[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Proposed Rules]
[Pages 8645-8656]
[FR Doc No: 2014-02938]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-AL-0002; FRL-9906-38-Region-4]

Approval and Promulgation of Implementation Plans: Alabama: Error
Correction and Disapproval of Revisions to the Visible Emissions Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
correct, pursuant to the Clean Air Act (CAA or Act), its erroneous
approval of revisions to Alabama's State Implementation Plan (SIP) that
amended the visible emissions rule applicable to certain stationary
sources. The State of Alabama, through the Alabama Department of
Environmental Management (ADEM), submitted the SIP revisions in
question to EPA on September 11, 2003, and August 22, 2008. EPA took
final action approving these SIP revisions on October 15, 2008. EPA is
now reconsidering its previous approval and is proposing to determine
that EPA's October 2008 approval of these SIP revisions was in error.
Consequently, EPA is also proposing to disapprove the aforementioned
SIP revisions.

DATES: Written comments must be received on or before March 17, 2014.

ADDRESSES: Submit your comments identified by Docket ID No. EPA-R04-
OAR-2005-AL-0002, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: EPA-R04-OAR-2005-AL-0002, 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: Lynorae Benjamin, Chief, 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. 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 a.m. to 4:30 p.m., excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2005-AL-0002.'' 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 a.m. to 4:30 p.m., excluding
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Joel Huey, Regulatory Development
Section, Air Planning Branch, 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)
562-9104. Mr. Huey can also be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background for these Proposed Actions
II. Errors that EPA Made in the October 15, 2008, Rulemaking
Approving Alabama's Visible Emissions SIP Revisions
III. Basis of EPA's Proposal to Disapprove Alabama's SIP Revisions
Related to Visible Emissions
IV. Proposed Actions
V. Statutory and Executive Order Reviews

I. Background for These Proposed Actions

    The State of Alabama, through ADEM, submitted SIP revisions to EPA
on September 11, 2003, and August 22, 2008, to revise Alabama's SIP-
approved visible emissions rule. EPA took final action approving
Alabama's September 11, 2003, and August 22, 2008, SIP revisions
(hereafter also referred to as the ``Submittals'') on October 15, 2008.
See 73 FR 60957. Subsequently, on April 6, 2011, EPA took final action
to disapprove Alabama's Submittals. See 76 FR 18870. EPA's disapproval
action was later vacated by the United States Court of Appeals for the
Eleventh Circuit (hereafter also referred to as the ``Court'' or the
``Eleventh Circuit Court of Appeals''). See below for more details on
the Court's decision. A copy of this decision is in the docket \1\ for
this proposed rulemaking. The Court decision put back in effect EPA's
October 2008, approval action. Today, EPA is reconsidering its October
2008 approval action, and is proposing to determine, pursuant to
section 110(k)(6) of the CAA, that EPA's October 2008 approval of
Alabama's SIP revisions (submitted September 11, 2003, and August 22,
2008) to change its EPA-approved visible emission rule (referred to
hereafter as the ``previous rule'') was in error. Consequently, EPA is
also proposing to disapprove the aforementioned SIP revisions.
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    \1\ EPA notes that while the docket for today's action includes
the most recent previous EPA actions (and other information) related
to Alabama's changes to its visible emissions rule, EPA is not
reopening comment on issues related to those previous actions, and
is only taking comment on issues proposed in today's rulemaking.
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    More detail on EPA's rationale for today's proposed actions is
provided below. Specifically, Section II, below, outlines EPA's basis
for proposing to determine that EPA erred in October 2008 when it
approved the Submittals and thus the current, or ``revised,'' SIP rule.
Section III provides the basis for EPA's proposed disapproval of the
Submittals. Today's proposed disapproval action is consistent with the
analysis that EPA laid out in the April 6, 2011, final disapproval
action for these Submittals but is more specific than that action with
regard to the errors EPA has determined were made by the 2008 approval
action.

A. Background on Court Decision Related to EPA's Previous Actions on
Alabama's Visible Emission Rule Changes

    As mentioned above, EPA took action on October 15, 2008, to approve
changes to Alabama's visible emissions rule that were submitted in SIP
revisions on September 11, 2003, and August 22, 2008. See 73 FR 60957.
Subsequently, on April 6, 2011, EPA took final action to disapprove
Alabama's Submittals. See 76 FR 18870. EPA's April 6, 2011, final
action was challenged in the Eleventh Circuit Court of Appeals by
Alabama Power Company (joined through intervention by the State of
Alabama). This case was ultimately consolidated with the pending but
stayed challenges by the Alabama Environmental Council (AEC) and others
to EPA's October 2008 approval of the Submittals. Following briefing
and oral argument, the Eleventh Circuit Court of Appeals issued a 2-1
decision on March 6, 2013, vacating EPA's April 2011 disapproval action
and affirming EPA's October 2008 approval action. See Alabama
Environmental Council v. EPA, 711 F.3d 1277 (11th Cir. 2013). The
majority opinion found that CAA section 110(k)(6) permits EPA to revise
a SIP provision approved ``in error'' without any further submission
from the State, so long as EPA provides the State and the public with
its error determination and the basis thereof. See 711 F3d at 1287.
Specifically, the Court explained: ``Thus, if the EPA chooses to invoke
Section 110(k)(6) to revise a prior action, Congress has required the
EPA to articulate an `error' and provide `the basis' of its
determination that an error occurred.'' Id. Today, EPA is reconsidering
its action in October 2008 to approve Alabama's Submittals, and is now
proposing to determine pursuant to CAA 110(k)(6), that EPA's October
15, 2008, approval of Alabama's September 11, 2003, and August 22,
2008, SIP revisions related to visible emissions was in error,
consistent with section 110(k)(6). Today, EPA is initiating a comment
period regarding issues presented in this notice for the following
reasons: (1) to provide the public with the basis of EPA's
determination of what errors occurred; and (2) to outline EPA's
rationale for disapproval of Alabama's Submittals. An overview of EPA's
previous actions and other relevant background is provided below.

B. Background on Error Corrections Under CAA Section 110(k)(6)

    Section 110(k)(6) of the CAA provides EPA with the authority to
make corrections to actions that are subsequently found to be in error.
The key provisions of section 110(k)(6) for present purposes are that
the Administrator has the authority to ``determine[]'' when a SIP
approval was ``in error,'' and when the Administrator does so, may then
revise the SIP approval ``as appropriate,'' in the same manner as the
prior action, and do so without requiring any further submission from
the State. As mentioned above, the Eleventh Circuit Court affirmed
EPA's authority to use section 110(k)(6) to revise a prior action
related to a state's implementation plan. See 711 F3d at 1287. While
CAA section 110(k)(6) provides EPA with the authority to correct its
own ``error,'' nowhere does this provision or any other provision in
the CAA define what qualifies as ``error.'' Thus, EPA believes that the
term should be given its plain language, everyday meaning, which
includes all unintentional, incorrect or wrong actions or mistakes.
    Additionally, the legislative history of CAA section 110(k)(6) is
silent regarding the definition of error, but the timing of the
enactment of the provision suggests a broad interpretation. The
provision was enacted shortly after the U.S. Court of Appeals for the
Third Circuit (hereafter referred to as the ``Third Circuit Court'')
decision in Concerned Citizens of Bridesburg v. U.S. EPA (hereafter
referred to as ``Bridesburg''), 836 F.2d 777 (3rd Cir. 1987). In
Bridesburg, the Third Circuit Court adopted a narrow interpretation of
EPA's authority to correct errors unilaterally. The Third Circuit Court
stated that such authority was limited to typographical and other
similar errors, and stated that any other change to a SIP must be
accomplished through a SIP revision. Id. at 786.
    In Bridesburg, EPA determined that it lacked authority to include
odor regulations as part of a SIP unless the

odor regulations had a significant relationship to achieving a national
ambient air quality standard (NAAQS), and so the Agency directly acted
to remove the 13-year-old odor provisions from the Pennsylvania SIP.
Id. at 779-80. Specifically, EPA found the previous approval of the
odor provisions into the SIP was an inadvertent error, and thus used
its ``inherent authority to correct an inadvertent mistake'' to
withdraw its prior approval of the odor regulations without seeking
approval of the change from Pennsylvania. Id. at 779-80, 785. After
noting that Congress had not contemplated the need for revision on the
grounds cited by EPA, id. at 780, the Third Circuit Court found that
EPA's ``inherent authority to correct an inadvertent mistake'' was
limited to corrections such as ``typographical errors,'' and that
instead EPA was required to use the SIP revision process to remove the
odor provision from the SIP. Id. at 785-86.
    When the Third Circuit Court made its determination in Bridesburg
in 1987, there was no provision explicitly addressing EPA's error
correction authority under the CAA. In 1990, Congress added section
110(k)(6) to the CAA. The legislative history of the CAA says little
about the provision, and does not mention Bridesburg. Even so, the
terms of the provision make it evident that Congress authorized EPA to
undertake a broader set of revisions when correcting errors than the
Bridesburg court read the pre-existing CAA to authorize, and that
Congress did not intend to codify the holding of the Bridesburg
decision. This is apparent because CAA section 110(k)(6) both: (1)
authorizes EPA to correct SIP approvals and other actions that were
``in error,'' which, as noted previously, broadly covers any mistake,
and thereby contrasts with the holding in the Bridesburg decision that
EPA's pre-section 110(k)(6) authority was limited to correction of
typographical or similar mistakes; and (2) provides that the error
correction need not be accomplished via the SIP revision or SIP call
process, which also contrasts with the holding of the Bridesburg
decision requiring a SIP revision. By the same token, because the
Bridesburg decision stood for the proposition that EPA could not
correct anything more than a narrow range of typographical errors, had
Congress intended to codify the decision in Bridesburg, it is logical
that Congress would have described the type of error that EPA was
authorized to correct in the same limited way that the decision did. In
this manner, the fact that Congress adopted CAA section 110(k)(6)
against the backdrop of the Bridesburg case confirms that the provision
cover a broad range of errors.
    EPA has used CAA section 110(k)(6) as authority to make substantive
corrections to remove a variety of provisions from federally-approved
SIPs that are not related to the attainment or maintenance of NAAQS or
any other CAA requirement. See, e.g., ``Approval and Promulgation of
Implementation Plans; Kentucky: Approval of Revisions to the State
Implementation Plan,'' 75 FR 2440 (January 15, 2010) (correcting the
SIP by removing a provision, approved in 1982, used to address
hazardous or toxic air pollutants); ``Approval and Promulgation of
Implementation Plans; New York,'' 73 FR 21546 (April 22, 2008) (issuing
a direct final rule to correct a prior SIP correction from 1998 that
removed general duties from the SIP but neglected to remove a reference
to ``odor'' in the definition of ``air contaminant or air pollutant'');
``Approval and Promulgation of Implementation Plans; New York,'' 63 FR
65557 (November 27, 1998) (issuing direct final rule to correct SIP by
removing a general duty ``nuisance provision'' that had been approved
in 1984); ``Correction of Implementation Plans; American Samoa,
Arizona, California, Hawaii, and Nevada State Implementation Plans,''
63 FR 34641 (June 27, 1997) (correcting five SIPs by deleting a variety
of administrative provisions concerning variances, hearing board
procedures, and fees that had been approved during the 1970s).
    CAA section 110(k)(6), by its terms--specifically, the use of the
terms ``[w]henever'' and ``may''--authorizes, but does not require, EPA
to make the specified finding. As a result, EPA has discretion in
determining whether and when to make the specified finding and to
utilize authority of section 110(k)(6). See New York Public Interest
Research Group v. Whitman, 321 F.3d 316, 330-31 (2d Cir. 2003) (opening
phrase ``Whenever the Administrator makes a determination'' in CAA
section 502(i)(1) grants EPA ``discretion whether to make a
determination''); Her Majesty the Queen in Right of Ontario v. EPA, 912
F.2d 1525, 1533 (D.C. Cir. 1990) (``whenever'' in CAA section 115(a)
``impl[ied] a degree of discretion'' in whether EPA had to make a
finding). In addition, EPA has used CAA section 110(k)(6) authority to
correct errors of a non-technical nature. Most recently, EPA withdrew
its approval of SIP prevention of significant deterioration (PSD)
programs in 24 states to the extent they apply PSD to Greenhouse Gas-
emitting sources below the thresholds in the final Tailoring Rule.\2\
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    \2\ See ``Limitation of Approval of Prevention of Significant
Deterioration Provisions Concerning Greenhouse Gas Emitting Sources
in State Implementation Plans; Final Rule,'' 75 FR 82536 (December
30, 2010) (Narrowing Rule).
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C. Differences Between Alabama's Previous SIP Opacity Rule and the
Revised Rule Requested in Alabama's 2003 and 2008 Submittals

    Under both the pre-existing opacity restrictions in Alabama's SIP
and the changes requested in Alabama's 2003 and 2008 submittals, the
maximum number of six-minute periods \3\ above the general 20 percent
opacity limit allowed per day is the same--24. The maximum ``average
daily opacity'' allowed under the previous rule is the same as the
specific cap under the submittals--22 percent. On a quarterly basis,
the total of exempt opacity exceedances allowed under the previous rule
is 10 percent of operating time but is specifically capped under the
submittals at 2 percent of operating time, while the maximum ``average
quarterly opacity'' allowed is approximately the same--22 percent under
the previous rule, and 21.6 percent under the submittals.\4\
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    \3\ Unless otherwise noted, this notice refers to exempt periods
other than those provided by the previous rule for startup,
shutdown, load change and rate change (or other short intermittent
periods upon terms approved by ADEM's Director and included in a
State-issued permit), which were part of the existing SIP-approved
rule and remained unchanged under the October 15, 2008, final action
rule.
    \4\ See previous rule AAC 335-3-4-.01(1)(b) and current rule AAC
335-3-4-.01(4) and 335-3-4-.01(5).
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    However, there are two significant differences \5\ between the
previous rule and the revised rule. The first significant difference is
that the revised rule allows for maximum visible emissions of up to 100
percent opacity during 24 six-minute periods per day, while the
previous rule allowed for maximum visible emissions of up to only 40
percent opacity during 24 six-minute periods per day. See Alabama
Administrative Code (AAC) 335-3-4-.01(4) (revised rule). The second
significant difference is that the revised rule allows opacity above
the general 20 percent SIP standard for up to 2.4 consecutive hours
(i.e., an aggregate of 24 six-minute periods per calendar day), while
the previous rule allowed

exceedances of the 20 percent SIP standard for intervals of only 0.1
consecutive hours (i.e., one six-minute period per hour).\6\ A critical
consideration, therefore, is whether the significant increase of the
maximum allowable opacity from 40 percent to 100 percent for up to 2.4
consecutive hours per day could result in more PM emissions were
sources to take advantage of the changed limits.
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    \5\ One of the technical support documents (TSDs) provided for
this action explains in detail the differences between the current
and prior visible emissions rules. EPA considered all the
differences in reaching its decision today. EPA is simply
identifying two significant differences that are particularly
relevant to the analysis of the submittal. See EPA-R04-OAR-2005-AL-
0002-0093.
    \6\ See previous rule AAC 335-3-4-.01(1)(b) and current rule AAC
335-3-4-.01(4).
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D. Background on Alabama's Visible Emission Rule and EPA's Previous
Action on Alabama's Submittals Related to Visible Emissions

    EPA first approved Alabama's visible emissions rule into the
Alabama SIP in 1972. See 37 FR 10842, 10847 (May 31, 1972). The State
submitted the visible emissions rule as part of its SIP for attainment
and maintenance of the total suspended particulates (TSP) NAAQS (the
predecessor to the Particulate Matter (PM) NAAQS). The State has
revised its visible emission rule three times in support of those
goals.
    Historically, Alabama has had areas with attainment problems for
the various PM NAAQS. Originally, EPA designated some areas in Alabama
as nonattainment for the TSP NAAQS. In 1987, EPA replaced the TSP NAAQS
with the PM10 NAAQS, and all areas of Alabama were
designated as attainment for those NAAQS. See 56 FR 11101 and 58 FR
67734. All areas of Alabama remain designated attainment for the
PM10 NAAQS. In 1997, EPA promulgated new annual and 24-hour
particulate matter NAAQS, using PM2.5 as the indicator.
Effective April 5, 2005, EPA designated portions of Alabama, in the
Birmingham and Chattanooga areas, as nonattainment for the 1997
PM2.5 NAAQS.7 8 The Chattanooga nonattainment
area for the 1997 PM2.5 NAAQS included a portion of Jackson
County, Alabama. See 70 FR 944. Alabama's visible emissions rules at
AAC 335-3-4-.01(4) continue to be a part of the Alabama SIP for
attainment and maintenance of the PM NAAQS.
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    \7\ On January 22, 2013, EPA redesignated the Birmingham Area to
attainment for the 1997 PM2.5 NAAQS, so this area is
currently a ``maintenance'' area for the 1997 PM2.5
NAAQS. See 78 FR 4341.
    \8\ In 2006, EPA promulgated new PM2.5 NAAQS,
significantly tightening the 24-hour standards. Effective December
14, 2009, the Birmingham area was designated nonattainment for the
24-hour PM2.5 NAAQS, as revised in 2006. In 2013, EPA
redesignated the Birmingham Area to attainment for the 2006 24-hour
PM2.5 NAAQS (78 FR 5306, January 25, 2013). A portion of
Jackson County, Alabama in association with the Chattanooga area
remains designated as nonattainment for the 1997 Annual
PM2.5 NAAQS. EPA is currently evaluating Alabama's
request for EPA to redesignate the portion of Jackson County,
Alabama that is nonattainment to attainment for the 1997 Annual
PM2.5 NAAQS, and the State's associate maintenance plan.
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    As mentioned above, Alabama submitted SIP revisions on September
11, 2003, and August 22, 2008, with changes to its visible emission
rule. Specifically, the Submittals affect the applicable visible
emissions limits at approximately 19 stationary source facilities.\9\
These 19 facilities include older coal-fired utilities, cement
manufacturing facilities, and pulp and paper facilities, among others.
Five of these facilities are located in or near areas (e.g.,
Birmingham) that as of 2008 exceeded applicable PM2.5
NAAQS.\10\ In addition, Widows Creek Fossil Plant, operated by the
Tennessee Valley Authority (TVA)), is located in the Chattanooga
nonattainment area for the 1997 Annual PM2.5 NAAQS. Other
facilities affected by Alabama's visible emissions rule may also impact
these or other areas.
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    \9\ At this time, it is EPA's understanding that the rule at
issue applies to 19 facilities. Due to the applicability portions of
the rule, the rule could apply to fewer facilities over time, but
likely will not apply to any more.
    \10\ As noted later in this rulemaking and above, EPA is
proposing to determine that the Agency made an error in approving
Alabama's visible emission rule changes in the October 15, 2008,
rulemaking. EPA notes that based on the most recently quality-
assured data for Alabama that some areas of Alabama, including
Birmingham, exceed the 2012 PM2.5 Annual NAAQS.
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    Opacity may be defined as the degree to which emissions reduce the
transmission of light and obscure the view of an object in the
background. See 40 CFR 60.2. ``Visible emissions'' are pollutant
discharges from a source that can be seen with the naked eye and are
commonly measured as a percent of opacity. Opacity is an important
emissions reduction tool because it provides information regarding
pollutants leaving an emissions source and the effectiveness of the
control equipment designed to capture those pollutants. In general, the
more particles which scatter or absorb light that pass through an
emissions point, the more light will be blocked, thus increasing the
opacity percentage of the emissions plume. However, variables such as
the size, number, and composition of the particles in the emissions can
result in variations in the percentage of opacity.
    Historically, visible emissions have been an important tool for
implementation of PM NAAQS and, in particular, for the implementation
and enforcement of PM limits on sources to help attain the NAAQS. The
monitoring of visible emissions remains a useful technique for
indicating the overall operation and maintenance of a facility and its
emissions control devices and was employed even before modern
instruments that measure PM on a direct, continuous basis existed.
Observation of greater than normal visible emissions, particularly on a
recurring basis, indicates that incomplete combustion or other changes
to the process or the control device is or was occurring; such changes
frequently lead to increased PM emissions. Although opacity is not a
criteria pollutant, opacity standards continue to be used as an
indicator of the effectiveness of emission controls for PM emissions,
or to assist with implementation and enforcement of PM emission
standards for purposes of attaining PM NAAQS. Further, well-maintained
and well-operated sources should be able to achieve visible emissions
that comply with opacity limits. For example, data submitted by one
previous commenter to EPA's actions on Alabama's visible emission rule
show routine source operation with opacity of about five percent.\11\
Conversely, visible emissions at much higher percentages (such as those
allowed by Alabama's revised rule), particularly on a recurring basis,
may indicate that a source is emitting more PM and may be in violation
of applicable SIP or permit PM mass limits as well. Alabama's
Submittals would authorize sources to emit visible emissions of up to
100 percent opacity (the previous maximum opacity was 40 percent) for
up to 2.4 consecutive hours per day \12\ (the previous consecutive
maximum time for sources to exceed the generally applicable 20 percent
opacity standard was 6 minutes per hour). To be approvable, these
changes must be consistent with CAA sections 110(l) and 193.
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    \11\ Alabama Power Company in Attachment T from the docket
(Docket No. EPA-R04-OAR-2005-AL-0002-0082.1) shows that over a
three-year period its units did not exceed 5 percent opacity for
55.4 percent of the operating time, 10 percent opacity for 89
percent of the operating time, and 15 percent opacity for 97.6
percent of the operating time. In addition, the U.S. District Court
for the Northern District of Alabama found in 2009 that at TVA's
Plant Colbert, Units 1-4 typical baseline opacity measured about 5-8
percent during normal unit operation, and Unit 5 was projected to
operate below 5 percent opacity even with a partially malfunctioning
control device and below 10 percent ``under extreme conditions that
are unlikely to ever occur.'' Sierra Club v. TVA, 592 F. Supp. 2d
1357, 1367 (N.D. AL 2009).
    \12\ The Submittals allow up to 2.4 hours per day of operation
at opacity levels in excess of 20 percent, provided that the total
of such periods do not exceed 2 percent of operating time in a
quarter, excluding periods of startup, shutdown, load change and
rate change (or other short intermittent periods upon terms approved
by ADEM's Director and included in a State-issued permit).
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    On October 15, 2008, EPA took final action to incorporate into the
Alabama

SIP, the changes to Alabama's visible emissions rule included in the
Submittals. See 73 FR 60957. EPA's rationale for its approval is
discussed in that final action. EPA's approval of the SIP revisions
relied on two main findings: ``(1) the revision would not increase the
allowable average opacity levels; and (2) the relationship between
changes in opacity and increases or decreases in ambient
PM2.5 levels cannot be quantified readily for the sources
subject to this SIP revision, and is particularly uncertain for short-
term analyses.'' See 73 FR 60959. EPA's October 15, 2008, final action
was effective on November 14, 2008 (by its terms, the Alabama rule
change became effective, and thus applicable to sources, on May 14,
2009).
    Following the October 2008 final action, EPA received two petitions
for reconsideration submitted on behalf of AEC and other parties
(Petitioners), one on December 12, 2008, and one on February 25, 2009.
EPA considered these petitions under section 553(e) of the
Administrative Procedures Act (APA) and the CAA. The first petition for
reconsideration raised procedural and substantive concerns with EPA's
October 2008 final action.\13\ EPA denied the December 12, 2008,
petition via letter on January 15, 2009. The second petition
incorporated by reference the issues raised in the first petition and
also identified additional substantive and procedural concerns not
included in the first petition.\14\ EPA granted the second petition for
reconsideration of the October 2008 final action via letter on April 3,
2009. In that letter, EPA explained that it anticipated initiating a
new rulemaking process to provide additional opportunities for public
comment on issues raised in the petition for reconsideration. On
December 12, 2008, Petitioners filed a lawsuit in the Eleventh Circuit
Court of Appeals challenging EPA's October 2008 final action. The Court
subsequently stayed the litigation pending the conclusion of EPA's
reconsideration process.
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    \13\ The Petitioners raised eight main issues: (1) EPA was
arbitrary and capricious in failing to reopen the public comment
period when ADEM made changes to the rule after the close of the
public comment period; (2) EPA was arbitrary and capricious in
deviating from rulemaking policy regarding documentation of post-
comment period meetings between EPA and ADEM and failing to meet
with Petitioners in addition to ADEM; (3) EPA was arbitrary and
capricious in proposing to approve a SIP revision before the rule
had even been developed at the State level; (4) EPA failed to comply
with rulemaking procedures by failing to complete the docket prior
to finalizing the rulemaking package; (5) The rule should not have
been approved because it does not represent reasonably available
control technology requirements for SIPs because Alabama has
nonattainment areas for PM2.5; (6) EPA's approval of the
rule is not consistent with either section 110(l) or 193 of the CAA
due to likely increases in short-term particulate matter emissions;
(7) EPA's final action is not consistent with EPA policies on excess
emissions and director's discretion; and (8) The final rule does not
comply with 40 CFR part 51 because it is not an ``appropriate''
visible emission limitation.
    \14\ The Petitioners specifically highlighted two new issues:
(1) the DC Circuit's decision in Sierra Club v. EPA, 551 F.3d 1019
(D.C. Cir. 2008) (Start up, Shut Down (SSM) Maximum Available
Control Technology (decision) made the Agency's action on the SIP
revision untenable; and (2) new documents added to the docket show
that throughout the consideration of this matter, EPA acted in an
arbitrary and duplicitous manner in failing to re-notice the
rulemaking for public comment given the differences between what EPA
required of Alabama in the April 12, 2007, proposal and what Alabama
actually submitted for approval in its August 22, 2008, submittal.
---------------------------------------------------------------------------

    On October 2, 2009, EPA proposed to initiate a new rulemaking
process to reconsider its prior action on the Submittals. See 74 FR
50930. In that proposal, EPA articulated two alternative options and
sought public comment on both. One option was to affirm the October
2008 final action (thus approving Alabama's SIP revisions) and the
other was to amend the October 2008 final action (thus disapproving
Alabama's SIP revisions). The bases for each alternative were described
in detail in the October 2, 2009, proposed rulemaking. See 74 FR 50932-
50934. EPA thus undertook full notice and comment again on the
substantive issues relevant to the SIP revisions. EPA received numerous
comments on its October 2, 2009, proposed rule.
    In EPA's April 6, 2011, final action, EPA explained the basis of
its determination that the Submittals were not approvable. EPA began by
explaining: ``In light of the fact that this SIP revision would apply
statewide, including nonattainment areas, EPA has concluded that it
cannot approve the SIP revision under section 110(l) if it would worsen
air quality by allowing increased emissions of criteria pollutants or
precursors to such criteria pollutants.'' See 76 FR 18871. EPA then
discussed the role of visible emissions in NAAQS attainment and
maintenance, highlighting that historically, visible emissions have
been an important tool for implementation of the PM NAAQS and, in
particular, for the implementation and enforcement of PM limits on
sources to help attain, and maintain, the NAAQS. See 76 FR 18872. EPA
explained that while sources submitted data during the comment period
on the October 2009 proposal that suggested routine source operation of
about five percent opacity, visible emissions at much higher
percentages such as those allowed by the Submittals (which allow for
opacity of up to 100 percent), particularly on a recurring basis, may
indicate that a source is in violation of particulate matter emission
limits in the SIP or individual source permits. See 76 FR 18872.
    Though EPA's October 2009 Federal Register notice requested
specific data on the correlation between opacity and particulate matter
emissions, EPA received no such data obtained from any of the 19
sources that would be affected by the Submittals. See 76 FR 18872 and
74 FR 50934. As EPA explained in the April 6, 2011, final action, the
Submittals included two key rule changes to the existing EPA-approved
opacity standards that effectively allowed for increases in opacity
emissions from the 19 older facilities which may not have state-of-the-
art control equipment but which are subject to the rule. The first
significant change was the allowance of maximum visible emissions of
100 percent opacity during certain periods while the previous rule
allowed for maximum visible emissions of only 40 percent opacity. See
76 FR 18874. The second significant change was that the revised rule
allowed for opacity to increase up to 100 percent for 2.4 consecutive
hours, which Petitioners referred to as the ``bundling'' of high
opacity periods, whereas the previous visible emissions standard did
not allow for such bundling and restricted the opacity increases to six
minutes per hour. Id.
    As discussed in more detail above, EPA's April 6, 2011, final
action was challenged in the Eleventh Circuit Court of Appeals by
Alabama Power Company (joined through intervention by the State of
Alabama). In a 2-1 decision on March 6, 2013, the Court vacated EPA's
April 2011 disapproval action and affirming EPA's October 2008 approval
action. Alabama Environmental Council v. EPA, 711 F.3d 1277 (11th Cir.
2013). The majority opinion found that CAA section 110(k)(6) permits
EPA to revise a SIP provision approved ``in error'' without any further
submission from the State, so long as EPA provides the state and the
public with its error determination and the basis thereof. See 711 F.3d
at 1281. Specifically, the Court explained: ``Thus, if the EPA chooses
to invoke Section 110(k)(6) to revise a prior action, Congress has
required the EPA to articulate an `error' and provide `the basis' of
its determination that an error occurred.'' Id. at 1287.
    When EPA took action on Alabama's visible emission rule changes in
2008, the Birmingham Area was designated nonattainment for the 1997
Annual PM2.5 NAAQS, and EPA was in the

process of designating this same area as nonattainment for the 2006 24-
hour PM2.5 NAAQS. Additionally, a portion of Jackson County
(in association with the Chattanooga area) was designated nonattainment
for the 1997 Annual PM2.5 NAAQS. The geographic location of
affected sources covered by the visible emission rules in the EPA-
approved SIP is relevant. This is because (as is discussed more fully
below) EPA interprets section 110(l) to prohibit approval of SIP
revisions that would increase emissions of pollutants for which an area
is designated nonattainment, in the absence of offsetting emission
reductions or an attainment demonstration addressing the rule changes
at issue. Further, under section 193 (which was not considered in the
October 2008 approval--a matter that EPA is now proposing to determine
was an error), an evaluation of the impacts of changes to Alabama's
visible emissions rule was required for the nonattainment areas because
the rule was in place prior to the 1990 amendments to the CAA.

II. Errors That EPA Made in the October 15, 2008 Rulemaking Approving
Alabama's Visible Emissions SIP Revisions

    EPA is proposing to determine, pursuant to CAA section 110(k)(6),
that its 2008 approval of Alabama's 2003 and 2008 SIP submittals was in
error. EPA is providing the specific error determinations and the basis
for each determination below.

A. EPA Erred in Interpreting CAA Section 110(l) as Allowing EPA To
Approve a SIP Revision That Relaxes Existing SIP Requirements Based on
Uncertainty Regarding Whether the Revision Will Worsen Air Quality

    In its 2008 action approving Alabama's 2003 and 2008 SIP
submittals, EPA conceded that ``modeling presented by commenters
show[ed] the possibility of an impact on the NAAQS under a worst-case
scenario.'' See 73 FR 60962. EPA noted, however, that ``the modeling
does not convincingly demonstrate the impact of the rule change on the
NAAQS because the level of PM emissions while operating at 100 percent
opacity, and the source-specific relationship between opacity and PM
emissions, are uncertain and are not demonstrated in the public
record.'' Id. (emphasis added). EPA further explained that ``the
relationship between changes in opacity and increases or decreases in
ambient PM2.5 levels cannot be quantified readily for the
sources subject to this SIP revision, and is particularly uncertain for
short-term analysis.'' See 73 FR 60959 (emphasis added). Based in part
on this finding of uncertainty regarding the actual air quality impacts
of the requested SIP revisions and EPA's interpretation of CAA section
110(l) as only barring EPA's approval of a requested SIP revision if
``the agency finds it will make air quality worse'' (see 73 FR 60960),
EPA concluded that the proposed revisions satisfied the requirements of
CAA section 110(l) with respect to the 24-hour PM NAAQS. See 73 FR
60959. In other words, under EPA's 2008 interpretation of section
110(l), a SIP relaxation ``would interfere'' with NAAQS attainment and
maintenance only where EPA is able to determine that it is more likely
than not that the revision would worsen air quality. Because EPA
concluded that data uncertainty prevented it from making that
determination with respect to Alabama's SIP revisions, EPA concluded
that it was approvable under section 110(l). As explained below, EPA
now proposes to conclude that the interpretation of section 110(l) that
EPA relied on for purposes of its 2008 approval of Alabama's requested
SIP revisions was erroneous. Because EPA's 2008 final action depended
on that erroneous statutory interpretation, EPA's approval of Alabama's
requested SIP revisions was itself in error.
    EPA's proposed conclusion that it erred in interpreting CAA section
110(l) as barring EPA's approval of a SIP relaxation only where EPA is
able to conclude that it is more likely than not that the relaxation
will make air quality worse is based on its view that this
interpretation does not adequately implement section 110(l) in light of
the CAA's purpose ``to protect and enhance the quality of the Nation's
air resources so as to promote the public health and welfare and the
productive capacity of its population,'' CAA section 101(b)(1).
Specifically, given the technical complexity of assessing how a
particular SIP revision will impact air quality, it may be difficult--
or even impossible--to determine in advance whether a requested SIP
revision will make air quality worse. Thus, an interpretation of the
phrase ``would interfere'' in CAA section 110(l) that allows EPA to
approve a SIP revision that relaxes existing SIP requirements despite
significant uncertainty regarding whether the change will worsen air
quality could well result in EPA approving SIP revisions that actually
do worsen air quality, which would be contrary to the express purpose
and requirements of section 110(l). While EPA could then attempt to
remedy the problem by issuing a SIP call under CAA section 110(k)(5),
compliance with SIP call procedures typically takes more than a year,
and sometimes much longer. In the meantime, the public would be exposed
to elevated air pollution levels. Thus, EPA finds that its 2008
approach of approving a SIP relaxation despite significant uncertainty
as to whether the relaxation ultimately will worsen air quality was in
error because such interpretation is inconsistent with section 110(l)
and with EPA's responsibility under CAA section 101(b)(1) ``to protect
and enhance the quality of the Nation's air resources so as to promote
the public health and welfare.''
    EPA now concludes that it should assume that a SIP revision that
relaxes an existing SIP requirement ``would interfere'' with NAAQS
attainment and maintenance in the absence of record evidence
demonstrating that it would not. This assumption makes sense given that
States adopt (and EPA approves) SIP requirements for the purpose of
attaining and maintaining the NAAQS. Thus, it should be assumed that
any existing SIP requirement is needed for that purpose, and if a State
wishes to revise or remove a SIP requirement, such request must be
accompanied by a demonstration that the revision would not interfere
with NAAQS attainment or maintenance.
    EPA's interpretation of CAA section 110(l) does not mean that a
small possibility that a SIP revision might allow increased pollution
that would interfere with NAAQS attainment or maintenance necessitates
EPA's disapproval. EPA recognizes that attainment planning generally
requires a high degree of technical judgment and often involves some
degree of uncertainty. Thus, under EPA's interpretation of CAA section
110(l), EPA can approve a SIP relaxation if the State demonstrates
either that it is unlikely that the revision would allow increased
pollution or that any increases allowed by the revision would not be
enough to interfere with NAAQS attainment or maintenance. Where data
uncertainty prevents such a demonstration, however, EPA will assume
that that the relaxation would interfere with NAAQS attainment or
maintenance. EPA cannot, as it did in its 2008 action approving
Alabama's 2003 and 2008 SIP submittals, rely on uncertainty regarding
whether a SIP relaxation would make air quality worse as the basis for
concluding that a revision is approvable under CAA section 110(l).

B. Even Applying EPA's 2008 Interpretation of CAA Section 110(l), EPA
Erred in Determining That the Record Was Insufficient To Demonstrate
That the Requested Revisions Would Interfere With NAAQS Attainment and
Maintenance

    Even applying its 2008 interpretation of CAA section 110(l)--which
EPA now concedes was erroneous--EPA proposes to conclude that it erred
in finding that uncertainty regarding the precise relationship between
changes in opacity levels and increases or decreases in PM emissions
meant that the record was insufficient to support a finding that the
requested SIP revisions would interfere with attainment and maintenance
of the PM NAAQS (see 73 FR 60959). While information in the record was
insufficient to quantify the precise impact that the requested
revisions would have on PM emissions, EPA now proposes to find that
available information was sufficient to conclude that Alabama's SIP
revisions would allow longer periods of elevated opacity that would, in
some circumstances, allow increased PM emissions and would interfere
with NAAQS attainment and maintenance.
    Under EPA's 2008 interpretation of CAA section 110(l), a
determination that Alabama's requested SIP revisions would more likely
than not allow a PM emissions increase would have precluded EPA's
approval absent other information demonstrating that such an emissions
increase would not interfere with NAAQS attainment and maintenance.
However, EPA determined that the uncertainty as to whether the SIP
revisions would allow a PM emissions increase was so great that no
likelihood could be estimated and found that this uncertainty made the
revisions approvable under section 110(l). As discussed below, after
reconsidering information in the record, EPA's judgment is that there
is a relationship between opacity and PM emissions that supports a
finding that Alabama's requested SIP revisions would, more likely than
not, authorize increased PM emissions in some cases that would
interfere with attainment and maintenance of the PM NAAQS.
    First, EPA observes that there is a general relationship between
opacity and PM emissions such that an increase in opacity means the
concentration of smaller particles, larger particles, or both,
increases. See, e.g., Malm, William C., ``Introduction to Visibility,''
Cooperative Institute for Research in the Atmosphere, May 1999 at Chap.
2, p. 8. See also Comments of the Utility Air Regulatory Group on EPA's
Proposed Approval of Revisions to the Visible Emissions Portion of the
Alabama Implementation Plan (Docket I.D EPA-R04-OAR-2005-AL-0002-0012),
at 4 (noting that ``an increase in opacity can be a good indication
that PM emissions at the stack also are increasing''). Because
increases in the quantity of smaller particles may be accompanied by
decreases in the quantity of larger particles, and vice versa, opacity
increases do not always reflect corresponding increases in the mass of
PM emissions. Furthermore, while source-specific relationships between
opacity and PM emissions may be obtained through testing, they can be
influenced by a variety of circumstances such as fuel composition and
types of equipment malfunction that may occur. However, uncertainty
about the precise correlation between PM mass emissions and opacity as
a general matter does not mean that opacity increases never represent
concurrent increases in the mass of PM emissions from a source. To the
contrary, given the large increases in maximum allowable opacity and
for the periods of time at issue in the SIP revisions contemplated in
Alabama's 2003 and 2008 submittals, EPA proposes to conclude that it is
likely that the requested SIP revisions would allow increased PM
emissions.
    Second, EPA notes that Alabama's SIP revisions likely would allow
PM emission increases because the revisions authorize higher opacity
levels for longer periods than allowed under the existing SIP opacity
rule. In EPA's experience, a longer period of high opacity (e.g., 100
percent opacity or other high opacity levels over a time period of an
hour or longer) is more likely to indicate a problem with a control
device--and, therefore, to correlate with an emission increase--than
high opacity over a shorter period (e.g., 20 percent to 40 percent
opacity over six minutes). Yet under Alabama's requested SIP revisions,
a control device could temporarily shut down or malfunction, resulting
in 100 percent opacity for up to 2.4 hours in a single day without
causing any violation of the opacity standard. As a result, Alabama's
requested SIP revisions undermine one of the primary purposes of
opacity limits: To ensure that sources properly maintain and operate
their PM control devices.
    In contrast, Alabama's previous SIP opacity limit, by requiring
consistent compliance at 20 percent and allowing only one excursion of
six minutes per hour of up to 40 percent opacity, provides a greater
incentive for sources to control their PM emissions with properly
maintained and operated control devices. In EPA's judgment, based on
experience, a source equipped with properly maintained and operated PM
control devices is capable of consistently achieving low opacity
levels. This conclusion is supported by the experience with the Colbert
plant in Alabama, where the TVA undertook improvements to minimize
opacity that included such items as training personnel, tracking
opacity more closely, and upgrading equipment. See Sierra Club v.
Tennessee Valley Authority, 592 F. Supp. 2d 1357 (N.D. Ala. 2009). A
district court concluded that as a result of these changes, ``Colbert
Unit 5 is capable of operating with essentially no non-exempt COMS
[Continuous Opacity Monitoring System] readings over 20%.'' Id. at
1369. The district court further observed that once TVA became aware
that it needed to comply with the opacity limit during all non-exempt
periods, ``it immediately and consistently came into compliance with
the 20% opacity limit in the SIP.'' Id. at 1370.
    While various entities provided EPA with modeling results to aid in
assessing the impact that Alabama's requested SIP revisions would have
on ambient air quality, EPA proposes to conclude that none of the
models reliably demonstrates the likely impact of the requested changes
to Alabama's visible emissions rule on PM emissions. Significantly, the
utility of all of the modeling data is undermined by the lack of
source-specific data on the mass-opacity relationship. The docket for
this action includes a TSD summarizing the modeling that EPA received
and some of the key assumptions and other issues that impacted the
utility of the modeling. Because of the weaknesses of the underlying
data and assumptions used in the modeling, none of the modeling results
are sufficient to rebut the information described above suggesting that
Alabama's requested revisions to SIP opacity restrictions would
correlate with increased PM emissions.
    Taken together, the observations described above lead EPA to
conclude there is a relationship between opacity and PM emissions such
that the opacity increases allowed by Alabama's requested SIP revisions
would more likely than not be associated with increased PM emissions in
some cases, thereby worsening air quality. Under EPA's longstanding
interpretation of section 110(l), a SIP relaxation that likely would
result in increased emissions, particularly in areas that are not
attaining the NAAQS, cannot be approved absent a contemporaneous
attainment demonstration or other air

quality analyses demonstrating that the revision will not interfere
with attainment or maintenance of the NAAQS.
    For example, in 2005, EPA proposed to disapprove a SIP revision
submitted by Ohio that would have relaxed opacity limitations for
sources that utilize a continuous opacity monitoring system. See 70 FR
36901 (June 27, 2005). Specifically, Ohio's proposed SIP revision would
have expanded the time that such sources could operate with opacity
levels above the generally applicable standard in the existing SIP. See
70 FR 36902. Under the revision, the time of such additional excess
opacity values could represent up to 1.1 percent of a source's
operating time per quarter. Id. In proposing to disapprove Ohio's
requested revision, EPA explained that though the revision would not
increase the total allowable time of excess opacity, ``the revised
rules allow excess opacity on occasions that excess opacity is
currently prohibited, without any compensating prohibitions of
emissions that are currently allowed.'' See 70 FR 36903. Based on that
observation, EPA concluded that ``the revised rule clearly allows
emissions that are prohibited by the current SIP.'' Id. Noting that CAA
section 110(l) prohibits EPA from approving a SIP revision that would
interfere with any applicable requirement concerning attainment or any
other applicable CAA requirement, EPA explained: ``Ohio provided no
analysis or demonstration that the emissions that are allowed by its
revised rule but are prohibited by the current SIP would not interfere
with attainment or other applicable requirements. Therefore, EPA must
disapprove this revised rule.'' \15\ Id.
---------------------------------------------------------------------------

    \15\ EPA has not yet finalized this proposal. EPA notes that
there is also an ongoing error correction process to address whether
an unrelated action erroneously approved the SIP revision.
---------------------------------------------------------------------------

    As in the case of Ohio's requested relaxation of SIP opacity
limits, the record for Alabama's requested SIP revisions lacks
additional information sufficient to rebut the presumption that the
relaxation of Alabama's SIP opacity requirements would interfere with
attainment and maintenance of the PM NAAQS. Following reconsideration
and a complete review of the record, EPA proposes to conclude that
available information was, in fact, sufficient to support a conclusion
that Alabama's requested SIP revisions would interfere with attainment
and maintenance of the PM NAAQS. Thus, EPA's 2008 determination that
Alabama's requested SIP revisions were approvable under section 110(l)
and its action approving the relaxation based on that conclusion were
erroneous.

C. EPA Erred by Relying on Its Determination That the Requested SIP
Revisions Would Not Change Average Quarterly and Daily Opacity Levels
to Support Its Finding That the Revisions Would Not Interfere With
Attainment and Maintenance of the Annual and 24-Hour PM NAAQS

    Aside from uncertainty, EPA also based its 2008 approval of
Alabama's 2003 and 2008 SIP revisions, in part, on its determination
that a source's allowable daily average and quarterly average opacity
levels would not change as a result of the revisions. See 73 FR 60959.
With respect to average daily opacity, this conclusion was based on a
provision in Alabama's requested SIP revisions providing that a
source's average daily opacity may not exceed 22 percent, excluding
periods of startup, shutdown, load change and rate change (or other
short intermittent periods upon terms approved by ADEM's Director and
included in a State-issued permit). Id. Though Alabama's Submittals did
not include a similar limit on average quarterly opacity, EPA
``calculated the `average quarterly opacity' allowed under both the
existing SIP and the proposed revisions and showed that the proposed
revision, with changes specified in the notice [of proposed
rulemaking], would result in no greater average quarterly opacity
allowed than what is allowed under the current standard.'' See 73 FR
60959. As explained below, EPA now proposes to conclude that it erred
by relying on average daily and quarterly opacity as a means for
evaluating whether the requested SIP revisions would interfere with
attainment or maintenance of the annual and 24-hour PM NAAQS.
    As discussed above, a primary purpose of opacity limits is to
ensure that sources properly maintain and operate their PM control
devices. Moreover, longer periods of high opacity are more likely than
shorter periods to indicate a control device problem. Under Alabama's
requested SIP revisions, a control device could temporarily shut down
or malfunction, resulting in 100 percent opacity for up to 2.4 hours,
yet the source could still be in compliance with the 22 percent average
daily limit (and experience no change in its average quarterly opacity
level). For example, in one day, a source that has 24 consecutive six-
minute periods of 100 percent opacity but remains below an average of
13 percent opacity for the remaining 216 six-minute periods in the day
would meet the 22 percent average daily opacity limit.\16\ By
``averaging away'' such long periods of high opacity, Alabama's revised
rule allows high opacity to be excused during precisely those periods
that are expected to be associated with increased PM emissions. Thus,
determining that Alabama's requested SIP revisions would not allow a
source to increase its average quarterly or average daily opacity
levels provides no basis for determining that the revisions will not
allow a source to increase its PM emissions. Because EPA erroneously
relied in part on its finding that average quarterly and average daily
allowable opacity levels would not be affected by Alabama's requested
SIP revisions in finding that the revisions were approvable under
section 110(l), EPA proposes to conclude that its 2008 approval action
was itself erroneous.
---------------------------------------------------------------------------

    \16\ Assuming no excluded periods of startup, shutdown, load
change and rate change (or other short intermittent periods upon
terms approved by ADEM's Director and included in a State-issued
permit), there are 240 six-minute periods in a 24-hour day.
---------------------------------------------------------------------------

D. EPA Erred in Concluding That Alabama's Requested SIP Revisions Did
Not Establish an Automatic Exemption From an Emission Limitation in
Violation of CAA Section 302(k)

    In approving Alabama's requested SIP revisions in 2008, EPA also
erred by failing to recognize that Alabama's requested SIP revisions
functionally established an automatic exemption from an emission
limitation in violation of CAA section 302(k), 42 U.S.C. 7602(k). If
EPA had correctly identified this issue, EPA would not have taken the
2008 action approving Alabama's 2003 and 2008 SIP submittals, nor would
it have been authorized to do so. See CAA section 110(l) (``The
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress . . . or any other applicable
requirement of this chapter.'' (emphasis added). Therefore, EPA
proposes to conclude that its failure to recognize that Alabama's
requested SIP revisions violated section 302(k) rendered its 2008
approval action erroneous and in need of correction under CAA section
110(k)(6).
    The section 302(k) violation arises from the provision in Alabama's
requested SIP revisions that authorizes, for sources that meet the
revised rule's criteria, up to 24 six-minute averages of 100 percent
opacity per calendar day.\17\

See AAC Chapter 335-3-4-.01(4). Because 100 percent opacity is the
maximum level of opacity possible, the allowance of up to 24 six-minute
averages of 100 percent opacity per calendar day functionally equates
to an exemption from the otherwise applicable SIP emission limitation
for those periods.\18\
---------------------------------------------------------------------------

    \17\ Whether a source could take advantage of the full
allocation of 24 six-minute averages per day of 100 percent opacity
depends on its operating hours; under the revised rule, periods of
opacity above 20 percent are limited to a total of 2.0 percent of
the source calendar quarter operating hours for which the opacity
standard is applicable and for which the COMS is indicating valid
data.
    \18\ Regulatory provisions previously incorporated into
Alabama's SIP (under Alabama rule 335-3-4-.01(1)(c) and (d))
authorize ADEM's Director to approve source-specific exceptions to
the opacity standard for startup, shutdown, load change, and rate
change or other short, intermittent periods of time upon terms
approved by the Director and made part of a source's permit. Because
Alabama's 2003 and 2008 SIP submittals did not request a revision to
these provisions, EPA did not address these provisions in its 2008
approval action. See 73 FR 60958 n. 1. Nothing in this notice should
be construed as a determination by EPA that these provisions are
consistent with CAA requirements.
---------------------------------------------------------------------------

    Section 302(k) defines ``emission limitation'' for CAA purposes, in
relevant part, as ``a requirement . . . which limits the quantity,
rate, or concentration of emissions of air pollutants on a continuous
basis. . . .'' \19\ Alabama's opacity rule is incorporated into
Alabama's SIP to satisfy CAA section 110(a)(2)(A), which requires that
each SIP include ``enforceable emission limitations and other control
measures, means, or techniques . . . as may be necessary or appropriate
to meet the applicable requirements of this chapter.'' (emphasis
added). Thus, Alabama's opacity rule constitutes an ``emission
limitation'' under the CAA and is subject to that term's definition in
CAA section 302(k). By functionally carving out an exemption from the
opacity limitation for up to 24 six-minute averages per day, Alabama's
requested SIP revisions contravene section 302(k)'s unambiguous
requirement that an emission limitation restrict emissions ``on a
continuous basis.'' See, e.g., Sierra Club v. EPA, 551 F.3d 1019, 1027-
1028 (D.C. Cir. 2008) (vacating an exemption for startup, shutdown, and
malfunction periods contained in federal regulations issued under CAA
section 112 on the basis that ``[w]hen sections 112 and 302(k) are read
together,'' the CAA ``require[es] that some section 112 standard apply
continuously.''); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th
Cir. 2012) (denying a petition for review challenging EPA's issuance of
a section 110(k)(5) SIP call requiring Utah to revise its SIP to
eliminate a provision that automatically exempted sources from SIP
compliance during unavoidable equipment breakdowns; the SIP call was
based, inter alia, on section 302(k)'s requirement that emission
limitations apply on a continuous basis).
---------------------------------------------------------------------------

    \19\ In full, CAA section 302(k) defines ``emission limitation
as ``a requirement established by the State or the Administrator
which limits the quantity, rate, or concentration of emissions of
air pollutants on a continuous basis, including any requirement
relating to the operation or maintenance of a source to assure
continuous emission reduction and any design, equipment, work
practice or operational standard promulgated under this chapter.''
---------------------------------------------------------------------------

    In a recent proposed rulemaking, EPA explained as a technical,
legal and policy matter why rules that authorize automatic exemptions
from emissions limits are inconsistent with the CAA and thus, unlawful.
78 FR 12460 (February 22, 2013) (``State Implementation Plans: Response
to Petition for Rulemaking; Findings of Substantial Inadequacy; SIP
Calls to Amend Provisions Applying to Excess Emissions During Periods
of Startup, Shutdown and Malfunction,'' referred to as the ``SSM
proposal''). Although the SSM proposal provides a useful synopsis of
the applicable requirements under the CAA, EPA's position that the CAA
prohibits automatic exemptions from SIP emission limitations has
remained unchanged since at least 1982. See 78 FR 12489. The rationale
provided in the SSM proposal for why SSM exemptions are contrary to the
CAA's language and purpose applies equally to Alabama's requested
opacity exemption.
    When approving Alabama's requested SIP revisions in 2008, EPA
responded to a public comment asserting that EPA's approval of
Alabama's revised rule would violate section 302(k) in that it ``would
be approving an `automatic exemption' from certain emission limitations
that must function on a `continuous basis.''' See 73 FR 60960. At the
time, EPA responded that rather than creating an exemption from the
rule, Alabama's SIP submittal involved ``revisions to the rule
itself.'' Id. EPA contended that ``[a] source that meets the
requirements of the revised standard will be in continuous compliance
with the standard.'' Id. EPA also stated: ``The provisions of the CAA
and its implementing regulations cited by the commenters do not require
that all SIP measures require compliance with the same numerical
emission limitation at all times.'' Id. Based on that analysis, EPA
contended Alabama's requested SIP revisions did not violate section
302(k). See 73 FR 60960. EPA now proposes to conclude that its 2008
analysis of whether Alabama's requested SIP revisions violated section
302(k) was erroneous. First, EPA's argument in 2008 that Alabama's
revised rule allowing periods of 100 percent opacity is lawful because
the amended regulatory language appears in ``the rule itself'' is
contrary to CAA section 302(k)'s plain language, which expressly
requires that the ``emission limitation'' itself limit emissions on a
continuous basis. Section 302(k) is not satisfied simply by requiring
continuous compliance with a standard that does not itself apply on a
continuous basis. Second, while EPA continues to agree with its
statement in 2008 that SIP measures need not ``require compliance with
the same numerical emission limitation at all times'' (emphasis added),
EPA disagrees with the implication in EPA's 2008 response that
Alabama's allowance of 100 percent opacity for up to 24 six-minute
averages per day constitutes a ``numerical emission limitation'' at
all. Rather, as explained above, because 100 percent opacity is the
maximum opacity level possible, the revised rule's allowance of up to
24 six-minute averages of 100 percent opacity per calendar day
functionally equates to an exemption from the emission limitation for
those periods. As a result, many opacity exceedances that would have
been violations of the previous rule are now exempted under the revised
rule. Thus, EPA now proposes to conclude that the SIP revision
requested in Alabama's 2003 and 2008 submittals do, in fact, violate
section 302(k), and therefore, that EPA's 2008 action approving
Alabama's requested SIP revisions was erroneous.

E. EPA Erred by Failing To Evaluate Whether Alabama's Requested SIP
Revisions Complied With CAA Section 193

    In approving Alabama's requested SIP revisions in 2008, EPA also
erred by failing to consider whether the requested revision was
consistent with CAA section 193. Section 193 provides: ``No control
requirement in effect . . . before November 15, 1990, in any area which
is a nonattainment area for any air pollutant may be modified after
November 15, 1990, in any manner unless the modification insures
equivalent or greater emission reductions of such air pollutant.'' See
42 U.S.C. 7515. Congress added this provision in the 1990 Amendments as
part of an effort to ensure adequate support for NAAQS attainment and
maintenance. Consistent with the provision's plain text, Congress'
intent in adopting this provision was to provide a `back-up' anti-
backsliding provision for nonattainment areas

beyond what was provided by 110(l).\20\ Because Alabama's 2003 and 2008
SIP submittals proposed to revise a ``control requirement'' that was
``in effect before November 15, 1990'' and that applied to PM
nonattainment areas (see section I.D. above), EPA's 2008 action should
have included an analysis for why Alabama's requested SIP revisions did
not contravene CAA section 193. Because such an analysis is a critical
prerequisite to approving any modification to a pre-1990 control
requirement, EPA proposes to conclude that the lack of such an analysis
made EPA's 2008 approval of Alabama's 2003 and 2008 SIP submittals
erroneous.\21\
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    \20\ See, e.g., Senate Debate on the 1990 Amendments to the CAA
Conference Report (Oct. 26, 1990), 1990 CAA Legis. Hist. 1097, 1126-
1127 (Comments of Senator Chafee, R-RI, primary drafter of CAA
Amendments of 1990).
    \21\ In EPA's 2011 final action disapproving Alabama's 2003 and
2008 SIP submittals under CAA section 110(l), which the 11th Circuit
subsequently vacated, EPA noted that it did not complete a section
193 analysis because the Submittals already were not approvable. EPA
also noted that if Alabama's requested SIP revisions did not
interfere with NAAQS attainment and maintenance it was unlikely to
interfere with other requirements of the Act. However, even assuming
for the sake of argument that such statement would suffice as a
section 193 analysis had it been included in the 2008 final notice,
it was not included in that notice and therefore cannot serve as a
basis for the 2008 approval.
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III. Basis of EPA's Proposal To Disapprove Alabama's SIP Revisions
Related to Visible Emissions

    Upon reconsideration of available information, and in light of the
errors in EPA's 2008 analysis described above, EPA now proposes
pursuant to its error correction authority under CAA section 110(k)(6)
to disapprove Alabama's 2003 and 2008 SIP revisions.

A. Alabama's Requested SIP Revisions Are Not Approvable Under CAA
Section 110(l)

    As explained above, upon reconsideration of the available
information, EPA now proposes to conclude that Alabama's requested SIP
revisions would interfere with attainment and maintenance of the PM
NAAQS and are therefore not approvable under CAA section 110(l).
Specifically, in EPA's technical judgment, the increased opacity levels
authorized by Alabama's revised rule would, more likely than not, be
associated with increased PM emissions in some cases. Under
circumstances such as this where EPA concludes that a SIP revision
would allow increased emissions, EPA assumes that the relaxation would
interfere with NAAQS attainment and maintenance in the absence of a
contemporaneous attainment demonstration or other air quality analyses
demonstrating that the relaxation will not, in fact, interfere with
NAAQS attainment and maintenance. Because Alabama made no such
demonstration, EPA proposes to conclude that Alabama's 2003 and 2008
SIP revisions are not approvable under CAA section 110(l). Therefore,
pursuant to its error correction authority under CAA section 110(k)(6),
EPA now proposes to disapprove Alabama's 2003 and 2008 Submittals.
    EPA's proposed conclusion that Alabama's requested SIP revisions
``would interfere'' with PM NAAQS attainment and maintenance and
therefore is not approvable under CAA section 110(l) remains the same
regardless of whether EPA applies its current interpretation of CAA
section 110(l) or its 2008 interpretation. The fundamental difference
between these two interpretations pertains to how they address
uncertainty regarding whether a SIP relaxation would allow increased
emissions. Under the 2008 interpretation, EPA assumed that a SIP
relaxation would not interfere with NAAQS attainment and maintenance
unless available information demonstrated that, more likely than not,
the relaxation would allow increased emissions. Under EPA's current
interpretation, EPA assumes that a SIP relaxation would allow increased
emissions, and thereby interfere with NAAQS attainment and maintenance,
unless available information indicates that, more likely than not, the
revision will not allow increased emissions. In other words, in the
face of uncertainty, EPA's current interpretation of CAA section 110(l)
errs on the side of protecting air quality. However, in EPA's technical
judgment, available information is sufficient to demonstrate that, more
likely than not, Alabama's 2003 and 2008 Submittals would allow
increased PM emissions in some circumstances. Thus, even under EPA's
less protective 2008 interpretation, EPA now proposes to conclude that
Alabama's 2003 and 2008 Submittals are not approvable under CAA section
110(l).
    In addition to interfering with attainment and maintenance of the
PM NAAQS, EPA proposes to conclude that Alabama's requested SIP
revisions are not approvable under CAA section 110(l) because it
interferes with the requirements of CAA section 302(k). Specifically,
as explained earlier in this notice, CAA section 302(k) requires that
any ``emission limitation'' adopted under the CAA apply ``on a
continuous basis,'' and Alabama's SIP opacity rule constitutes an
``emission limitation'' that must meet CAA section 302(k)'s
requirements. By authorizing emissions with up to 100 percent opacity
for up to 24 six-minute averages per day, Alabama's revised opacity
rule effectively exempts sources from compliance with opacity
restrictions during those periods. As a result, the revised opacity
rule would not apply to sources ``on a continuous basis,'' in
contravention of CAA section 302(k). For this additional reason, EPA
proposes to conclude that Alabama's 2003 and 2008 SIP submittals are
not approvable under CAA section 110(l).

B. Alabama's Requested SIP Revisions Are Not Approvable Under CAA
Section 193

    Under CAA section 193, ``[n]o control requirement in effect . . .
before November 15, 1990, in any area which is a nonattainment area for
any air pollutant may be modified after November 15, 1990, in any
manner unless the modification insures equivalent or greater emission
reductions of such air pollutant.'' As discussed above, because
Alabama's opacity requirements were incorporated into the SIP well
before November 15, 1990, and because the requested opacity revision
applied in nonattainment areas, EPA should have evaluated whether
Alabama's 2003 and 2008 Submittals complied with CAA section 193 prior
to its 2008 approval action. EPA notes that when correcting an error
pursuant to section 110(k)(6), we must evaluate whether there was an
error in light of the circumstances that existed at the time of the
original action. Subsequent to its 2008 approval action, EPA
redesignated most of Alabama's PM nonattainment areas to attainment.
Nonetheless, one Alabama area continues to be designated nonattainment
for the 1997 PM2.5 NAAQS: the Jackson County portion of the
Chattanooga nonattainment area.\22\ Section 193 is applicable for
nonattainment areas until such time that EPA takes final action to
redesignate an area to attainment.\23\ Thus, whether evaluated under
the facts and circumstances of 2008 or today,

Alabama's requested SIP revisions must satisfy section 193 to be
approvable.
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    \22\ While Alabama submitted a SIP revision to EPA that proposes
a maintenance plan and a request to redesignate the Jackson County
nonattainment area to attainment for the 1997 PM2.5
NAAQS, this SIP revision is still under review.
    \23\ EPA previously determined that this Area met the 1997
PM2.5 NAAQS based on air quality data at the time, and
also made the determination that this Area attainment the 1997
PM2.5 NAAQS by its attainment date. See 76 FR 31239 (May
31, 2011) and 76 FR 55774 (September 8, 2011). However, these
determinations do not constitute a redesignation of the Area from
nonattainment to attainment.
---------------------------------------------------------------------------

    Given EPA's conclusion that the opacity increases authorized by
Alabama's requested SIP revision would, more likely than not, be
associated with increased PM emissions in some cases, CAA section 193
bars EPA's approval unless the State demonstrates that its 2003 and
2008 SIP revisions offset such PM increases with equivalent or greater
emission reductions. Nothing in the record for this action indicates
that the Submittals include any mechanism to obtain such offsetting PM
emission reductions. Therefore, EPA proposes to conclude that Alabama's
2003 and 2008 Submittals do not meet section 193's requirements and, as
a result, must be disapproved.

IV. Proposed Actions

    Today, EPA is proposing to take action to reconsider its previous
approval of Alabama's visible emission rule in October 2008. In
summary, EPA is proposing to determine, pursuant to CAA section
110(k)(6), that it erred in approving the Submittals (dated September
11, 2003, and August 22, 2008) in 2008 for the reasons outlined in
Section II of this proposed rulemaking. Consequently, EPA is also
proposing to disapprove the Submittals. Should this proposed action be
finalized, the version of Alabama's visible emissions rule that was
approved in the SIP prior to EPA's October 15, 2008, final action will
be the ``current'' SIP-approved rule.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a significant regulatory action and is therefore
not subject to Office of Management and Budget review.

B. Paperwork Reduction Act

    This proposed action does not impose any new information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., and therefore is not subject to these requirements.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
    This proposed rule will not have a significant impact on a
substantial number of small entities because SIP disapprovals under
section 110 of the CAA do not create any new requirements. Therefore,
because the Federal SIP disapproval does not create any new
requirements, I certify that this action will not have a significant
economic impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the CAA,
preparation of flexibility analysis would constitute Federal inquiry
into the economic reasonableness of state action. The CAA forbids EPA
to base its actions concerning SIPs on such grounds. Union Electric
Co., v. U.S. EPA, 427 US 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995
(Unfunded Mandates Act), signed into law on March 22, 1995, EPA must
prepare a budgetary impact statement to accompany any proposed or final
rule that includes a Federal mandate that may result in estimated costs
to State, local, or tribal governments in the aggregate; or to the
private sector, of $100 million or more. Under section 205, EPA must
select the most cost-effective and least burdensome alternative that
achieves the objectives of the rule and is consistent with statutory
requirements. Section 203 requires EPA to establish a plan for
informing and advising any small governments that may be significantly
or uniquely impacted by the rule.
    EPA has determined that the disapproval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either state, local, or tribal governments in the
aggregate, or to the private sector. This Federal action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or EPA
consults with state and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts state law unless the
Agency consults with state and local officials early in the process of
developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
because it merely proposes to disapprove a state rule implementing a
federal standard, and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
Thus, the requirements of section 6 of the Executive Order do not apply
to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. This
proposed rule will not have substantial direct effects on tribal
governments, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes. Thus, Executive Order
13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because
it does not involve decisions intended to mitigate environmental health
or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
    EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.

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.

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

    Dated: January 24, 2014.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2014-02938 Filed 2-12-14; 8:45 am]
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