Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81863 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2010. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart Z—Mississippi 

■ 2. In § 52.1270(c) the table is amended 

by revising the following entry for 

‘‘APC–S–5’’ to read as follows: 

§ 52.1270 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED MISSISSIPPI REGULATIONS

State citation Title/subject 

State 

effective 

date 

EPA approval date Explanation 

*******

APC–S–5 Regulations for the Prevention of Significant Deterioration of Air Quality 

All ........................................ .................... 12/1/2010 12/29/2010 .........................

[Insert citation of publication].

APC–S–5 incorporates by reference the regulations 

found at 40 CFR 52.21 as of September 13, 2010. 

This EPA action is approving the incorporation by 

reference with the exception of the phrase ‘‘except 

ethanol production facilities producing ethanol by 

natural fermentation under the North American Industry Classification System (NAICS) codes 325193 

or 312140,’’ APC–S–5 incorporated by reference 

from 40 CFR 52.21(b)(1)(i)(a) and (b)(1)(iii)(t) APC– 

S–5. In addition, this EPA action is not incorporating 

by reference, into the Mississippi SIP, the administrative regulations that were amended in the Fugitive 

Emissions Rule (73 FR 77882) and are stayed 

through October 3, 2011. 

* * * * * 

[FR Doc. 2010–32667 Filed 12–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0697–201072; FRL– 

9244–5] 

Approval and Promulgation of 

Implementation Plans; Alabama: 

Prevention of Significant Deterioration; 

Greenhouse Gas Tailoring Rule 

Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the State 

Implementation Plan (SIP), submitted 

by the State of Alabama, through the 

Alabama Department of Environmental 

Management (ADEM), to EPA on August 

17, 2010, for parallel processing. ADEM 

submitted the final version of this SIP 

revision on December 14, 2010. The SIP 

revision incorporates updates to 

ADEM’s air quality regulations 

impacting the regulation of greenhouse 

gas (GHG) under Alabama’s New Source 

Review (NSR) Prevention of Significant 

Deterioration (PSD) program. 

Specifically, the SIP revision establishes 

appropriate emission thresholds for 

determining which new stationary 

sources and modification projects 

become subject to Alabama’s PSD 

permitting requirements for their GHG 

emissions. The change is necessary 

because without it, on January 2, 2011, 

PSD requirements would apply at the 

100 or 250 tons per year (tpy) levels 

otherwise provided under the Clean Air 

Act (CAA or Act), which would 

overwhelm Alabama’s permitting 

resources. EPA is approving Alabama’s 

December 14, 2010, SIP revision 

because the Agency has made the 

determination that this SIP revision is in 

accordance with the CAA and EPA 

regulations, including regulations 

pertaining to PSD permitting for GHGs. 

Additionally, EPA is responding to 

adverse comments received on EPA’s 

November 5, 2010, proposed approval of 

Alabama’s August 17, 2010, draft SIP 

revision. 

DATES: Effective Date: This rule will be 

effective January 18, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0697. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

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 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Alabama SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Bradley’s telephone number is (404) 

562–9352; e-mail address: 

bradley.twunjala@epa.gov. For 


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81864 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

1On December 13, 2010, EPA finalized a ‘‘SIP 

Call’’ that would require those states with SIPs that 

do not authorize PSD permitting for GHGs to submit 

a SIP revision providing such authority. 75 FR 

77698. In a companion rulemaking, EPA proposed 

a federal implementation plan (FIP) that would 

apply in any state that is unable to submit the 

required SIP revision by its deadline. 75 FR 53883 

(September 2, 2010). Because Alabama’s SIP already 

authorizes Alabama to regulate GHGs once GHGs 

become subject to PSD requirements on January 2, 

2011, Alabama is not subject to the proposed SIP 

Call or FIP. 

2 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

3 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

4 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

5Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

information regarding the Tailoring 

Rule, contact Ms. Heather Abrams, Air 

Permits Section, at the same address 

above. Ms. Abrams’ telephone number 

is (404) 562–9185; e-mail address: 

abrams.heather@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for today’s final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of today’s final action? 

IV. When is today’s action effective? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What is the background for today’s 

final action? 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action on the Alabama SIP.1 Four of 

these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,2 the ‘‘Johnson Memo 

Reconsideration,’’ 3 the ‘‘Light-Duty 

Vehicle Rule,’’ 4 and the ‘‘Tailoring 

Rule.’’ 5 Taken together, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they take effect on January 2, 2011, will 

subject GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. 

On August 17, 2010, in response to 

the Tailoring Rule and earlier GHGrelated EPA rules, ADEM submitted a 

draft revision to EPA for approval into 

the Alabama SIP to establish 

appropriate emission thresholds for 

determining which new or modified 

stationary sources become subject to 

Alabama’s PSD permitting requirements 

for GHG emissions. Subsequently, on 

November 5, 2010, EPA published a 

proposed rulemaking to approve 

Alabama’s August 17, 2010, SIP revision 

under parallel processing. 75 FR 68285. 

Specifically, Alabama’s August 17, 

2010, draft SIP revision includes 

changes to ADEM’s Air Quality 

Regulations, 335–3–14–.04, Air Permits 

Authorizing Construction in Clean Air 

Areas—Prevention of Significant 

Deterioration Permitting (PSD). The 

changes to ADEM’s Rule 335–3–14–.04 

Air Permits Authorizing Construction in 

Clean Air Areas—Prevention of 

Significant Deterioration Permitting 

(PSD) address the thresholds for GHG 

permitting applicability. Detailed 

background information and EPA’s 

rationale for the proposed approval are 

provided in EPA’s November 5, 2010, 

Federal Register notice. 

EPA’s November 5, 2010, proposed 

approval was contingent upon Alabama 

providing a final SIP revision that was 

substantively the same as the revision 

proposed for approval by EPA in the 

November 5, 2010, proposed 

rulemaking. 75 FR 68285. Alabama 

provided its final SIP revision on 

December 14, 2010. There were no 

changes between Alabama’s August 17, 

2010, draft SIP revision and the final 

SIP revision which was provided on 

December 14, 2010. 

II. What is EPA’s response to comments 

received on this action? 

EPA received two sets of comments 

on the November 5, 2010, proposed 

rulemaking to approve revisions to 

Alabama’s SIP. One set of comments, 

provided by the Sierra Club, was in 

favor of EPA’s November 5, 2010, 

proposed action. The other set of 

comments, provided by the Air 

Permitting Forum, raised concerns with 

final action on EPA’s November 5, 2010, 

proposed action. A full set of the 

comments provided by both the Sierra 

Club and Air Permitting Forum 

(hereinafter referred to as ‘‘the 

Commenter’’) is provided in the docket 

for today’s final action. A summary of 

the adverse comments and EPA’s 

responses are provided below. 

Generally, the adverse comments fall 

into four categories. First, the 

Commenter asserts that PSD 

requirements cannot be triggered by 

GHGs. Second, the Commenter 

expresses concerns regarding a footnote 

in the November 5, 2010, proposal 

describing EPA’s previously announced 

intention to narrow its prior approval of 

some SIPs to ensure that sources with 

GHG emissions that are less than the 

Tailoring Rule’s thresholds will not be 

obligated under federal law to obtain 

PSD permits prior to a SIP revision 

incorporating those thresholds. The 

Commenter explains that the planned 

SIP approval narrowing action ‘‘is 

illegal.’’ Third, the Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Lastly, the Commenter 

states: ‘‘EPA should explicitly state in 

any final rule that the continued 

enforceability of these provisions in the 

Alabama SIP is limited to the extent to 

which the federal requirements remain 

enforceable.’’ EPA’s response to these 

four categories of comments is provided 

below. 

Comment 1: The Commenter asserts 

that PSD requirements cannot be 

triggered by GHGs. In its letter, the 

Commenter reiterates EPA’s statement 

that without the Tailoring Rule 

thresholds, PSD will apply as of January 

2, 2011, to all stationary sources that 

emit or have the potential to emit, 

depending on the source category, either 

100 or 250 tons of GHG per year. The 

Commenter also reiterates EPA’s 

statement that beginning January 2, 

2011, a source owner proposing to 

construct any new major source that 

emits at or higher than the GHG 

applicability levels, or modify any 

existing major source in a way that 

would increase GHG emissions, would 

need to obtain a PSD permit that 

addresses these emissions before 

construction could begin. In raising 

concerns with the two aforementioned 

statements, the Commenter states: ‘‘No 

area in the State of Alabama has been 

designated attainment or unclassifiable 

for greenhouse gases (GHGs), as there is 

no national ambient air quality standard 

(NAAQS) for GHGs. Therefore, GHGs 

cannot trigger PSD permitting.’’ The 

Commenter notes that it made this 

argument in detail in comments 

submitted to EPA on the Tailoring Rule 

and other related GHG rulemakings. The 

Commenter attached those previously 

submitted comments to its comments on 

the proposed rulemaking related to this 

action. Finally, the Commenter states 

that ‘‘EPA should immediately provide 

notice that it is now interpreting the Act 

not to require that GHGs trigger PSD and 

allow Alabama to rescind that portion of 

its rules that would allow GHGs to 

trigger PSD.’’ 

Response 1: EPA established the 

requirement that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants, in 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81865 

earlier national rulemakings concerning 

the PSD program, and EPA has not reopened that issue in this rulemaking. In 

an August 7, 1980, rulemaking at 45 FR 

52676, 45 FR 52710–52712, and 45 FR 

52735, EPA stated that a ‘‘major 

stationary source’’ was one which 

emitted ‘‘any air pollutant subject to 

regulation under the Act’’ at or above the 

specified numerical thresholds; and 

defined a ‘‘major modification,’’ in 

general, as a physical or operational 

change that increased emissions of ‘‘any 

pollutant subject to regulation under the 

Act’’ by more than an amount that EPA 

variously termed as de minimis or 

significant. In addition, in EPA’s NSR 

Reform rule at 67 FR 80186 and 67 FR 

80240 (December 31, 2002), EPA added 

to the PSD regulations the new 

definition of ‘‘regulated NSR pollutant’’ 

(currently codified at 40 CFR 

52.21(b)(50) and 40 CFR 51.166(a)(49)); 

noted that EPA added this term based 

on a request from a commenter to 

‘‘clarify which pollutants are covered 

under the PSD program;’’ and explained 

that in addition to criteria pollutants for 

which a NAAQS has been established, 

‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS [new source 

performance standard] applicable to a 

previously unregulated pollutant.’’ Id. at 

67 FR 80240 and 67 FR 80264. Among 

other things, the definition of ‘‘regulated 

NSR pollutant’’ includes ‘‘[a]ny 

pollutant that otherwise is subject to 

regulation under the Act.’’ See 40 CFR 

52.21(b)(50)(d)(iv); see also id. 40 CFR 

51.166(a)(49)(iv). 

In any event, EPA disagrees with the 

Commenter’s underlying premise that 

PSD requirements are not triggered for 

GHGs when GHGs become subject to 

regulation as of January 2, 2011. As just 

noted, this has been well established 

and discussed in connection with prior 

EPA actions, including, most recently, 

the Johnson Reconsideration and the 

Tailoring Rule. In addition, EPA’s 

November 5, 2010, proposed rulemaking 

notice provides the general basis for the 

Agency’s rationale that GHG (while not 

a NAAQS pollutant) can trigger PSD 

permitting requirements. The November 

5, 2010, notice also refers the reader to 

the preamble to the Tailoring Rule for 

further information on this rationale. In 

that rulemaking, EPA addressed at 

length the comment that PSD can be 

triggered only by pollutants subject to 

the NAAQS, and concluded such an 

interpretation of the Act would 

contravene Congress’ unambiguous 

intent. See 75 FR 31560–31562. Further 

discussion of EPA’s rationale for 

concluding that PSD requirements are 

triggered by non-NAAQS pollutants 

such as GHGs appears in the Tailoring 

Rule Response-to-Comments document 

(‘‘Prevention of Significant Deterioration 

and Title V GHG Tailoring Rule: EPA’s 

Response to Public Comments’’), pp. 34– 

41; and in EPA’s response to motions for 

a stay filed in the litigation concerning 

those rules (‘‘EPA’s Response to Motions 

for Stay,’’ Coalition for Responsible 

Regulation v. EPA, DC Cir. No. 09–1322 

(and consolidated cases)), at pp. 47–59, 

and are incorporated by reference here. 

These documents have been placed in 

the docket for today’s action. 

Comment 2: The Commenter 

expresses concerns regarding a footnote 

in which EPA describes its previously 

announced intention to narrow its prior 

approval of some SIPs to ensure that 

sources with GHG emissions that are 

less than the Tailoring Rule’s thresholds 

will not be obligated under federal law 

to obtain PSD permits during any gap 

between when GHG permitting 

requirements go into effect and when 

the SIP is revised to incorporate the 

Tailoring Rule thresholds. The 

Commenter explains that narrowing ‘‘is 

illegal.’’ Further, the Commenter states 

that ‘‘EPA has not proposed to narrow 

Alabama’s SIP approval here and any 

such proposal must be explicit and 

address the action specifically made 

with respect to Alabama. EPA cannot 

sidestep these important procedural 

requirements.’’ 

Response 2: While EPA does not agree 

with the Commenter’s assertion that the 

narrowing approach discussed in EPA’s 

Tailoring Rule is illegal, the narrowing 

approach was not the subject of EPA’s 

November 5, 2010, proposed rulemaking 

to approve Alabama’s August 17, 2010, 

draft SIP revision. Rather the narrowing 

approach was the subject of a separate 

rulemaking, and any action to use this 

approach for Alabama’s SIP will be 

considered and finalized in an action 

separate from today’s rulemaking. In 

today’s final action, EPA is taking action 

to approve a SIP revision submitted by 

Alabama, and is not otherwise 

narrowing its approval of prior 

submitted and approved provisions in 

the Alabama SIP. Accordingly, the 

legality of the narrowing approach is not 

at issue in this rulemaking. 

Comment 3: The Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Specifically, the 

Commenter refers to the statutory and 

executive orders for the Paperwork 

Reduction Act, the Regulatory 

Flexibility Act (RFA), Unfunded 

Mandates Reform Act, and Executive 

Order 13132 (Federalism). Additionally, 

the Commenter mentions that EPA has 

never analyzed the costs and benefits 

associated with triggering PSD for 

stationary sources in Alabama, much 

less nationwide. 

Response 3: EPA disagrees with the 

Commenter’s statement that EPA has 

failed to meet applicable statutory and 

executive order review requirements. As 

stated in EPA’s proposed approval of 

Alabama’s August 17, 2010, SIP 

revision, this action merely approves 

state law as meeting federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. Accordingly, EPA 

approval, in-and-of-itself, does not 

impose any new information collection 

burden, as defined in 5 CFR 1320.3(b) 

and (c), that would require additional 

review under the Paperwork Reduction 

Act. In addition, this SIP approval will 

not have a significant economic impact 

on a substantial number of small 

entities, beyond that which would be 

required by the state law requirements, 

so a regulatory flexibility analysis is not 

required under the RFA. Accordingly, 

this rule is appropriately certified under 

section 605(b) of the RFA. Moreover, as 

this action approves pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandates or significantly or uniquely 

affect small governments, such that it 

would be subject to the Unfunded 

Mandates Reform Act. Finally, this 

action does not have federalism 

implications that would make Executive 

Order 13132 applicable because it 

merely approves a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

In sum, today’s rule is a routine 

approval of a SIP revision, approving 

state law, and does not impose any 

requirements beyond those imposed by 

state law. To the extent these comments 

are directed more generally to the 

application of the statutory and 

executive order reviews to the required 

regulation of GHGs under PSD 

programs, these comments are irrelevant 

to the approval of state law in today’s 

action. However, EPA provided an 

extensive response to similar comments 

in promulgating the Tailoring Rule. EPA 

refers the Commenter to the sections in 

the Tailoring Rule entitled ‘‘VII. 

Comments on Statutory and Executive 

Order Reviews,’’ 75 FR 31601–31603, 

and ‘‘VI. What are the economic impacts 

of the final rule?,’’ 75 FR 31595–31601. 

EPA also notes that today’s action does 

not in-and-of itself trigger the regulation 


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81866 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

of GHGs. To the contrary, by putting in 

place higher PSD applicability 

thresholds for GHGs than would 

otherwise be in effect under the Act, 

this rulemaking, as well as EPA’s 

Tailoring Rule, provides relief to smaller 

GHG-emitting sources that would 

otherwise be subject to PSD permitting 

requirements for their GHG emissions. 

Comment 4: The Commenter states 

that ‘‘[i]f EPA proceeds with this action, 

it must condition approval on the 

continued validity of its determination 

that PSD can be triggered by or is 

applicable to GHGs.’’ Further, the 

Commenter remarks on the ongoing 

litigation in the U.S. Court of Appeals 

for the D.C. Circuit. Specifically, 

regarding EPA’s determination that PSD 

can be triggered by GHGs or is 

applicable to GHGs, the Commenter 

mentions that ‘‘EPA should explicitly 

state in any final rule that continued 

enforceability of these provisions in the 

Alabama SIP is limited to the extent to 

which the federal requirements remain 

enforceable.’’ The Commenter notes that 

if a stay is issued, these requirements 

should also be stayed. Additionally, the 

Commenter notes the following 

statement in Alabama’s proposed 

rulemaking: ‘‘It is the opinion of ADEM 

that the PSD program is not the 

appropriate vehicle for regulating GHG 

emissions. ADEM is taking this action to 

insure continuance of primacy of 

permitting authority for the State of 

Alabama and to alleviate some of the 

‘‘absurd results’’ of EPA’s previous GHG 

regulatory actions. If future 

Congressional or judicial action results 

in GHGs not being regulated under the 

PSD program, ADEM intends to 

undertake a rulemaking action to delete 

the PSD permitting thresholds for GHGs 

from its regulations.’’ 

Response 4: EPA believes that it is 

most appropriate to take actions that are 

consistent with the Federal regulations 

that are in place at the time the action 

is being taken. To the extent that any 

changes to Federal regulations related to 

today’s action result from pending legal 

challenges or other actions, EPA will 

process appropriate SIP revisions in 

accordance with the procedures 

provided in the Act and EPA’s 

regulations. It appears that ADEM 

acknowledges, by their statement that 

they ‘‘intend to undertake a rulemaking 

action to delete the PSD permitting 

thresholds for GHGs from its 

regulations,’’ that a future SIP revision 

may be necessary. EPA notes that in an 

order dated December 10, 2010, the 

United States Court of Appeals for the 

D.C. Circuit denied motions to stay 

EPA’s regulatory actions related to 

GHGs. Coalition for Responsible 

Regulation, Inc. v. EPA, Nos. 09–1322, 

10–1073, 10–1092 (and consolidated 

cases), Slip Op. at 3 (DC Cir. December 

10, 2010) (order denying stay motions). 

III. What is the effect of today’s final 

action? 

Final approval of Alabama’s 

December 14, 2010, SIP revision will 

put in place the GHG emission 

thresholds for PSD applicability set 

forth in EPA’s Tailoring Rule (75 FR 

31514, June 3, 2010), ensuring that 

smaller GHG sources emitting less than 

these thresholds will not be subject to 

permitting requirements when these 

requirements begin applying to GHGs 

on January 2, 2011. Pursuant to section 

110 of the CAA, EPA is approving the 

changes made in Alabama’s December 

14, 2010, final SIP revision into 

Alabama’s SIP. 

The changes to Alabama’s SIPapproved PSD program that EPA is 

approving today are to Alabama’s rules 

which have been formatted to conform 

to Alabama’s SIP-approved PSD 

regulations 335–3–14–.04, Air Permits 

Authorizing Construction in Clean Air 

Areas—Prevention of Significant 

Deterioration Permitting (PSD), but in 

substantive content the rules that 

address the Tailoring Rule provisions 

are the same as the federal rules. EPA 

performed a line-by-line review of the 

proposed change to Alabama’s SIPapproved PSD regulations 335–3–14– 

.04, Air Permits Authorizing 

Construction in Clean Air Areas— 

Prevention of Significant Deterioration 

Permitting (PSD) and has determined 

that the proposed change is consistent 

with (and substantively the same as) the 

change to the federal provisions made 

by EPA’s Tailoring Rule. Furthermore, 

EPA has determined that the December 

14, 2010, revision to Alabama’s SIP is 

consistent with section 110 of the CAA. 

See, e.g., Tailoring Rule, at 75 FR 31561. 

IV. When is today’s action effective? 

EPA is making the effective date of 

today’s final action the same day as 

Alabama’s effective date for its 

rulemaking. In accordance with 5 U.S.C. 

553(d), EPA finds there is good cause for 

this action to become effective on 

January 18, 2011. This is because a 

delayed effective date is unnecessary 

due to the nature of Alabama’s changes 

to its PSD regulations to establish 

appropriate emissions thresholds for 

determining PSD applicability with 

respect to new or modified GHGemitting sources in accordance with 

EPA’s Tailoring Rule, thereby relieving 

the State from certain CAA 

requirements that would otherwise 

apply to it. The January 18, 2011, 

effective date for this action is 

authorized under both 5 U.S.C. 

553(d)(1), which provides that 

rulemaking actions may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction,’’ and section 553(d)(3), 

which allows an effective date less than 

30 days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ The 

purpose of the 30-day waiting period 

prescribed in section 553(d) is to give 

affected parties a reasonable time to 

adjust their behavior and prepare before 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule relieves the sources 

within Alabama from considering the 

lower emissions thresholds for GHG 

permitting purposes. For these reasons, 

EPA finds good cause under 5 U.S.C. 

553(d)(3) for this action to become 

effective January 18, 2011. 

V. Final Action 

EPA is taking final action to approve 

Alabama’s December 14, 2010, SIP 

revision which includes to Alabama’s 

air quality regulation 335–3–14–.04, Air 

Permits Authorizing Construction in 

Clean Air Areas—Prevention of 

Significant Deterioration Permitting 

(PSD). Specifically, Alabama’s 

December 14, 2010, SIP revision 

establishes appropriate emissions 

thresholds for determining PSD 

applicability with respect to new or 

modified GHG-emitting sources in 

accordance with EPA’s Tailoring Rule. 

EPA has made the determination that 

the December 14, 2010, SIP revision is 

approvable because it is in accordance 

with the CAA and EPA regulations 

including regulations pertaining to PSD 

permitting for GHGs. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 


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Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81867 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

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 February 28, 2011. 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, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements. 

Dated: December 20, 2010. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart B—Alabama 

■ 2. In § 52.50 (c) the table is amended 

by revising the following entry for ‘‘335– 

3–14–.04’’ to read as follows: 

§ 52.50 Identification of plan. 

* * * * * 

(c) * * * 

EPA APPROVED ALABAMA REGULATIONS

State citation Title/subject 

State 

effective 

date 

EPA approval date Explanation 

*******

Chapter No. 335–3–14 Air Permits 

* * * * * * * 

Section 335–3–14–.04 ....... Air Permits Authorizing Construction in Clean Air 

Areas [:prevention of Significant Deterioration 

(PSD)].

1/18/2011 12/29/2010 ........................

[Insert citation of publication].

* * * * * * * 

* * * * * 

[FR Doc. 2010–32665 Filed 12–28–10; 8:45 am] 

BILLING CODE 6560–50–P 


srobinson on DSKHWCL6B1PROD with RULES
81868 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

1 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

2 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

3 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

4Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule.’’ 75 

FR 31514 (June 3, 2010). 

5 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call: 

Final Rule.’’ 75 FR 77698 (December 13, 2010). 

6 ‘‘Action to Ensure Authority to Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Federal Implementation Plan: Proposed Rule.’’ 75 

FR 53883 (September 2, 2010). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0691–201069, FRL– 

9244–6] 

Approval and Promulgation of 

Implementation Plans; Kentucky: 

Prevention of Significant Deterioration; 

Greenhouse Gas Permitting Authority 

and Tailoring Rule Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the State 

Implementation Plan (SIP), submitted 

by the Commonwealth of Kentucky’s 

Energy and Environment Cabinet, 

through the Kentucky Division for Air 

Quality (KDAQ), to EPA on August 5, 

2010, for parallel processing. KDAQ 

submitted the final version of this SIP 

revision on December 13, 2010. The SIP 

revision, which incorporates updates to 

KDAQ’s air quality regulations, includes 

two significant changes impacting the 

regulation of greenhouse gas (GHG) 

under Kentucky’s New Source Review 

(NSR) Prevention of Significant 

Deterioration (PSD) program. First, the 

revision provides the Commonwealth 

with authority to issue PSD permits 

governing GHGs. Second, the SIP 

revision establishes appropriate 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

Kentucky’s PSD permitting 

requirements for their GHG emissions. 

The first change is necessary because 

the Commonwealth of Kentucky is 

required to apply its PSD program to 

GHG-emitting sources, and unless it 

does so (or unless EPA promulgates a 

Federal implementation plan (FIP) to do 

so), such sources will be unable to 

receive preconstruction permits and 

therefore may not be able to construct or 

modify. The second change is necessary 

because without it, on January 2, 2011, 

PSD requirements would apply at the 

100 or 250 tons per year (tpy) levels 

otherwise provided under the Clean Air 

Act (CAA or Act), which would 

overwhelm Kentucky’s permitting 

resources. EPA is approving the 

Commonwealth of Kentucky’s December 

13, 2010, SIP revision because the 

Agency has made the determination that 

this SIP revision is in accordance with 

the CAA and EPA regulations, including 

regulations pertaining to PSD permitting 

for GHGs. Additionally, EPA is 

responding to adverse comments 

received on EPA’s November 5, 2010, 

proposed approval of Kentucky’s 

August 5, 2010, SIP revision. 

DATES: Effective Date: This rule will be 

effective January 3, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0691. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

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 

for further information. 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: For 

information regarding the Kentucky SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Ms. 

Bradley’s telephone number is (404) 

562–9352; e-mail address: 

bradley.twunjala@epa.gov. For 

information regarding the Tailoring 

Rule, contact Ms. Heather Abrams, Air 

Permits Section, at the same address 

above. Ms. Abrams’ telephone number 

is (404) 562–9185; e-mail address: 

abrams.heather@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for today’s final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of today’s final action? 

IV. When is today’s action effective? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What is the background for today’s 

final action? 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action for the Kentucky SIP. The first 

four of these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,1 the ‘‘Johnson Memo 

Reconsideration,’’ 2 the ‘‘Light-Duty 

Vehicle Rule,’’ 3 and the ‘‘Tailoring 

Rule.’’ 4 Taken together, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they take effect on January 2, 2011, will 

subject GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. In a separate action, 

EPA called on the Commonwealth of 

Kentucky and 12 other States with SIPs 

that do not provide authority to issue 

PSD permits governing GHGs to revise 

their SIPs to provide such authority (the 

‘‘GHG PSD SIP Call’’).5 EPA established 

a deadline of March 31, 2011, for 

Kentucky (including the entire State, 

except for the Louisville Metro Air 

Pollution Control District) to submit its 

GHG PSD SIP. Finally, in the most 

recent action, EPA proposed to 

implement a FIP authorizing PSD 

permitting for GHGs for those States that 

are unable to revise their SIPs to provide 

that authority by the applicable 

deadline (the ‘‘GHG PSD FIP’’).6 By a 

notice signed December 23, 2010, EPA 

finalized the FIP for seven States: 


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