1440 CFR 51.165(b) require states to operate a preconstruction review permit program for major stationary sources that wish to locate in an attainment or unclassifiable area but would cause or contribute to a violation of the NAAQS. The regulations in 40 CFR 51.165(b) establish the minimum requirements for nonattainment NSR programs in SIPs but apply specifically to major stationary sources and major modifications located in attainment or unclassifiable/attainment areas.See40 CFR 51.165(b).
3. Significant Monitoring Concentrations
As mentioned above, the SMC numerical value represents a threshold of insignificant (i.e., de
minimis) monitored ambient impacts on pollutant concentrations. In the PM2.5PSD Increment-SILs-SMC Rule, EPA established a PM2.5SMC of 4 µg/m3to be used as a screening tool by a major source subject to PSD to determine the subsequent level of PM2.5data gathering required for a PSD permit application. Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or modification, or the existing air quality level in the area where the source would construct, is less than the SMC (i.e., de minimis),and as such, may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority.
Recently, the Sierra Club filed suit challenging EPA's authority to implement the PM2.5SILs15
as well as the SMC for PSD purposes as promulgated in the October 20, 2012, rule.Sierra Clubv.EPA,Case No 10-1413, D.C. Circuit Court. Specifically, regarding the SMC, Sierra Club claims that the use of SMCs to exempt a source from submitting a year's worth of monitoring data is inconsistent with the CAA. EPA responded to Sierra Club's claims in a Brief dated April 6, 2012, which describes the Agency's authority to develop and promulgate SMC.16
A copy of EPA's April 6, 2010, Brief can be found in the docket for today's final rulemaking atwww.regulations.govusing docket ID: EPA-R04-OAR-2012-0079.
15As mentioned earlier, due to litigation by the Sierra Club, EPA is not taking final action on the SILs portion of the Alabama's May 2, 2011, SIP revision at this time but will take action once the court case regarding SILs implementation is resolved.
16Additional information on this issue can also be found in an April 25, 2010, comment letter from EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today's rulemaking atwww.regulations.govusing docket ID: EPA-R04-OAR-2012-0079.
C. General and Transportation Conformity
In addition to the adoption of NSR Federal regulations mentioned above, Alabama's SIP revision updates the State's General and Transportation Conformity regulations17
at Chapter 335-3-17—Conformity of Federal Actions to State Implementation Plans.Alabama's Conformity regulations at 335-3-17 include Transportation Conformity rules at 335-3-17.01 and General Conformity rules at 335-3-17.02. The May 2, 2011, SIP revision updates Alabama conformity regulations at Chapter 335-3-17to be consistent with recent updates to federal General Conformity18
regulations promulgated on April 5, 2010 (See75 FR 17254) and transportation conformity regulations regarding implementation of the PM2.5and PM10nonattainment and maintenance areas.
17In November 1993, EPA promulgated two sets of regulations to implement section 176(c). First, on November 24, EPA promulgated the Transportation Conformity Regulations (applicable to highways and mass transit) to establish the criteria and procedures for determining that transportation plans, programs, and projects which are funded under title 23 U.S. C. or the Federal Transit Act conform with the SIP.See58 FR 62188. On November 30, 1993, EPA promulgated regulations, known as the General Conformity Regulations (applicable to everything else), to ensure that other Federal actions also conformed to the SIPs.See58 FR 62314). Pursuant to section 176(c) of the CAA, General Conformity ensures that Federal actions comply with the NAAQS. In order to meet this CAA requirement, a Federal agency must demonstrate that every action that it undertakes, approves, permits or supports will conform to the appropriate State, Tribal or Federal Implementation Plan.
18Alabama IBR the federal General Conformity regulations at 40 CFR 93, Subpart B.
II. This Action
As was noted previously, EPA proposed approval of portions of Alabama's May 2, 2011, SIP revision on August 6, 2012, and EPA received one off-topic comment. Although EPA is not obligated to respond to off-topic comments, EPA is nonetheless providing a brief response below. The complete comment is available in the docket for this rulemaking action, but a summary of the comment is as follows. The Commenter states that s/he “would like to see the science research they put into this” and suggested that, “an independent review board to look into this with an unbiased opinion.” As was explained in the detailed August 6, 2012, proposed rulemaking and supporting docketed information, EPA is obligated to take action on Alabama's May 2, 2011, SIP revision. The technical and legal basis for today's action wasexplained in the August 6, 2012, rulemaking, summarized in this final action, and further supported by the additional information provided in the docket for today's rulemaking action. Nothing in the CAA mandates that an independent review board look into today's SIP action. Notably, the comment raises nothing substantively on-point regarding this rulemaking action; but rather, makes broad generalizations that do not appear relevant to today's action.
EPA is now taking final action to approve into the Alabama SIP portions of the State's May 2, 2011, SIP revision to adopt the PSD permitting regulations to implement the PM2.5NAAQS, including the NSR PM2.5and PM2.5Increment-SILs-SMC Rules and changes to the State's General and Transportation Conformity regulations as proposed on August 6, 2012.See77 FR 46664. ADEM's PSD preconstruction regulations are found at rule 335-3-14-.04 and apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/attainment as required under part C of title I of the CAA with respect to the NAAQS. Additionally, rule 335-3-14-.03 establishes general standards for granting permits in the State. ADEM's May 2, 2011, changes to Chapter 335-3-14 were submitted to adopt into the State's NSR permitting program PSD provisions promulgated in the NSR PM2.5Rule and the PM2.5PSD Increment-SILs-SMC rule. These changes to Alabama's regulations became state effective on May 23, 2011. ADEM's SIP revision adopts the NSR PM2.5Rule PSD provisions, including: (1) The requirement for NSR permits to address directly emitted PM2.5and precursor pollutants; (2) the amendment establishing significant emission rates for direct PM2.5and precursor pollutants (SO2and NOX) (at 335-3-14-.04(2)(w)) and recognizing PM2.5precursors (at 335-3-14-.04(2)(b) and 335-3-14-.04(2)(w)) as amended at 40 CFR 51.166(b)(23)(i); and (3) the PSD requirement for states to address condensable PM in establishing enforceable emission limits for PM10and PM2.5(at 353-14-.04(2)(ww)(5)) as amended at 40 CFR 51.166(b)(49). Additionally, Alabama's May 2, 2011, SIP revision did not adopt the grandfathering provision at 40 CFR 52.21(i)(1)(xi) in accordance with the repeal of the PM2.5grandfathering provision. As mentioned earlier, EPA anticipates taking action on the May 2, 2011, SIP revision NNSR amendments in a separate rulemaking. Regarding the condensable provision, in light of Alabama's request in its June 18, 2012, letter and EPA's intention to amend the definition of “regulated NSR pollutant” as discussed in the March 16, 2012, correction rulemaking, EPA is not taking final action to approve the terminology “particulate matter emissions” into the Alabama SIP (at 353-14-.04(2)(ww)(5)) for the condensable provision in the definition of “regulated NSR pollutant.” See77 FR 15656. EPA is, however, taking final action to approve into the Alabama SIP the remaining condensable requirement at 40 CFR 51.166(b)(49)(vi), which requires that condensable emissions be accounted for in applicability determinations and in establishing emissions limitations for PM2.5and PM10.
With respect to the PM2.5PSD Increment-SILs SMC Rule, EPA is taking final action to also approve into the Alabama SIP the PSD increments for the PM2.5annual and 24-hour NAAQS pursuant to section 166(a) of the CAA and the SMC of 4 µg/m3for the PM2.5NAAQS. The May 2, 2011, SIP revision includes: (1) The PM2.5increments as promulgated at 40 CFR 51.166(c)(1) and (p)(4) (for Class I Variances) and (2) amendments to the terms “major source baseline date”(at 353-14-.04(2)(m)) as amended at 40 CFR 51.166(b)(14)(i)(c) and 52.21(b)(14)(i)(c), “minor source baseline date”(including establishment of the “trigger date”) (at 353-14-.04(2)(n)1), and “baseline area”(at 353-14-.04(2)(o)) as amended at 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i).
Regarding the SILs and SMC, EPA's authority to implement the PM2.5SILs and SMC is currently the subject of litigation by the Sierra Club. In a brief filed in the D.C. Circuit on April 6, 2012, EPA described the Agency's authority under the CAA to promulgate and implement the SMCs and SILsde minimisthresholds.Sierra Club v. EPA,Case No. 10-1413 D.C. Circuit. However, EPA is finalizing approval of the promulgated SMC thresholds into the Alabama SIP (at rule 335-3-14.04(8)(h)) because the Agency believes the SMC is a valid exercise of the Agency'sde minimisauthority as well as the fact they are consistent with EPA's promulgated levels in the PM2.5PSD Increment-SILs-SMC Rule. The ongoing litigation may result in the court decision that may require subsequent rule revisions and SIP revisions from Alabama.
In response to the litigation, EPA requested that the court remand and vacate the new regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2) concerning the implementation of SILs for PM2.5so that EPA can make necessary rulemaking revisions to that text.19
In light of EPA's request for remand and vacatur and our acknowledgement of the need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, the Agency has determined at this time not to approve the SILs portion of ADEM's May 2, 2011, SIP revision that contains the affected regulatory text in Alabama's PSD regulations at rule at rule 335-3-14-04(10)(b). EPA will take action on the SILs portion of Alabama's May 2, 2011, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved.20
The PM2.5PSD Increment-SILs-SMC rule promulgated PM2.5SILs thresholds in the NNSR regulations at 40 CFR 51.165(b)(2). Alabama's May 2, 2011, submission also adopts the PM2.5SILs thresholds in their general permits provisions at rule 335-3-14-.03(1)(g)21
to be consistent with amendments to 40 CFR 51.165(b) in the PM2.5PSD Increment-SILs-SMC Rule. In light of the facts that EPA did not request the court to remand and vacate language at 51.165(b) and that the agency has explained its authority to develop and promulgate SILs in the brief filed with the D.C. Circuit Court concerning the litigation, EPA is taking final action to approve Alabama's adoption of the PM2.5SILs thresholds at 335-3-14-.03(1)(g). EPA notes, however, that the SILs-SMC litigation is ongoing and therefore future Court action may require subsequent rule revisions and SIP submittals from the State of Alabama.
19In the preamble to the October 20, 2010, final rule EPA indicates that the Agency does not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of regulating authority for use in the PSD permitting process.See75 FR 64864 at 64899.
20EPA is currently developing guidance to provide a provisional course of action to implement the PM2.5SILs pending revision to implementing (k)(2) provisions and the litigation. The guidance will ensure that the PM2.5SILs are properly applied as part of a PSD compliance demonstration to show that a source's impact will not cause or contribute to a violation of the PM2.5NAAQS or increment.
21The provisions at 335-3-14-.03(1)(g) are consistent with SILs provisions at 40 CFR 51.165(b).
Finally, EPA is taking final action to approve Alabama's changes to the State's General and Transportation conformity regulations to be consistent with Federal regulations. These changes include updating the IBR date at 335-3-17.02 to July 1, 2010, to be consistent with Federal General Conformity rules (as promulgated on April 5, 2010) and to update the Transportation Conformity SIP at 335-3-17-.01 effective May 23, 2011, to include EPA's transportation conformity rule updates regardingimplementation of the PM2.5and PM10nonattainment and maintenance areas.
III. Final Action
EPA is taking final action to approve portions of Alabama's May 2, 2011, SIP revisions (with the exception of the term “particulate matter emissions,” the NNSR revisions and the SILs threshold and provisions) adopting federal regulations amended in the NSR PM2.5and the PM2.5PSD Increment-SILs-SMC Rules to implement the PM2.5NAAQS for the NSR program because they are consistent with section 110 of the CAA and its regulations regarding NSR permitting.
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. 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. Accordingly, 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 Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et 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. 601et 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).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 November 26, 2012. 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.Seesection 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements and Volatile organic compounds.
Dated: September 10, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
1. The authority citation for part 52 continues to read as follows:
42.U.S.C. 7401et seq.
2. Section 52.50(c) is amended under Chapters 335-3-14 and 335-3-17 by revising the entries for “Section 335-3-14-.03,” “Section 335-3-14-.04,” “Section 335-3-17-.01,” and “Section 335-3-17-.02” to read as follows:
Identification of plan
(c) * * *
EPA Approved Alabama Regulations
EPA approval date
Chapter No. 335-3-14 Air Permits
Standards for Granting Permits
May 23, 2011
9-26-12[Insert citation of publication].
Air Permits Authorizing Construction in Clean Air Areas [:prevention of Significant Deterioration (PSD)]
May 23, 2011
9-26-12[Insert citation of publication].
As of [Insert date of publication inFederal Register] Section 335-3-14-.04 does not include Alabama's revision to adopt the PM2.5SILs threshold and provisions (as promulgated in the October 20, 2010 PM2.5PSD Increment-SILs-SMC Rule at 40 CFR 1.166(k)(2) and the term “particulate matter emissions” (as promulgated in the May 16, 2008 NSR PM2.5Rule (at 40 CFR 51.166(b)(49)(vi)).
Chapter No. 335-3-17 Conformity of Federal Actions to State Implementation Plans
May 23, 2011
9-26-12[Insert citation of publication].
May 23, 2011
9-26-12[Insert citation of publication].