[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.
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(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