[Federal Register Volume 87, Number 131 (Monday, July 11, 2022)]
[Rules and Regulations]
[Pages 41061-41064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14538]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0145; FRL-9844-02-R4]


Air Plan Approval; Alabama; NOX SIP Call

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a State Implementation Plan (SIP) revision submitted 
by the State of Alabama, through the Alabama Department of 
Environmental Management (ADEM), in a letter dated October 18, 2021. 
The revision includes corrections to deficiencies to Alabama's 
regulation titled ``NOX Budget Program Monitoring and 
Reporting'' (AL NOX SIP Call Monitoring Rule), which EPA 
previously conditionally approved into the SIP. Specifically, the AL 
NOX SIP Call Monitoring Rule establishes monitoring and 
reporting requirements for units subject to the nitrogen oxides 
(NOX) SIP Call, including alternative monitoring options for 
certain sources of NOX. EPA is also taking final action to 
convert the conditional approval to a full approval. In addition, EPA 
is approving other minor changes into the SIP.

DATES: This rule is effective August 10, 2022.

ADDRESSES: 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, U.S. Environmental Protection Agency, Region 4, 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].

SUPPLEMENTARY INFORMATION:

I. Background

    Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), also 
called the good neighbor provision, states are required to address the 
interstate transport of air pollution. Specifically, the good neighbor 
provision requires that each state's implementation plan contain 
adequate provisions to prohibit air pollutant emissions from within the 
state that will significantly contribute to nonattainment of the 
national ambient air quality standards (NAAQS), or that will interfere 
with maintenance of the NAAQS, in any other state.
    On October 27, 1998 (63 FR 57356), EPA finalized the ``Finding of 
Significant Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone'' (NOX SIP Call). The NOX SIP 
Call required eastern states, including Alabama, to submit SIPs that 
prohibit excessive emissions of ozone season NOX by 
implementing statewide emissions budgets.\1\ The NOX SIP 
Call addressed the good neighbor provision for the 1979 ozone NAAQS and 
was designed to mitigate the impact of transported NOX 
emissions, one of the precursors of ozone.\2\ EPA developed the 
NOX Budget Trading Program, an allowance trading program 
that states could adopt to meet their obligations under the 
NOX SIP Call. This trading program allowed the following 
sources to participate in a regional cap and trade program: generally, 
electricity generating units (EGUs) with capacity greater than 25 
megawatts (MW); and large industrial non-EGUs, such as boilers and 
combustion turbines, with a rated heat input greater than 250 million 
British thermal units per hour (MMBtu/hr). The NOX SIP Call 
also identified potential reductions from cement kilns and stationary 
internal combustion engines.
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    \1\ See 63 FR 57356 (October 27, 1998).
    \2\ As originally promulgated, the NOX SIP Call also 
addressed good neighbor obligations under the 1997 8-hour ozone 
NAAQS, but EPA subsequently stayed and later rescinded the rule's 
provisions with respect to that standard. See 65 FR 56245 (September 
18, 2000); 84 FR 8422 (March 8, 2019).
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    To comply with the NOX SIP Call requirements, in 2001, 
ADEM submitted a revision to add new rule sections to the SIP-approved 
version of Alabama Administrative Code Chapter 335-3-1, General 
Provisions, and Chapter 335-3-8, Control of Nitrogen Oxides Emissions. 
EPA approved the revision as compliant with Phase I of the 
NOX SIP Call in 2001. See 66 FR 36919 (July 16, 2001). The 
approved revision required EGUs and large non-EGUs in the State to 
participate in the NOX Budget Trading Program beginning in 
2004. In 2005, Alabama submitted, and EPA approved, a SIP revision to 
address additional emissions reductions required for the NOX 
SIP Call under Phase II. See 70 FR 76694 (December 28, 2005).
    In 2005, EPA published the Clean Air Interstate Rule (CAIR), which 
required several eastern states, including Alabama, to submit SIPs that 
prohibited emissions consistent with revised ozone season 
NOX budgets (as well as annual budgets for NOX 
and sulfur dioxide). See 70 FR 25162 (May 12, 2005); see also 71 FR 
25328 (April 28, 2006). CAIR addressed the good neighbor provision for 
the 1997 ozone NAAQS and 1997 fine particulate matter 
(PM2.5) NAAQS and was designed to mitigate the impact of 
transported NOX emissions with respect to ozone and 
PM2.5. CAIR established several trading programs that EPA 
implemented through Federal implementation plans (FIPs) for EGUs 
greater than 25 MW in each affected state, but not large non-EGUs; 
states could submit SIPs to replace the FIPs that achieved the required 
emission reductions from EGUs and/or other types of sources.\3\ When 
the CAIR trading program for ozone season NOX was 
implemented beginning in 2009, EPA discontinued administration of the 
NOX Budget Trading Program; however, the requirements of the 
NOX SIP Call continued to apply.
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    \3\ CAIR had separate trading programs for annual sulfur dioxide 
(SO2) emissions, seasonal NOX emissions, and 
annual NOX emissions.
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    On October 1, 2007 (72 FR 55659), EPA approved revisions to 
Alabama's SIP that incorporated requirements for CAIR. Consistent with 
CAIR's requirements, EPA approved a SIP revision in which Alabama 
regulations: (1) sunset its NOX Budget Trading

[[Page 41062]]

Program requirements, and (2) incorporated CAIR annual and ozone season 
NOX state trading programs. See 72 FR 55659. Participation 
of EGUs in the CAIR ozone season NOX trading program 
addressed the State's obligation under the NOX SIP Call for 
those units, and Alabama also chose to require non-EGUs subject to the 
NOX SIP Call to participate in the same CAIR trading 
program. In this manner, Alabama's CAIR rules incorporated into the SIP 
addressed the State's obligations under the NOX SIP Call 
with respect to both EGUs and non-EGUs.
    The United States Court of Appeals for the District of Columbia 
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately 
remanded the rule to EPA without vacatur to preserve the environmental 
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896, 
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling 
allowed CAIR to remain in effect temporarily until a replacement rule 
consistent with the court's opinion was developed. While EPA worked on 
developing a replacement rule, the CAIR program continued to be 
implemented with the NOX annual and ozone season trading 
programs beginning in 2009 and the SO2 annual trading 
program beginning in 2010.
    Following the D.C. Circuit's remand of CAIR, EPA promulgated the 
Cross-State Air Pollution Rule (CSAPR) to replace CAIR and address good 
neighbor obligations for the 1997 ozone NAAQS, the 1997 
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. See 76 FR 
48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in eastern 
states, including Alabama, to meet annual and ozone season 
NOX emission budgets and annual SO2 emission 
budgets implemented through new trading programs. Implementation of 
CSAPR began on January 1, 2015.\4\ CSAPR also contained provisions that 
would sunset CAIR-related obligations on a schedule coordinated with 
the implementation of the CSAPR compliance requirements. Participation 
by a state's EGUs in the CSAPR trading program for ozone season 
NOX generally addressed the state's obligation under the 
NOX SIP Call for EGUs. CSAPR did not initially contain 
provisions allowing states to incorporate large non-EGUs into that 
trading program to meet the requirements of the NOX SIP Call 
for non-EGUs. EPA also stopped administering CAIR trading programs with 
respect to emissions occurring after December 31, 2014.\5\
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    \4\ See 79 FR 71663 (December 3, 2014).
    \5\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March 
14, 2016).
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    To comply with CSAPR, Alabama adopted SO2 and 
NOX CSAPR trading program rules, including budgets, in ADEM 
Administrative Code Chapters 335-3-5 and 335-3-8. On August 31, 2016, 
EPA approved Alabama's CSAPR annual SO2 and annual 
NOX trading program rules into the SIP.\6\ See 81 FR 59869. 
Because EPA stopped administering the CAIR trading programs after 2014, 
the approved CAIR rules in Alabama's SIP have not been implemented for 
several years. Furthermore, ADEM repealed all CAIR and CAIR-related 
regulations from Alabama Administrative Code Chapters 335-3-1, 335-3-5, 
and 335-3-8 on December 9, 2011.\7\ Even though the CAIR programs were 
not being implemented in Alabama, ozone season NOX emissions 
have remained well below the NOX SIP Call budget levels.
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    \6\ In the 2016 action, EPA did not act on the portion of 
Alabama's SIP submittal intended to replace Alabama units' 
obligations to participate in CSAPR's Federal trading program for 
ozone-season NOX emissions.
    \7\ Although CAIR-related regulations were repealed from ADEM 
Administrative Code on December 11, 2011, the repeal of the 
regulations was not effective until February 20, 2015. EPA removed 
the repealed regulations from the SIP, effective August 6, 2021. See 
86 FR 35610 (July 7, 2021).
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    After litigation that reached the Supreme Court, the D.C. Circuit 
generally upheld CSAPR but remanded several state budgets to EPA for 
reconsideration. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 
129-30 (D.C. Cir. 2015). EPA addressed the remanded ozone season 
NOX budgets in the Cross-State Air Pollution Rule Update for 
the 2008 Ozone NAAQS (CSAPR Update), which also partially addressed 
eastern states' good neighbor obligations for the 2008 ozone NAAQS. See 
81 FR 74504 (October 26, 2016). The air quality modeling for the CSAPR 
Update demonstrated that Alabama contributes significantly to 
nonattainment and/or interferes with maintenance of the 2008 ozone 
NAAQS in other states. The CSAPR Update reestablished an option for 
most states to meet their ongoing obligations for non-EGUs under the 
NOX SIP Call by including the units in the CSAPR Update 
trading program.
    The CSAPR Update trading program replaced the original CSAPR 
trading program for ozone season NOX for most covered 
states. On October 6, 2017, EPA approved Alabama's CSAPR Update ozone 
season NOX trading program rules for EGUs into Alabama's 
SIP.\8\ See 82 FR 46674.\9\ Alabama's EGUs participate in the CSAPR 
Update trading program, generally also addressing the state's 
obligations under the NOX SIP Call for EGUs. However, 
Alabama elected not to include its large non-EGUs in the CSAPR Update 
ozone season trading program. Because Alabama's large non-EGUs no 
longer participate in any CSAPR or CSAPR Update trading program for 
ozone season NOX emissions, the NOX SIP Call 
regulations at 40 CFR 51.121(r)(2), as well as anti-backsliding 
provisions at 40 CFR 51.905(f) and 40 CFR 51.1105(e), require these 
non-EGUs to maintain compliance with NOX SIP Call 
requirements in some other way.
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    \8\ This action approved CSAPR and CSAPR Update-related 
provisions of Alabama SIP submissions dated October 26, 2015, and 
May 19, 2017.
    \9\ In subsequent litigation, the D.C. Circuit upheld the CSAPR 
Update in virtually all respects but remanded it because it was 
partial in nature and did not fully eliminate upwind states' 
significant contribution to nonattainment or interference with 
maintenance of the 2008 ozone NAAQS by ``the relevant downwind 
attainment deadlines'' in the CAA. Wisconsin v. EPA, 938 F.3d 303, 
313-15 (D.C. Cir. 2019). To address the remand, in 2021 EPA issued 
the Revised CSAPR Update, in which the Agency determined (among 
other things) that the requirements established for Alabama in the 
CSAPR Update did in fact constitute a full remedy for the State's 
good neighbor obligations with respect to the 2008 ozone NAAQS. 86 
FR 23054, 23054 (April. 30, 2021).
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    Under 40 CFR 51.121(f)(2) of the NOX SIP Call 
regulations, where a state's implementation plan contains control 
measures for EGUs and large non-EGU boilers and combustion turbines, 
the SIP must contain enforceable limits on the ozone season 
NOX mass emissions from these sources. In addition, under 40 
CFR 51.121(i)(4) of the NOX SIP Call regulations as 
originally promulgated, the SIP also had to require these sources to 
monitor emissions according to the provisions of 40 CFR part 75, which 
generally entails the use of continuous emission monitoring systems 
(CEMS). Alabama triggered these requirements by including control 
measures in its SIP for these types of sources, and the requirements 
have remained in effect despite the discontinuation of the 
NOX Budget Trading Program after the 2008 ozone season.
    On March 8, 2019, EPA revised some of the regulations that were 
originally promulgated in 1998 to implement the NOX SIP 
Call.\10\ The revision gave states covered by the NOX SIP 
Call greater flexibility concerning the form of the NOX 
emissions monitoring requirements that the states must include in their 
SIPs

[[Page 41063]]

for certain emissions sources. The revision amended 40 CFR 51.121(i)(4) 
to make part 75 monitoring, recordkeeping, and reporting optional, such 
that SIPs may establish alternative monitoring requirements for 
NOX SIP Call budget units that meet the general requirements 
of 40 CFR 51.121(f)(1) and (i)(1). Under the updated provision, a 
state's implementation plan still needs to include some form of 
emissions monitoring requirements for these types of sources, 
consistent with the NOX SIP Call's general enforceability 
and monitoring requirements at 40 CFR 51.121(f)(1) and (i)(1), 
respectively, but states are no longer required to satisfy these 
general NOX SIP Call requirements specifically through the 
adoption of 40 CFR part 75 monitoring requirements.
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    \10\ See ``Emissions Monitoring Provisions in State 
Implementation Plans Required Under the NOX SIP Call,'' 
84 FR 8422 (March 8, 2019).
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    Through a letter to EPA, dated February 27, 2020, ADEM provided a 
SIP revision to incorporate changes to Alabama's Administrative Code, 
Chapter 335-3-8, to include Rule 335-3-8-.71, NOX Budget Program, and 
Rule 335-3-8-.72, NOX Budget Program Monitoring and Reporting, to 
maintain the State's compliance with the Federal NOX SIP 
Call regulations at 40 CFR 51.121 and 51.122, and to provide 
alternative monitoring options for certain large non-EGUs. 
Subsequently, on September 15, 2020, ADEM sent a letter requesting that 
EPA conditionally approve Rule 335-3-8-.72 and committing to provide a 
SIP revision to EPA by July 7, 2022, to address a deficiency related to 
misplacement of stack testing requirements within Rule 335-3-
8-.72(1).\11\ Based on the State's commitment to submit a SIP revision 
addressing the identified deficiency, EPA conditionally approved the 
February 27, 2020, submission on July 7, 2021. See 86 FR 35610.\12\
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    \11\ These stack testing requirements were mistakenly added to 
335-3-8-.72(1)(c), which allows sources to fulfill NOX 
SIP call monitoring requirements by operating a NOX CEMS 
outside of part 75 requirements, instead of 335-3-8-.72(1)(d), which 
uses emissions factors.
    \12\ In the same action, EPA approved removal of the CAIR 
trading program, removal of the NOX Budget Trading 
Program rules, and the State's renumbering of the existing 
regulation titled ``New Combustion Sources'' from Rule 335-3-8-.14 
to Rule 335-3-8-.05.
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    In accordance with EPA's conditional approval and ADEM's 
commitment, the State submitted a SIP revision on October 18, 2021.\13\ 
The submission corrects the deficiency in Rule 335-3-8-.72(1) and 
requests EPA to convert the previous conditional approval into a full 
approval. As proposed through a notice of proposed rulemaking (NPRM) 
published on May 16, 2022, EPA is approving the October 18, 2021, 
revision to the Alabama SIP and converting the conditional approval to 
a full approval of ADEM's Rule 335-3-8-.72. For a comprehensive 
discussion of EPA's analysis and rationale for approving the State's 
submittal, please refer to EPA's May 16, 2022, NPRM. See 87 FR 29707 
(May 16, 2022). Comments on the May 16, 2022, NPRM were due on or 
before June 15, 2022. EPA received one comment on that proposal, and it 
supports EPA's proposed action.
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    \13\ EPA notes that the submission was received by the Regional 
Office on October 20, 2021. However, for clarity, this document 
refers to the letter date of October 18, 2021.
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II. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with the requirements of 1 
CFR 51.5, and as discussed in Section I of this preamble, EPA is 
finalizing the incorporation by reference of Alabama's Administrative 
Code Rule 335-3-8-.72, NOX Budget Program Monitoring and 
Reporting, which establishes emission monitoring requirements for units 
subject to the NOX SIP call, state effective December 13, 
2021. 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, the revised materials as stated above, have been approved by 
EPA for inclusion in the State implementation plan, have been 
incorporated by reference by EPA into 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 by the Director of the Federal Register in 
the next update to the SIP compilation.\14\
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    \14\ See 62 FR 27968 (May 22, 1997).
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III. Final Action

    EPA is taking final action to approve Alabama's October 18, 2021, 
submission, which revises Alabama Rule 335-3-8-.72, NOX 
Budget Program Monitoring and Reporting, to correct the stack testing 
requirement by moving it from 335-3-8-.72(1)(c) to 335-3-8-.72(1)(d) 
and correct language in 335-3-8-.72(d) to refer to NOX mass 
emissions. In addition, EPA is taking final action to convert the July 
7, 2021, conditional approval of Alabama Rule 335-3-8-.72 to a full 
approval.

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. 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. 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 (Public Law 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,

[[Page 41064]]

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 September 9, 2022. 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: June 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, the EPA amends 40 CFR part 
52 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


Sec.  52.49   [Removed and Reserved]

0
2. Remove and reserve Sec.  52.49.

0
3. In Sec.  52.50(c), amend the table by revising the entry for 
``Section 335-3-8-.72'' 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 date   EPA approval date       Explanation
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                                                  * * * * * * *
Section 335-3-8-.72..............  NOX Budget Program       12/13/2021  7/11/2022, [Insert
                                    Monitoring and                       citation of
                                    Reporting.                           publication].
 
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[FR Doc. 2022-14538 Filed 7-8-22; 8:45 am]
BILLING CODE 6560-50-P