[Federal Register Volume 73, Number 85 (Thursday, May 1, 2008)]
[Rules and Regulations]
[Pages 23957-23959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9481]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0532-200810, FRL-8560-2]


Approval and Promulgation of Implementation Plans; Alabama 
Prevention of Significant Deterioration and Nonattainment New Source 
Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the Alabama 
State Implementation Plan (SIP) submitted by the State of Alabama on 
June 16, 2006. The SIP revisions modify Alabama's Prevention of 
Significant Deterioration (PSD regulations in the Alabama SIP to 
address changes to the federal New Source Review (NSR) regulations, 
which were promulgated by EPA on December 31, 2002, and reconsidered 
with minor changes on November 7, 2003 (commonly referred to as the 
``2002 NSR Reform Rules''). EPA proposed approval of these revisions on 
January 24, 2008; no comments were received on that proposal. The 
revisions include provisions for baseline emissions calculations, an 
actual-to-projected-actual methodology for calculating emissions 
changes, options for plantwide applicability limits, and recordkeeping 
and reporting requirements.

DATES: Effective Date: This rule will be effective June 2, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2007-0532. All documents in the docket 
are listed on the http://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 http://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 
State Implementation Plan, contact Ms. Stacy Harder, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9042. Ms. Harder can also be reached via electronic mail 
at [email protected]. For information regarding New Source Review, 
contact Ms. Gracy R. Danois, Air Permits Section, at the same address 
above. The telephone number is (404) 562-9119. Ms. Danois can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for This Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to approve revisions to the Alabama SIP, 
which includes changes to Alabama's NSR program. On June 16, 2006, the 
State of Alabama, through the Alabama Department of Environmental 
Management (ADEM) submitted revisions to the Alabama SIP. Specifically, 
the SIP revisions include changes to ADEM Administrative Code (AAC) 
Division 3 (Air Division), Chapter 14, entitled ``Air Permits.'' ADEM 
submitted these revisions in response to EPA's December 31, 2002, 
revisions to the federal NSR program. EPA is now approving these SIP 
revisions with the exception of the requirements found in Rule 335-3-
14-.04(2)(w)1, the portion of the definition of ``significant'' that 
establishes a significance threshold of 100 tons for all NSR regulated 
pollutants for which there is not a listed significant amount. On 
December 3, 2007, Alabama requested this portion of the definition not 
be approved in to the SIP. Notably, the June 16, 2006, submittal also 
addressed the Clean Air Interstate Rule which EPA has already addressed 
in a separate action (October 1, 2007, 72 FR 55659).
    On January 24, 2008 (73 FR 4133), EPA published a notice of 
proposed rulemaking (NPR) in the Federal Register, proposing to approve 
the Alabama SIP revisions regarding its NSR program. The January 24, 
2008, NPR provides additional information about the proposed Alabama 
SIP revisions and the rationale for this final action. The public 
comment period for the proposed action ended on February 25, 2008. No 
comments were received on EPA's proposed action. EPA is now taking 
final action to approve the SIP revisions submitted by ADEM on June 16, 
2006.

II. What Is the Background for This Action?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the Clean Air Act (CAA), PSD and NNSR programs. On November 
7, 2003 (68 FR 63021), EPA published a notice of final action on its 
reconsideration of the 2002 rules. On June 13, 2007 (72 FR 32526), EPA 
took final action to revise the 2002 NSR Reform Rules to exclude the 
clean units and Pollution Control Project (PCP) provisions that were 
vacated by the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit Court) on June 24, 2005. The purpose of 
this action regarding the Alabama SIP is to approve the SIP submittal 
from the State of Alabama incorporating rule changes consistent with 
EPA's 2002 NSR Reform Rules.
    The June 24, 2005, DC Circuit Court decision also involved a remand 
of the recordkeeping provisions of the 2002 NSR Reform Rules. On 
December 14, 2007, EPA issued a final rulemaking in response to the DC 
Circuit's remand establishing that ``reasonable possibility'' applies 
where source

[[Page 23958]]

emissions equal or exceed 50% of the CAA NSR significance levels for 
any pollutant. The rule was published in the Federal Register on 
December 21, 2007 (72 FR 72607). For further information, see, http://www.epa.gov/nsr.
    The ``reasonable possibility'' standard identifies, for sources and 
reviewing authorities, the circumstances under which a major stationary 
source undergoing a modification that does not trigger major NSR must 
keep records. Alabama's SIP revisions are approvable at this time 
because the Alabama rules are substantially the same as the current 
federal rules and EPA's interpretation of the reasonable possibility 
standard did not result in any actual changes to the corresponding 
federal rule.
    As is discussed in greater detail in the NPR, EPA reviewed the SIP 
revisions and determined that they were at least as stringent as the 
federal NSR program. Therefore, Alabama's revisions are consistent with 
the federal NSR regulations published December 31, 2002 (67 FR 80186) 
and November 7, 2003 (68 FR 63021), with the one exception noted 
earlier regarding AAC Rule 335-3-14-.04(2)(w)1 which is no longer a 
part of the current SIP submittal. As a result, the SIP revisions are 
approvable pursuant to the CAA.
    The January 24, 2008, NPR and the docket for this action provide 
more details about the SIP revisions being approved and the rationale 
for EPA's final action. For additional information on EPA's 2002 NSR 
Reform Rules, see 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

III. Final Action

    EPA is taking final action to approve changes to Alabama's Rule 
335-3-14-.04, with the exception of 335-3-14.04(2)(w)1, as submitted by 
ADEM on June 16, 2006, as revisions to the Alabama SIP.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it 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).
    This final rule also does not have tribal implications because it 
will not have a substantial direct effect on one or more Indian tribes, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes, as specified by Executive Order 
13175 (59 FR 22951, November 9, 2000). This action also does not have 
Federalism implications because it does not have substantial direct 
effects on the states, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999). This action 
merely approves state and local rules implementing a Federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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 rule 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 June 30, 2008. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: April 17, 2008.
Russell L. Wright, Jr.,
Acting Regional Administrator, Region 4.

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40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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 by revising the entry for ``Section 335-
3-14.04'' to read as follows:


Sec.  52.50  Identification of plan.

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    (c) * * *

[[Page 23959]]



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                                                                     State
           State citation                   Title/subject       effective date           EPA approval date                       Explanation
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                                                              Chapter 335-3-14 Air Permits
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                                                                      * * * * * * *
Section 335-3-14-.04................  Air Permits Authorizing       07/11/2006  05/01/2008 [Insert citation of       EPA is not approving Section 335-3-
                                       Construction in Clean                     publication].                        14.04(2)(w)1.
                                       Air Areas (Prevention
                                       of Significant
                                       Deterioration (PSD)).
 
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[FR Doc. E8-9481 Filed 4-30-08; 8:45 am]
BILLING CODE 6560-50-P