[Federal Register Volume 76, Number 20 (Monday, January 31, 2011)]
[Rules and Regulations]
[Pages 5272-5274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1931]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0697-201102, FRL-9259-8]


Removal of Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in 
State Implementation Plans; Alabama

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is amending its regulations to remove language which 
narrowed its previous approval of Alabama's New Source Review (NSR) 
Prevention of Significant Deterioration (PSD) program regarding 
thresholds for determining which new stationary sources and 
modification projects become subject to Alabama's PSD

[[Page 5273]]

permitting requirements for their greenhouse gas (GHG) emissions. On 
December 14, 2010, the State of Alabama, through the Alabama Department 
of Environmental Management (ADEM), provided a revision to its State 
Implementation Plan (SIP) to establish appropriate emission thresholds 
for determining which new stationary sources and modification projects 
become subject to permitting requirements for GHG emissions in Alabama. 
EPA has taken final action to approve Alabama's December 14, 2010, SIP 
revision, and this makes EPA's narrowing of its previous approval of 
Alabama's PSD program as it relates to GHG permitting thresholds 
unnecessary. Today's action removes the regulatory language related to 
the narrowing action that is no longer applicable to Alabama as a 
result of EPA's approval of Alabama's December 14, 2010, SIP revision. 
Because this action is ministerial, EPA is applying the ``good cause'' 
exemption from public notice and comment requirements under the 
Administrative Procedure Act (APA).

DATES: This action is effective January 31, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0697. 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: Lynorae Benjamin, 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) 562-9040. Ms. Benjamin can also be reached via electronic mail 
at [email protected].

SUPPLEMENTARY INFORMATION:
I. What is today's action?
II. When is today's action effective?
III. Statutory and Executive Order Reviews

I. What is today's action?

    On December 30, 2010, EPA published a final rule entitled 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans.'' See 75 FR 82536 (Narrowing Rule). This action 
narrowed EPA's previous approval of PSD programs as applicable to GHG-
emitting sources in SIPs in 24 States, including Alabama. Specifically, 
in the Narrowing Rule, EPA withdrew its previous approval of those 
programs to the extent they apply PSD to GHG-emitting sources below the 
thresholds in EPA's Tailoring Rule (75 FR 31514). Having narrowed its 
prior approval, EPA asked that each affected State withdraw from EPA 
consideration the part of its SIP that was no longer approved, and 
stated that approval of a SIP revision incorporating the Tailoring Rule 
thresholds into a SIP would count as removing these no-longer-approved 
provisions.
    On December 14, 2010, the State of Alabama, through ADEM, provided 
a revision to its SIP to incorporate changes to Alabama's air quality 
regulations, Regulation 335-3-14-.04, Air Permits Authorizing 
Construction in Clean Air Areas--Prevention of Significant 
Deterioration Permitting (PSD), to establish appropriate emission 
thresholds, consistent with EPA's Tailoring Rule, for determining which 
new stationary sources and modification projects become subject to 
Alabama's PSD permitting requirements for their GHG emissions. On 
December 29, 2010, EPA approved Alabama's December 14, 2010, SIP 
revision, effective January 18, 2011. See 75 FR 81863. As a result of 
EPA's approval of Alabama's changes to its air quality regulations to 
incorporate the appropriate thresholds for GHG permitting applicability 
into Alabama's SIP, paragraph (b) in Section 52.53 of 40 CFR part 52, 
as included in EPA's Narrowing Rule--which applies the Narrowing Rule 
to Alabama's SIP--is no longer necessary. The current action removes 
the approval narrowing language relating to Alabama's SIP from the CFR 
to reflect that, to the extent the Narrowing Rule withdrew EPA approval 
from any provisions in the Alabama SIP, those provisions have been 
removed from the SIP and thus the narrowing language in 40 CFR 
52.1272(b) now serves no purpose. EPA is publishing this rulemaking to 
amend Section 52.53 of 40 CFR part 52 to remove this unnecessary 
regulatory language.

II. When is today's action effective?

    This action removes content from the CFR that now serves no purpose 
because EPA has approved Alabama's SIP revision to establish thresholds 
for GHG permitting applicability consistent with EPA's Tailoring Rule. 
This is a ministerial but necessary action on the part of EPA. EPA has 
determined that today's action falls under the ``good cause'' exemption 
in section 553(b)(3)(B) of the APA. That provision authorizes agencies, 
upon finding ``good cause,'' to dispense with public notice and 
participation where they are impracticable, unnecessary, or contrary to 
the public interest. EPA finds that it is unnecessary to provide public 
notice prior to finalizing this action, or to provide an opportunity 
for public comment on this action, because this action does not 
establish any new regulatory requirements, but instead merely removes 
language contained in 40 CFR 52.53 that no longer serves any purpose.
    EPA also finds that there is good cause under APA section 553(d)(3) 
for this action to become effective on the date of publication. Section 
553(d)(3) of the APA allows an effective date less than 30 days after 
publication ``as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d)(3). The purpose of the 
30-day waiting period prescribed in APA section 553(d)(3) is to give 
affected parties a reasonable time to adjust their behavior and prepare 
before the final rule takes effect. Today's rule, however, does not 
create any new regulatory requirements such that affected parties would 
need time to prepare before the rule takes effect. Rather, today's 
action merely removes language contained in 40 CFR 52.53 that no longer 
serves any purpose. For this reason, EPA finds good cause under APA 
section 553(d)(3) for this action to become effective on the date of 
publication.

III. 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,

[[Page 5274]]

``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
removes unnecessary language contained in 40 CFR 52.53 related to 
Alabama's SIP, and imposes no new requirements. 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 
removes unnecessary language contained in 40 CFR 52.53 related to 
Alabama's SIP, and does not impose any new enforceable duty, 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 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 (65 
FR 67249, November 9, 2000). This rule 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 rule removes unnecessary language 
contained in 40 CFR 52.53 related to Alabama's SIP, and does not alter 
the relationship or the distribution of power and responsibilities 
established in the Clean Air Act (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 is not economically significant. In addition, this rule does not 
involve technical standards, 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 also 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. section 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 April 1, 2011. 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 CAA section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Ozone, 
Volatile organic compounds, and Reporting and recordkeeping 
requirements.

    Dated: January 20, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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

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2. Section 52.53 is revised to read as follows:


Sec.  52.53  Approval Status.

    With the exceptions set forth in this subpart, the Administrator 
approves Alabama's plans for the attainment and maintenance of the 
national standards under section 110 of the Clean Air Act. Furthermore, 
the Administrator finds the plans satisfy all requirements of Part D, 
Title I, of the Clean Air Act as amended in 1977. In addition, 
continued satisfaction of the requirements of Part D for the ozone 
portion of the SIP depends on the adoption and submittal of RACT 
requirements by July 1, 1980 for the sources covered by CTGs issued 
between January 1978 and January 1979 and adoption and submittal by 
each subsequent January of additional RACT requirements for sources 
covered by CTGs issued by the previous January.

[FR Doc. 2011-1931 Filed 1-28-11; 8:45 am]
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