April 29, 2019. EPA received one adverse
comment during the comment period for this action and offers a response
below.
II. Response to Comments
The Commenter generally supports EPA's proposed approval of
revisions to Alabama Rule 335-3-14-.04(2)(bbb) and Rule 335-3-
14-.04(2)(g). However, the Commenter states that EPA must require
revision of Alabama's SIP to remove a separate definition--the
definition of ``actual emissions'' at Alabama Rule 335-3-14-.04(2)(u)--
because that definition is ``unlawful and arbitrary.'' The Commenter
further states that EPA constructively reopened its approval of the
``actual emissions'' definition when it proposed approval of the May 7,
2012, version of Alabama Rule 335-3-14-.04(2)(bbb) on August 24, 2017
(82 FR 40072).
EPA approved Alabama's definition of ``actual emissions'' on May 1,
2008 (73 FR 23957), and that approval is outside the scope of this
action. Additionally, EPA disagrees that it constructively reopened its
prior approval of the
[[Page 31742]]
``actual emissions'' definition through this action. Courts have
explained that an agency reopens a prior action in two circumstances:
(1) When it implicitly or explicitly solicits comment or otherwise
indicates its willingness to reconsider such regulation by inviting and
responding to comments; or (2) when the new rule increases the
significance of the preexisting regulation, and thus significantly
alters the stakes of judicial review. See Natural Resources Defense
Council v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
Neither of these circumstances is present here. First, as explained
in our March 29, 2019, proposal, EPA withdrew the August 24, 2017,
direct final rule and is not finalizing it, so the Commenter's
assertions regarding that action are moot. Moreover, EPA did not cite
to or otherwise refer to the provision raised in the comment, nor did
it request public input on that provision in either its August 24,
2017, or March 29, 2019, proposals.
Second, EPA's action here does not increase the significance of
Alabama's definition of ``actual emissions,'' nor does it alter the
stakes of judicial review of EPA's May 1, 2008 approval of that
provision. Under the SIP revision EPA is finalizing here, sources
qualifying as replacement units must use the actual-to-projected-actual
test for determining PSD applicability, which relies on the ``baseline
actual emissions'' of the source, rather than the ``actual emissions''
definition raised by the Commenter. In other words, no aspect of EPA's
action today relies on or otherwise impacts the applicability or effect
of Alabama's ``actual emissions'' definition. EPA also notes that,
because it withdrew its August 24, 2017, direct final rule and is not
finalizing that action, the action considered in EPA's August 24, 2017,
proposed rule also does not impact the significance of Alabama's
``actual emissions'' definition.
For these reasons, EPA has not constructively reopened its May 1,
2008, approval of Alabama's definition of ``actual emissions'' and,
therefore, that rulemaking is outside the scope of this action.
III. Incorporation by Reference
In this document, 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 ADEM
Administrative Code Rule 335-3-14-.04(2)(g) and 335-3-14-.04(2)(bbb),
state effective on October 5, 2018. EPA has made, and will continue to
make, these materials generally available through www.regulations.gov
and at the EPA Region 4 office (please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section of this preamble for more
information). Therefore, these materials have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\5\
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\5\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action
EPA is approving changes to the Alabama SIP, that were provided to
EPA through Alabama's May 7, 2012 and August 27, 2018 SIP revisions, as
well as the May 7, 2017 withdrawal letter. Specifically, EPA is
finalizing approval of changes to ADEM Administrative Code Rule 335-3-
14-.04(2)(g) and 335-3-14-.04(2)(bbb), in order to make Alabama's PSD
program consistent with Federal provisions and the CAA. This action is
limited to the two rules currently before the Agency and does not
modify any other PSD rules in Alabama's SIP.
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. These actions merely
approve state law as meeting Federal requirements and do not impose
additional requirements beyond those imposed by state law. For that
reason, these actions:
Are 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);
Are not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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
Do 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, these rules
do 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 these actions 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. These actions are not ``major rules'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of these actions must be filed in the United States Court of Appeals
for the appropriate circuit by September 3,
[[Page 31743]]
2019. Filing a petition for reconsideration by the Administrator of
these final rules does not affect the finality of these actions 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 rules or actions. These actions may not be
challenged later in proceedings to enforce their requirements. See
section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping requirements, Sulfur oxides,
Volatile organic compounds.
Dated: June 7, 2019.
Mary S. Walker,
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. In Sec. 52.50, the table in paragraph (c) is amended under Chapter
No. 335-3-14 Air Permits by revising the entry for ``Section 335-3-
14-.04'' 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-.04............. Air Permits 10/5/2018 7/3/2019 [Insert Except for changes
Authorizing citation of to 335-3-14-
Construction in in publication]. .04(2)(w)1., state
Clean Air Areas effective July 11,
[Prevention of 2006, which lists a
Significant 100 ton per year
Deterioration significant net
Permitting (PSD)]. emissions increase
for regulated NSR
pollutants not
otherwise specified
at 335-3-14-
.04(2)(w).
Except for the
significant impact
levels at 335-3-14-
.04(10)(b) which
were withdrawn from
EPA consideration
on October 9, 2014.
Except for the
second sentence of
paragraph 335-3-14-
.04(2)(bbb)2., as
well as the second
and fourth
sentences of
paragraph 335-3-14-
.04(2)(bbb)3.,
which include
changes from the
vacated federal ERP
rule and were
withdrawn from EPA
consideration by
the State on May 5,
2017.
* * * * * * *
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* * * * *
[FR Doc. 2019-14142 Filed 7-2-19; 8:45 am]
BILLING CODE 6560-50-P
