[Federal Register Volume 81, Number 6 (Monday, January 11, 2016)]
[Rules and Regulations]
[Pages 1124-1127]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-33197]



[[Page 1124]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0079; FRL-9940-89-Region 4]


Air Plan Approval; Alabama: Nonattainment New Source Review

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve portions of a revision to the Alabama State 
Implementation Plan (SIP) submitted by the Alabama Department of 
Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision 
modifies Alabama's nonattainment new source review (NNSR) regulations 
in their entirety to be consistent with the federal new source review 
(NSR) regulations for the implementation of the criteria pollutant 
national ambient air quality standards (NAAQS). EPA is approving 
portions of the NNSR rule changes in Alabama's May 2, 2011, SIP 
revision because the Agency has determined that the changes are 
consistent with the Clean Air Act (CAA or Act) and federal regulations 
regarding NNSR permitting.

DATES: This rule will be effective February 10, 2016.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0079. 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 Air Regulatory Management Section, Air Planning and 
Implementation 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 a.m. to 4:30 p.m., 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama 
SIP, contact Mr. D. Brad Akers, Air Regulatory Management Section, Air 
Planning and Implementation Branch, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached by 
telephone at (404) 562-9089 or via electronic mail at 
[email protected]. For information regarding NSR, contact Ms. Yolanda 
Adams, Air Permits Section, at the same address above. Telephone 
number: (404) 562-9214; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    EPA is taking final action to approve the portion of Alabama's May 
2, 2011, SIP revision that makes changes to Alabama's NNSR program, set 
forth at ADEM Administrative Code, Division 3, Chapter 14, Subchapter 
.05 (ADEM Rule 335-3-14-.05), which applies to the construction and 
modification of any major stationary source in or near a nonattainment 
area (NAA) as required by part D of title I of the CAA. Alabama's NNSR 
regulations at ADEM Rule 335-3-14-.05 were originally approved into the 
SIP on November 26, 1979 (see 44 FR 67375), with periodic revisions 
approved through December 8, 2000 (see 65 FR 76938). Alabama's May 2, 
2011, SIP revision modifies the State's NNSR regulations in their 
entirety \1\ with a new version that reflects changes to the federal 
NNSR regulations at 40 Code of Federal Regulations (CFR) 51.165,\2\ 
including provisions promulgated in the following federal rules: (1) 
``Requirements for Preparation, Adoption and Submittal of 
Implementation Plans; Approval and Promulgation of Implementation 
Plans; Standards of Performance for New Stationary Sources,'' Final 
Rule, 57 FR 32314 (July 21, 1992) (hereafter referred to as the 
Wisconsin Electric Power Company (WEPCO) Rule); (2) ``Prevention of 
Significant Deterioration (PSD) and Nonattainment New Source Review 
(NSR): Baseline Emissions Determination, Actual-to-Future-Actual 
Methodology, Plantwide Applicability Limitations, Clean Units, 
Pollution Control Projects,'' Final Rule, 67 FR 80186 (December 31, 
2002) (hereafter referred to as the NSR Reform Rule); (3) ``Prevention 
of Significant Deterioration (PSD) and Non-Attainment New Source Review 
(NSR): Reconsideration,'' Final Rule, 68 FR 63021 (November 7, 2003) 
(hereafter referred to as the Reconsideration Rule); (4) ``Prevention 
of Significant Deterioration (PSD) and Non-Attainment New Source Review 
(NSR): Removal of Vacated Elements,'' Final Rule, 72 FR 32526 (June 13, 
2007) (hereafter referred to as the Vacated Elements Rule); (4) 
``Prevention of Significant Deterioration and Nonattainment New Source 
Review: Reasonable Possibility in Recordkeeping,'' Final Rule, 72 FR 
72607 (December 21, 2007), (hereafter referred to as the Reasonable 
Possibility Rule); (5) ``Final Rule To Implement the 8-Hour Ozone 
National Ambient Air Quality Standard--Phase 2; Final Rule To Implement 
Certain Aspects of the 1990 Amendments Relating to New Source Review 
and Prevention of Significant Deterioration as They Apply in Carbon 
Monoxide, Particulate Matter and Ozone NAAQS; Final Rule for 
Reformulated Gasoline,'' Final Rule, 70 FR 71612 (November 29, 2005) 
(hereafter referred to as the Phase 2 Rule); (6) ``Implementation of 
the New Source Review (NSR) Program for Particulate Matter Less Than 
2.5 Micrometers (PM2.5),'' Final Rule, 73 FR 28321 (May 16, 
2008) (hereafter referred to as the NSR PM2.5 Rule); (7) 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC),'' 
Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as 
the PM2.5 PSD Increments-SILs-SMC Rule \3\); and (8) 
``Prevention of Significant Deterioration (PSD) and Nonattainment New 
Source Review (NSR): Reconsideration of Inclusion of Fugitive 
Emissions; Interim Rule; Stay and Revisions'', Interim Rule, 76 FR 
17548 (March 30, 2011) (hereafter referred to as the Fugitive Emissions 
Interim Rule).
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    \1\ Some portions of the 2011 version of the regulations now 
being approved were previously approved by EPA. These portions 
remain the same in substance but may have undergone administrative 
updates and renumbering in the 2011 version.
    \2\ EPA's regulations governing the implementation of NSR 
permitting programs are contained in 40 CFR 51.160-51.166; 52.21, 
52.24; and part 51, appendix S. The CAA NSR program is composed of 
three separate programs: PSD, NNSR, and Minor NSR. PSD is 
established in part C of title I of the CAA and applies in areas 
that meet the NAAQS--``attainment areas''--as well as areas where 
there is insufficient information to determine if the area meets the 
NAAQS--``unclassifiable areas.'' The NNSR program is established in 
part D of title I of the CAA and applies in areas that are not in 
attainment of the NAAQS--``nonattainment areas.'' The Minor NSR 
program addresses construction or modification activities that do 
not qualify as ``major'' and applies regardless of the designation 
of the area in which a source is located. Together, these programs 
are referred to as the NSR programs.
    \3\ The D.C. Circuit vacated the portions of the 
PM2.5 PSD Increment-SILs-SMC Rule addressing the SMC and 
SILs (and remanded the SILs portion to EPA for further 
consideration) for PSD, but left the PM2.5 SILs in place 
for the NSR program in the table in Sec.  51.165(b)(2). See Sierra 
Club v. EPA, 705 F.3d 458 (D.C. Cir. 2013).

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[[Page 1125]]

    EPA is not, however, approving into the Alabama SIP the portion of 
ADEM Rule 335-3-14-.05(1)(k) stating ``excluding ethanol production 
facilities that produce ethanol by natural fermentation,'' which 
Alabama promulgated pursuant to the federal rule entitled ``Prevention 
of Significant Deterioration, Nonattainment New Source Review, and 
Title V: Treatment of Certain Ethanol Production Facilities Under the 
`Major Emitting Facility' Definition,'' Final Rule, 72 FR 24060 (May 1, 
2007) (or the Ethanol Rule).\4\ EPA is also not acting on the provision 
at Rule 335-3-14-.05(2)(c)3 that excludes fugitive emissions from the 
determinion of creditable emission increases and decreases.\5\ Finally, 
EPA is not acting on changes to ADEM's rules regarding the 
PM2.5 significant impact levels (SILs) for PSD at Rule 335-
3-14-.04(8)(h)1., the NNSR interpollutant offset ratios at ADEM Rule 
335-3-14-.05(3)(g)1-4 and the sentence including those ratios which 
states ``Interpollutant offsets shall be determined based upon the 
following ratios,'' or the ``actual-to-potential'' NNSR applicability 
test at ADEM Rule 335-3-14-.05(1)(h), all of which ADEM withdrew from 
EPA's consideration subsequent to the May 2, 2011 submittal.\6\
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    \4\ Alabama's changes to its NNSR regulations (at 335-3-
14-.05(1)(k)) exclude ``chemical process plants'' that produce 
ethanol through a natural fermentation process from the NSR major 
source permitting requirement as promulgated in the Ethanol Rule (as 
amended at 40 CFR 51.165). See 72 FR 24060 (May 1, 2007). However, 
due to a petition by Natural Resources Defense Council to reconsider 
the rule, EPA is not proposing to take action to approve this 
provision into the Alabama SIP at this time. Pending final 
resolution, EPA will make a final determination on action regarding 
this portion of Alabama's SIP revision.
    \5\ The provision in question was originally approved into the 
CFR in the December 19, 2008 (73 FR 77882) final rule concerning the 
treatment of fugitive emissions for the purposes of NSR 
applicability. On April 24, 2009, EPA agreed to reconsider the 
approach to handling fugitive emissions and granted a 3-month 
administrative stay of the December 19, 2008 rule. After several 
stays, this provision was stayed indefinitely in the March 30, 2011 
(76 FR 17548) Fugitive Emissions Interim Rule, pending a final 
reconsideration from EPA. For more information on fugitive emissions 
in NSR, see the September 1, 2015 proposed rulemaking (80 FR 52701) 
or refer to the Docket for this rulemaking.
    \6\ For more information on the withdrawal of these elements 
from the initial May 2, 2011, submittal, see the September 1, 2015, 
proposed rulemaking (80 FR 52701) or refer to the Docket for this 
rulemaking.
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    On September 1, 2015, EPA published a proposed rulemaking to 
approve the aforementioned changes to the Alabama NNSR program at ADEM 
Rule 335-3-14-.05. See 80 FR 52701. Comments on the proposed rulemaking 
were due on or before October 1, 2015. No comments, adverse or 
otherwise, were received on EPA's September 1, 2015, proposed 
rulemaking. Pursuant to section 110 of the CAA, EPA is now taking final 
action to approve the changes to Alabama's NNSR program as provided in 
the September 1, 2015, proposed rulemaking. The proposed rulemaking 
contains more detailed information regarding Alabama's SIP revision 
being approved today, and the rationale for this final action. More 
detailed information on the NNSR program can be found in the September 
1, 2015, proposed rulemaking as well as the aforementioned final 
rulemakings.

II. This Action

    Alabama currently has a SIP-approved NSR program for new and 
modified stationary sources found in ADEM regulations at Chapter 335-3-
14. ADEM's NNSR preconstruction regulations are found at Chapter 335-3-
14-.05 and apply to major stationary sources or modifications 
constructed in or impacting upon a nonattainment area as required under 
part D of title I of the CAA with respect to the NAAQS. The changes to 
Chapter 335-3-14-.05 that EPA is now approving into the SIP were 
provided to update the existing provisions to be consistent with the 
current federal NNSR rules, including the WEPCO Rule, 2002 NSR Reform 
Rule (and associated Reconsideration Rule and Vacated Elements Rule), 
Phase 2 Rule, NSR PM2.5 Rule, PM2.5 PSD-
Increment-SILs-SMC Rule, and Fugitive Emissions Interim Rule. These 
changes to ADEM's regulations became state effective on May 23, 2011.

III. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of portions of 
ADEM Regulation Chapter 335-3-14-.05 entitled ``Air Permits Authorizing 
Construction in or Near Non-Attainment Areas,'' effective May 23, 2011, 
with revisions and additions to applicability, definitions, permitting 
requirements, offset rules, area classifications, air quality models, 
control technology review, air quality monitoring, source information, 
source obligation, innovative control technology, and actuals plantwide 
applicability limits, and with administrative changes throughout. EPA 
has made, and will continue to make, these documents generally 
available electronically through www.regulations.gov and/or in hard 
copy at the EPA Region 4 office (see the ADDRESSES section of this 
preamble for more information).

IV. Final Action

    EPA is taking final action to approve the portions of Alabama's May 
2, 2011, submission that make changes to Alabama's SIP-approved NNSR 
regulations set forth at ADEM Rule 335-3-14-.05, with the exceptions 
noted above. ADEM submitted the proposed changes to its NNSR SIP to be 
consistent with amendments to the federal regulations made by the WEPCO 
Rule, the 2002 NSR Reform Rule (and associated Reconsideration Rule and 
Vacated Elements Rule), Phase 2 Rule, NSR PM2.5 Rule, 
PM2.5 PSD Increment-SILs-SMC Rule, and the Fugitive 
Emissions Interim Rule. The Agency is approving these changes to the 
Alabama SIP because they are consistent with section 110 of the CAA and 
EPA regulations.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);

[[Page 1126]]

     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action 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 March 11, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: December 18, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
2. Section 52.50(c) is amended under Chapter 335-3-14 by revising the 
entry for ``Section 335-3-14-.05'' to read as follows:


Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Alabama Regulations
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                                                           State
          State citation               Title/subject     effective    EPA approval date        Explanation
                                                            date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
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                                        Chapter No. 335-3-14 Air Permits
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 335-3-14-.05..............  Air Permits           5/23/2011  1/11/2016 [Insert   With the exception of:
                                     Authorizing                      citation of         The portion of 335-3-
                                     Construction in                  publication].       14-.05(1)(k) stating
                                     or Near                                              ``excluding ethanol
                                     Nonattainment                                        production facilities
                                     Areas.                                               that produce ethanol
                                                                                          by natural
                                                                                          fermentation''; and
                                                                                          335-3-14-.05(2)(c)3
                                                                                          (addressing fugitive
                                                                                          emission increases and
                                                                                          decreases). Also with
                                                                                          the exception of the
                                                                                          state-withdrawn
                                                                                          elements: 335-3-14-
                                                                                          .05(1)(h) (the actual-
                                                                                          to-potential test for
                                                                                          projects that only
                                                                                          involve existing
                                                                                          emissions units); the
                                                                                          last sentence at 335-3-
                                                                                          14-.05(3)(g), stating
                                                                                          ``Interpollutant
                                                                                          offsets shall be
                                                                                          determined based upon
                                                                                          the following
                                                                                          ratios''; and the NNSR
                                                                                          interpollutant ratios
                                                                                          at 335-3-14-.05(3)(g)1-
                                                                                          4.
 
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[FR Doc. 2015-33197 Filed 1-8-16; 8:45 am]
 BILLING CODE 6560-50-P