[Federal Register Volume 82, Number 24 (Tuesday, February 7, 2017)]
[Rules and Regulations]
[Pages 9512-9515]
[FR Doc No: 2017-02303]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0689; FRL-9958-42-Region 4]

Air Plan Disapproval; AL; Prong 4 Visibility for the 2008 8-Hour
Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving the
visibility transport (prong 4) portion of a revision to the Alabama
State Implementation Plan (SIP), submitted by the Alabama Department of
Environmental Management (ADEM), addressing the Clean Air Act (CAA or
Act) infrastructure SIP requirements for the 2008 8-hour ozone National
Ambient Air Quality Standards (NAAQS). The CAA requires that each state
adopt and submit a SIP for the implementation, maintenance, and
enforcement of each NAAQS promulgated by EPA, commonly referred to as
an ``infrastructure SIP.'' Here, EPA is specifically disapproving the
prong 4 portion of Alabama's August 20, 2012, 2008 8-hour ozone
infrastructure SIP submission. All other applicable infrastructure
requirements for this SIP submission have been addressed in separate
rulemakings.

DATES: This rule will be effective March 9, 2017.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2012-0689. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air, 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: Sean Lakeman 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. Lakeman can be reached by telephone at<PHONE_NUMBER>
or via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    By statute, states must submit SIPs meeting the requirements of
sections 110(a)(1) and (2) of the CAA within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of that NAAQS. EPA has
historically referred to these SIP submissions made for the purpose of
satisfying the requirements of sections 110(a)(1) and 110(a)(2) as
``infrastructure SIP'' submissions. Sections 110(a)(1) and (2) require
states to address basic SIP elements such as for monitoring, basic
program requirements, and legal authority that are designed to assure
attainment and maintenance of the newly established or revised NAAQS.
More specifically, section 110(a)(1) provides the procedural and timing
requirements for infrastructure SIPs, and section 110(a)(2) lists
specific elements that states must meet for the infrastructure SIP
requirements related to a newly established or revised NAAQS. The
contents of an infrastructure SIP submission may vary depending upon
the data and analytical tools available to the state, as well as the
provisions already contained in the state's implementation plan at the
time the state develops and submits the submission for a particular new
or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other
type of emissions activity in one state from contributing significantly
to nonattainment of the NAAQS in another state (prong 1) and from
interfering with maintenance of the NAAQS in another state (prong 2).
The third and fourth prongs, which are codified in section

110(a)(2)(D)(i)(II), prohibit any source or other type of emissions
activity in one state from interfering with measures required to
prevent significant deterioration of air quality in another state
(prong 3) or from interfering with measures to protect visibility in
another state (prong 4). There are two ways in which a state's
infrastructure SIP may satisfy prong 4. The first is through a
confirmation in the infrastructure SIP submission that the state has an
EPA-approved regional haze SIP that fully meets the requirements of 40
CFR 51.308 or 51.309. Alternatively, in the absence of a fully approved
regional haze SIP, a state may meet the requirements of prong 4 through
a demonstration in its infrastructure SIP submission that emissions
within its jurisdiction do not interfere with other states' plans to
protect visibility. Section 110(a)(2)(D)(ii) requires SIPs to include
provisions ensuring compliance with sections 115 and 126 of the Act,
relating to international and interstate pollution abatement,
respectively.
    On March 12, 2008, EPA revised the 8-hour ozone NAAQS to 0.075
parts per million. See 73 FR 16436 (March 27, 2008). States were
required to submit infrastructure SIP submissions for the 2008 8-hour
ozone NAAQS to EPA no later than March 12, 2011. Alabama submitted its
infrastructure SIP for the 2008 8-hour ozone NAAQS on August 20, 2012;
this action only addresses the prong 4 element of the August 2012
submission.
    Alabama's August 20, 2012, 2008 8-hour ozone infrastructure
submission cites to the State's regional haze SIP alone to satisfy
prong 4 requirements.\1\ Alabama's regional haze SIP relies on the
Clean Air Interstate Rule (CAIR) \2\ as an alternative to the best
available retrofit technology (BART) requirements for its CAIR-subject
electric generating units (EGUs).\3\ Although this reliance on CAIR was
consistent with the CAA at the time the State submitted its regional
haze SIP, CAIR has since been replaced by the Cross-State Air Pollution
Rule (CSAPR) \4\ and can no longer be relied upon as an alternative to
BART or as part of a long-term strategy (LTS) for addressing regional
haze. Therefore, EPA finalized a limited disapproval of Alabama's 2008
regional haze SIP submission to the extent that it relied on CAIR to
satisfy the BART and LTS requirements.\5\ See 77 FR 33642 (June 7,
2012).
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    \1\ As mentioned above, a state may meet the requirements of
prong 4 in the absence of a fully approved regional haze SIP by
showing that its SIP contains adequate provisions to prevent
emissions from within the state from interfering with other states'
measures to protect visibility. Alabama did not, however, provide a
demonstration in the infrastructure SIP submission subject to this
proposed action that emissions within its jurisdiction do not
interfere with other states' plans to protect visibility.
    \2\ CAIR created regional cap-and-trade programs to reduce
sulfur dioxide (SO2) and nitrogen oxides (NOX)
emissions in 28 eastern states, including Alabama, that contributed
to downwind nonattainment and maintenance of the 1997 8-hour ozone
NAAQS and the 1997 PM2.5 NAAQS.
    \3\ Section 169A of the CAA and EPA's implementing regulations
require states to establish long-term strategies for making
reasonable progress towards the national goal of achieving natural
visibility conditions in certain Class I areas. The 156 mandatory
Class I federal areas in which visibility has been determined to be
an important value are listed at subpart D of 40 CFR part 81. For
brevity, these areas are referred to here, simply as ``Class I
areas.''
     Implementation plans must give specific attention to certain
stationary sources. Specifically, section 169A(b)(2)(A) of the CAA
requires states to revise their SIPs to contain such measures as may
be necessary to make reasonable progress towards the natural
visibility goal, including a requirement that certain categories of
existing major stationary sources built between 1962 and 1977
procure, install, and operate BART as determined by the state. Under
the Regional Haze Rule, states are directed to conduct BART
determinations for such ``BART-eligible'' sources that may be
anticipated to cause or contribute to any visibility impairment in a
Class I area.
    \4\ CSAPR addresses the interstate transport of emissions
contributing to nonattainment and interfering with maintenance of
the two air quality standards covered by CAIR as well as the 2006
PM2.5 NAAQS. CSAPR requires substantial reductions of
SO2 and (NOX) emissions from EGUs in 28 states
in the eastern United States.
    \5\ EPA finalized a limited approval of Alabama's regional haze
SIP on June 28, 2012. See 77 FR 38515.
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    In that limited disapproval action, EPA also amended the Regional
Haze Rule to provide that CSAPR can serve as an alternative to BART,
i.e., that participation by a state's EGUs in a CSAPR trading program
for a given pollutant achieves greater reasonable progress toward the
national goal of achieving natural visibility conditions in Class I
areas than source-specific BART for those EGUs for that pollutant.\6\
See 40 CFR 51.308(e)(4); 77 FR 33642. A state can participate in the
trading program through either a federal implementation plan (FIP)
implementing CSAPR or an integrated CSAPR state trading program
implemented through an approved SIP revision. In promulgating this
amendment to the Regional Haze Rule, EPA relied on an analytic
demonstration of visibility improvement from CSAPR implementation
relative to BART based on an air quality modeling study.
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    \6\ Legal challenges to EPA's determination that CSAPR can be an
alternative to BART are pending. Utility Air Regulatory Group v.
EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).
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    At the time of the rule amendment, questions regarding the legality
of CSAPR were pending before the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) and the court had stayed
implementation of the rule. The D.C. Circuit subsequently vacated and
remanded CSAPR in August 2012, leaving CAIR in place temporarily.\7\
However, in April 2014, the Supreme Court reversed the vacatur and
remanded to the D.C. Circuit for resolution of the remaining claims.\8\
The D.C. Circuit then granted EPA's motion to lift the stay and to toll
the rule's deadlines by three years.\9\ Consequently, implementation of
CSAPR Phase 1 began in January 2015 and implementation of Phase 2 is
scheduled to begin in January 2017.
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    \7\ EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C.
Cir. 2012).
    \8\ EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584
(2014), reversing 696 F.3d 7 (D.C. Cir. 2012).
    \9\ Order, EME Homer City Generation, L.P. v. EPA, No. 11-1302
(D.C. Cir. issued October 23, 2014).
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    Following the Supreme Court remand, the D.C. Circuit conducted
further proceedings to address the remaining claims. In July 2015, the
court issued a decision denying most of the claims but remanding the
Phase 2 sulfur dioxide (SO2) emissions budgets for Alabama,
Georgia, South Carolina, and Texas and the Phase 2 ozone-season
nitrogen oxides (NOX) budgets for 11 states to EPA for
reconsideration.\10\ Since receipt of the D.C. Circuit's 2015 decision,
EPA has engaged the affected states to determine appropriate next steps
to address the decision with regard to each state.\11\ In a November
10, 2016, proposed rulemaking, EPA stated that it expects that
potentially material changes to the scope of CSAPR coverage resulting
from the remand will be limited to withdrawal of the CSAPR FIP
requiring Texas to participate in the Phase 2 trading programs for
annual emissions of SO2 and NOX and withdrawal of
Florida's CSAPR FIP requirements for ozone-season NOX, which
EPA recently finalized in another action.\12\
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    \10\ EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 138
(D.C. Cir. 2015). The D.C. Circuit did not remand the CSAPR ozone
season NOX budgets for Alabama.
    \11\ As discussed below, Alabama submitted a SIP revision to EPA
on October 26, 2015, to incorporate the Phase 2 annual
NOX and annual SO2 CSAPR budgets for the State
into the SIP. EPA approved this SIP revision in a final action
published on August 31, 2016. See 81 FR 59869.
    \12\ See 81 FR 78954 (November 10, 2016) for further discussion
regarding EPA's expectations and the proposed withdrawal of the
CSAPR FIP for Texas.
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    Due to these expected changes to CSAPR's scope, EPA conducted a
sensitivity analysis to the 2012 CSAPR ``alternative to BART''
demonstration showing that the analysis would have supported the same
conclusion if the

actions that EPA has proposed to take or has already taken in response
to the D.C. Circuit's remand--specifically, the proposed withdrawal of
PM2.5-related CSAPR Phase 2 FIP requirements for Texas EGUs
and the recently finalized withdrawal of ozone-related CSAPR Phase 2
FIP requirements for Florida EGUs--had been reflected in that analysis.
EPA's November 10, 2016, notice of proposed rulemaking sought comment
on this sensitivity analysis. See 81 FR 78954.
    Alabama sought to convert the 2012 limited approval/limited
disapproval of the State's CAIR-reliant regional haze SIP to a full
approval through a SIP revision submitted on October 26, 2015. This SIP
revision intended to adopt the CSAPR trading program into the SIP,
including the State's Phase 2 annual NOX and annual
SO2 CSAPR budgets, and then to replace reliance on CAIR with
reliance on CSAPR to satisfy its regional haze BART and LTS
requirements. Although EPA has approved the CSAPR trading program into
the Alabama SIP,\13\ EPA has not yet had an opportunity to evaluate
comments received on its proposal that CSAPR should continue to be
available as an alternative to BART.\14\ EPA thus cannot approve the
portion of Alabama's 2015 SIP submission seeking to replace reliance on
CAIR with reliance on CSAPR to satisfy the BART and LTS requirements at
this time. Because Alabama's prong 4 SIP submission relies solely on
the State having a fully approved regional haze SIP, EPA proposed to
disapprove the prong 4 element of Alabama's August 20, 2012, 2008 8-
hour ozone infrastructure SIP submission in a notice of proposed
rulemaking (NPRM) published on December 5, 2016 (81 FR 87503).
Additional detail regarding the background and rationale for EPA's
action is contained in the NPRM.
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    \13\ See 81 FR 59869 (August 31, 2016).
    \14\ The deadline for these comments is January 9, 2017. See 81
FR 88636 (December 8, 2016).
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    Comments on the proposed rulemaking were due on or before December
27, 2016. EPA received one adverse comment on the December 5, 2016,
NPRM. The comment was submitted by the Utility Air Regulatory Group
(hereinafter referred to as ``the Commenter'') and is available in the
docket for this final rulemaking action. EPA's response and a summary
of the comment are provided below.

II. Response to Comment

    Comment: The Commenter asserts that EPA should approve Alabama's
August 20, 2012, 2008 8-hour ozone infrastructure SIP revision in
``conjunction with Alabama's reliance in its October 2015 SIP on CSAPR
to satisfy BART and other regional haze rule requirements.'' According
to the Commenter, EPA has the authority and an obligation to approve
Alabama's October 2015 regional haze SIP because EPA has approved the
State's CSAPR annual SO2 and NOX emissions
budgets into the Alabama SIP and because the ``CSAPR=BART rule . . .
remains legally in effect.'' The Commenter believes that Alabama is
``plainly entitled to rely at this time on the CSAPR=BART rule'' and
that EPA's reliance on the November 10, 2016 rulemaking that proposed
to reaffirm that CSAPR can serve as an alternative to source-specific
BART is a ``legally and factually invalid reason for EPA to refuse at
this time to approve Alabama's 2015 regional haze SIP submission and,
by extension, Alabama's 2012 prong 4 submission.''
    Response: EPA disagrees with the Commenter. EPA is disapproving the
prong 4 element of Alabama's August 20, 2012, 8-hour ozone
infrastructure SIP revision because the State does not have a fully-
approved regional haze SIP and has not otherwise shown that its SIP
contains adequate provisions to prevent emissions from within the State
from interfering with other states' measures to protect visibility.
Although Alabama's 2015 regional haze SIP submission sought to convert
the limited approval/limited disapproval of its regional haze SIP to a
full approval by relying on CSAPR to satisfy BART and LTS requirements,
intervening developments dictate that EPA cannot act on that revision
until EPA completes action on the D.C. Circuit's remand of certain
CSAPR budgets and determines the impact of the final remand response on
CSAPR participation as an alternative to BART requirements.
    As discussed above, CSAPR's scope has been impacted by the D.C.
Circuit's remand of the Phase 2 SO2 emissions budgets for
Alabama, Georgia, South Carolina, and Texas and the Phase 2 ozone
season NOX budgets for 11 states. The magnitude of this
impact and the resulting effect on the CSAPR ``alternative to BART''
rule depends, in part, on the actions of the states with remanded
budgets. EPA expects that potentially material changes to CSAPR's scope
will be limited to the withdrawal of Texas from the annual
NOX and SO2 trading program and the withdrawal of
Florida from the ozone-season NOX trading program based on
several considerations, including discussions with the affected states,
the incorporation of the CSAPR Phase 2 annual NOX and
SO2 budgets into the Alabama SIP, and commitment letters
from Georgia and South Carolina to adopt the CSAPR Phase 2 budgets.\15\
EPA's November 10, 2016, proposed determination that CSAPR would
continue to be available as an alternative to BART is therefore based
on the assumption that Georgia and South Carolina will remain in CSAPR
with annual NOX and SO2 emissions budgets equal
to or more stringent than those in their CSAPR FIPs. However, EPA has
not yet received SIP revisions from Georgia or South Carolina adopting
their respective CSAPR FIP budgets. Although EPA expects that Georgia
and South Carolina will submit such SIP revisions in the near future,
the continued validity of CSAPR as an alternative to BART will only be
resolved under EPA's November 10, 2016, proposal if and when Georgia
and South Carolina submit SIP revisions adopting their respective
remanded CSAPR budgets; EPA addresses public comment on its November
10, 2016 proposed determination that CSAPR continues to be an
alternative to BART given the expected changes to CSAPR's scope; and
EPA finalizes its determination that CSAPR remains an alternative to
BART. For these reasons, EPA cannot approve Alabama's 2015 regional
haze SIP revision at this time. Because Alabama does not have a fully
approved regional haze SIP and has not alternatively demonstrated that
its emissions do not interfere with other states' required measures
protecting visibility, EPA must disapprove the prong 4 element of
Alabama's August 20, 2012, 8-hour ozone infrastructure SIP revision.
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    \15\ See letters to Heather McTeer Toney, Regional
Administrator, EPA Region 4, from Judson H. Turner, Director of the
Environmental Protection Division, Georgia Department of Natural
Resources (May 26, 2016) and from Myra C. Reece, Director of
Environmental Affairs, South Carolina Department of Health and
Environmental Control (April 19, 2016), available in the docket for
this action.
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III. Final Action

    As described above, EPA is disapproving the prong 4 portion of
Alabama's August 20, 2012, 2008 8-hour ozone infrastructure SIP
submission. All other applicable infrastructure requirements for this
SIP submission have been addressed in separate rulemakings.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations.

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA's role is to approve state choices, provided that they
meet the criteria of the CAA. EPA is determining that the prong 4
portion of the aforementioned SIP submission does not meet federal
requirements. Therefore, this action does not impose additional
requirements on the state 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 April 10, 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. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate Matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

    Dated: January 5, 2017.
Heather McTeer Toney,
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. Section 52.53 is amended by adding a reserved paragraph (d) and
paragraph (e) to read as follows:

Sec.  52.53   Approval status.

* * * * *
    (e) Disapproval. Portion of the state implementation plan (SIP)
revision submitted by the State of Alabama, through the Alabama
Department of Environmental Management (ADEM) on August 20, 2012, that
addresses the visibility protection (prong 4) element of Clean Air Act
section 110(a)(2)(D)(i) for the 2008 8-hour Ozone National Ambient Air
Quality Standards (NAAQS). EPA is disapproving the prong 4 portion of
ADEM's SIP submittal because it relies solely on the State having a
fully approved regional haze SIP to satisfy the prong 4 requirements
for the 2008 8-hour Ozone NAAQS.

[FR Doc. 2017-02303 Filed 2-6-17; 8:45 am]
 BILLING CODE 6560-50-P