[Federal Register Volume 82, Number 196 (Thursday, October 12, 2017)]
[Rules and Regulations]
[Pages 47393-47396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21954]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0104; FRL-9969-21--Region 4]


Air Plan Approval; Alabama; Regional Haze Plan and Prong 4 
(Visibility) for the 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking the 
following four actions regarding the Alabama State Implementation Plan 
(SIP): Approving the portion of Alabama's October 26, 2015, SIP 
submittal seeking to change reliance from the Clean Air Interstate Rule 
(CAIR) to the Cross-State Air Pollution Rule (CSAPR) for certain 
regional haze requirements; converting EPA's limited approval/limited 
disapproval of Alabama's July 15, 2008, regional haze SIP to a full 
approval; approving the visibility prong of Alabama's infrastructure 
SIP submittals for the 2012 Fine Particulate Matter (PM2.5), 2010 
Nitrogen Dioxide (NO2), and 2010 Sulfur Dioxide (SO2) National Ambient 
Air Quality Standards (NAAQS); and converting EPA's disapproval of the 
visibility portion of Alabama's infrastructure SIP submittal for the 
2008 Ozone NAAQS to an approval.

DATES: This rule will be effective November 13, 2017.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2017-0104. 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: Michele Notarianni, Air Regulatory 
Management Section, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached by telephone 
at (404) 562-9031 or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR

    Section 169A(b)(2)(A) of the Clean Air Act (CAA or Act) requires 
states to submit regional haze SIPs that contain

[[Page 47394]]

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 Best Available Retrofit Technology 
(BART) as determined by the state. In revisions to the regional haze 
program made in 2005, EPA amended its regulations to provide that 
states participating in the CAIR cap-and-trade programs \1\ pursuant to 
an EPA-approved CAIR SIP or states that remain subject to a CAIR 
Federal Implementation Plan (FIP) need not require affected BART-
eligible electric generating units (EGUs) to install, operate, and 
maintain BART for emissions of SO2 and nitrogen oxides 
(NOx). See 70 FR 39104. As a result of EPA's determination that CAIR 
was ``better-than-BART,'' a number of states in the CAIR region, 
including Alabama, relied on the CAIR cap-and-trade programs as an 
alternative to BART for EGU emissions of SO2 and NOx in 
designing their regional haze SIPs. These states also relied on CAIR as 
an element of a long-term strategy (LTS) for achieving their reasonable 
progress goals (RPGs) for their regional haze programs. However, in 
2008, the United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) remanded CAIR to EPA without vacatur to preserve 
the environmental benefits provided by CAIR. North Carolina v. EPA, 550 
F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), 
acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace 
CAIR and issued FIPs to implement the rule in CSAPR-subject states.\2\ 
Implementation of CSAPR was scheduled to begin on January 1, 2012, when 
CSAPR would have superseded the CAIR program.
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    \1\ CAIR created regional cap-and-trade programs to reduce 
SO2 and NOx emissions in 27 eastern states (and the 
District of Columbia), including Alabama, that contributed to 
downwind nonattainment or interfered with maintenance of the 1997 8-
hour ozone NAAQS or the 1997 PM2.5 NAAQS.
    \2\ CSAPR requires 28 eastern states to limit their statewide 
emissions of SO2 and/or NOx in order to mitigate 
transported air pollution unlawfully impacting other states' ability 
to attain or maintain four NAAQS: the 1997 ozone NAAQS, the 1997 
annual PM2.5 NAAQS, the 2006 24-hour PM2.5 
NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR emissions 
limitations are defined in terms of maximum statewide ``budgets'' 
for emissions of annual SO2, annual NOx, and/or ozone-
season NOx by each covered state's large EGUs. The CSAPR state 
budgets are implemented in two phases of generally increasing 
stringency, with the Phase 1 budgets applying to emissions in 2015 
and 2016 and the Phase 2 budgets applying to emissions in 2017 and 
later years.
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    Due to the D.C. Circuit's 2008 ruling that CAIR was ``fatally 
flawed'' and its resulting status as a temporary measure following that 
ruling, EPA could not fully approve regional haze SIPs to the extent 
that they relied on CAIR to satisfy the BART requirement and the 
requirement for a LTS sufficient to achieve the state-adopted RPGs. On 
these grounds, EPA finalized a limited disapproval of Alabama's 
regional haze SIP on June 7, 2012, triggering the requirement for EPA 
to promulgate a FIP unless Alabama submitted and EPA approved a SIP 
revision that corrected the deficiency. See 77 FR 33642. EPA finalized 
a limited approval of Alabama's regional haze SIP on June 28, 2012, as 
meeting the remaining applicable regional haze requirements set forth 
in the CAA and the Regional Haze Rule (RHR). See 77 FR 38515.
    In the June 7, 2012, limited disapproval action, EPA also amended 
the RHR to provide that participation by a state's EGUs in a CSAPR 
trading program for a given pollutant--either a CSAPR federal trading 
program implemented through a CSAPR FIP or an integrated CSAPR state 
trading program implemented through an approved CSAPR SIP revision--
qualifies as a BART alternative for those EGUs for that pollutant.\3\ 
See 40 CFR 51.308(e)(4). Since EPA promulgated this amendment, numerous 
states covered by CSAPR have come to rely on the provision through 
either SIPs or FIPs.\4\
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    \3\ Legal challenges to the CSAPR-Better-than-BART rule from 
state, industry, and other petitioners are pending. Utility Air 
Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 
2012).
    \4\ EPA has promulgated FIPs relying on CSAPR participation for 
BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, 
Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, 
and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 
(July 6, 2012). EPA has approved Minnesota's and Wisconsin's SIPs 
relying on CSAPR participation for BART purposes. See 77 FR 34801, 
34806 (June 12, 2012) for Minnesota and 77 FR 46952, 46959 (August 
7, 2012) for Wisconsin.
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    Numerous parties filed petitions for review of CSAPR in the D.C. 
Circuit, and on August 21, 2012, the court issued its ruling, vacating 
and remanding CSAPR to EPA and ordering continued implementation of 
CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 
2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United 
States Supreme Court on April 29, 2014, and the case was remanded to 
the D.C. Circuit to resolve remaining issues in accordance with the 
high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 
1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most 
respects, but invalidated without vacating some of the CSAPR budgets as 
to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 
118 (D.C. Cir. 2015). The remanded budgets include the Phase 2 
SO2 emissions budgets for Alabama, Georgia, South Carolina, 
and Texas and the Phase 2 ozone-season NOx budgets for 11 states. On 
September 21, 2017, the EPA Administrator signed a final rule affirming 
the continued validity of EPA's 2012 determination that CSAPR meets the 
RHR's criteria for a BART alternative. EPA determined that changes to 
CSAPR's geographic scope resulting from the actions that the Agency has 
taken or expects to take in response to the D.C. Circuit's remand do 
not affect the continued validity of participation in CSAPR as a BART 
alternative.\5\
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    \5\ The pre-publication version of this rule is available at: 
https://www.epa.gov/airmarkets/interstate-transport-fine-particulate-matter-revision-federal-implementation-plan.
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B. Infrastructure SIPs

    By statute, SIPs meeting the requirements of sections 110(a)(1) and 
(2) of the CAA are to be submitted by states within three years (or 
less, if the Administrator so prescribes) after promulgation of a new 
or revised NAAQS to provide for the implementation, maintenance, and 
enforcement of the new or revised 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. 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 in 
which the state develops and submits the submission for a 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,

[[Page 47395]]

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), are provisions that 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 110(a)(2)(D)(i)(II), are provisions that prohibit 
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). Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement.
    A state can meet prong 4 requirements via confirmation in its 
infrastructure SIP submission that the state has an approved regional 
haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 
40 CFR 51.308 and 51.309 specifically require that a state 
participating in a regional planning process include all measures 
needed to achieve its apportionment of emission reduction obligations 
agreed upon through that process. A fully approved regional haze SIP 
will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with measures required to be included 
in other air agencies' plans to protect visibility.
    Alabama's August 20, 2012, 2008 8-hour Ozone infrastructure SIP 
submission; April 23, 2013, and December 9, 2015, 2010 1-hour 
NO2 submissions; April 23, 2013, 2010 1-hour SO2 
submission; and December 9, 2015, 2012 annual PM2.5 
submission rely on the State having a fully approved regional haze SIP 
to satisfy its prong 4 requirements. EPA is approving the regional haze 
portion of the State's October 26, 2015, SIP revision and converting 
EPA's previous action on Alabama's regional haze SIP from a limited 
approval/limited disapproval to a full approval because final approval 
of this portion of the SIP revision would correct the deficiencies that 
led to EPA's limited approval/limited disapproval of the State's 
regional haze SIP. Specifically, EPA's approval of this portion of 
Alabama's October 26, 2015, SIP revision would satisfy the 
SO2 and NOX BART requirements and SO2 
reasonable progress requirements for EGUs formerly subject to CAIR and 
the requirement that a LTS include measures as necessary to achieve the 
State-adopted RPGs. Because a state may satisfy prong 4 requirements 
through a fully approved regional haze SIP, EPA is also approving the 
prong 4 portion of Alabama's April 23, 2013, and December 9, 2015, 2010 
1-hour NO2 infrastructure submissions; the April 23, 2013, 
2010 1-hour SO2 infrastructure submission; and the December 
9, 2015, 2012 annual PM2.5 submission; and converting EPA's 
February 7, 2017, disapproval of the prong 4 portions of Alabama's 
August 20, 2012, 2008 8-hour Ozone infrastructure submission to an 
approval.
    In a notice of proposed rulemaking (NPRM) published on August 17, 
2017 (82 FR 39090), EPA proposed to take the following actions 
regarding Alabama's October 26, 2015, SIP submittal, contingent upon 
the now final determination that CSAPR continues to qualify as an 
alternative to the application of BART under the RHR: (1) Approve the 
regional haze portion of Alabama's October 26, 2015, SIP submission to 
change reliance from CAIR to CSAPR; (2) convert EPA's limited approval/
limited disapproval of Alabama's July 15, 2008, regional haze SIP to a 
full approval; (3) approve the prong 4 portion of Alabama's April 23, 
2013, and December 9, 2015, 2010 1-hour NO2 submissions; 
April 23, 2013, 2010 1-hour SO2 submission; and December 9, 
2015, 2012 annual PM2.5 submission; and (4) convert EPA's 
February 7, 2017, disapproval of the prong 4 portion of Alabama's 
August 20, 2012, 2008 8-hour Ozone submission to an approval. The 
details of Alabama's submission and the rationale for EPA's actions are 
explained in the NPRM. Comments on the proposed rulemaking were due on 
or before September 18, 2017. EPA received no adverse comments on the 
proposed action.

II. Final Actions

    As described above, EPA is taking the following actions: (1) 
Approving the regional haze portion of Alabama's October 26, 2015, SIP 
submission to change reliance from CAIR to CSAPR; (2) converting EPA's 
limited approval/limited disapproval of Alabama's July 15, 2008, 
regional haze SIP to a full approval; (3) approving the prong 4 portion 
of Alabama's April 23, 2013, and December 9, 2015, 2010 1-hour 
NO2 submissions; April 23, 2013, 2010 1-hour SO2 
submission; and December 9, 2015, 2012 annual PM2.5 
submission; and (4) converting EPA's February 7, 2017, disapproval of 
the prong 4 portion of Alabama's August 20, 2012, 2008 8-hour Ozone 
submission to an approval. All other applicable infrastructure 
requirements for the infrastructure SIP submissions have been or will 
be addressed in separate rulemakings.

III. 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 Act. Accordingly, these 
actions merely approve state law as meeting federal requirements and do 
not impose additional requirements beyond those imposed by state law. 
For that reason, these actions:
     Are not significant regulatory actions 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);
     do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     are 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.);
     do 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);
     do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     are not economically significant regulatory actions based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     are not significant regulatory actions subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     are 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
     do 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

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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 these actions 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. These actions are 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 these actions must be filed in the United States Court of Appeals 
for the appropriate circuit by December 11, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of these actions 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. These actions 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, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: September 29, 2017.
Onis ``Trey'' Glenn, III,
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(e) is amended by adding new entries for ``110(a)(1) 
and (2) Infrastructure Requirements for the 2010 1-hour NO2 
NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for the 2010 
1-hour SO2 NAAQS'', ``110(a)(1) and (2) Infrastructure 
Requirements for the 2012 Annual PM2.5 NAAQS'' and 
``Regional Haze Plan Revision'' at the end of the table to read as 
follows:


Sec.  52.50  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Alabama Non-Regulatory Provisions
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                                                                   State
  Name of nonregulatory SIP       Applicable geographic or    submittal date/   EPA approval       Explanation
          provision                  nonattainment area       effective date        date
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                                                  * * * * * * *
110(a)(1) and (2)              Alabama......................       12/9/2015  10/12/2017,       Addressing Prong
 Infrastructure Requirements                                                   [Insert Federal   4 of Section
 for the 2010.                                                                 Register          110(a)(2)(D)(i)
1-hour NO2 NAAQS.............                                                  citation].        (I) only.
110(a)(1) and (2)              Alabama......................       4/23/2013  10/12/2017,       Addressing Prong
 Infrastructure Requirements                                                   [Insert Federal   4 of Section
 for the 2010.                                                                 Register          110(a)(2)(D)(i)
1-hour SO2 NAAQS.............                                                  citation].        (I) only.
110(a)(1) and (2)              Alabama......................       12/9/2015  10/12/2017,       Addressing Prong
 Infrastructure Requirements                                                   [Insert Federal   4 of Section
 for the 2012.                                                                 Register          110(a)(2)(D)(i)
Annual PM2.5 NAAQS...........                                                  citation].        (I) only.
Regional Haze Plan Revision..  Alabama......................      10/26/2015  10/12/2017,       ................
                                                                               [Insert Federal
                                                                               Register
                                                                               citation].
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0
3. Section 52.53 is amended by removing and reserving paragraph (e) to 
read as follows:


Sec.  52.53  Approval status.

* * * * *
    (e) [Reserved]


Sec.  52.61  [Removed and reserved]

0
4. Section 52.61 is removed and reserved.

[FR Doc. 2017-21954 Filed 10-11-17; 8:45 am]
 BILLING CODE 6560-50-P