[Federal Register Volume 84, Number 128 (Wednesday, July 3, 2019)]
[Rules and Regulations]
[Pages 31741-31743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14142]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0371; FRL-9995-84-Region 4]


Air Plan Approval; Alabama: PSD Replacement Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
approval of revisions to the Alabama State Implementation Plan (SIP), 
submitted by the State of Alabama, through the Alabama Department of 
Environmental Management (ADEM), via two letters dated May 7, 2012, and 
August 27, 2018. The SIP revisions relate to the State's Prevention of 
Significant Deterioration (PSD) permitting regulations. In particular, 
the revisions add a definition of ``replacement unit'' and provide 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 rule is effective August 2, 2019.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2017-0371. All documents in the docket 
are listed on the www.regulations.gov website. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Air Regulatory Management Section, Air Planning and 
Implementation Branch, Air and Radiation Division (formerly the 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 a.m. to 4:30 p.m., excluding 
Federal holidays.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On May 7, 2012, Alabama submitted for EPA approval amendments to 
its PSD permitting regulations as part of the State's New Source Review 
(NSR) permitting program, found in ADEM Administrative Code Rule 335-3-
14-.04--Air Permits Authorizing Construction in Clean Air Areas 
[Prevention of Significant Deterioration Permitting 
(PSD)].1 2 Subsequently, Alabama submitted a May 5, 2017, 
withdrawal letter clarifying the May 7, 2012, submittal. EPA issued a 
direct final rule--with a concurrent Notice of Proposed Rulemaking 
(NPRM)--on August 24, 2017, approving those changes. See 82 FR 40072 
and 82 FR 40085, respectively. However, EPA received an adverse comment 
on that action, and subsequently withdrew its direct final rule 
approval of the May 7, 2012, submittal. See 82 FR 47397 (October 12, 
2017). EPA is not finalizing the August 24, 2017, proposed rule.
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    \1\ EPA's regulations governing the implementation of the NSR 
permitting programs are contained in 40 CFR 51.160 through 51.166; 
52.21, 52.24; and part 51, Appendix S. The CAA NSR program is 
composed of three separate programs: PSD, Nonattainment (NNSR), and 
Minor NSR. PSD is established in part C of title I of the CAA and 
applies in areas that meet the NAAQS--or ``attainment areas''--as 
well as areas where there is insufficient information to determine 
if the area meets the NAAQS--or ``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--or ``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.
    \2\ EPA notes that it received this SIP revision on May 16, 
2012.
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    Alabama later submitted a second revision to Rule 335-3-14-.04 on 
August 27, 2018.\3\ Together, the May 7, 2012, and August 27, 2018, 
submittals, along with the State's May 5, 2017, withdrawal letter, 
include revisions to Alabama's PSD permitting regulations by adding a 
definition of ``replacement unit'' at Alabama Rule 335-3-
14-.04(2)(bbb), and by modifying the definition of ``emissions unit'' 
to expressly include replacement units as existing emissions units at 
Alabama Rule 335-3-14-.04(2)(g). \4\ In addition, Alabama's August 27, 
2018, SIP revision adds a fifth condition to the new definition of a 
``Replacement Unit'' requiring any source qualifying as a replacement 
unit to use the actual-to-projected-actual test for PSD applicability 
at Alabama Rule 335-3-14-.04(1)(f). Alabama's definition of 
``replacement unit,'' and its provision defining a replacement unit as 
an ``existing emissions unit'' for purposes of PSD applicability, are 
consistent with Federal PSD regulations at 40 CFR 51.166.
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    \3\ EPA notes that it received this SIP revision on September 4, 
2018.
    \4\ EPA is not taking action on the portions of Alabama's May 7, 
2012, and August 27, 2018, submittals 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 cover letter for these SIP 
revisions, Alabama acknowledges that these regulations are not part 
of Alabama's SIP and states that these regulations are not to be 
incorporated into the SIP.
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    In a NPRM published on March 29, 2019 (84 FR 11914), EPA proposed 
to approve the revisions to Alabama Rule 335-3-14-.04 included in the 
State's May 7, 2012, submittal, as amended by the May 5, 2017, 
withdrawal letter, and the August 27, 2018, submittal. Comments on the 
NPRM were due on or before April 29, 2019. EPA received one adverse 
comment during the comment period for this action and offers a response 
below.

II. Response to Comments

    The Commenter generally supports EPA's proposed approval of 
revisions to Alabama Rule 335-3-14-.04(2)(bbb) and Rule 335-3-
14-.04(2)(g). However, the Commenter states that EPA must require 
revision of Alabama's SIP to remove a separate definition--the 
definition of ``actual emissions'' at Alabama Rule 335-3-14-.04(2)(u)--
because that definition is ``unlawful and arbitrary.'' The Commenter 
further states that EPA constructively reopened its approval of the 
``actual emissions'' definition when it proposed approval of the May 7, 
2012, version of Alabama Rule 335-3-14-.04(2)(bbb) on August 24, 2017 
(82 FR 40072).
    EPA approved Alabama's definition of ``actual emissions'' on May 1, 
2008 (73 FR 23957), and that approval is outside the scope of this 
action. Additionally, EPA disagrees that it constructively reopened its 
prior approval of the

[[Page 31742]]

``actual emissions'' definition through this action. Courts have 
explained that an agency reopens a prior action in two circumstances: 
(1) When it implicitly or explicitly solicits comment or otherwise 
indicates its willingness to reconsider such regulation by inviting and 
responding to comments; or (2) when the new rule increases the 
significance of the preexisting regulation, and thus significantly 
alters the stakes of judicial review. See Natural Resources Defense 
Council v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
    Neither of these circumstances is present here. First, as explained 
in our March 29, 2019, proposal, EPA withdrew the August 24, 2017, 
direct final rule and is not finalizing it, so the Commenter's 
assertions regarding that action are moot. Moreover, EPA did not cite 
to or otherwise refer to the provision raised in the comment, nor did 
it request public input on that provision in either its August 24, 
2017, or March 29, 2019, proposals.
    Second, EPA's action here does not increase the significance of 
Alabama's definition of ``actual emissions,'' nor does it alter the 
stakes of judicial review of EPA's May 1, 2008 approval of that 
provision. Under the SIP revision EPA is finalizing here, sources 
qualifying as replacement units must use the actual-to-projected-actual 
test for determining PSD applicability, which relies on the ``baseline 
actual emissions'' of the source, rather than the ``actual emissions'' 
definition raised by the Commenter. In other words, no aspect of EPA's 
action today relies on or otherwise impacts the applicability or effect 
of Alabama's ``actual emissions'' definition. EPA also notes that, 
because it withdrew its August 24, 2017, direct final rule and is not 
finalizing that action, the action considered in EPA's August 24, 2017, 
proposed rule also does not impact the significance of Alabama's 
``actual emissions'' definition.
    For these reasons, EPA has not constructively reopened its May 1, 
2008, approval of Alabama's definition of ``actual emissions'' and, 
therefore, that rulemaking is outside the scope of this action.

III. Incorporation by Reference

    In this document, 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 Rule 335-3-14-.04(2)(g) and 335-3-14-.04(2)(bbb), 
state effective on October 5, 2018. EPA has made, and will continue to 
make, these materials generally available through www.regulations.gov 
and at the EPA Region 4 office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\5\
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    \5\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action

    EPA is approving changes to the Alabama SIP, that were provided to 
EPA through Alabama's May 7, 2012 and August 27, 2018 SIP revisions, as 
well as the May 7, 2017 withdrawal letter. Specifically, EPA is 
finalizing approval of changes to ADEM Administrative Code Rule 335-3-
14-.04(2)(g) and 335-3-14-.04(2)(bbb), in order to make Alabama's PSD 
program consistent with Federal provisions and the CAA. This action is 
limited to the two rules currently before the Agency and does not 
modify any other PSD rules in Alabama's SIP.

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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. These actions merely 
approve state law as meeting Federal requirements and do not impose 
additional requirements beyond those imposed by state law. For that 
reason, these actions:
     Are 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);
     Are not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are 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.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are 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
     Do 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, these rules 
do 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 these actions 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. These actions are not ``major rules'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of these actions must be filed in the United States Court of Appeals 
for the appropriate circuit by September 3,

[[Page 31743]]

2019. Filing a petition for reconsideration by the Administrator of 
these final rules does not affect the finality of these actions 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 rules or actions. These actions may not be 
challenged later in proceedings to enforce their requirements. See 
section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: June 7, 2019.
Mary S. Walker,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
2. In Sec.  52.50, the table in paragraph (c) is amended under Chapter 
No. 335-3-14 Air Permits by 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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                                                  * * * * * * *
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                                        Chapter No. 335-3-14 Air Permits
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                                                  * * * * * * *
Section 335-3-14-.04.............  Air Permits             10/5/2018  7/3/2019 [Insert      Except for changes
                                    Authorizing                        citation of           to 335-3-14-
                                    Construction in in                 publication].         .04(2)(w)1., state
                                    Clean Air Areas                                          effective July 11,
                                    [Prevention of                                           2006, which lists a
                                    Significant                                              100 ton per year
                                    Deterioration                                            significant net
                                    Permitting (PSD)].                                       emissions increase
                                                                                             for regulated NSR
                                                                                             pollutants not
                                                                                             otherwise specified
                                                                                             at 335-3-14-
                                                                                             .04(2)(w).
                                                                                            Except for the
                                                                                             significant impact
                                                                                             levels at 335-3-14-
                                                                                             .04(10)(b) which
                                                                                             were withdrawn from
                                                                                             EPA consideration
                                                                                             on October 9, 2014.
                                                                                            Except for the
                                                                                             second sentence of
                                                                                             paragraph 335-3-14-
                                                                                             .04(2)(bbb)2., as
                                                                                             well as the second
                                                                                             and fourth
                                                                                             sentences of
                                                                                             paragraph 335-3-14-
                                                                                             .04(2)(bbb)3.,
                                                                                             which include
                                                                                             changes from the
                                                                                             vacated federal ERP
                                                                                             rule and were
                                                                                             withdrawn from EPA
                                                                                             consideration by
                                                                                             the State on May 5,
                                                                                             2017.
 
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[FR Doc. 2019-14142 Filed 7-2-19; 8:45 am]
 BILLING CODE 6560-50-P


