[Federal Register Volume 74, Number 190 (Friday, October 2, 2009)]
[Proposed Rules]
[Pages 50930-50935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23793]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-AL-0002-200913; FRL-8959-3]


Approval and Promulgation of Implementation Plans: Alabama: 
Proposed Approval of Revisions to the Visible Emissions Rule and 
Alternative Proposed Disapproval of Revisions to the Visible Emissions 
Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On April 3, 2009, EPA granted a February 25, 2009, petition 
seeking reconsideration of an October 15, 2008, final action approving 
a State Implementation Plan (SIP) revision regarding the State of 
Alabama's visible emissions rules. As part of its reconsideration 
process, EPA is now proposing to either affirm the previous rulemaking 
(which approved the revisions) or, alternatively, amend its previous 
rulemaking (i.e., disapproving the revisions). EPA is seeking public 
comment on the issues raised in the petition for reconsideration as 
well as the actions proposed in this notice. EPA is also seeking public 
comment on the relationship between opacity and particulate matter mass 
emissions. Following its evaluation of the issues raised in the 
petition for reconsideration, and any information submitted during the 
public comment process, EPA will take final action either affirming the 
previous rulemaking or amending the previous rulemaking and 
disapproving the revisions to the visible emissions portion of 
Alabama's SIP.

DATES: Comments must be received on or before November 16, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2005-AL-0002, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2005-AL-0002,'' Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air,

[[Page 50931]]

Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. Such deliveries are only accepted during the Regional 
Office's normal hours of operation. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2005-AL-0002.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2005-AL-0002. All documents in the 
docket are listed on the www.regulations.gov index. Although listed in 
the index, some information is not publicly available, i.e., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy at the Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that, if 
at all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to 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: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, 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) 562-9041. Ms. Benjamin can also be reached 
via electronic mail at [email protected]. For information 
regarding the Alabama SIP, contact Mr. Zuri Farngalo at the same 
address listed above. The telephone number is (404) 562-9152. Mr. 
Farngalo can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is the Background for This Action?
II. What Are EPA's Current Proposals?
    A. Proposal to Affirm the October 15, 2008, Action and Approve 
the 2003/2008 Submittals
    B. Proposal To Amend the October 15, 2008, Action and Disapprove 
the 2003/2008 Submittals
III. What Additional Information Would EPA Like To Receive?
IV. Proposed Actions
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    On September 11, 2003, the Alabama Department of Environmental 
Management (ADEM) submitted a request for EPA approval of a SIP 
submittal (2003 Submittal) containing proposed revisions to the visible 
emissions portion of the Alabama SIP, found at ADEM Administrative Code 
Chapter 335-3-4-.01, ``Visible Emissions,'' and pertaining to sources 
of particulate matter (PM) emissions. In an action published on April 
12, 2007 (72 FR 18428), EPA proposed to approve the proposed revisions 
contingent upon Alabama submitting a revised SIP submittal addressing 
EPA's concerns regarding impacts of the rule changes on attainment of 
the National Ambient Air Quality Standards (NAAQS), as set forth in 72 
FR 18428-18434. EPA's proposal notice explained that the State would 
have to provide EPA with a revised SIP submittal consistent with 
certain changes described by EPA in our April 12, 2007, notice of 
proposed rulemaking before EPA would approve the revisions.
    EPA provided the public with 60 days to submit comments on the 
April 12, 2007, proposed rule and the specific changes needed to make 
the Alabama submittal approvable into the Alabama SIP. At the request 
of a commenter, EPA extended the public comment period by 30 days to 
July 11, 2007. EPA received four comment letters from industry 
representatives and one from the State air pollution control agency, 
all of which were in favor of the rulemaking. EPA received one comment 
letter, submitted on behalf of four environmental groups, opposed to 
the approval. In general, comments received that were adverse to the 
proposed rulemaking expressed concerns related to air quality impacts 
(particularly on the PM NAAQS), modeling analyses, EPA's technical 
assessment of the relationship between opacity and PM mass emissions, 
and application of Section 110(l) of the Clean Air Act (CAA). These 
comments, and EPA's responses to them, are discussed in more detail in 
EPA's final action on Alabama's SIP revisions taken on October 15, 2008 
(73 FR 60957).
    Following the close of the comment period, EPA and ADEM discussed 
some of the issues raised by the commenters, including comments 
regarding the potential impact of a revised visible emissions rule on 
attainment of the PM2.5 NAAQS in Alabama. Documents 
memorializing these conversations are part of the docket for EPA's 
final action. As a result of these discussions, ADEM decided to submit 
the necessary revisions proposed by EPA in the April 2007 Federal 
Register notice to support final approval. These revisions, submitted 
to EPA on August 22, 2008 (2008 Submittal), and the 2003 Submittal 
amend the requirements for units that are required to operate 
continuous opacity monitoring systems (COMS) and that are not subject 
to any opacity limits other than those of the Alabama SIP. ADEM also 
decided to include an additional limitation on opacity based on public 
comments on EPA's proposal. This additional provision limits subject 
sources to a daily opacity average of no more than 22 percent, 
excluding periods of startup, shutdown, load change and rate change (or 
other short intermittent periods upon terms approved by ADEM's Director 
and included in a State-issued

[[Page 50932]]

permit).\1\ For further information about the technical details 
regarding the SIP revisions, see EPA's October 15, 2008, final action 
(73 FR 60957). The 2003 Submittal and the 2008 Submittal are referred 
to collectively in this notice as the ``2003/2008 Submittals.''
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    \1\ The director's discretion provisions under Alabama rule 335-
3-4-.01(1)(c) and (d) would be unchanged by this SIP revision, so 
periods of excess emissions allowed in a permit pursuant to those 
provisions would continue to be allowed, as noted here. EPA notes 
that, as the director's discretion provisions are not being revised 
by ADEM or reviewed by EPA at present, nothing in this notice should 
be considered as endorsing those previously approved provisions.
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    On October 15, 2008, EPA took final action to incorporate into the 
Alabama SIP, Alabama's revisions to its visible emissions rule (the 
rule changes included in the 2003/2008 Submittals). 73 FR 60957. This 
final action was effective on November 14, 2008. By its terms, the 
Alabama state rule change became effective (and thus applicable to 
sources) on May 14, 2009.
    Following the October 2008 final action, EPA received two petitions 
for reconsideration submitted on behalf of the Alabama Environmental 
Council and other parties (Petitioners). The first petition for 
reconsideration, dated December 12, 2008, raised procedural and 
substantive concerns with EPA's October 15, 2008, final action, and was 
denied by EPA via letter on January 15, 2009. The second petition, 
dated February 25, 2009, raised additional procedural and substantive 
issues. EPA granted the second petition via letter on April 3, 2009. 
The main issues raised by the February 25, 2009, petition can be 
summarized as follows: (1) That EPA ignored Petitioners' December 31, 
2008, comments regarding the DC Circuit's vacatur of the 40 CFR part 63 
provisions pertaining to startup, shutdown, and malfunction and its 
impact on the opacity SIP revision; (2) that a new comment period was 
required because the 2007 proposal was not approvable ``as is''; (3) 
that EPA's conclusion that greater opacity does not necessarily mean 
greater PM emissions was irrational; (4) that EPA failed to make an 
``appropriate inquiry'' under section 110(l) and 40 CFR 51.112 to 
protect the NAAQS--there was no equivalency determination, only 
reliance on uncertainty; (5) that documents received as part of a 
Freedom of Information Act request indicate that some groups were given 
more access to the rulemaking than others, thus supporting the 
reopening of the public comment period; (6) that if the public comment 
period were reopened, EPA would be presented with information that 
would compel EPA to disapprove the SIP revisions; and (7) that the 
petition also incorporated the original petition issues.\2\ Both 
petitions are included in the docket for this action.
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    \2\ The original petition raised approximately eight issues 
summarized as follows: (1) EPA was arbitrary and capricious in 
failing to reopen the public comment period when ADEM made changes 
to the rule after the close of the public comment period; (2) EPA 
was arbitrary and capricious in deviating from rulemaking policy 
regarding documentation of post-comment period meetings between EPA 
and ADEM and failing to meet with Petitioners in addition to ADEM; 
(3) EPA was arbitrary and capricious in proposing to approve a SIP 
revision before the rule had even been developed at the State level; 
(4) EPA failed to comply with rulemaking procedures by failing to 
complete the docket prior to finalizing the rulemaking action; (5) 
the rule does not represent reasonably available control technology 
(RACT) which is required because Alabama has PM2.5 
nonattainment areas; (6) EPA's approval was not consistent with 
either section 110(l) or 193 due to likely increases in short-term 
PM emissions; (7) EPA's final action was not consistent with EPA 
policies on excess emissions and director's discretion; and (8) the 
final rule does not comply with 40 CFR Part 51 because it is not an 
``appropriate'' visible emission limitation.
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    In the letter granting the February 2009 petition for 
reconsideration, EPA committed to conduct this reconsideration through 
a new rulemaking process. Through this process, which begins with this 
public notice, EPA is allowing for public comment and will make a 
determination either affirming its previous action and approving the 
revisions or amending the previous action and disapproving the 
revisions.

II. What Are EPA's Current Proposals?

A. Proposal To Affirm the October 15, 2008, Action and Approve the 
2003/2008 Submittals

    As was discussed in EPA's October 15, 2008, rulemaking, EPA 
believes that the primary issue in considering whether these SIP 
revisions were approvable was determining whether the approval of the 
revisions was consistent with section 110(l) of the CAA. In particular, 
determination of consistency with section 110(l) depends upon whether 
the proposed revisions would interfere with attainment of the NAAQS by 
increasing emissions of PM2.5.\3\ Section 110(l) of the CAA 
provides in part that:
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    \3\ EPA's view has been that if the SIP revision does not 
interfere with attainment or maintenance of the PM2.5 
NAAQS, then it is unlikely to interfere with other applicable 
requirements. For example, if EPA concludes that actual emissions of 
PM2.5 allowed under the SIP are not increasing as a 
result of the SIP revision, then no additional control requirements 
would be required under section 193 (assuming it otherwise applies 
to this action). Similarly, EPA anticipates that if the opacity 
standard is consistent with attainment of the NAAQS, then it would 
be an ``appropriate'' standard for purposes of Part 51, and would 
not interfere with other applicable requirements such as RACT. EPA 
solicits comment on these issues and whether there are other 
applicable requirements that require independent analysis under 
section 110(l) or other portions of the CAA.

    The Administrator shall not approve a revision of a [SIP] if the 
revision would interfere with any applicable requirement concerning 
attainment and reasonable further progress (as defined in section 7501 
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of this title), or any other applicable requirement of [the Act].

    In evaluating whether a SIP revision would interfere with 
attainment or maintenance, as required by section 110(l), EPA generally 
considers whether the SIP revision will allow for an increase in actual 
emissions to the air over what is allowed under the existing federally-
approved SIP.\4\ EPA has concluded that preservation of the status quo 
air quality during the time new attainment or maintenance 
demonstrations are being prepared will prevent interference with CAA 
requirements, including the States' obligations to develop timely 
demonstrations. EPA does not believe that areas must produce a complete 
demonstration to make any revisions to the SIP, provided the status quo 
air quality is preserved.
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    \4\ EPA also accepts modeling demonstrations, as when an area is 
seeking approval of a maintenance plan, and in some cases (for areas 
designated attainment) EPA has accepted an analysis demonstrating 
that the SIP revision will not interfere with maintenance or other 
CAA requirements.
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    The 2003/2008 Submittals at issue were the subject of extensive 
consideration because the question of whether they were expected to 
result in an increase in emissions of criteria pollutants, particularly 
PM2.5, was a difficult issue to analyze technically. Opacity 
itself is not a criteria pollutant. Rather, opacity may be defined as 
the degree to which emissions reduce the transmission of light and 
obscure the view of an object in the background. (See 40 CFR 60.2.) 
Opacity requirements are significant environmentally for many reasons, 
including that they may be used as an indicator of the effectiveness of 
emission controls for PM emissions. Opacity may also be used to assist 
with implementation and enforcement of PM emission standards.
    EPA's prior approval notice provides extensive discussion of the 
reasons why EPA concluded in that notice that section 110(l) had been 
satisfied. 73 FR 60957 (October 15, 2008).\5\ In particular, EPA stated 
as grounds for this conclusion that: ``(1) The revision would not 
increase the allowable

[[Page 50933]]

average opacity levels; and (2) the relationship between changes in 
opacity and increases or decreases in ambient PM2.5 levels 
cannot be quantified readily for the sources subject to this SIP 
revision, and is particularly uncertain for short-term analyses.'' 73 
FR 60959.
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    \5\ In addition, the Response to Comment document prepared by 
EPA for the final rule also addressed several issues raised by 
Petitioners.
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    In light of the issues raised in the February 2009 petition for 
reconsideration, including Petitioners' arguments regarding the need to 
complete an equivalency determination under section 110(l), and the 
concerns about the nature of the relationship between opacity and PM, 
EPA is reconsidering and soliciting comment on its conclusion that the 
SIP revisions satisfied the requirements of section 110(l). If EPA 
concludes, following public comment on this reconsideration notice, 
that these two grounds remain an appropriate basis for approving the 
SIP revisions as meeting the requirements of section 110(l), and 
concludes that Petitioners have not identified other issues that lead 
to the conclusion that the SIP revisions interfere with any applicable 
requirement of the CAA, then EPA anticipates that it would affirm its 
prior approval of the SIP revisions.
    Thus, EPA is now accepting comment on our previously articulated 
basis for approving the 2003/2008 Submittals, on the issues raised in 
the February 2009 petition for reconsideration, and how the issues 
raised in the February 2009 petition may impact EPA's previous basis 
for approving the 2003/2008 Submittals.

B. Proposal To Amend the October 15, 2008, Action and Disapprove the 
2003/2008 Submittals

    In the February 25, 2009, petition for reconsideration, Petitioners 
lay out their rationale for why EPA should amend the October 2008 
rulemaking and disapprove for the 2003/2008 Submittals. As part of the 
current reconsideration process, EPA is (1) outlining the following 
rationale, which could form the basis for amending the October 
rulemaking action; (2) proposing to amend the October rulemaking and 
disapprove the 2003/2008 Submittals based on the discussion below, and 
any other issues that may come to light as part of the public comment 
received through this notice; and (3) taking comment on this proposed 
alternate disapproval action and rationale.
Rationale for Proposed Disapproval
    The most significant issue raised by petitioners in the February 
25, 2009, petition is that approval of the 2003/2008 Submittals was not 
consistent with Section 110(l) because, petitioners explain, the 
``bundling of high opacity periods'' would result in increases in PM 
mass emissions, thus ``interfering'' with attainment and maintenance of 
the PM NAAQS.
    The 2003/2008 Submittals allow for higher maximum opacity levels 
from the applicable facilities that were not previously authorized. In 
some cases, these increases may be up to 100 percent opacity. These 
visible emissions of up to 100 percent opacity for a certain period of 
time will be considered lawful--a distinct difference between the 2003/
2008 SIP proposal and the previous SIP-approved rule. These types of 
emissions will be allowed from approximately 19 facilities affected by 
the rule change, including older coal-fired utilities, cement 
manufacturing facilities, and pulp and paper facilities, among others. 
Some of the affected facilities are located in or near the Birmingham, 
Alabama, area, which is currently designated as nonattainment for 
PM2.5. Alabama also has a partial county that is part of the 
Chattanooga, Tennessee, PM2.5 nonattainment area, and one of 
the affected facilities is located near that area. In addition, the 
Birmingham area currently has a monitor that has registered design 
values above the 1997 8-hour ozone standard and is considered in 
violation of that NAAQS. As a result of the ozone violation, Alabama 
submitted a SIP revision, which was approved in a July 30, 2009, 
rulemaking (74 FR 37977) to adopt contingency measures for the 
Birmingham area.
    As was discussed earlier in this notice, both Alabama's previous 
visible emissions rule and the revised rule allow for opacity of 100 
percent for periods of startup, shutdown, load change and rate change 
(or other short intermittent periods upon terms approved by ADEM's 
Director and included in a State-issued permit). The previous rule, 
however, did not otherwise allow for opacity of 100 percent and 
allowed, instead, for opacity of up to 40 percent for one six-minute 
period per hour. Thus, in addition to periods of startup, shutdown, 
load change and rate change (or other short intermittent periods), the 
revised Alabama rule allows the same maximum time of excess opacity in 
a single day (up to 144 minutes per day) as the previous SIP-approved 
rule. The revised rule allows for an increase in the upper limit from 
40 percent opacity to 100 percent opacity. Further, the revised rule 
allows for a daily aggregate of the 24 six-minute periods per day as 
opposed to 24 hourly periods per day.
    The petition for reconsideration outlines several reasons why 
petitioners believe the 2003/2008 Submittals are not approvable, 
including (in paraphrase): (1) The 22 percent average daily opacity cap 
is illegal because it incorporates automatic exemptions, as does the 
rest of the opacity rule, making it illegal under the DC Circuit's 
decision in Sierra Club v.  EPA, 551 F.3d 1019 (DC Cir. 2008) (vacating 
certain provisions in 40 CFR part 63 regarding periods of startup, 
shutdown, and malfunction); (2) the 22 percent average daily opacity 
cap provision does not represent RACT; (3) approval of the 22 percent 
average daily opacity cap provision was illegal because there is no 
support for the proposition that allowing bundling of high opacity 
periods would allow no more particulate than the old regulatory scheme 
which allowed 40 percent opacity once per hour; and (4) the 22 percent 
average daily opacity cap provision would still allow the bundling of 
high opacity periods, thereby failing to ensure compliance with three-
hour mass emission limitations.
    Based on the information received to date, EPA believes that 
increases or decreases in PM2.5 emissions based on short-
term increases in opacity cannot be quantified readily for the sources 
subject to this SIP revision. There are several contributors to the 
uncertainties associated with relating mass emissions to increases in 
opacity, including: (1) Differences between combustion technology 
characteristics and fuel components, (2) differences in control 
technology types, temperatures at which they operate, and load 
characteristics, (3) the recognition that both opacity and mass 
emissions are subject to significant variability over short periods of 
time and fluctuations such that one may act independently of the other, 
and (4) differences between the mass of particles that exists at the 
point of opacity measurement by the COMS (e.g., in the stack) and the 
direct PM2.5 that forms immediately upon exiting the stack 
(that are related to fuel components more than to control technology).
    A significant issue for these SIP revisions is the degree of 
uncertainty that exists, and how to apply section 110(l) in the event 
EPA determines there is extreme uncertainty based on currently 
available data. Alabama has not provided EPA with an affirmative 
demonstration that the 2003/2008 Submittals will not interfere with 
attainment and maintenance of the NAAQS, reasonable further progress, 
or any other applicable requirement of the CAA--particularly for 
facilities located

[[Page 50934]]

in or near PM nonattainment areas. Petitioners argue that in order to 
preserve the integrity of the SIP revision process, section 110(l) 
requires more than mere uncertainty, i.e., an inability to predict with 
confidence, based on current data, the effect of changes on the opacity 
standard with respect to attainment of the NAAQS. Rather, section 
110(l) requires an affirmative conclusion that the revision at issue 
will not interfere with any NAAQS or applicable requirement. Thus, one 
possible approach suggested by the petition would be to conclude that 
the SIP revisions could not be approved until additional data and 
analysis (e.g., source-specific testing) was submitted that provided a 
reasonable basis for concluding that the revision would not interfere 
with applicable requirements. This approach would provide protection 
for the NAAQS, consistent with the overall goals of the CAA. EPA 
solicits comment on this approach, particularly if the uncertainty 
(based on the available record) is too great to provide a basis for 
concluding that the SIP revisions are likely to interfere with timely 
attainment of the PM2.5 NAAQS, as a basis to amend and 
disapprove of the 2003/2008 Submittals.

III. What Additional Information Would EPA Like To Receive?

    The relationship between opacity and PM mass emissions is a key 
component to evaluating the October 2008 rulemaking under Section 
110(l). Thus, in addition to soliciting comments on the above 
proposals, EPA is also seeking comment on the relationship between 
opacity and the NAAQS (the PM10 and PM2.5 NAAQS 
in particular). This information will help EPA gather additional 
information regarding petitioners' claims and Section 110(l). EPA 
specifically seeks public comment on the nature of the relationship 
between opacity and PM mass emissions over both the short and long term 
and when the opacity and PM mass emissions may have a predictable 
relationship to one another (e.g., when an opacity level of a certain 
amount would predict a PM mass emission of another certain amount). The 
public is encouraged to provide the following types of data and 
analyses to assist with EPA's reconsideration of its action on the 
2003/2008 Submittals. Source-specific data from Alabama facilities 
affected by the 2003/2008 Submittals would provide particularly 
pertinent information; however, the following list of data/information 
would assist EPA in its analysis of the submittals:
     Concurrent measurements from COMS and PM continuous 
emission monitoring systems, along with fuel analyses, process data, 
control device descriptions, and operational data;
     Concurrent opacity and PM emissions measurements, along 
with fuel analyses, process data, control device descriptions, and 
operational data;
     Information on relationships, empirical or modeled, 
between opacity and PM emissions (both filterable and condensable), 
such as statistical analyses that attempt to relate or correlate 
opacity with PM emissions (both filterable and condensable);
     Data on conditions--such as those associated with fuel, 
source, combustion, load, control, or particle characteristics--under 
which relationships exist between opacity and PM emissions;
     Other parameters that can be measured and related to PM 
emissions;
     Relationships between opacity and particle size, 
especially for fine PM;
     Benefit and/or cost information on compliance methods that 
measure PM on a direct, continuous basis and methods that rely on 
indicators, such as opacity, and/or rely on ongoing but infrequent PM 
emissions testing; and
     Any data supporting the particular issues raised in the 
petition for reconsideration.
    EPA is now accepting public comment on the various bases identified 
in the petition for reconsideration, or that otherwise may be 
articulated, for amending the October rulemaking and disapproving the 
2003/2008 Submittals.

IV. Proposed Actions

    This rulemaking is part of EPA's reconsideration process on our 
October 15, 2008, final action approving Alabama's visible emissions 
SIP revisions. EPA is seeking public comment on proposals to affirm our 
prior action, which approved the SIP revisions, or amend and disapprove 
the revisions to Alabama SIP rule 335-3-4-.01 (``Visible Emissions''), 
submitted initially in 2003 and significantly revised and re-submitted 
on August 22, 2008.
    The public is encouraged to submit any comments that it would like 
EPA to specifically respond to as part of this reopening of the public 
comment period. The October 15, 2008, final action remains in effect at 
this time. The Docket for this reopening has been populated with all 
the relevant information and is available electronically and in 
hardcopy in the Region 4 Office.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132, Federalism
F. Executive Order 13175, Coordination With Indian Tribal 
Governments
G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks
H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP proposals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply propose approval of requirements that the State is already 
imposing. Therefore, because the Federal SIP approval or disapproval 
proposals do not create any new requirements, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of State action. The CAA 
forbids EPA to base its

[[Page 50935]]

actions concerning SIPs on such grounds. Union Electric Co., v.  U.S. 
EPA, 427 US 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must 
prepare a budgetary impact statement to accompany any proposed or final 
rule that includes a Federal mandate that may result in estimated costs 
to State, local, or tribal governments in the aggregate; or to the 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the approval or disapproval action proposed 
does not include a Federal mandate that may result in estimated costs 
of $100 million or more to either State, local, or tribal governments 
in the aggregate, or to the private sector. This Federal action 
proposes to approve or disapprove pre-existing requirements under State 
or local law, and imposes no new requirements. Accordingly, no 
additional costs to State, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will 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, because it 
merely proposes to approve or disapprove a State rule implementing a 
federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. 
Thus, the requirements of section 6 of the Executive Order do not apply 
to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. This 
proposed rule will not have substantial direct effects on tribal 
governments, 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. Thus, Executive Order 
13175 does not apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

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: September 10, 2009.
Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. E9-23793 Filed 10-1-09; 8:45 am]
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