
[Federal Register Volume 82, Number 163 (Thursday, August 24, 2017)]
[Rules and Regulations]
[Pages 40072-40075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17342]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0371; FRL-9966-47-Region 4]


Air Plan Approval; Alabama: PSD Replacement Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
portion of Alabama's State Implementation Plan (SIP) revision submitted 
by the State of Alabama, through the Alabama Department of 
Environmental Management (ADEM), on May 7, 2012. The portion of the 
revision that EPA is approving relates to the State's Prevention of 
Significant Deterioration (PSD) permitting regulations. In particular, 
the revision adds a definition of ``replacement unit'' and provides 
that a replacement unit is a type of existing emissions unit under the 
definition of ``emissions unit.'' This action is being taken pursuant 
to the Clean Air Act (CAA or Act).

DATES: This direct final rule is effective October 23, 2017 without 
further notice, unless EPA receives adverse comment by September 25, 
2017. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2017-0371 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Andres Febres of the Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mr. Febres can be reached by telephone at (404) 562-8966 or 
via electronic mail at febres-martinez.andres@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. What action is the Agency taking?

    On May 7, 2012, ADEM submitted a SIP revision for EPA's approval 
that includes, among other things, changes to Alabama's PSD permitting 
regulations as part of the State's New Source Review (NSR) permitting 
program.\1\ The NSR program, established in parts C and D of title I of 
the CAA and EPA's implementing regulations at 40 CFR 51.165, 40 CFR 
51.166, and 40 CFR 52.21, is a preconstruction review and permitting 
program applicable to new major stationary sources of regulated NSR 
pollutants and major modifications at existing major stationary 
sources. A major modification is defined as any physical change in or 
change in the method of operation of a major stationary source that 
would result in a significant emissions increase of a regulated NSR 
pollutant and a significant net emissions increase of that pollutant 
from the major stationary source. See 40 CFR 51.165(a)(1), 
51.166(b)(2)(i), and 52.21(b)(2)(i).
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    \1\ EPA's regulations governing the implementation of NSR 
permitting programs are contained in 40 CFR 51.160--51.166; 52.21, 
52.24; and part 51, appendix S. 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 programs.
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    In this document, EPA is taking direct final action to approve the 
portions of this submittal that make changes to ADEM Administrative 
Code Rule 335-3-14-.04--``Air Permits Authorizing Construction in Clean 
Air Areas [Prevention of Significant Deterioration Permitting (PSD)].'' 
Alabama's May 7, 2012, SIP submittal changes the PSD regulations at 
Rule 335-3-14-.04 by adding a definition of ``replacement unit'' and by 
modifying the definition of ``emissions unit'' to expressly include 
replacement units as existing emissions units. As revised in the May 5, 
2017, withdrawal letter discussed in Section III, below, these changes 
are similar to those made to the Federal PSD regulations at 40 CFR 
52.21(b)(7) and (33) in the rule titled ``Prevention of Significant 
Deterioration (PSD) and Non-Attainment New Source Review (NSR): 
Reconsideration'' See 68 FR 63021 (November 7, 2003) (hereinafter 
referred to as the NSR Reform Reconsideration Rule).
    EPA is not taking action on the portions of Alabama's May 7, 2012, 
submittal regarding ADEM Administrative Code Chapter 335-3-10--
``Standards of Performance for New Stationary Sources,'' and Chapter 
335-3-11--``National Emission Standards for Hazardous Air Pollutants.'' 
In the submittal, Alabama acknowledges that these regulations are not 
part of Alabama's SIP and states that the ``revisions to these 
[regulations] are not proposed to be incorporated into Alabama's SIP.''

II. Background

A. NSR Reform

    On December 31, 2002, EPA published final rule revisions to the 
CAA's PSD and Nonattainment New Source Review (NNSR) programs. See 67 
FR 80186 (hereinafter referred to as the 2002 NSR Rule). The revisions 
included several major changes to the NSR program, including the 
addition of an actual-to-projected-actual emissions test for 
determining NSR applicability for existing emissions units.
    Following publication, EPA received numerous petitions requesting 
reconsideration of several aspects of the final rule. On July 30, 2003 
(68 FR 44624), EPA granted reconsideration on six issues, including 
whether replacement units should be allowed to use the actual-to-
projected-actual applicability test to determine whether installing a 
replacement unit results in a significant emissions increase. On 
November 7, 2003, EPA published the NSR Reform Reconsideration Rule. 
See 68 FR 63021. In the reconsideration

[[Page 40073]]

rule, EPA continued to allow the owner or operator of a major 
stationary source to use the actual-to-projected-actual applicability 
test to determine whether installing a replacement unit results in a 
significant emissions increase. EPA also modified the rules by: (1) 
Adding a definition of ``replacement unit,'' and (2) revising the 
definition of ``emissions unit'' to clarify that a replacement unit is 
considered an existing emissions unit and therefore is eligible for the 
actual-to-projected-actual test for major NSR applicability 
determinations. The 2002 NSR Rule and the NSR Reform Reconsideration 
Rule are hereinafter collectively referred to as the ``2002 NSR Reform 
Rules.''

B. Equipment Replacement Provision

    Under Federal regulations, certain activities are not considered to 
be a physical change or a change in the method of operation at a 
source, and thus do not trigger NSR review. One category of such 
activities is routine maintenance, repair and replacement (RMRR). On 
October 27, 2003, EPA published a rule titled ``Prevention of 
Significant Deterioration (PSD) and Non-Attainment New Source Review 
(NSR): Equipment Replacement Provision of the Routine Maintenance, 
Repair and Replacement Exclusion'' (hereinafter referred to as the ERP 
Rule). See 68 FR 61248. The ERP Rule provided criteria for determining 
whether an activity falls within the RMRR exemption. The ERP Rule 
provided a list of equipment replacement activities that are exempt 
from NSR permitting requirements, while ensuring that industries 
maintain safe, reliable, and efficient operations that will have little 
or no impact on emissions. Under the ERP Rule, a facility undergoing 
equipment replacement would not be required to undergo NSR review if 
the facility replaced any component of a process unit with an identical 
or functionally equivalent component. The rule included several 
modifications to the NSR rules to explain what would qualify as an 
identical or functionally equivalent component.
    Shortly after the October 27, 2003 rulemaking, several parties 
filed petitions for review of the ERP Rule in the U.S. Court of Appeals 
for the District of Columbia Circuit (D.C. Circuit). The D.C. Circuit 
stayed the effective date of the rule pending resolution of the 
petitions. A collection of environmental groups, public interest 
groups, and States, subsequently filed a petition for reconsideration 
with EPA, requesting that the Agency reconsider certain aspects of the 
ERP Rule. EPA granted the petition for reconsideration on July 1, 2004. 
See 69 FR 40278.\2\ After the reconsideration, EPA published its final 
response on June 10, 2005, which stated that the Agency would not 
change any aspects of the ERP. See 70 FR 33838 (June 10, 2005). On 
March 17, 2006, the D.C. Circuit acted on the petitions for review and 
vacated the ERP Rule.\3\
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    \2\ The reconsideration granted by EPA opened a new 60-day 
public comment period, and carried out a new public hearing, only on 
three issues of the ERP. These three issues included: (1) The basis 
for determining that the ERP was allowable under the CAA; (2) the 
basis for selecting the cost threshold (20 percent of the 
replacement cost of the process unit) that was used in the final 
rule to determine if a replacement was routine; and (3) a simplified 
procedure for incorporating a Federal Implementation Plan into State 
Plans to accommodate changes to the NSR rules.
    \3\ New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
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III. Analysis of the State's Submittal

    Alabama's May 7, 2012, SIP revision makes changes to the State's 
PSD permitting regulations by adding a definition of ``replacement 
unit'' at Rule 335-3-14-.04(2)(bbb) and by modifying the definition of 
``emissions unit'' at Rule 335-3-14-.04(2)(g) to expressly include 
replacement units as existing emissions units. As of the date of the 
submittal, these changes were intended to reflect revisions to the 
Federal regulations regarding replacement units included in the NSR 
Reform Reconsideration Rule and to reflect revisions regarding 
functionally equivalent components in the ERP Rule, as described in 
Sections II.A and II.B of this action, above.
    The SIP revision initially sought to add a definition of 
``replacement unit'' at Rule 335-3-14-.04(2)(bbb) that combined the 
Federal definition of ``replacement unit'' with language concerning 
functionally equivalent units and basic design parameters from the ERP 
Rule. However, the ERP Rule was vacated by the D.C. Circuit following 
the submittal of Alabama's SIP revision. Accordingly, on May 5, 2017, 
Alabama submitted a letter to EPA withdrawing, among other things, 
portions of the definition of ``replacement unit'' form its May 7, 
2012, SIP revision that incorporated language from the ERP Rule with 
the exception of one sentence in subparagraph (bbb)(3) that provides an 
example of a ``basic design parameter'' as it relates to a replacement 
unit. EPA has evaluated this sentence, and the Agency believes that it 
is simply an illustrative example and that Alabama's provisions 
relating to RMRR remain consistent with Federal provisions and the CAA 
regarding RMRR. Pursuant to the withdrawal letter, the text of Rule 
335-3-14-.04(2)(bbb)(3) for incorporation into the SIP reads as 
follows:

    Replacement unit means an emissions unit for which all the 
criteria listed in subparagraphs (2)(bbb)1. through 4. of this 
section are met. No creditable emission reductions shall be 
generated from shutting down the existing emissions unit that is 
replaced. A replacement unit is subject to all permitting 
requirements for modifications under this rule.
    1. The emissions unit is a reconstructed unit within the meaning 
of 40 CFR 60.15(b)(1), or the emissions unit completely takes the 
place of an existing emissions unit.
    2. The emissions unit is identical to or functionally equivalent 
to the replaced emissions unit.
    3. The replacement does not alter the basic design parameters of 
the process unit. Basic design parameters of a replaced unit shall 
also include all source specific emission limits and/or monitoring 
requirements.
    4. The replaced emissions unit is permanently removed from the 
major stationary source, otherwise permanently disabled, or 
permanently barred from operation by a permit that is enforceable as 
a practical matter. If the replaced emissions unit is brought back 
into operation, it shall constitute a new emissions unit.

    In Rule 335-3-14-.04(2)(g), Alabama revises the definition of 
``Emissions Unit'' by adding a new sentence at subparagraph (g)(2) that 
expressly includes replacement units as existing emissions units. This 
sentence references the new definition of ``replacement unit'' at Rule 
335-3-14-.04(2)(bbb), as presented above, and is consistent with the 
Federal definition of the term ``replacement unit'' at 40 CFR 
52.21(b)(33). EPA has concluded that adding this change and Rule 335-3-
14-.04(2)(bbb) to the SIP will not interfere with any applicable 
requirement concerning attainment and reasonable further progress (as 
defined in section 171), or any other applicable requirement of the 
CAA.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of ADEM 
Administrative Code Rules 335-3-14-.04(2)(g) and 335-3-14-.04(2)(bbb), 
state effective on May 29, 2012. EPA has made, and will continue to 
make, these materials generally available through www.regulations.gov 
and/or at the EPA Region 4 Office (please contact the person identified 
in the For Further Information Contact section of this preamble for 
more information).
    Therefore, these materials have been approved by EPA for inclusion 
in the

[[Page 40074]]

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.\4\
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    \4\ 62 FR 27968 (May 22, 1997).
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V. Final Action

    EPA is taking direct final action to approve the portions of 
Alabama's May 7, 2012, SIP submittals, as revised via the State's May 
5, 2017 withdrawal letter, that modify Rule 335-3-14-.04(2)(g) and add 
Rule 335-3-14-.04(2)(bbb), as described above. This action is limited 
to the two rule revisions currently before the Agency and does not 
modify any other PSD rules in Alabama's SIP.
    EPA is approving the aforementioned changes to the SIP without 
prior proposal because the Agency views this as a noncontroversial 
submittal and anticipates no adverse comments. However, in the proposed 
rules section of this Federal Register publication, EPA is publishing a 
separate document that will serve as the proposal to approve the SIP 
revision should adverse comments be filed. This rule will be effective 
October 23, 2017 without further notice unless the Agency receives 
adverse comments by September 25, 2017.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All adverse comments received will then be addressed 
in a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on October 23, 2017 and no 
further action will be taken on the proposed rule.
    Please note that if we receive adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, we may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

VI. 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 Clean Air Act. 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 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 (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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. 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 October 23, 2017. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of this Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. 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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: August 7, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF 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

0
2. Section 52.50(c) is amended under ``Chapter No. 335-3-14 Air 
Permits'' by

[[Page 40075]]

revising the entry for ``Section 335-3-14-.04'' to read as follows:


Sec.  52.50  Identification of plan.

* * * * *
    (c) * * *

                                        EPA Approved Alabama Regulations
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                                                          State
         State citation              Title/subject      effective    EPA approval date         Explanation
                                                           date
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                                        Chapter No. 335-3-14 Air Permits
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Section 335-3-14-.04............  Air Permits            5/29/2012  8/24/2017 [Insert    As of August 24, 2017
                                   Authorizing                       citation of          Section 335-3-14-.04
                                   Construction in                   publication].        does not include
                                   Clean Air Areas                                        Alabama's revision to
                                   [Prevention of                                         adopt the PM2.5 SILs
                                   Significant                                            threshold and
                                   Deterioration                                          provisions (as
                                   Permitting (PSD)].                                     promulgated in the
                                                                                          October 20, 2010 PM2.5
                                                                                          PSD 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 PM2.5
                                                                                          Rule (at 40 CFR
                                                                                          51.166(b)(49)(vi)).
 
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[FR Doc. 2017-17342 Filed 8-23-17; 8:45 am]
 BILLING CODE 6560-50-P


