[Federal Register Volume 77, Number 125 (Thursday, June 28, 2012)]
[Rules and Regulations]
[Pages 38515-38523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15475]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0782; FRL-9691-8]


Approval and Promulgation of Implementation Plans; State of 
Alabama; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finalizing a limited approval of a revision to the 
Alabama State Implementation Plan (SIP) submitted by the State of 
Alabama through the Alabama Department of Environmental Management 
(ADEM) on July 15, 2008. Alabama's July 15, 2008, SIP revision 
addresses regional haze for the first implementation period. 
Specifically, this SIP revision addresses the requirements of the Clean 
Air Act (CAA or Act) and EPA's rules that require states to prevent any 
future and remedy any existing anthropogenic impairment of visibility 
in mandatory Class I areas (national parks and wilderness areas) caused 
by emissions of air pollutants from numerous sources located over a 
wide geographic area (also referred to as the ``regional haze 
program''). States are required to assure reasonable progress toward 
the national goal of achieving natural visibility conditions in Class I 
areas. EPA is finalizing a limited approval of Alabama's July 15, 2008, 
SIP revision to implement the regional haze requirements for Alabama on 
the basis that this SIP revision, as a whole, strengthens the Alabama 
SIP. Additionally, EPA is rescinding the federal regulations previously 
approved into the Alabama SIP on November 24, 1987, and approving the 
provisions in Alabama's July 15, 2008, SIP submittal to meet the long-
term strategy (LTS) requirements for reasonably attributable visibility 
impairment (RAVI). In a separate action published on June 7, 2012, EPA 
finalized a limited disapproval of this same SIP revision because of 
the deficiencies in the State's regional haze SIP revision arising from 
the remand by the U.S. Court of Appeals for the District of Columbia 
Circuit (DC Circuit) to EPA of the Clean Air Interstate Rule (CAIR).

DATES: Effective Date: This rule will be effective July 30, 2012, 
except for the amendment to Sec.  52.61, which is effective on August 
7, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0782. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the 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 for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S.

[[Page 38516]]

Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Michele Notarianni can be reached at 
telephone number (404) 562-9031 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds. Fine particle precursors react in the atmosphere to form 
fine particulate matter (PM2.5) which impairs visibility by 
scattering and absorbing light. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. PM2.5 
can also cause serious health effects and mortality in humans and 
contributes to environmental effects such as acid deposition and 
eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On July 15, 2008, ADEM submitted a revision to Alabama's SIP to 
address regional haze in the State's and other states' Class I areas. 
On February 28, 2012, EPA published an action proposing a limited 
approval of Alabama's July 15, 2008, SIP revision to address the first 
implementation period for regional haze.\1\ See 77 FR 11937. EPA 
proposed a limited approval of Alabama's July 15, 2008, SIP revision to 
implement the regional haze requirements for Alabama on the basis that 
this revision, as a whole, strengthens the Alabama SIP. See section II 
of this rulemaking for a summary of the comments received on the 
proposed actions and EPA's responses to these comments. Detailed 
background information and EPA's rationale for the proposed action is 
provided in EPA's February 28, 2012, proposed rulemaking. See 77 FR 
11937.
---------------------------------------------------------------------------

    \1\ In a separate action, published on June 7, 2012 (77 FR 
33642), EPA finalized a limited disapproval of the Alabama regional 
haze SIP because of deficiencies in the State's regional haze SIP 
submittal arising from the State's reliance on CAIR to meet certain 
regional haze requirements. This final limited disapproval triggers 
a 24-month clock by which a Federal Implementation Plan (FIP) or 
EPA-approved SIP must be in place to address the deficiencies.
---------------------------------------------------------------------------

    Following the remand of CAIR, EPA issued a new rule in 2011 to 
address the interstate transport of NOX and SO2 
in the eastern United States. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule,'' also known as the Cross-State Air Pollution Rule 
(CSAPR)). On December 30, 2011, EPA proposed to find that the trading 
programs in the Transport Rule would achieve greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions than would best available retrofit technology (BART) in the 
states in which the Transport Rule applies (including Alabama). See 76 
FR 82219. Based on this proposed finding, EPA also proposed to revise 
the RHR to allow states to substitute participation in the trading 
programs under the Transport Rule for source-specific BART. EPA 
finalized this finding and RHR revision on June 7, 2012 (77 FR 33642).
    Also on December 30, 2011, the DC Circuit stayed the Transport Rule 
(including the provisions that would have sunset CAIR and the CAIR 
FIPs) and instructed the EPA to continue to administer CAIR pending the 
outcome of the court's decision on the petitions for review challenging 
the Transport Rule. EME Homer City v. EPA, No. 11-1302.

II. What is EPA's response to comments received on this action?

    EPA received two sets of comments on the February 28, 2012, 
rulemaking proposing a limited approval of Alabama's July 15, 2008, 
regional haze SIP revision. Specifically, the comments were received 
from the Sierra Club and ADEM. Full sets of the comments provided by 
all of the aforementioned entities (hereinafter referred to as ``the 
Commenter'') are provided in the docket for today's final action. A 
summary of the comments and EPA's responses are provided below.
    Comment 1: The Commenter does not believe that ADEM can rely on 
CAIR or the Transport Rule to exempt the eight power plants with BART-
eligible electric generating units (EGUs) from an SO2 and 
NOX BART analysis. The Commenter enclosed letters that it 
submitted to EPA on February 28, 2012, with its comments on the 
Agency's proposed December 30, 2011, rulemaking to find that the 
Transport Rule is ``better than BART'' and to use the Transport Rule as 
an alternative to BART for Alabama and other states subject to the 
Transport Rule. See 76 FR 82219. The Commenter incorporates the 
comments in this letter by reference and repeats a subset of those 
comments, including the following: The Transport Rule cannot serve as a 
BART alternative for the regional haze SIP process in Alabama; EPA has 
not demonstrated that the Transport Rule assures greater reasonable 
progress than source-specific BART; EPA failed to account for the 
geographical and temporal uncertainties in emissions reductions 
inherent in a cap-and-trade program such as the Transport Rule; EPA 
underestimated the visibility improvements from BART using 
``presumptive BART, rather than actual BART;'' ``case specific BART 
determinations for SO2 emissions from EGUs in Alabama would 
almost certainly ensure greater progress than would be achieved by 
CSAPR;'' and

[[Page 38517]]

EPA has not accounted for the differences in averaging time under BART, 
the Transport Rule, and in measuring visibility impacts.
    Response 1: These comments are beyond the scope of this rulemaking. 
In today's rule, EPA is finalizing a limited approval of Alabama's 
regional haze SIP. EPA did not propose to find that participation in 
the Transport Rule is an alternative to BART in this action nor did EPA 
reopen discussions on the CAIR provisions as they relate to BART.\2\ As 
noted above, EPA proposed to find that the Transport Rule is ``Better 
than BART'' and to use the Transport Rule as an alternative to BART for 
Alabama in a separate action on December 30, 2011, and the Commenter is 
merely reiterating and incorporating its comments on that separate 
action. EPA addressed these comments concerning the Transport Rule as a 
BART alternative in a final action that was published on June 7, 2012, 
and has determined that they do not affect the Agency's ability to 
finalize a limited approval of Alabama's regional haze SIP. EPA's 
responses to these comments can be found in Docket ID No. EPA-HQ-OAR-
2011-0729 at www.regulations.gov.
---------------------------------------------------------------------------

    \2\ In a final action published on July 6, 2005, EPA addressed 
similar comments related to CAIR and determined that CAIR makes 
greater reasonable progress than BART for certain EGUs and 
pollutants (70 FR 39138). EPA did not reopen comment on that issue 
through this rulemaking.
---------------------------------------------------------------------------

    Comment 2: The Commenter asserts that because ``the BART component 
of Alabama's RH SIP is an essential element to the state's LTS for 
achieving it RPGs, Alabama's treatment of CAIR (and now EPA's proposed 
substitution of CSAPR for CAIR) as an acceptable BART-alternative must 
be addressed in this present comment process. Separating the BART 
analysis from the remaining portion of the RH SIP would result in an 
inadequate SIP.'' The Commenter supports its position by repeating 
statements made in its February 28, 2012, comments on the Agency's 
proposed December 30, 2011, rulemaking to find that the Transport Rule 
is ``Better than BART'' and to use the Transport Rule as an alternative 
to BART for Alabama and other states subject to the Transport Rule. For 
example, the Commenter states that ``EPA cannot exempt sources from the 
RHR's BART requirements without full consideration of how that 
exemption would affect the overarching reasonable progress mandate.''
    Response 2: As discussed in the response to Comment 1, today's 
action does not address reliance on CAIR or CSAPR to satisfy BART 
requirements. Comments related to the approvability of CAIR or CSAPR 
for the Alabama regional haze SIP are therefore beyond the scope of 
this rulemaking and were addressed by EPA in a separate action 
published on June 7, 2012 (77 FR 33642). EPA addressed the Commenter's 
repeated statements regarding the interrelatedness of BART, the LTS, 
and RPGs in that final rulemaking action and those responses support 
this limited approval action.\3\
---------------------------------------------------------------------------

    \3\ See EPA, Response to Comments Document, Regional Haze: 
Revisions to Provisions Governing Alternatives to Source-Specific 
Best Available Retrofit Technology (BART) Determinations, Limited 
SIP Disapprovals, and Federal Implementation Plans (76 FR 82219; 
December 30, 2011), Docket Number EPA-HQ-OAR-2011-0729 (May 30, 
2012), pages 49-51 (noting that EPA ``disagree[s] with comments that 
we cannot evaluate the BART requirements in isolation from the 
reasonable progress requirements. We have on several occasions 
undertaken evaluations of a state's BART determination or 
promulgated a FIP separately from our evaluation of whether the SIP 
as a whole will ensure reasonable progress.'').
---------------------------------------------------------------------------

    EPA believes the Commenter overstates the overarching nature of the 
changes due to CAIR or CSAPR. The reliance on CAIR in the Alabama 
submittal was consistent with EPA policy at the time the submittal was 
prepared. CSAPR is a replacement for CAIR, addressing the same regional 
EGU emissions, with many similar regulatory attributes. The need to 
address changes to the LTS resulting from the replacement of CAIR with 
CSAPR was acknowledged in the proposal, and as stated in the proposal, 
EPA believes that the five-year progress report is the appropriate time 
to address any changes to the RPG demonstration and, if necessary, the 
LTS. EPA expects that this demonstration will address the impacts on 
the RPG due to the replacement of CAIR with CSAPR as well as other 
adjustments to the projected 2018 emissions due to updated information 
on the emissions for other sources and source categories. If this 
assessment determines an adjustment to the regional haze plan is 
necessary, EPA regulations require a SIP revision within a year of the 
five-year progress report.
    Comment 3: The Commenter believes that Alabama should have 
considered the cumulative impacts of the particulate matter (PM) 
emissions from the State's PM BART-eligible EGUs when performing BART 
exemption modeling and that the State should not have modeled these 
sources in isolation of one another or without regard to PM emissions 
from sources in other states which impact the Sipsey Wilderness Area 
(Sipsey) or any Class I area. The Commenter also believes that ADEM 
should have considered both filterable and condensable PM when 
conducting this modeling.
    Response 3: As discussed in the proposal, (see section IV.C.6.B.2, 
February 28, 2012, 77 FR 11950-11951), Alabama adequately justified its 
contribution threshold of 0.5 deciview. While states have the 
discretion to set an appropriate contribution threshold considering the 
number of emissions sources affecting the Class I area at issue and the 
magnitude of the individual sources' impacts, the states' analysis must 
be consistent with the CAA, the RHR, and EPA's Guidelines for BART 
Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR 
part 51 (BART Guidelines). Consistent with the regulations and EPA's 
guidance, ``the contribution threshold should be used to determine 
whether an individual source is reasonably anticipated to contribute to 
visibility impairment. You should not aggregate the visibility effects 
of multiple sources and compare their collective effects against your 
contribution threshold because this would inappropriately create a 
`contribution to contribution' test.'' See also 70 FR 39121. Alabama's 
analysis in the regional haze SIP revision was consistent with EPA's 
regulations and guidance on the issue of cumulative analyses.
    It is unclear what condensable PM emissions the Commenter believes 
that the State should have included in its visibility modeling. Each of 
the units evaluated for BART in Alabama's regional haze SIP followed 
the Visibility Improvement State and Tribal Association of the 
Southeast (VISTAS) modeling protocol and considered the contribution of 
total PM10 and PM2.5 (as a subset of the total 
PM10) as well as condensable PM (primarily sulfuric acid 
mist) (see Appendix H.9 of Alabama's regional haze SIP). Regarding 
modeling in Alabama's submittal that uses PM only for its BART-eligible 
EGUs, EPA previously determined that this approach is appropriate for 
EGUs where the State proposed to rely on CAIR to satisfy the BART 
requirements for SO2 and NOX.\4\
---------------------------------------------------------------------------

    \4\ Regional Haze Regulations and Guidelines for Best Available 
Retrofit Technology (BART) Determinations, EPA Memorandum from 
Joseph Paisie, Group Leader, Geographic Strategies Group, OAQPS, to 
Kay Prince, Branch Chief, EPA Region 4, July 19, 2006, located at: 
http://www.epa.gov/visibility/pdfs/memo_2006_07_19.pdf.
---------------------------------------------------------------------------

    Comment 4: The Commenter disagrees with ADEM's BART analyses for 
the five BART eligible-units at the Solutia, Inc., facility in Decatur, 
Alabama, as well as its analyses for the seven BART-eligible units at 
International Paper's Courtland,

[[Page 38518]]

Alabama, facility (International Paper). In particular, the Commenter 
states that Alabama's BART analyses failed to consider all available 
retrofit technologies. The Commenter identified combustion controls 
that ``should be considered for NOX BART'' including: flue 
gas recirculation, overfire air, low NOX burners, and ultra 
low NOX burners; as well as post-combustion controls such 
as: selective catalytic reduction (SCR) and selective non-catalytic 
reduction (SNCR). Regarding SO2 BART, the Commenter believes 
that ADEM should have considered additional controls such as: ``a 
number of post-combustion flue gas desulfurization options'' (e.g., dry 
sorbent injection, spray dryer absorbers, wet scrubbers, circulating 
dry scrubbers) as well as fuel switching (e.g., switching from coal to 
oil). For PM BART, the Commenter identifies the following controls for 
consideration: changing the operation of any air pre-heaters; 
installing fabric filters or baghouses; installing or upgrading 
electrostatic precipitators (ESPs); switching to wet ESPs; upgrading 
electrodes (e.g., possibly changing from wire to rigid discharge 
electrode); switching to ``a lower sulfur coal or a different sort or 
blend of fuel;'' addition of a trona injection system; installation of 
scrubbers; and upgrading any existing scrubbers. The Commenter believes 
that Alabama should have considered all of the above-mentioned control 
options when conducting its BART analyses, regardless of their 
comparative costs.
    The Commenter also contends that ADEM: Ignored less costly yet 
equally efficient controls; should have fully considered options for 
improving existing controls instead of just those involving a complete 
replacement of control devices (e.g., ESP upgrade options);'' should 
have evaluated different combinations of controls in making its BART 
determinations; and must ensure that current controls are actually 
operating at BART levels where ADEM concluded that those controls are 
BART. Finally, the Commenter believes that it is not possible to 
determine if the proper costing methodology was followed by these 
sources ``without supporting data in the docket.''
    Response 4: As stated in EPA's BART Guidelines, available retrofit 
control options are those air pollution control technologies with a 
practical potential for application to the emissions unit and the 
regulated pollutant under evaluation. In identifying ``all'' options, a 
state must identify the most stringent option and a reasonable set of 
options for analysis that reflects a comprehensive list of available 
technologies. It is not necessary to list all permutations of available 
control levels that exist for a given technology; the list is complete 
if it includes the maximum level of control that each technology is 
capable of achieving.\5\
---------------------------------------------------------------------------

    \5\ EPA's BART Guidelines at 70 FR 39164.
---------------------------------------------------------------------------

    Attachment H-6 to Appendix H of the State's regional haze SIP 
submittal summarizes the State's assessment of the available strategies 
evaluated at each facility for BART, including many of the control 
options that the Commenter believes were ignored by ADEM; assesses the 
five statutory BART factors, including ADEM's estimates of the costs of 
control sufficient to identify and evaluate the cost methodology 
employed; and describes ADEM's basis for accepting or rejecting each 
measure as BART. For example, ADEM notes in Appendix H that Solutia has 
already installed a rotating opposed fired air combustion control 
system to reduce NOX formation from Boiler No. 7. ADEM 
identified SNCR and SCR as available post-combustion control options 
for this unit and noted that modeling for all of the NOX 
control options evaluated indicated relatively small to no reduction in 
visibility impacts, even with the maximum additional NOX 
control. In considering the five BART statutory factors for this unit, 
ADEM relied most heavily on the lack of visibility improvement at any 
federal Class I areas as the basis for its BART determination. Modeling 
lesser options would not have changed this result. Similar analyses and 
similar results were attained for all the BART-subject units at this 
facility and at International Paper. EPA has reviewed ADEM's analyses 
and concluded they were conducted in a manner that is consistent with 
EPA's BART Guidelines and reflect a reasonable application of EPA's 
guidance to these sources. Emissions limits for these operations are 
contained in the State's title V permits for these facilities.
    Comment 5: The Commenter disagrees with ADEM's methodology for 
identifying pollutants and sources subject to a reasonable progress 
analysis. The concerns identified by the Commenter include an 
``incomplete identification of emissions units likely to have the 
largest impacts on visibility'' at federal Class I areas; improper 
reliance on CAIR to exempt out-of-state EGUs from conducting reasonable 
progress analyses; and a failure to identify and consider all proposed 
major new sources or major modifications to sources within and outside 
of the State.
    Regarding in-state sources, the Commenter notes that ADEM's 
SO2 area of influence (AOI) methodology captured only 55 
percent of the total point source SO2 contribution to 
visibility impairment in Sipsey and only 61-73 percent of the total 
contribution at federal Class I areas in neighboring states. The 
Commenter believes that, due to cumulative impacts, the reasonable 
progress analysis should have encompassed a greater number of units 
with SO2 emissions that impact the State's Class I area and 
that Alabama's LTS should have further considered reducing 
NOX and ammonia emissions.
    For the out-of-state CAIR EGUs that impact Alabama's Class I area, 
the Commenter believes that ADEM must conduct reasonable progress 
control analyses in order to determine which emissions control measures 
would be needed at these EGUs to make reasonable progress toward 
improving visibility at Sipsey and reiterates statements made in its 
aforementioned February 28, 2012, comment letter regarding EPA's 
December 30, 2011, proposed rule.
    Regarding proposed major new sources or major modifications new 
sources, the Commenter states that there is no evidence that Alabama's 
regional haze SIP submittal complies with the requirement in 40 CFR 
51.306(d) that the LTS provides for review of the impacts from any new 
major stationary source or major modifications on visibility in any 
mandatory Class I area in accordance with 40 CFR 51.307, 51.166, 51.160 
and any binding guidance insofar as these provisions pertain to 
protection of visibility. According to the Commenter, ADEM should have 
identified these sources and any increases in emissions resulting from 
installation and operation of new pollution controls (e.g., increased 
ammonia emissions from new SCRs and SNCRs) and considered them in a 
cumulative impact analysis for Sipsey.
    Response 5: Concerning the State's AOI methodology for the 
identification of emission units for reasonable progress evaluation, as 
noted in EPA's Reasonable Progress Guidance \6\ and discussed further 
in EPA's February 28, 2012, proposal action on the Alabama regional 
haze SIP submittal (77 FR 11949), the RHR gives states wide latitude to 
determine additional control requirements, and there are many ways

[[Page 38519]]

to approach identifying additional reasonable measures as long as they 
consider the four statutory factors. Further, states have considerable 
flexibility in how to take these factors into consideration. EPA's 
Reasonable Progress Guidance recognizes that there are numerous ways to 
approach development of the LTS and to focus on those source categories 
that may have the greatest impact on visibility at Class 1 areas, 
considering the statutory factors at a minimum.\7\ Significant control 
programs are being implemented nationally and across the southeast 
during the first implementation period, as described in chapter 7 of 
Alabama's regional haze SIP submittal. The impact of programs such as 
CAIR, CSAPR, and the NOX SIP Call are being realized 
regionally, and the implementation of these programs in Alabama will 
significantly reduce emissions and improve visibility at Sipsey and at 
federal Class I areas outside Alabama.
---------------------------------------------------------------------------

    \6\ Guidance for Setting Reasonable Progress Goals Under the 
Regional Haze Program, July 1, 2007, memorandum from William L. 
Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA 
Regional Administrators, EPA Regions 1-10 (``EPA's Reasonable 
Progress Guidance''), page 4-2.
    \7\ EPA's Reasonable Progress Guidance, pages 4-1, 4-2.
---------------------------------------------------------------------------

    Regarding its reliance on CAIR, the State took into account 
emissions reductions expected from CAIR to determine the 2018 
reasonable progress goals (RPGs) for its Class I areas. This approach 
was fully consistent with EPA guidance at the time of SIP development. 
ADEM determined that no additional SO2 controls beyond CAIR 
are reasonable for its EGUs in the first implementation period based on 
the State's review of the statutory factors (i.e., the costs of 
compliance, the time necessary for compliance, the energy and non-air 
quality environmental impacts of compliance, and the remaining useful 
life of any potentially affected sources) as evaluated by EPA for CAIR, 
and that CAIR is expected to reduce EGU SO2 emissions by 
approximately 70 percent.
    Regarding the consideration of new sources and major modifications, 
the Alabama regional haze SIP revisions subject to this rulemaking 
address the regional haze requirements of 40 CFR 51.308 whereas the 
regulation cited by the Commenter, 40 CFR 51.306(d), 40 CFR 51.307, 
51.166, and 51.160, are specific to the new source review (NSR) 
requirements for RAVI. Furthermore, as identified in footnote 19 of 
EPA's the February 28, 2012, proposed rulemaking 77 FR 11955, Alabama 
has already addressed the NSR requirements for visibility (40 CFR 
51.307) and RAVI LTS (40 CFR 51.306) in its SIP. New sources and major 
modifications are also explicitly part of the emissions inventory used 
to project future conditions.
    The projected inventories for 2009 and 2018 account for post-2002 
emissions reductions from promulgated and proposed federal, state, 
local, and site-specific control programs and account for expected 
growth in emissions from new sources. For EGUs, the Integrated Planning 
Model was run to estimate emissions of the proposed and existing units 
in 2009 and 2018. These results were adjusted based on state and local 
air agencies' knowledge of planned emissions controls at specific EGUs. 
For non-EGUs, VISTAS used recently updated growth and control data 
consistent with the data used in EPA's CAIR analyses supplemented by 
state and local air agencies' data and updated forecasts from the U.S. 
Department of Energy. These updates are documented in the MACTEC 
emissions inventory report ``Documentation of the 2002 Base Year and 
2009 and 2018 Projection Year Emission Inventories for VISTAS'' dated 
February 2007 (Appendix D of Alabama's regional haze SIP submittal). 
The technical information provided in the record demonstrates that the 
emissions inventory in the SIP adequately reflects projection 2018 
conditions and that the LTS meets the requirements of the RHR and is 
approvable. EPA finds that these inventories provide a reasonable 
assessment of future emissions from North Carolina sources.
    Comment 6: The Commenter believes that ADEM improperly exempted 
several sources from a reasonable progress evaluation for 
SO2 even though the State determined that these sources were 
above its minimum threshold for performing such an analysis and 
reiterates statements made in its aforementioned February 28, 2012, 
comment letters regarding EPA's December 30, 2011, proposed rule. The 
Commenter disagrees with ADEM's decision to exempt EGUs subject to CAIR 
from conducting reasonable progress analyses. As for non-EGUs subject 
to BART, the Commenter accepts ADEM's conclusion that the BART 
determinations satisfy requirements under the RHR's reasonable progress 
provisions for International Paper and Solutia; however, the Commenter 
disagrees with Alabama's BART determinations for these units.
    Response 6: See the response to Comment 5 regarding the State's 
determination that no additional SO2 controls beyond CAIR 
are reasonable for its EGUs in the first implementation period. 
Regarding the BART determinations for non-EGUs, EPA has reviewed the 
ADEM analyses and concluded they were conducted in a manner that is 
consistent with EPA's BART Guidelines and reflect a reasonable 
application of EPA's guidance to these sources (see response to Comment 
4).
    Comment 7: According to the Commenter, the cost effectiveness 
analysis used to make the reasonable progress determination for the 
Cargill, Inc. facility (Cargill) was flawed, and therefore, EPA cannot 
approve Alabama's proposed SIP. The Commenter contends that the inputs 
used for the efficiency of the pollution controls analyzed and the 
costs attributed to those controls were improper.
    Response 7: Cargill shut down operations of this facility in 2009 
and sold the site to DeBruce Grain in August 2010. DeBruce Grain plans 
to operate a grain handling, shipping, and storage facility and is no 
longer expected to be a main contributor to regional haze.
    Comment 8: The Commenter states that ADEM improperly estimated 
emissions reductions for 2018 and that Alabama's projection of future 
visibility conditions for 2018 is based on ``uncertain federal and 
state pollution control projects, including, in large part, on the 
emissions reductions anticipated from CAIR.'' The Commenter also 
believes that anticipated emissions reductions resulting from the other 
control programs considered by Alabama (e.g., Industrial Boiler MACT, 
the Atlanta/Birmingham/Northern Kentucky 1997 8-hour ozone 
nonattainment area SIP) are just as uncertain as those resulting under 
CAIR and the Transport Rule, and that Alabama ``need[s] to base its LTS 
on concrete, definite SO2 emissions reductions.'' Because of 
the alleged uncertainty of the actual reductions predicted under the 
pollution control programs identified by the Commenter, the Commenter 
believes that additional SO2 reductions are necessary at 
this time to ensure that Alabama's RPGs are met. The Commenter requests 
that, at a minimum, EPA should ensure that ADEM follows through on its 
commitment to re-evaluate its ability to meet its RPGs in the five-year 
progress review. While the Commenter acknowledges that the RPGs exceed 
the uniform rate of progress and are projected to be met, it contends 
that the State should ``go beyond the URP [uniform rate of progress] 
analysis in establishing RPGs and do everything it can to ensure 
visibility impacts to affected Class I areas are reduced.''
    Response 8: The technical information provided in the record 
demonstrates that the emissions

[[Page 38520]]

inventory in the SIP adequately reflects projected 2018 conditions and 
should be approved. Alabama's 2018 projections are based on the State's 
technical analysis of the anticipated emissions rates and level of 
activity for EGUs, other point sources, nonpoint sources, on-road 
sources, and off-road sources based on their emissions in the 2002 base 
year, considering growth and additional emissions controls to be in 
place and federally enforceable by 2018. The emissions inventory used 
in the regional haze technical analyses that was developed by VISTAS 
with assistance from Alabama projected 2002 emissions (the latest 
region-wide inventory available at the time the submittal was being 
developed) and applied reductions expected from federal and state 
regulations affecting the emissions of volatile organic compounds and 
the visibility impairing pollutants NOX, PM, and 
SO2.
    To minimize the differences between the 2018 projected emissions 
used in the Alabama regional haze submittal and what actually occurs in 
2018, the RHR requires that the five-year review address any expected 
significant differences due to changed circumstances from the initial 
2018 projected emissions, provide updated expectations regarding 
emissions for the implementation period, and evaluate the impact of 
these differences on RPGs. It is expected that individual projections 
within a statewide inventory will vary from actual emissions over a 16-
year period. For example, some facilities shut down whereas others 
expand operations. Furthermore, economic projections and population 
changes used to estimate growth often differ from actual events; new 
rules are modified, changing their expected effectiveness; and 
methodologies to estimate emissions improve, modifying emissions 
estimates. The five-year review is a mechanism to assure that these 
expected differences from projected emissions are considered and their 
impact on the 2018 RPGs is evaluated. In the regional haze program, 
uncertainties associated with modeled emissions projections into the 
future are addressed through the requirement under the RHR to submit 
periodic progress reports in the form of a SIP revision. Specifically, 
40 CFR 51.308(g) requires each state to submit a report every five 
years evaluating progress toward the RPGs for each mandatory Class I 
area located in the state and for each Class I area outside the state 
that may be affected by emissions from the state. Since this five-year 
progress re-evaluation is a mandatory requirement, it is unnecessary 
for EPA to take additional measures to ``ensure'' that the State meets 
its reporting obligation. In the specific instances of uncertainty of 
future reductions cited by the Commenter, the State's analysis of 
projected emissions and its reliance on these projections to establish 
its RPGs meets the requirements of the regional haze regulations and 
EPA guidance.
    Regarding the need to go beyond the URP analysis when establishing 
RPGs, EPA affirmed in the RHR that the URP is not a ``presumptive 
target;'' rather, it is an analytical requirement for setting RPGs. See 
64 FR 35731. In determining RPGs for Alabama's Class I area, the State 
identified sources through its AOI methodology for reasonable progress 
control evaluation and described those evaluations in its SIP. Thus, 
the State went beyond the URP to identify and evaluate sources for 
potential control under reasonable progress in accordance with EPA 
regulations and guidance.
    Comment 9: The Commenter contends that Alabama's regional haze SIP 
must require revisions to address RAVI within three years of a Federal 
Land Manager (FLM) certifying visibility impairment and that the 
State's commitment to address RAVI, should a FLM certify visibility 
impairment, is not enough.
    Response 9: The SIP revisions do not address RAVI requirements 
since this was the subject of previous rulemakings. EPA's visibility 
regulations direct states to coordinate their RAVI LTS provisions with 
those for regional haze and the RAVI portion of a SIP must address any 
integral vistas identified by the FLMs. However, as stated in the 
February 28, 2012, proposed rulemaking, the FLMs have not identified 
any integral vistas in Alabama, the Class I area in Alabama is not 
experiencing RAVI, and no Alabama sources are affected by the RAVI 
provisions. Thus, the July 15, 2008, Alabama regional haze SIP revision 
did not explicitly address the coordination of the regional haze with 
the RAVI LTS although Alabama made a commitment to address RAVI should 
the FLM certify visibility impairment from an individual source. EPA 
finds that Alabama's regional haze SIP appropriately supplements and 
augments the State's RAVI visibility provisions to address regional 
haze by updating the LTS provisions as Alabama has done. The 
commitments in Alabama's SIP are consistent with the regulatory 
requirements for this provision.
    Comment 10a: The Commenter claims that Alabama's regional haze SIP 
does not explain how monitoring data and other information is used to 
determine the contribution of emissions from within the State to 
regional haze visibility impairment at Class I areas within and outside 
Alabama. Therefore, the Commenter believes that EPA must disapprove 
Alabama's regional haze SIP.
    Comment 10b: The Commenter states that the SIP must clearly state 
the method by which the State intends to report visibility monitoring 
to the EPA. Additionally, the Commenter states that if Alabama plans to 
rely on the referenced Visibility Information Exchange Web System 
(VIEWS) Web site for reporting, the SIP must clearly state that Alabama 
intends to use the Web site as its way of reporting visibility 
monitoring data. ``If Alabama intends to use another method of 
reporting visibility, the proposal needs to explain that. If Alabama 
intends to use VIEWS for reporting, it is not sufficient for Alabama to 
`encourage' VISTAS to maintain the Web site.'' The Commenter also 
states that the Alabama SIP needs to have an enforceable mechanism to 
transmit the Interagency Monitoring of Protected Visual Environments 
(IMPROVE) data to EPA as well as an enforceable mechanism to ensure 
that the IMPROVE data is continually gathered. The ``SIP must include 
an enforceable requirement that the data is gathered by Alabama unless 
it is gathered by other entities such as VISTAS and the National Park 
Service.'' The Commenter concludes by stating that ``[b]ecause such an 
enforceable requirement is missing, EPA must disapprove the SIP 
submittal in this regard.''
    Responses 10a, 10b: As noted by the Commenter, the primary 
monitoring network for regional haze in Alabama is the IMPROVE network, 
and there is currently one IMPROVE site in Alabama, within the Bankhead 
National Forest and managed by the FLM, which serves as the monitoring 
site for Sipsey. IMPROVE monitoring data from 2000-2004 serves as the 
baseline for the regional haze program, and is relied upon in the 
Alabama regional haze submittal and in providing annual visibility data 
to EPA. Monitoring data is different from emissions data or analyses 
conducted to attribute contribution. These analyses are part of the 
ten-year implementation period updates conducted by the states.
    In its SIP revision, Alabama states its intention to rely on the 
IMPROVE network for complying with the regional haze monitoring 
requirement in EPA's RHR for the current and future regional haze 
implementation periods. Data produced by the IMPROVE monitoring network 
will be used nearly continuously for preparing the five-year

[[Page 38521]]

progress reports and the 10-year SIP revisions, each of which relies on 
analysis of the preceding five years of data. The VIEWS Web site has 
been maintained by VISTAS and the other regional planning organizations 
(RPOs) to provide ready access to the IMPROVE data and data analysis 
tools. Alabama is encouraging VISTAS and the other RPOs to maintain 
VIEWS or a similar data management system to facilitate analysis of the 
IMPROVE data. Alabama cannot legally bind federal and state 
legislatures to continue to fund the monitoring program for regional 
haze. Alabama's SIP adequately addresses this provision and explains 
how monitoring data and other information has been and will be used to 
determine the contribution of emissions from within the State to 
regional haze visibility impairment at federal Class I areas.
    Comment 11: The Commenter believes that EPA should fully approve 
the State's implementation plan as it applies to regional haze since it 
is likely that either CAIR or the Transport Rule will be in effect in 
the future.
    Response 11: Today, EPA is finalizing action on a limited approval 
of Alabama's regional haze SIP that results in an approval of the 
entire regional haze submission and all of its elements, preserving the 
visibility benefits offered by the SIP. EPA has the authority to issue 
a limited approval and believes that it is appropriate and necessary to 
promulgate a limited approval of Alabama's regional haze SIP. On 
December 30, 2011, EPA proposed a limited disapproval for Alabama's 
regional haze SIP and explained that EPA cannot fully approve regional 
haze SIP revisions that rely on CAIR for emissions reduction measures 
for the reasons discussed in that action. Comments on the disapproval 
are therefore beyond the scope of this rulemaking. EPA finalized the 
limited disapproval of Alabama's regional haze SIP in a final action 
published June 7, 2012 (77 FR 33642).
    Comment 12: The Commenter expressed concern with EPA's proposed 
approach of adopting FIPs at the time of disapproval to replace 
reliance on CAIR in the regional haze SIPs with reliance on the 
Transport Rule. The Commenter believes that states should be given 
every opportunity provided by the Act to make revisions to correct SIP 
deficiencies before EPA acts by imposing a FIP.
    Response 12: As discussed in the response to Comment 11, today's 
action addresses the limited approval, and EPA finalized a limited 
disapproval in a separate action published on June 7, 2012. In that 
same action, EPA did not finalize a FIP for Alabama. EPA's response to 
comments on the final disapproval can be found in Docket ID No. EPA-HQ-
OAR-2011-0729 at www.regulations.gov.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision. Today, EPA is finalizing 
a limited approval of Alabama's July 15, 2008, regional haze SIP 
revision. This limited approval results in approval of Alabama's entire 
regional haze submission and all its elements. EPA is taking this 
approach because Alabama's SIP will be stronger and more protective of 
the environment with the implementation of those measures by the State 
and having federal approval and enforceability than it would without 
those measures being included in its SIP.

IV. Final Action

    EPA is finalizing a limited approval of a revision to the Alabama 
SIP submitted by the State of Alabama on July 15, 2008, as meeting some 
of the applicable regional haze requirements as set forth in sections 
169A and 169B of the CAA and in 40 CFR 51.300-308. Also in this action, 
EPA is rescinding the federal regulations in 40 CFR 52.61 that were 
approved into the Alabama SIP on November 24, 1987, and approving the 
provisions in Alabama's July 15, 2008, SIP submittal to meet the 
monitoring and LTS requirements for RAVI at 40 CFR 51.306.

V. Statutory and Executive Order Reviews

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). The Paperwork Reduction Act 
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The 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 approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the federal SIP approval does 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 actions concerning SIPs on such grounds. Union 
Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA 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 today's action 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 approves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to

[[Page 38522]]

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 approves 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 rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

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 (NTTAA)

    Section 12 of the 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.
    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.

J. Congressional Review Act

    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).

K. Petitions for Judicial Review

    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 August 27, 2012. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: June 14, 2012.
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

0
2. Section 52.50 (e) is amended by adding a new entry for ``Regional 
Haze Plan'' at the end of the table to read as follows:


Sec.  52.50  Identification of plan.

* * * * *
    (e) * * *

[[Page 38523]]



                                                     EPA Approved Alabama Non-Regulatory Provisions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  State submittal
     Name of nonregulatory SIP  provision          Applicable geographic or       date/effective      EPA approval date             Explanation
                                                      nonattainment area               date
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Regional haze plan...........................  Statewide......................          7/15/2008              6/28/2012            [Insert citation of
                                                                                                                                          publication].
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Section 52.61 is amended by removing and reserving paragraph (a) to 
read as follows:


Sec.  52.61  Visibility protection.

    (a) [Reserved]
* * * * *
[FR Doc. 2012-15475 Filed 6-27-12; 8:45 am]
BILLING CODE 6560-50-P