[Federal Register Volume 82, Number 24 (Tuesday, February 7, 2017)]
[Rules and Regulations]
[Pages 9512-9515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02303]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0689; FRL-9958-42-Region 4]


Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour 
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving the 
visibility transport (prong 4) portion of a revision to the Alabama 
State Implementation Plan (SIP), submitted by the Alabama Department of 
Environmental Management (ADEM), addressing the Clean Air Act (CAA or 
Act) infrastructure SIP requirements for the 2008 8-hour ozone National 
Ambient Air Quality Standards (NAAQS). The CAA requires that each state 
adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA, commonly referred to as 
an ``infrastructure SIP.'' Here, EPA is specifically disapproving the 
prong 4 portion of Alabama's August 20, 2012, 2008 8-hour ozone 
infrastructure SIP submission. All other applicable infrastructure 
requirements for this SIP submission have been addressed in separate 
rulemakings.

DATES: This rule will be effective March 9, 2017.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2012-0689. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information may not be 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: Sean Lakeman of 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. Mr. Lakeman can be reached by telephone at (404) 562-9043 
or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    By statute, states must submit SIPs meeting the requirements of 
sections 110(a)(1) and (2) of the CAA within three years after 
promulgation of a new or revised NAAQS to provide for the 
implementation, maintenance, and enforcement of that NAAQS. EPA has 
historically referred to these SIP submissions made for the purpose of 
satisfying the requirements of sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Sections 110(a)(1) and (2) require 
states to address basic SIP elements such as for monitoring, basic 
program requirements, and legal authority that are designed to assure 
attainment and maintenance of the newly established or revised NAAQS. 
More specifically, section 110(a)(1) provides the procedural and timing 
requirements for infrastructure SIPs, and section 110(a)(2) lists 
specific elements that states must meet for the infrastructure SIP 
requirements related to a newly established or revised NAAQS. The 
contents of an infrastructure SIP submission may vary depending upon 
the data and analytical tools available to the state, as well as the 
provisions already contained in the state's implementation plan at the 
time the state develops and submits the submission for a particular new 
or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in infrastructure SIP submissions. The first two prongs, which are 
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment of the NAAQS in another state (prong 1) and from 
interfering with maintenance of the NAAQS in another state (prong 2). 
The third and fourth prongs, which are codified in section

[[Page 9513]]

110(a)(2)(D)(i)(II), prohibit any source or other type of emissions 
activity in one state from interfering with measures required to 
prevent significant deterioration of air quality in another state 
(prong 3) or from interfering with measures to protect visibility in 
another state (prong 4). There are two ways in which a state's 
infrastructure SIP may satisfy prong 4. The first is through a 
confirmation in the infrastructure SIP submission that the state has an 
EPA-approved regional haze SIP that fully meets the requirements of 40 
CFR 51.308 or 51.309. Alternatively, in the absence of a fully approved 
regional haze SIP, a state may meet the requirements of prong 4 through 
a demonstration in its infrastructure SIP submission that emissions 
within its jurisdiction do not interfere with other states' plans to 
protect visibility. Section 110(a)(2)(D)(ii) requires SIPs to include 
provisions ensuring compliance with sections 115 and 126 of the Act, 
relating to international and interstate pollution abatement, 
respectively.
    On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075 
parts per million. See 73 FR 16436 (March 27, 2008). States were 
required to submit infrastructure SIP submissions for the 2008 8-hour 
ozone NAAQS to EPA no later than March 12, 2011. Alabama submitted its 
infrastructure SIP for the 2008 8-hour ozone NAAQS on August 20, 2012; 
this action only addresses the prong 4 element of the August 2012 
submission.
    Alabama's August 20, 2012, 2008 8-hour ozone infrastructure 
submission cites to the State's regional haze SIP alone to satisfy 
prong 4 requirements.\1\ Alabama's regional haze SIP relies on the 
Clean Air Interstate Rule (CAIR) \2\ as an alternative to the best 
available retrofit technology (BART) requirements for its CAIR-subject 
electric generating units (EGUs).\3\ Although this reliance on CAIR was 
consistent with the CAA at the time the State submitted its regional 
haze SIP, CAIR has since been replaced by the Cross-State Air Pollution 
Rule (CSAPR) \4\ and can no longer be relied upon as an alternative to 
BART or as part of a long-term strategy (LTS) for addressing regional 
haze. Therefore, EPA finalized a limited disapproval of Alabama's 2008 
regional haze SIP submission to the extent that it relied on CAIR to 
satisfy the BART and LTS requirements.\5\ See 77 FR 33642 (June 7, 
2012).
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    \1\ As mentioned above, a state may meet the requirements of 
prong 4 in the absence of a fully approved regional haze SIP by 
showing that its SIP contains adequate provisions to prevent 
emissions from within the state from interfering with other states' 
measures to protect visibility. Alabama did not, however, provide a 
demonstration in the infrastructure SIP submission subject to this 
proposed action that emissions within its jurisdiction do not 
interfere with other states' plans to protect visibility.
    \2\ CAIR created regional cap-and-trade programs to reduce 
sulfur dioxide (SO2) and nitrogen oxides (NOX) 
emissions in 28 eastern states, including Alabama, that contributed 
to downwind nonattainment and maintenance of the 1997 8-hour ozone 
NAAQS and the 1997 PM2.5 NAAQS.
    \3\ Section 169A of the CAA and EPA's implementing regulations 
require states to establish long-term strategies for making 
reasonable progress towards the national goal of achieving natural 
visibility conditions in certain Class I areas. The 156 mandatory 
Class I federal areas in which visibility has been determined to be 
an important value are listed at subpart D of 40 CFR part 81. For 
brevity, these areas are referred to here, simply as ``Class I 
areas.''
     Implementation plans must give specific attention to certain 
stationary sources. Specifically, section 169A(b)(2)(A) of the CAA 
requires states to revise their SIPs to contain such measures as may 
be necessary to make reasonable progress towards the natural 
visibility goal, including a requirement that certain categories of 
existing major stationary sources built between 1962 and 1977 
procure, install, and operate BART as determined by the state. Under 
the Regional Haze Rule, states are directed to conduct BART 
determinations for such ``BART-eligible'' sources that may be 
anticipated to cause or contribute to any visibility impairment in a 
Class I area.
    \4\ CSAPR addresses the interstate transport of emissions 
contributing to nonattainment and interfering with maintenance of 
the two air quality standards covered by CAIR as well as the 2006 
PM2.5 NAAQS. CSAPR requires substantial reductions of 
SO2 and (NOX) emissions from EGUs in 28 states 
in the eastern United States.
    \5\ EPA finalized a limited approval of Alabama's regional haze 
SIP on June 28, 2012. See 77 FR 38515.
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    In that limited disapproval action, EPA also amended the Regional 
Haze Rule to provide that CSAPR can serve as an alternative to BART, 
i.e., that participation by a state's EGUs in a CSAPR trading program 
for a given pollutant achieves greater reasonable progress toward the 
national goal of achieving natural visibility conditions in Class I 
areas than source-specific BART for those EGUs for that pollutant.\6\ 
See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the 
trading program through either a federal implementation plan (FIP) 
implementing CSAPR or an integrated CSAPR state trading program 
implemented through an approved SIP revision. In promulgating this 
amendment to the Regional Haze Rule, EPA relied on an analytic 
demonstration of visibility improvement from CSAPR implementation 
relative to BART based on an air quality modeling study.
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    \6\ Legal challenges to EPA's determination that CSAPR can be an 
alternative to BART are pending. Utility Air Regulatory Group v. 
EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).
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    At the time of the rule amendment, questions regarding the legality 
of CSAPR were pending before the United States Court of Appeals for the 
District of Columbia Circuit (D.C. Circuit) and the court had stayed 
implementation of the rule. The D.C. Circuit subsequently vacated and 
remanded CSAPR in August 2012, leaving CAIR in place temporarily.\7\ 
However, in April 2014, the Supreme Court reversed the vacatur and 
remanded to the D.C. Circuit for resolution of the remaining claims.\8\ 
The D.C. Circuit then granted EPA's motion to lift the stay and to toll 
the rule's deadlines by three years.\9\ Consequently, implementation of 
CSAPR Phase 1 began in January 2015 and implementation of Phase 2 is 
scheduled to begin in January 2017.
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    \7\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012).
    \8\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
    \9\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302 
(D.C. Cir. issued October 23, 2014).
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    Following the Supreme Court remand, the D.C. Circuit conducted 
further proceedings to address the remaining claims. In July 2015, the 
court issued a decision denying most of the claims but remanding the 
Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama, 
Georgia, South Carolina, and Texas and the Phase 2 ozone-season 
nitrogen oxides (NOX) budgets for 11 states to EPA for 
reconsideration.\10\ Since receipt of the D.C. Circuit's 2015 decision, 
EPA has engaged the affected states to determine appropriate next steps 
to address the decision with regard to each state.\11\ In a November 
10, 2016, proposed rulemaking, EPA stated that it expects that 
potentially material changes to the scope of CSAPR coverage resulting 
from the remand will be limited to withdrawal of the CSAPR FIP 
requiring Texas to participate in the Phase 2 trading programs for 
annual emissions of SO2 and NOX and withdrawal of 
Florida's CSAPR FIP requirements for ozone-season NOX, which 
EPA recently finalized in another action.\12\
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    \10\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138 
(D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone 
season NOX budgets for Alabama.
    \11\ As discussed below, Alabama submitted a SIP revision to EPA 
on October 26, 2015, to incorporate the Phase 2 annual 
NOX and annual SO2 CSAPR budgets for the State 
into the SIP. EPA approved this SIP revision in a final action 
published on August 31, 2016. See 81 FR 59869.
    \12\ See 81 FR 78954 (November 10, 2016) for further discussion 
regarding EPA's expectations and the proposed withdrawal of the 
CSAPR FIP for Texas.
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    Due to these expected changes to CSAPR's scope, EPA conducted a 
sensitivity analysis to the 2012 CSAPR ``alternative to BART'' 
demonstration showing that the analysis would have supported the same 
conclusion if the

[[Page 9514]]

actions that EPA has proposed to take or has already taken in response 
to the D.C. Circuit's remand--specifically, the proposed withdrawal of 
PM2.5-related CSAPR Phase 2 FIP requirements for Texas EGUs 
and the recently finalized withdrawal of ozone-related CSAPR Phase 2 
FIP requirements for Florida EGUs--had been reflected in that analysis. 
EPA's November 10, 2016, notice of proposed rulemaking sought comment 
on this sensitivity analysis. See 81 FR 78954.
    Alabama sought to convert the 2012 limited approval/limited 
disapproval of the State's CAIR-reliant regional haze SIP to a full 
approval through a SIP revision submitted on October 26, 2015. This SIP 
revision intended to adopt the CSAPR trading program into the SIP, 
including the State's Phase 2 annual NOX and annual 
SO2 CSAPR budgets, and then to replace reliance on CAIR with 
reliance on CSAPR to satisfy its regional haze BART and LTS 
requirements. Although EPA has approved the CSAPR trading program into 
the Alabama SIP,\13\ EPA has not yet had an opportunity to evaluate 
comments received on its proposal that CSAPR should continue to be 
available as an alternative to BART.\14\ EPA thus cannot approve the 
portion of Alabama's 2015 SIP submission seeking to replace reliance on 
CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at 
this time. Because Alabama's prong 4 SIP submission relies solely on 
the State having a fully approved regional haze SIP, EPA proposed to 
disapprove the prong 4 element of Alabama's August 20, 2012, 2008 8-
hour ozone infrastructure SIP submission in a notice of proposed 
rulemaking (NPRM) published on December 5, 2016 (81 FR 87503). 
Additional detail regarding the background and rationale for EPA's 
action is contained in the NPRM.
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    \13\ See 81 FR 59869 (August 31, 2016).
    \14\ The deadline for these comments is January 9, 2017. See 81 
FR 88636 (December 8, 2016).
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    Comments on the proposed rulemaking were due on or before December 
27, 2016. EPA received one adverse comment on the December 5, 2016, 
NPRM. The comment was submitted by the Utility Air Regulatory Group 
(hereinafter referred to as ``the Commenter'') and is available in the 
docket for this final rulemaking action. EPA's response and a summary 
of the comment are provided below.

II. Response to Comment

    Comment: The Commenter asserts that EPA should approve Alabama's 
August 20, 2012, 2008 8-hour ozone infrastructure SIP revision in 
``conjunction with Alabama's reliance in its October 2015 SIP on CSAPR 
to satisfy BART and other regional haze rule requirements.'' According 
to the Commenter, EPA has the authority and an obligation to approve 
Alabama's October 2015 regional haze SIP because EPA has approved the 
State's CSAPR annual SO2 and NOX emissions 
budgets into the Alabama SIP and because the ``CSAPR=BART rule . . . 
remains legally in effect.'' The Commenter believes that Alabama is 
``plainly entitled to rely at this time on the CSAPR=BART rule'' and 
that EPA's reliance on the November 10, 2016 rulemaking that proposed 
to reaffirm that CSAPR can serve as an alternative to source-specific 
BART is a ``legally and factually invalid reason for EPA to refuse at 
this time to approve Alabama's 2015 regional haze SIP submission and, 
by extension, Alabama's 2012 prong 4 submission.''
    Response: EPA disagrees with the Commenter. EPA is disapproving the 
prong 4 element of Alabama's August 20, 2012, 8-hour ozone 
infrastructure SIP revision because the State does not have a fully-
approved regional haze SIP and has not otherwise shown that its SIP 
contains adequate provisions to prevent emissions from within the State 
from interfering with other states' measures to protect visibility. 
Although Alabama's 2015 regional haze SIP submission sought to convert 
the limited approval/limited disapproval of its regional haze SIP to a 
full approval by relying on CSAPR to satisfy BART and LTS requirements, 
intervening developments dictate that EPA cannot act on that revision 
until EPA completes action on the D.C. Circuit's remand of certain 
CSAPR budgets and determines the impact of the final remand response on 
CSAPR participation as an alternative to BART requirements.
    As discussed above, CSAPR's scope has been impacted by the D.C. 
Circuit's remand of the Phase 2 SO2 emissions budgets for 
Alabama, Georgia, South Carolina, and Texas and the Phase 2 ozone 
season NOX budgets for 11 states. The magnitude of this 
impact and the resulting effect on the CSAPR ``alternative to BART'' 
rule depends, in part, on the actions of the states with remanded 
budgets. EPA expects that potentially material changes to CSAPR's scope 
will be limited to the withdrawal of Texas from the annual 
NOX and SO2 trading program and the withdrawal of 
Florida from the ozone-season NOX trading program based on 
several considerations, including discussions with the affected states, 
the incorporation of the CSAPR Phase 2 annual NOX and 
SO2 budgets into the Alabama SIP, and commitment letters 
from Georgia and South Carolina to adopt the CSAPR Phase 2 budgets.\15\ 
EPA's November 10, 2016, proposed determination that CSAPR would 
continue to be available as an alternative to BART is therefore based 
on the assumption that Georgia and South Carolina will remain in CSAPR 
with annual NOX and SO2 emissions budgets equal 
to or more stringent than those in their CSAPR FIPs. However, EPA has 
not yet received SIP revisions from Georgia or South Carolina adopting 
their respective CSAPR FIP budgets. Although EPA expects that Georgia 
and South Carolina will submit such SIP revisions in the near future, 
the continued validity of CSAPR as an alternative to BART will only be 
resolved under EPA's November 10, 2016, proposal if and when Georgia 
and South Carolina submit SIP revisions adopting their respective 
remanded CSAPR budgets; EPA addresses public comment on its November 
10, 2016 proposed determination that CSAPR continues to be an 
alternative to BART given the expected changes to CSAPR's scope; and 
EPA finalizes its determination that CSAPR remains an alternative to 
BART. For these reasons, EPA cannot approve Alabama's 2015 regional 
haze SIP revision at this time. Because Alabama does not have a fully 
approved regional haze SIP and has not alternatively demonstrated that 
its emissions do not interfere with other states' required measures 
protecting visibility, EPA must disapprove the prong 4 element of 
Alabama's August 20, 2012, 8-hour ozone infrastructure SIP revision.
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    \15\ See letters to Heather McTeer Toney, Regional 
Administrator, EPA Region 4, from Judson H. Turner, Director of the 
Environmental Protection Division, Georgia Department of Natural 
Resources (May 26, 2016) and from Myra C. Reece, Director of 
Environmental Affairs, South Carolina Department of Health and 
Environmental Control (April 19, 2016), available in the docket for 
this action.
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III. Final Action

    As described above, EPA is disapproving the prong 4 portion of 
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP 
submission. All other applicable infrastructure requirements for this 
SIP submission have been addressed in separate rulemakings.

IV. 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.

[[Page 9515]]

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. EPA is determining that the prong 4 
portion of the aforementioned SIP submission does not meet federal 
requirements. Therefore, this action does not impose additional 
requirements on the state 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);
     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 April 10, 2017. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate Matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: January 5, 2017.
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 52.53 is amended by adding a reserved paragraph (d) and 
paragraph (e) to read as follows:


Sec.  52.53   Approval status.

* * * * *
    (e) Disapproval. Portion of the state implementation plan (SIP) 
revision submitted by the State of Alabama, through the Alabama 
Department of Environmental Management (ADEM) on August 20, 2012, that 
addresses the visibility protection (prong 4) element of Clean Air Act 
section 110(a)(2)(D)(i) for the 2008 8-hour Ozone National Ambient Air 
Quality Standards (NAAQS). EPA is disapproving the prong 4 portion of 
ADEM's SIP submittal because it relies solely on the State having a 
fully approved regional haze SIP to satisfy the prong 4 requirements 
for the 2008 8-hour Ozone NAAQS.

[FR Doc. 2017-02303 Filed 2-6-17; 8:45 am]
 BILLING CODE 6560-50-P