
[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Proposed Rules]
[Pages 46664-46672]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19048]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0079; FRL-9708-6]


Approval and Promulgation of Implementation Plans; State of 
Alabama: General and Transportation Conformity & New Source Review 
Prevention of Significant Deterioration for Fine Particulate Matter 
(PM2.5)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve changes to the Alabama State 
Implementation Plan (SIP), submitted by the Alabama Department of 
Environmental Management (ADEM) to EPA on May 2, 2011. The SIP revision 
modifies Alabama's New Source Review (NSR), Prevention of Significant 
Deterioration (PSD), and Nonattainment New Source Review (NNSR) 
programs as well as general and transportation conformity regulations. 
Specifically, the May 2, 2011, SIP revision adopts federal NSR 
permitting requirements provisions into the Alabama SIP regarding 
implementation of the PM2.5 national ambient air quality 
standards (NAAQS), revises the State's NNSR rules, and updates the 
State's general and transportation conformity regulations. All changes 
in the May 2, 2011, SIP revision are necessary to comply with federal 
requirements. EPA is proposing approval of Alabama's May 2, 2011, 
revision to the Alabama SIP because the Agency has preliminarily 
determined that the changes are consistent with the Clean Air Act (CAA 
or Act).

DATES: Comments must be received on or before September 5, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0079, by one of the following methods:
    1. www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. Email: R4-RDS@epa.gov.
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2012-0079 Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S.

[[Page 46665]]

Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during 
the Regional Office's normal hours of operation. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0079. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
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 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Alabama 
SIP, contact Ms. Twunjala Bradley, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Telephone number: (404) 562-9352; email 
address: bradley.twunjala@epa.gov. For information regarding NSR, 
contact Mrs. Yolanda Adams, Air Permits Section, at the same address 
above. Telephone number: (404) 562-9214; email address: 
adams.yolanda@epa.gov. For information regarding PM2.5 
NAAQS, contact Mr. Joel Huey, Regulatory Development Section, at the 
same address above. Telephone number: (404) 562-9104; email address: 
huey.joel@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What actions are EPA proposing?
II. What is EPA's proposed action for the NSR implementation 
requirements for the PM2.5 NAAQS?
III. What is EPA's proposed action for changes to Alabama's general 
and transportation conformity regulations?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What actions are EPA proposing?

    On May 2, 2011, ADEM submitted a SIP revision to EPA for approval 
into the Alabama SIP to adopt federal requirements for NSR permitting, 
and general and transportation conformity.\1\ Alabama's SIP revision 
makes changes to the regulations at Administrative Code for Division 3: 
Chapter 335-3-14--Permits and Chapter 335-3-17--Conformity of Federal 
Actions to State Implementation Plans to comply with federal NSR 
permitting and conformity regulations respectively. First, the May 2, 
2011, SIP revision addresses NSR requirements amended in the May 16, 
2008, final rulemaking entitled ``Implementation of the New Source 
Review Program for Particulate Matter Less Than 2.5 Micrometers'' (73 
FR 28321) and the October 20, 2010, final rulemaking entitled ``Final 
Rule Prevention of Significant Deterioration (PSD) for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5)--Increments, 
Significant Impact Levels (SILs) and Significant Monitoring 
Concentration (SMC): Final Rule, (PM2.5 PSD Increment-SILs-
SMC Rule)'' (75 FR 64864). Second, the submission revises the State's 
NNSR regulations to be consistent with federal NSR regulations. Lastly, 
Alabama's SIP revision changes the State's general and transportation 
conformity regulations which incorporate by reference (IBR) \2\ the 
federal conformity updates. Pursuant to section 110 of the CAA, EPA is 
proposing to approve these changes, with the exception of the three 
elements below, into the Alabama SIP.
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    \1\ Alabama's May 2, 2011, SIP revision also made changes to the 
state's New Source Performance Standards (NSPS) and National 
Emission Standards for Hazardous Air Pollutants (NESHAP) (at 
Chapters 335-3-10 and 11 respectively) and title V regulations at 
Chapter 335-3-16 to adopt recent federal changes to the NSPS and 
NESHAP and major source operating permits regulations respectively. 
However, EPA is not proposing action to approve these revisions as 
they are not part of the Alabama federally approved SIP.
    \2\ In this document IBR means incorporate or incorporates by 
reference.
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    The three elements of ADEM's May 2, 2011, SIP revision which EPA is 
not proposing to approve in this action are: (1) The NNSR changes 
amended at rule 335-3-14-.05; \3\ (2) SIL thresholds and provisions 
promulgated in EPA's PM2.5 PSD Increment-SILs-SMC Rule (75 
FR 64864, October 20, 2010); \4\ and (3) the term ``particulate matter 
emissions'' when accounting for condensable particles for 
PM2.5 emission limits for the definition of ``regulated NSR 
pollutant'' (77 FR 15656, March 16, 2012). EPA will consider action on 
the NNSR changes and SILs provisions separate from this rulemaking.
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    \3\ Alabama's May 2, 2011, SIP revision also made changes to its 
NNSR regulations to be consistent with federal NSR regulations 
including provisions promulgated in the NSR PM2.5 Rule, 
PM2.5 PSD Increment-SILs-SMC Rule and other NSR 
rulemakings. EPA will consider action on this portion of Alabama's 
May 2, 2011, SIP in a separate rulemaking.
    \4\ EPA's authority to implement the SILs and SMC for PSD 
purposes has been challenged by the Sierra Club. Sierra Club v. EPA, 
Case No. 10-1413 United States Court of Appeals for the District of 
Columbia (D.C. Circuit Court).
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II. What is EPA's proposed action for the NSR implementation 
requirements for the PM2.5 NAAQS?

    Today's proposed action to revise Alabama's SIP relates to EPA's 
NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC Rule. In the NSR PM2.5 Rule, EPA finalized regulations 
to implement the NSR program for the PM2.5 NAAQS. As a 
result of EPA's final NSR PM2.5 Rule, states were required 
to

[[Page 46666]]

submit SIP revisions to EPA no later than May 16, 2011, to address 
these requirements for both the PSD and NNSR programs. EPA's 
PM2.5 PSD Increment-SILs-SMC Rule established PSD 
increments, SILs and SMC which address additional components for making 
PSD permitting determinations for PM2.5 NAAQS. These 
requirements address air quality modeling and monitoring provisions for 
fine particle pollution in areas protected by the PSD program (that is 
attainment or unclassifiable/attainment areas for the NAAQS). The 
PM2.5 PSD Increment-SILs-SMC Rule required states to submit 
SIP revisions to adopt the required PSD increments by July 20, 2012. 
Together these two rules address the NSR permitting requirements needed 
to implement the PM2.5 NAAQS. Alabama's May 2, 2011, SIP 
revision adopts into the Alabama SIP the PSD and NNSR \5\ requirements 
promulgated in these two rules to be consistent with federal 
regulations. More detail on the NSR PM2.5 Rule and the 
PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's May 
16, 2008 (73 FR 28321), and October 20, 2010 (75 FR 64864), final rules 
respectively and are summarized below.
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    \5\ EPA anticipates taking action on Alabama's May 2, 2011, SIP 
revision NNSR changes in a separate rulemaking.
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A. Fine Particulate Matter and the NAAQS

    Fine particles in the atmosphere are made up of a complex mixture 
of components. Common constituents include sulfate; nitrate; ammonium; 
elemental carbon; a great variety of organic compounds; and inorganic 
material (including metals, dust, sea salt, and other trace elements) 
generally referred to as ``crustal'' material, although it may contain 
material from other sources. Airborne particulate matter (PM) with a 
nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer 
is one-millionth of a meter, and 2.5 micrometers is less than one-
seventh the average width of a human hair) are considered to be ``fine 
particles'' and are also known as PM2.5. ``Primary'' 
particles are emitted directly into the air as a solid or liquid 
particle (e.g., elemental carbon from diesel engines or fire 
activities, or condensable organic particles from gasoline engines). 
``Secondary'' particles (e.g., sulfate and nitrate) form in the 
atmosphere as a result of various chemical reactions.
    The health effects associated with exposure to PM2.5 
include potential aggravation of respiratory and cardiovascular disease 
(i.e., lung disease, decreased lung function, asthma attacks and 
certain cardiovascular issues). Epidemiological studies have indicated 
a correlation between elevated PM2.5 levels and premature 
mortality. Groups considered especially sensitive to PM2.5 
exposure include older adults, children, and individuals with heart and 
lung diseases. For more details regarding health effects and 
PM2.5 see EPA's Web site at http://www.epa.gov/oar/particlepollution/ (See heading ``Health and Welfare'').
    On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for PM to add 
new standards for fine particles, using PM2.5 as the 
indicator. Previously, EPA used PM10 (inhalable particles 
smaller than or equal to 10 micrometers in diameter) as the indicator 
for the PM NAAQS. EPA established health-based (primary) annual and 24-
hour standards for PM2.5, setting an annual standard at a 
level of 15.0 micrograms per cubic meter ([micro]g/m\3\) and a 24-hour 
standard at a level of 65 [micro]g/m\3\. At the time the 1997 primary 
standards were established, EPA also established welfare-based 
(secondary) standards identical to the primary standards. The secondary 
standards are designed to protect against major environmental effects 
of PM2.5, such as visibility impairment, soiling, and 
materials damage. On October 17, 2006 (71 FR 61236), EPA revised the 
primary and secondary 24-hour NAAQS for PM2.5 to 35 
[micro]g/m\3\ and retained the existing annual PM2.5 NAAQS 
of 15.0 [micro]g/m\3\.

B. What is the NSR program?

    The CAA NSR program is a preconstruction review and permitting 
program applicable to certain new and modified stationary sources of 
air pollutants regulated under the CAA. The program includes a 
combination of air quality planning and air pollution control 
technology requirements. The CAA NSR program is composed of three 
separate programs: PSD, NNSR, and Minor NSR. PSD is established in part 
C of title I of the CAA and applies in areas that meet the NAAQS--
``attainment areas''--as well as areas where there is insufficient 
information to determine if the area meets the NAAQS--``unclassifiable 
areas.'' The NNSR program is established in part D of title I of the 
CAA and applies in areas that are not in attainment of the NAAQS--
``nonattainment areas.'' The Minor NSR program addresses construction 
or modification activities that do not qualify as ``major'' and applies 
regardless of the designation of the area in which a source is located. 
Together, these programs are referred to as the NSR program. EPA 
regulations governing the implementation of these programs are 
contained in 40 CFR sections 51.160-.166; 52.21, .24; and part 51, 
appendix S.
    Section 109 of the CAA requires EPA to promulgate a primary NAAQS 
to protect public health and a secondary NAAQS to protect public 
welfare. Once EPA sets those standards, states must develop, adopt, and 
submit a SIP to EPA for approval that includes emission limitations and 
other control measures to attain and maintain the NAAQS. See CAA 
section 110. Each SIP is also required to include a preconstruction 
review program for the construction and modification of any stationary 
source of air pollution to assure the maintenance of the NAAQS. The 
applicability of the PSD program to a major stationary source must be 
determined in advance of construction and is a pollutant-specific 
determination. Once a major source is determined to be subject to the 
PSD program (and thus is a PSD source), among other requirements, it 
must undertake a series of analyses to demonstrate that it will use the 
best available control technology (BACT) and will not cause or 
contribute to a violation of any NAAQS or increment. Alabama's May 2, 
2011, SIP submittal revises the state's PSD and NNSR permitting 
regulations.

C. NSR PM2.5 Implementation Rule

    On May 16, 2008, EPA finalized the NSR PM2.5 Rule to 
implement the PM2.5 NAAQS, including changes to the NSR 
program (73 FR 28321). The NSR PM2.5 Rule revised the 
federal NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment and nonattainment areas. Specifically, the NSR 
PM2.5 Rule established the following NSR requirements to 
implement the PM2.5 NAAQS: (1) Require NSR permits to 
address directly emitted PM2.5 and precursor pollutants; (2) 
establish significant emission rates for direct PM2.5 and 
precursor pollutants (including sulfur dioxide (SO2) and 
nitrogen oxides (NOx)); (3) establish PM2.5 emission 
offsets; (4) provide exceptions to PM10 grandfathering 
policy; and (5) require states to account for gases that condense to 
form particles (condensables) in PM2.5 and PM10 
emission limits in PSD or NNSR permits. Additionally, the NSR 
PM2.5 Rule authorized states to adopt provisions in their 
NNSR rules that would allow interpollutant offset trading. Alabama's 
May 2, 2011, SIP revision addresses the PSD and NNSR

[[Page 46667]]

requirements related to EPA's May 16, 2008, NSR PM2.5 Rule. 
A few key issues described in greater detail below include the 
PM10 surrogate and grandfathering policy and the condensable 
provision.
1. PM10 Surrogate and Grandfathering Policy
    After EPA promulgated the NAAQS for PM2.5 in 1997, (62 
FR 38652, July 18, 1997) the Agency issued a guidance document entitled 
``Interim Implementation of New Source Review Requirements for 
PM2.5.'' John S. Seitz, EPA, October 23, 1997 (the ``Seitz 
Memo''). The Seitz Memo was designed to help states implement NSR 
requirements pertaining to the new PM2.5 NAAQS in light of 
technical difficulties posed by PM2.5 at that time. 
Specifically, the Seitz Memo stated: ``PM-10 may properly be used as a 
surrogate for PM-2.5 in meeting NSR requirements until these 
difficulties are resolved.''
    EPA also issued a guidance document entitled ``Implementation of 
New Source Review Requirements in PM-2.5 Nonattainment Areas'' (the 
``2005 PM2.5 NNSR Guidance'')) on April 5, 2005, the date 
that EPA's PM2.5 nonattainment area designations became 
effective for the 1997 NAAQS. The 2005 PM2.5 NNSR Guidance 
provided direction regarding implementation of the nonattainment major 
NSR provisions in PM2.5 nonattainment areas in the interim 
period between the effective date of the PM2.5 nonattainment 
area designations (April 5, 2005) and EPA's promulgation of final 
PM2.5 NNSR regulations. Besides re-affirming the 
continuation of the PM10 Surrogate Policy for 
PM2.5 attainment areas set forth in the Seitz Memo, the 2005 
PM2.5 NNSR Guidance recommended that until EPA promulgated 
the PM2.5 major NSR regulations, ``States should use a 
PM10 nonattainment major NSR program as a surrogate to 
address the requirements of nonattainment major NSR for the 
PM2.5 NAAQS.''
    In the NSR PM2.5 Rule, EPA required that major 
stationary sources seeking permits must begin directly satisfying the 
PM2.5 requirements, as of the effective date of the rule, 
rather than relying on PM10 as a surrogate, with two 
exceptions. The first exception is the ``grandfathering'' provision in 
the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering 
provision applied to sources that had applied for, but had not yet 
received, a final and effective PSD permit before the July 15, 2008, 
effective date of the May 16, 2008, final rule. The second exception 
was that states with SIP-approved PSD programs could continue to 
implement the Seitz Memo's PM10 Surrogate Policy for up to 
three years (until May 2011) or until the individual revised state PSD 
programs for PM2.5 are approved by EPA, whichever came 
first. For additional information on the NSR PM2.5 Rule, see 
73 FR 28321.\6\
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    \6\ Additional information on this issue can also be found in an 
August 12, 2009, final order on a title V petition describing the 
use of PM10 as a surrogate for PM2.5. In the 
Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3, 
Order on Petition (August 12, 2009).
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    On February 11, 2010, EPA proposed to repeal the grandfathering 
provision for PM2.5 contained in the federal PSD program at 
40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate 
Policy applicable in states that have a SIP-approved PSD program. See 
75 FR 6827. In support of this proposal, EPA explained that the 
PM2.5 implementation issues that led to the adoption of the 
PM10 Surrogate Policy in 1997 have been largely resolved to 
a degree sufficient for sources and permitting authorities to conduct 
meaningful permit-related PM2.5 analyses.
    On May 18, 2011 (76 FR 28646), EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). 
This final action ended the use of the 1997 PM10 Surrogate 
Policy for PSD permits under the federal PSD program at 40 CFR 52.21. 
In effect, any PSD permit applicant previously covered by the 
grandfathering provision (for sources that completed and submitted a 
permit application before July 15, 2008) \7\ that did not have a final 
and effective PSD permit before the effective date of the repeal would 
no longer be able to rely on the 1997 PM10 Surrogate Policy 
to satisfy the PSD requirements for PM2.5 unless the 
application included a valid surrogacy demonstration. See 76 FR 28646. 
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 PM2.5 grandfathering provision.
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    \7\ Sources that applied for a PSD permit under the federal PSD 
program on or after July 15, 2008, are already excluded from using 
the 1997 PM10 Surrogate Policy as a means of satisfying 
the PSD requirements for PM2.5. See 76 FR 28321.
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2. ``Condensable'' Provision
    In the NSR PM2.5 Rule, EPA revised the definition of 
``regulated NSR pollutant'' for PSD to add a paragraph providing that 
``particulate matter (PM) emissions, PM2.5 emissions and 
PM10 emissions'' shall include gaseous emissions from a 
source or activity which condense to form particulate matter at ambient 
temperatures and that on or after January 1, 2011, such condensable 
particulate matter shall be accounted for in applicability 
determinations and in establishing emissions limitations for PM, 
PM2.5 and PM10 in permits. See 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(vi) and ``Emissions Offset 
Interpretative Ruling'' (40 CFR part 51, appendix S). A similar 
paragraph added to the NNSR rule does not include ``particulate matter 
(PM) emissions.'' See 40 CFR 51.165(a)(1)(xxxvii)(D).
    On March 16, 2012 (77 FR 15656), EPA proposed a rulemaking to amend 
the definition of ``regulated NSR pollutant'' promulgated in the NSR 
PM2.5 Rule regarding the PM condensable provision at 40 CFR 
51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset 
Interpretative Ruling.\8\ The rulemaking proposes to remove the 
inadvertent requirement in the NSR PM2.5 Rule that the 
measurement of condensable ``particulate matter emissions'' be included 
as part of the measurement and regulation of ``particulate matter 
emissions.'' The term ``particulate matter emissions'' includes 
particles that are larger than PM2.5 and PM10 and 
is an indicator measured under various New Source Performance Standards 
(NSPS) (40 CFR part 60).\9\ Alabama's May 2, 2011, SIP revision adopts 
EPA's definition for regulated NSR pollutant for condensables (at 40 
CFR 51.166(b)(49)(vi)), including the term ``particulate matter 
emissions,'' as promulgated in the NSR PM2.5 Rule. EPA's 
review of Alabama's May 2, 2011, SIP revision with regard to the NSR 
PM2.5 Rule condensable provision is provided below in 
Section II.E.
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    \8\ The comment period for this proposed rulemaking ended May 
15, 2012.
    \9\ In addition to the NSPS for PM, it is noted that states 
regulated ``particulate matter emissions'' for many years in their 
SIPs for PM, and the same indicator has been used as a surrogate for 
determining compliance with certain standards contained in 40 CFR 
part 63, regarding National Emission Standards for Hazardous Air 
Pollutants.
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D. PM2.5 PSD-Increment-SILs-SMC Rule

    As mentioned above, EPA finalized the PM2.5 PSD 
Increment-SILs-SMC Rule to provide additional regulatory requirements 
under the PSD program regarding the implementation of the 
PM2.5 NAAQS for NSR.\10\ Specifically, the rule establishes 
the following to implement the PM2.5 NAAQS for the PSD 
program: (1) PM2.5 increments pursuant to section 166(a) of 
the CAA to prevent significant deterioration of air quality in areas 
meeting the NAAQS; (2)

[[Page 46668]]

SILs used as a screening tool (by a major source subject to PSD) to 
evaluate the impact a proposed major source or modification may have on 
the NAAQS or PSD increment; and (3) a SMC, (also a screening tool) used 
by a major source subject to PSD to determine the subsequent level of 
data gathering required for a PSD permit application for emissions of 
PM2.5.
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    \10\ EPA proposed approval of the PSD Increments-SILs-SMC Rule 
on September 21, 2007 (72 FR 54112).
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    Alabama's May 2, 2011, SIP revision adopts the NSR changes 
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be 
consistent with the federal NSR regulations and to implement the 
state's NSR program for the PM2.5 NAAQS. More detail on the 
PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's 
final rule (75 FR 64864, October 20, 2010) and is summarized below. 
More details regarding Alabama's revision to its NSR regulations are 
also summarized below in Section II.E.2.
1. What are PSD increments?
    As established in part C of title I of the CAA, EPA's PSD program 
protects public health from adverse effects of air pollution by 
ensuring that construction of new or modified sources in attainment or 
unclassifiable/attainment areas does not lead to significant 
deterioration of air quality while simultaneously ensuring that 
economic growth will occur in a manner consistent with preservation of 
clean air resources. Under section 165(a)(3) of the CAA, a PSD permit 
applicant must demonstrate that emissions from the proposed 
construction and operation of a facility ``will not cause, or 
contribute to, air pollution in excess of any maximum allowable 
increase or allowable concentration for any pollutant.'' In other 
words, when a source applies for a permit to emit a regulated pollutant 
in an area that meets the NAAQS, the state and EPA must determine if 
emissions of the regulated pollutant from the source will cause 
significant deterioration in air quality. Significant deterioration 
occurs when the amount of the new pollution exceeds the applicable PSD 
increment, which is the ``maximum allowable increase'' of an air 
pollutant allowed to occur above the applicable baseline concentration 
\11\ for that pollutant. PSD increments prevent air quality in clean 
areas from deteriorating to the level set by the NAAQS. Therefore an 
increment is the mechanism used to estimate ``significant 
deterioration'' of air quality for a pollutant in an area.
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    \11\ Section 169(4) of the CAA provides that the baseline 
concentration of a pollutant for a particular baseline area is 
generally the same air quality at the time of the first application 
for a PSD permit in the area.
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    For PSD baseline purposes, a baseline area for a particular 
pollutant emitted from a source includes the attainment or 
unclassifiable/attainment area in which the source is located as well 
as any other attainment or unclassifiable/attainment area in which the 
source's emissions of that pollutant are projected (by air quality 
modeling) to result in an ambient pollutant increase of at least 1 
[mu]g/m\3\ (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's 
existing regulations, the establishment of a baseline area for any PSD 
increment results from the submission of the first complete PSD permit 
application and is based on the location of the proposed source and its 
emissions impact on the area. Once the baseline area is established, 
subsequent PSD sources locating in that area need to consider that a 
portion of the available increment may have already been consumed by 
previous emissions increases. In general, the submittal date of the 
first complete PSD permit application in a particular area is the 
operative ``baseline date.'' \12\ On or before the date of the first 
complete PSD application, emissions generally are considered to be part 
of the baseline concentration, except for certain emissions from major 
stationary sources. Most emissions increases that occur after the 
baseline date will be counted toward the amount of increment consumed. 
Similarly, emissions decreases after the baseline date restore or 
expand the amount of increment that is available. See 75 FR 64864. As 
described in the PM2.5 PSD Increment-SILs-SMC Rule, pursuant 
to the authority under section 166(a) of the CAA, EPA promulgated 
numerical increments for PM2.5 as a new pollutant \13\ for 
which the NAAQS were established after August 7, 1977,\14\ and derived 
24-hour and annual PM2.5 increments for the three area 
classifications (Class I, II and III) using the ``contingent safe 
harbor'' approach. See 75 FR 64864 (October 20, 2010) and table at 40 
CFR 51.166(c)(1).
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    \12\ Baseline dates are pollutant specific. That is, a complete 
PSD application establishes the baseline date only for those 
regulated NSR pollutants that are projected to be emitted in 
significant amounts (as defined in the regulations) by the 
applicant's new source or modification. Thus, an area may have 
different baseline dates for different pollutants.
    \13\ EPA generally characterized the PM2.5 NAAQS as a 
NAAQS for a new indicator of PM. EPA did not replace the 
PM10 NAAQs with the NAAQS for PM2.5 when the 
PM2.5 NAAQS were promulgated in 1997. EPA rather retained 
the annual and 24-hour NAAQS for PM2.5 as if 
PM2.5 was a new pollutant even though EPA had already 
developed air quality criteria for PM generally. See 75 FR 64864 
(October 20, 2012).
    \14\ EPA interprets 166(a) to authorize EPA to promulgate 
pollutant-specific PSD regulations meeting the requirements of 
section 166(c) and 166(d) for any pollutant for which EPA 
promulgates a NAAQS after 1977.
---------------------------------------------------------------------------

    In addition to PSD increments for the PM2.5 NAAQS, the 
PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 
40 CFR 51.166 and 52.21 for ``major source baseline date'' and ``minor 
source baseline date'' (including trigger dates) to establish the 
PM2.5 NAAQS specific dates associated with the 
implementation of PM2.5 PSD increments (75 FR 64864, October 
20, 2010). In accordance with section 166(b) of the CAA, EPA required 
the states to submit revised implementation plans to EPA for approval 
(to adopt the PM2.5 PSD increments) within 21 months from 
promulgation of the final rule (by July 20, 2012). Each state was 
responsible for determining how increment consumption and the setting 
of the minor source baseline date for PM2.5 would occur 
under its own PSD program. Regardless of when a State begins to require 
PM2.5 increment analysis and how it chooses to set the 
PM2.5 minor source baseline date, the emissions from sources 
subject to PSD for PM2.5 for which construction commenced 
after October 20, 2010, (major source baseline date) consume the 
PM2.5 increment and should be included in the increment 
analyses occurring after the minor source baseline date is established 
for an area under the state's revised PSD program. As discussed in 
detail in Section II.E.2, Alabama's May 2, 2011, SIP revision adopts 
the PM2.5 increment permitting requirements promulgated in 
the PM2.5 PSD Increment-SILs-SMC Rule.
2. What are SILs and SMCs?
    EPA's PM2.5 PSD Increment-SILs-SMC Rule, also 
established SILs and SMC for the PM2.5 NAAQS to address air 
quality modeling and monitoring provisions for fine particle pollution 
in areas protected by the PSD program (that is areas that are 
designated attainment or unclassifiable/attainment for the NAAQS). The 
SILs and SMC are numerical values that represent thresholds of 
insignificant, i.e., de minimis, modeled source impacts or monitored 
(ambient) concentrations, respectively. The de minimis principle is 
grounded in a decision described by the court case Alabama Power Co. v. 
Costle, 636 F.2d 323, 360 (D.C. Cir. 1980). In this case, reviewing 
EPA's 1978 PSD regulations, the court recognized that ``there is likely 
a basis for an implication of de minimis authority to provide exemption 
when the burdens of regulation yield a gain of trivial or no value.'' 
636 F.2d at 360. See 75 FR 64864 (October 20, 2010). EPA

[[Page 46669]]

established such values for PM2.5 in the PM2.5 
PSD Increment-SILs-SMC rule to be used as screening tools by a major 
source subject to PSD to determine the subsequent level of analysis and 
data gathering required for a PSD permit application for emissions of 
PM2.5. As part of the response to comments on October 20, 
2010, final rulemaking, EPA explained that the agency agrees that the 
SILs and SMC used as de minimis thresholds for the various pollutants 
are useful tools that enable permitting authorities and PSD applicants 
to screen out ``insignificant'' activities; however, the fact remains 
that these values are not required by the Act as part of an approvable 
SIP program. EPA believes that most states are likely to adopt the SILs 
and SMC because of the useful purpose they serve regardless of our 
position that the values are not mandatory. Alternatively, states may 
develop more stringent values if they desire to do so. In any case, 
states are not under any SIP-related deadline for revising their PSD 
programs to add these screening tools. See 75 FR 64864, 64900 (October 
20, 2010). EPA is not proposing to approve the SILs provisions 
promulgated in the PSD portion of the PM2.5 PSD Increment-
SILs-SMC Rule into the Alabama SIP PSD program in this rulemaking. 
EPA's authority to implement the SILs and SMC for PSD purposes has been 
challenged by the Sierra Club. See Sierra Club v. EPA, Case No. 10-1413 
(D.C. Circuit Court).\15\ More details regarding Alabama's changes to 
its NSR regulations are also summarized below in Section II.E.
---------------------------------------------------------------------------

    \15\ On April 6, 2012, EPA filed a brief with the D.C. Circuit 
court defending the Agency's authority to implement SILs and SMC for 
PSD purposes.
---------------------------------------------------------------------------

a. Significant Impact Levels
    SILs are numeric values derived by EPA that may be used to evaluate 
the impact a proposed major source or modification may have on the 
NAAQS or PSD increment. The primary purpose of the SILs is to identify 
a level of ambient impact that is sufficiently low relative to the 
NAAQS or increments that such impact can be considered insignificant or 
de minimis. EPA's policy has been to allow the use of the SILs as de 
minimis thresholds under the NSR programs at 40 CFR 51.165(b) and part 
51, appendix S, to determine whether the predicted ambient impact 
resulting from the emissions increase at a proposed major new 
stationary source or modification is considered to cause or contribute 
to a violation of the NAAQS. EPA has also allowed the SILs under the 
PSD program to determine: (1) When a proposed source's ambient impacts 
warrants a comprehensive (cumulative) source impact analysis \16\ and; 
(2) the size of the impact area within which the air quality analysis 
is completed (75 FR 64864, October 20, 2010).
---------------------------------------------------------------------------

    \16\ A cumulative analysis is a modeling analysis used to show 
that the allowable emissions increase from the proposed source along 
with other emission increases from existing sources, will not result 
in a violation of either the NAAQS or increment.
---------------------------------------------------------------------------

    In the PM2.5 PSD Increment-SILs-SMC Rule, EPA 
established the SILs threshold which reflects the degree of ambient 
impact on PM2.5 concentrations that can be considered de 
minimis and would justify no further analysis or modeling of the air 
quality impact of a source in combination with other sources in the 
area because the source would not cause or contribute to an exceedance 
of the PM2.5 NAAQS or the PM2.5 increments (75 FR 
64864, October 20, 2010). The PM2.5 PSD Increment-SILs-SMC 
Rule established SILs to evaluate the impact that a proposed new source 
or modification may have on the PM2.5 NAAQS or increment. 
When a proposed major new source or major modification of 
PM2.5 projects (using air quality modeling) has an impact 
less than the PM2.5 SILs, the proposed construction or 
modification is considered to not have a significant air quality impact 
and would not need to complete a cumulative impact analysis involving 
an analysis of other sources in the area. Additionally, a source with a 
de minimis ambient impact would not be considered to cause or 
contribute to a violation of the PM2.5 NAAQS or increments.
    The October 20, 2010, rule established the PM2.5 SILs at 
EPA's existing NNSR regulations at 51.165(b) and the PSD regulations at 
40 CFR 51.166(k)(2), 52.21(k)(2) and part 51, appendix S as optional 
screening tools that became effective on December 20, 2010. Prior to 
the October 20, 2010, rule, the concept of a SIL was not previously 
incorporated into the PSD regulations. The regulations in 40 CFR 
51.165(b) \17\ 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. See 40 CFR 51.165(b). Where a PSD source located in such areas 
may have an impact on an adjacent nonattainment area, the PSD source 
must still demonstrate that it will not cause or contribute to a 
violation of the NAAQS in the adjacent area. Where emissions from a 
proposed PSD source or modification would have an ambient impact in a 
nonattainment area that would exceed the SILs, the source is considered 
to cause or contribute to a violation of the NAAQS and may not be 
issued a PSD permit without obtaining emissions reductions to 
compensate for its impact. See 40 CFR 51.165(b)(2)-(3). Alabama's May 
2, 2011, SIP submittal addresses the PM2.5 SILS thresholds 
and provisions promulgated in the October 20, 2010, rule at 40 CFR 
51.165(b)(2) and 51.166(k)(2). Further analysis of Alabama's submission 
is explained below in Section II.E.2.
---------------------------------------------------------------------------

    \17\ 40 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.
---------------------------------------------------------------------------

b. Significant Monitoring Concentrations
    Under the CAA and EPA regulations, an applicant for a PSD permit is 
required to gather preconstruction monitoring data in certain 
circumstances. Section 165(a)(7) calls for ``such monitoring as may be 
necessary to determine the effect which emissions from any such 
facility may have, or is having, on air quality in any areas which may 
be affected by emissions from such source.'' In addition, section 
165(e) requires an analysis of the air quality in areas affected by a 
proposed major facility or major modification and calls for gathering 
one year of monitoring data unless the reviewing authority determines 
that a complete and adequate analysis may be accomplished in a shorter 
period. These requirements are codified in EPA's PSD regulations at 40 
CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline 
for Air Quality Modeling (40 CFR part 51, Appendix W), the 
preconstruction monitoring data is primarily used to determine 
background concentrations in modeling conducted to demonstrate that the 
proposed source or modification will not cause or contribute to a 
violation of the NAAQS. See 40 CFR part 51, Appendix W, section 9.2. 
SMC are numerical values that represent thresholds of insignificant, 
i.e., de minimis, monitored (ambient) impacts on pollutant 
concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule, 
EPA established a SMC of 4 [micro]g/m\3\ for PM2.5 to be 
used as a screening tool by a major source subject to PSD to determine 
the subsequent level of data gathering required for a PSD permit 
application for emissions of PM2.5.
    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

[[Page 46670]]

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 may 
be allowed to forego the preconstruction monitoring requirement for a 
particular pollutant at the discretion of the reviewing authority. See 
75 FR 64864 (October 20, 2010) and 40 CFR 51.166(i)(5) and 52.21(i)(5). 
As mentioned above, SMCs are not minimum required elements of an 
approvable SIP under the CAA. This de minimis value is widely 
considered to be a useful component for implementing the PSD program, 
but is not absolutely necessary for the states to implement PSD 
programs. States can satisfy the statutory requirements for a PSD 
program by requiring each PSD applicant to submit air quality 
monitoring data for PM2.5 without using de minimis 
thresholds to exempt certain sources from such requirements. The SMC 
became effective under the Federal PSD program on December 20, 2010. 
However, states with EPA-approved PSD programs that adopt the SMC for 
PM2.5 may use the SMC, once it is part of an approved SIP, 
to determine when it may be appropriate to exempt a particular major 
stationary source or major modification from the monitoring 
requirements under its State PSD program. Alabama's May 2, 2011, SIP 
revision adopts the SMC threshold into the Alabama SIP. More detail on 
Alabama's SIP is discussed below in Section II.E.2
c. SILs-SMC Litigation
    Recently, the Sierra Club filed suit challenging EPA's authority to 
promulgate the PM2.5 SILs and SMC for PSD purposes as 
promulgated in the PM2.5 PSD Increment-SILs-SMC Rule. Sierra 
Club v. EPA, Case No. 10-1413 (D.C. Circuit Court). Specifically, 
Sierra Club claims that the SILs and SMC screening tools adopted in the 
October 20, 2010, rule are inconsistent with the CAA and EPA's de 
minimis authority.\18\ See Sierra Club v. EPA, Case No. 10-1413 (D.C. 
Circuit). EPA responded to Sierra Club's claims in a Brief dated April 
6, 2012, which described the Agency's authority to develop and 
promulgate SILs and SMC.\19\ A copy of EPA's April 6, 2012, Brief can 
be found in the docket for today's rulemaking at www.regulations.gov 
using docket ID: EPA-R04-OAR-2012-0079.
---------------------------------------------------------------------------

    \18\ EPA interprets section 165(a)(3) of the CAA to allow the 
use of significance levels as a means to demonstrate that a source 
will not cause or contribute to any violation of the NAAQS or 
increments. The terms ``cause or contribute to'' and ``demonstrate'' 
are ambiguous and EPA reasonably interprets the statue to allow 
sources that do not contribute significantly to ambient air 
concentrations of PM2.5 to demonstrate compliance through 
modeling of the source's impact measured against the SILs.
    \19\ Additional 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 at www.regulations.gov using docket ID: EPA-R04-
OAR-2012-0079.
---------------------------------------------------------------------------

E. What is EPA's analysis of Alabama's SIP revision adopting NSR PM2.5 
implementation provisions?

    Alabama currently has a SIP-approved NSR program for new and 
modified stationary sources found at Chapter 335-3-14. ADEM's PSD 
preconstruction regulations are found at Rule 335-3-14-.04--Air Permits 
Authorizing Construction in Clean Air Areas (Prevention of Significant 
Deterioration (PSD)) 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.\20\ 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 PM2.5 Rule and the PM2.5 PSD Increment-SILs-
SMC rule. These changes to Alabama's regulations became state effective 
on May 23, 2011. EPA is proposing to approve the changes at rule 335-3-
14-.03 and .04 into the Alabama SIP to be consistent with federal NSR 
regulations (at 40 CFR 51.166 and 52.21) and the CAA. As mentioned 
earlier, EPA anticipates taking action on the May 2, 2011, SIP revision 
NNSR amendments in a separate rulemaking.
---------------------------------------------------------------------------

    \20\ ADEM's Rule 335-3-14-.05--Air Permits Authorizing 
Construction in or Near Non-Attainment Areas applies to major 
stationary sources or modifications constructed in areas designated 
nonattainment as required under part D of title I of the CAA with 
respect to the NAAQS. However, in today's rulemaking, EPA is only 
proposing to take action on the PSD provision and will take action 
on the NNSR changes in a separate action.
---------------------------------------------------------------------------

1. NSR PM2.5 Implementation Rule
    Alabama's May 2, 2011, SIP revision establishes that the State's 
existing NSR permitting program requirements for PSD apply to the 
PM2.5 NAAQS and its precursors. Specifically, the SIP 
revision adopts the following NSR PM2.5 Rule PSD provisions 
into the Alabama SIP: (1) The requirement for NSR permits to address 
directly emitted PM2.5 and precursor pollutants; (2) 
significant emission rates for direct PM2.5 and precursor 
pollutants (SO2 and NOX) and (3) the requirement 
that conde dinsable PM be addressed in enforceable PM10 and 
PM2.5 emission limits included in PSD permits. The May 2, 
2011, SIP revision changes (1) establish that the State's NSR 
permitting program requirements for PSD apply to the PM2.5 
NAAQS and its precursors; (2) recognize PM2.5 precursors at 
335-3-14-.04(2)(b) and 335-3-14-.04(2)(w) (as amended at 40 CFR 
51.166(b)(23)(i)); (3) sets significant emission rates for both direct 
PM2.5 and PM2.5 precursors for major 
modifications at existing sources at 335-3-14-.04(2)(w) (as amended at 
51.166(b)(23)(i)); and (4) adopt the requirement that condensable 
PM10 and PM2.5 emissions be accounted for in PSD 
applicability determinations and in establishing emissions limitations 
for PM at 353-14-.04(2)(ww)(5) (as amended at 40 CFR 51.166(b)(49)).
    As mentioned above, Alabama's May 2, 2011, SIP revision also adopts 
into the State's NSR regulations the requirement to address condensable 
PM in making applicability determinations and in establishing 
enforceable emission limits in PSD permits, as required under the NSR 
PM2.5 Rule. As discussed in Section II.C.2, under a separate 
action, EPA has proposed to correct the inadvertent inclusion of 
``particulate matter emissions'' in the definition of ``regulated NSR 
pollutant'' as an indicator for which condensable emissions must be 
addressed (77 FR 75656, March 16, 2012). Further, on June 18, 2012, the 
State of Alabama provided a letter to EPA clarifying the State's intent 
in light of EPA's March 16, 2012, proposed rulemaking. A copy of this 
letter can be found in the docket for today's rulemaking at 
www.regulations.gov using docket ID: EPA-R04-OAR-2012-0079. 
Specifically, Alabama requested that EPA not approve the term 
``particulate matter emissions'' (at rule 335-3-14-.04(ww)(5) 
and.05(ww)(2)) as part of the definition for ``regulated NSR 
pollutant'' regarding the inclusion of condensable emissions in 
applicability determinations and in establishing emissions limitations 
for PM. Therefore, given the State's request and EPA's intention to 
amend the definition of ``regulated NSR pollutant,'' EPA is not 
proposing action to approve the terminology ``particulate matter 
emissions'' into the PSD regulations of the Alabama SIP for the 
condensable provision in the definition of ``regulated NSR pollutant.'' 
EPA is, however, proposing to approve into the Alabama SIP at 335-3-
14-.04(ww)(5) the remaining condensable requirement at 40 CFR 
51.166(b)(49)(vi), which requires

[[Page 46671]]

that condensable emissions be accounted for in applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10. Alabama's condensable provision 
will be consistent with the federal rule once EPA finalizes the March 
16, 2012, rulemaking. EPA's May 18, 2011 (76 FR 28646), final 
rulemaking repealed the PM10 ``grandfathering'' provision, 
as noted in Section II.C above. Alabama's May 2, 2011, SIP revision 
does not address 40 CFR 52.21(i)(1)(ix) promulgated in the NSR 
PM2.5 Rule and is in accordance with the repeal of the 
PM2.5 grandfathering provision. EPA has preliminarily 
determined that Alabama's May 2, 2011, SIP revision is consistent with 
the NSR PM2.5 Rule for PSD and section 110 of the CAA. See 
73 FR 28321 (May 16, 2008).
2. PM2.5 PSD Increment-SILs-SMC Rule Provisions
    Alabama's May 2, 2011, SIP revision adopts, into the Alabama SIP, 
at Chapter 335-3-14 the following PSD provisions promulgated in the 
PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for 
PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of 
the CAA; (2) SILs to be used as a screening tool to evaluate the impact 
a proposed major source or modification may have on the NAAQS or PSD 
increment; and (3) SMC, also used as a screening tool, to determine the 
level of data gathering required of a major source in support of its 
PSD permit application for PM2.5 emissions.
    Specifically, regarding the PSD increments, the SIP revision 
changes include: (1) The PM2.5 increments as promulgated in 
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 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'') and ``baseline 
area'' (as amended at 51.166(b)(15)(i) and (ii) and 52.21(b)(15)(i)). 
These changes provide for the implementation of the PM2.5 
PSD increments for the PM2.5 NAAQS in the state's PSD 
program. In today's action, EPA is proposing to approve Alabama's May 
2, 2011, SIP revision provisions to address the PM2.5 PSD 
increment provisions promulgated in the PM2.5 PSD Increments 
SILs-SMC Rule.
    Regarding the SILs and SMC established in the October 20, 2010, 
PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has 
challenged EPA's authority to implement SILs and SMC. 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 SMC and SILs de 
minimis thresholds. With respect to the SMCs, Alabama's SIP revision 
includes the SMC of 4 [mu]g/m\3\ for PM2.5 NAAQS at rule 
335-3-14.04(8)(h) that was added to the existing monitoring exemption 
at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). EPA is proposing to 
approve the PM2.5 SMC into the Alabama SIP as EPA believes 
the use of the SMC is a valid exercise of the Agency's de minimis 
authority. Furthermore, Alabama's May 2, 2011, SIP revision is 
consistent with EPA's current promulgated provisions in the October 20, 
2010, rule. However, EPA notes that future Court action may require 
subsequent rule revisions and SIP revisions from Alabama.
    Alabama's SIP revision to adopt the new PSD requirements for 
PM2.5 pursuant to the PM2.5 PSD Increment-SILs-
SMC Rule also includes the new regulatory text at 40 CFR 51.166(k)(2) 
and 52.21(k)(2), concerning the implementation of SILs for 
PM2.5. EPA stated in the preamble to the PM2.5 
PSD Increment-SILs-SMC Rule that we do 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. 
Nevertheless, as mentioned above, the PM2.5 SILs are 
currently the subject of litigation before the U.S. Court of Appeals. 
(Sierra Club v. EPA, Case No 10-1413, D.C. Circuit). In response to 
that litigation, EPA has requested that the Court remand and vacate the 
regulatory text in the EPA's PSD regulations at paragraph (k)(2) so 
that EPA can make necessary rulemaking revisions to that text. In light 
of EPA's request for remand and vacatur and the agency's 
acknowledgement of the need to revise the regulatory text presently 
contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does 
not believe that it is appropriate at this time to approve that portion 
of the State's implementation plan revision that contains the affected 
regulatory text in the State's PSD regulations, at rule 335-3-14-
04(10)(b). Instead, EPA is taking no action at this time with regard to 
these specific provisions contained in the SIP revision. EPA 
anticipates taking 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.
    The PM2.5 PSD Increment-SILs-SMC rule promulgated 
PM2.5 SILs thresholds in the NNSR regulations at 40 CFR 
51.165(b)(2). Alabama's May 2, 2011 submission also adopts the 
PM2.5 SILs 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 PM2.5 PSD Increment-SILs-SMC Rule. In light 
of the fact that EPA did not request the court to remand and vacate 
language at 51.165(b) and 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 proposing to approve Alabama's 
adoption of the PM2.5 SILs 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.
---------------------------------------------------------------------------

    \21\ The provisions at 335-3-14-.03(1)(g) are consistent with 
SILs provisions at 40 CFR 51.165(b).
---------------------------------------------------------------------------

    The aforementioned amendments to Alabama's SIP provide the 
framework for implementation of PM2.5 NAAQS in the states 
NSR permitting. Based on review and consideration of Alabama's May 2, 
2011, SIP revision, EPA has made the preliminary determination to 
approve the aforementioned PSD permitting provisions promulgated in the 
NSR PM2.5 Rule and PM2.5 PSD Increment-SILs-SMC 
Rule into the Alabama SIP to implement the NSR program for the 
PM2.5 NAAQS.

III. What is EPA's proposed action for changes to Alabama's general and 
transportation conformity regulations?

    In addition to the adoption of NSR federal regulations mentioned 
above, Alabama's SIP revision updates the State's General Conformity 
regulations at Chapter 335-3-17--Conformity of Federal Actions to State 
Implementation Plans to be consistent with recent updates to federal 
General Conformity regulations promulgated on April 5, 2010 (75 FR 
17254). 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. 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.\22\ Alabama IBR

[[Page 46672]]

the federal General Conformity regulations at 40 CFR 93, Subpart B. 
Particularly, Alabama's May 2, 2011, SIP submission updates 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 updates 
its Transportation Conformity SIP at 335-3-17-.01 effective May 23, 
2011, to include EPA's transportation conformity rule updates regarding 
implementation of the PM2.5 and PM10 
nonattainment and maintenance areas. EPA has preliminarily determined 
that Alabama's May 2, 2011, updates to Alabama's general and 
transportation Conformity regulations are consistent with CAA and EPA's 
regulations governing conformity.
---------------------------------------------------------------------------

    \22\ In 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. See 58 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. See 58 FR 63214).
---------------------------------------------------------------------------

IV. Proposed Action

    EPA is proposing to approve portions of Alabama's May 2, 2011, SIP 
revision adopting federal regulations amended in the May 16, 2008, NSR 
PM2.5 Rule; the October 20, 2010, PM2.5 PSD 
Increment-SILs-SMC rule; and updates to the State's general and 
transportation conformity regulations into the Alabama SIP with the 
exception of the provisions listed in Section I. EPA has made the 
preliminary determination that this SIP revision, with regard to 
aforementioned proposed actions, is approvable because it is consistent 
with section 110 of the CAA and EPA regulations regarding NSR 
permitting and conformity.

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. 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 
proposed 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 proposed 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. 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 (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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Particulate 
matter, Reporting and recordkeeping requirements.

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

    Dated: July 20, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-19048 Filed 8-3-12; 8:45 am]
BILLING CODE 6560-50-P


