[Federal Register Volume 85, Number 49 (Thursday, March 12, 2020)]
[Rules and Regulations]
[Pages 14418-14420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04854]

[[Page 14418]]



40 CFR Part 52

[EPA-R04-OAR-2019-0214; FRL-10006-31-Region 4]

Air Plan Approval; Alabama: Revisions to Cross-State Air 
Pollution Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving 
revisions to the Alabama State Implementation Plan (SIP), submitted by 
the State of Alabama, through the Alabama Department of Environmental 
Management (ADEM), via two letters dated August 27, 2018, and October 
25, 2018. The SIP revisions make technical amendments to the State's 
Cross-State Air Pollution Rule (CSAPR) regulations. This action is 
being taken pursuant to the Clean Air Act (CAA or Act).

DATES: This rule is effective April 13, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2019-0214. All documents in the docket 
are listed on the www.regulations.gov website. 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 and Radiation 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: Steven Scofield, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at 
[email protected].


I. Background

    On November 26, 2019 (84 FR 65061), EPA proposed to approve changes 
to the Alabama SIP that were provided to EPA through two letters dated 
August 27, 2018, and October 25, 2018.\1\ Specifically, EPA proposed to 
approve two SIP revisions that include changes to Alabama's CSAPR 
regulations, found in ADEM Administrative Code Rules 335-3-5-.13, 335-
3-8-.14, 335-3-8-.40, and 335-3-8-.46.\2\

    \1\ EPA received ADEM's submissions on September 7, 2018 and 
October 30, 2018, respectively.
    \2\ EPA notes that the Agency received other revisions to the 
Alabama SIP submitted with the August 27, 2018, letter. EPA will 
consider action on the remaining revisions in separate actions.

    Alabama's August 27, 2018, SIP revision makes changes to ADEM's 
CSAPR regulations by adding the term ``Group 2'' in several places to 
Rule 335-3-8-.40 to make the terminology consistent with EPA's CSAPR 
NOX Ozone Season Group 2 Trading Program regulations. 
Alabama's October 25, 2018, SIP revision changes the CSAPR regulations 
in Rules 335-3-5-.13, 335-3-8-.14, and 335-3-8-.46 by explicitly 
addressing the disposition of any allowances that remain after 
allocations to all existing units have reached their historical 
emission caps as well as any allowances set aside for new units in 
Indian country within the State and not used for that purpose. In 
addition, the October 25, 2018, SIP revision makes minor and 
administrative changes, such as correcting typographical errors.
    The details of the Alabama submission and the rationale for EPA's 
action are explained in the notice of proposed rulemaking. Comments on 
the proposed rulemaking were due on or before December 26, 2019. EPA 
received one adverse comment on the proposed action.

II. Response to Comments

    EPA received one adverse comment from an anonymous commenter on the 
proposed rule published on November 26, 2019. See 84 FR 65061. This 
comment has been included in the docket for this action.
    Comment: The Commenter asserts that CSAPR has been vacated by the 
recent rulings in Wisconsin v. EPA and New York v. EPA and states that 
EPA is therefore precluded from approving Alabama's requested changes 
because the State's program is based on an illegal federal plan. The 
Commenter makes several additional statements that are outside the 
scope of this action, including references to Aloha Power v. EPA.
    Response: EPA disagrees with this comment. In Wisconsin v. EPA, the 
court remanded the CSAPR Update to EPA but did not vacate it, and the 
remand does not concern any aspect of the CSAPR Update rulemaking 
relevant to the minor SIP changes at issue in this action. 938 F.3d 
303, 336 (D.C. Cir. 2019). In New York v. EPA, the court vacated a 
related action known as the CSAPR Close-out, but the vacatur does not 
extend to CSAPR or the CSAPR Update. 781 Fed. Appx. 4 (D.C. Cir. 2019). 
Thus, the Wisconsin and New York decisions do not bar approval of the 
requested changes to Alabama's SIP.
    With respect to the commenter's discussion on endangerment 
findings, the comment is out of scope of this action, as EPA's action 
did not relate to an endangerment finding. Further, to the extent the 
Commenter intended to raise concerns other than those related to 
endangerment findings in its discussion of a possible U.S. Supreme 
Court decision named Aloha Power v. EPA, the commenter did not provide 
a citation and EPA is unable to find such a decision based on the 
description provided by the Commenter.

III. Incorporation by Reference

    In this document, 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 ADEM 
Administrative Code Rules 335-3-5-.13, 335-3-8-.14, and 335-3-8-.46, 
state effective on December 7, 2018, and 335-3-8-.40, state effective 
on October 5, 2018, which make the following revisions to Alabama's 
SIP: Add the term ``Group 2'' to the State's rules, consistent with 
EPA's CSAPR NOX Ozone Season Group 2 Trading Program 
regulations; address the disposition of any allowances that remain 
after allocations to all existing units have reached their historical 
emission caps as well as any allowances set aside for new CSAPR 
NOX Ozone Season Group 2 units in Indian country within 
Alabama and not used for that purpose; and make other minor changes. 
EPA has made, and will continue to make, these materials generally 
available through www.regulations.gov and at the EPA Region 4 Office 
(please contact the person identified in the For Further Information 
Contact section of this preamble for more information). Therefore, 
these materials have been approved by EPA for inclusion in the State 
implementation plan, have been incorporated by reference by EPA into

[[Page 14419]]

that plan, are fully federally enforceable under sections 110 and 113 
of the CAA as of the effective date of the final rulemaking of EPA's 
approval, and will be incorporated by reference in the next update to 
the SIP compilation.\3\

    \3\ See 62 FR 27968 (May 22, 1997).

IV. Final Action

    EPA is approving the aforementioned changes to ADEM Administrative 
Code Rules 335-3-5-.13, 335-3-8-.14, 335-3-8-.40, and 335-3-8-.46. 
These changes are consistent with the CAA.

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. 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);
     Are not Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory actions because SIP approvals are exempted under 
Executive Order 12866;
     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 significant economic impacts 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do not contain any unfunded mandates 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 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. These actions are not a ``major rule'' as defined by 5 U.S.C. 
    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 May 11, 2020. 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. 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, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 

    Dated: February 27, 2020.
Mary S. Walker,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:


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

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

Subpart B--Alabama

2. In Sec.  52.50 amend the table in paragraph (c) by revising the 
entries for ``335-3-5-.13, TR SO2 Allowance Allocations'', 
``335-3-8-.14, TR NOX Annual Allowance Allocations'', ``335-
3-8-.40, TR NOX Ozone Season Group 2 Trading Program--
Applicability'', and ``335-3-8-.46, TR NOX Ozone Season 
Group 2 Allowance Allocations'' to read as follows:

Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

                                        EPA-Approved Alabama Regulations
       State citation             Title/subject       effective      EPA approval date          Explanation
                                                  * * * * * * *
335-3-5-.13................  TR SO2 Allowance          12/7/2018  3/12/2020, [Insert      Both sections of 335-3-
                              Allocations.                         citation of             5-.13 are included in
                                                                   publication].           the approved SIP.

[[Page 14420]]

                                                  * * * * * * *
335-3-8-.14................  TR NOX Annual             12/7/2018  3/12/2020, [Insert      Both sections of 335-3-
                              Allowance Allocations.               citation of             8-.14 are included in
                                                                   publication].           the approved SIP.
                                                  * * * * * * *
335-3-8-.40................  TR NOX Ozone Season       10/5/2018  3/12/2020, [Insert      ......................
                              Group 2 Trading                      citation of
                              Program--Applicabilit                publication].
                                                  * * * * * * *
335-3-8-.46................  TR NOX Ozone Season       12/7/2018  3/12/2020, [Insert      ......................
                              Group 2 Allowance                    citation of
                              Allocations.                         publication].
                                                  * * * * * * *

* * * * *
[FR Doc. 2020-04854 Filed 3-11-20; 8:45 am]