50930 Federal Register / Vol. 74, No. 190 / Friday, October 2, 2009 / Proposed Rules 

Labor, 200 Constitution Avenue, NW., 

Room N–5641, Washington, DC 20210. 

• Hand Delivery/Courier: Please 

submit all comments to Thomas Dowd, 

Administrator, Office of Policy 

Development and Research, 

Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room N–5641, Washington, DC 20210. 

Please submit your comments by only 

one method. The Department will post 

all comments received on http:// 

www.regulations.gov without making 

any change to the comments, including 

any personal information provided. The 

http://www.regulations.gov Web site is 

the Federal e-rulemaking portal and all 

comments posted there are available 

and accessible to the public. The 

Department cautions commenters not to 

include their personal information such 

as Social Security Numbers, personal 

addresses, telephone numbers, and email addresses in their comments as 

such submitted information will become 

viewable by the public via the http:// 

www.regulations.gov Web site. It is the 

responsibility of the commenter to 

safeguard his or her information. 

Comments submitted through http:// 

www.regulations.gov will not include 

the commenter’s e-mail address unless 

the commenter chooses to include that 

information as part of his or her 

comment. 

Postal delivery in Washington, DC, 

may be delayed due to security 

concerns. Therefore, the Department 

encourages the public to submit 

comments via the Web site indicated 

above. 

Docket: For access to the docket to 

read background documents or 

comments received, go the Federal 

eRulemaking portal at http:// 

www.regulations.gov. The Department 

will also make all the comments it 

receives available for public inspection 

during normal business hours at the 

ETA Office of Policy Development and 

Research at the above address. If you 

need assistance to review the comments, 

the Department will provide you with 

appropriate aids such as readers or print 

magnifiers. The Department will make 

copies of the rule available, upon 

request, in large print and as electronic 

file on computer disk. The Department 

will consider providing the proposed 

rule in other formats upon request. To 

schedule an appointment to review the 

comments and/or obtain the rule in an 

alternate format, contact the Office of 

Policy Development and Research at 

(202) 693–3700 (VOICE) (this is not a 

toll-free number) or 1–877–889–5627 

(TTY/TDD). 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding 20 CFR 

part 655, contact William L. Carlson, 

PhD, Office of Foreign Labor 

Certification, Employment and Training 

Administration, U.S. Department of 

Labor, 200 Constitution Avenue, NW., 

Room N–5641, Washington, DC 20210; 

Telephone (202) 693–3010 (this is not a 

toll-free number). Individuals with 

hearing or speech impairments may 

access the telephone number above via 

TTY by calling the toll-free Federal 

Information Relay Service at 1–800– 

877–8339. 

For further information regarding 29 

CFR parts 501, 780 and 788, contact 

James Kessler, Farm Labor Branch Chief, 

Wage and Hour Division, Employment 

Standards Administration, U.S. 

Department of Labor, 200 Constitution 

Avenue, NW., Room S–3510, 

Washington, DC 20210; Telephone (202) 

693–0070 (this is not a toll-free 

number). Individuals with hearing or 

speech impairments may access the 

telephone number above via TTY by 

calling the toll-free Federal Information 

Relay Service at 1–800–877–8339. 

SUPPLEMENTARY INFORMATION: On 

September 4, 2009, the Employment and 

Training Administration and the 

Employment Standards Administration 

of the Department of Labor issued a 

Notice of Proposed Rulemaking rule to 

amend regulations governing the 

certification of temporary employment 

of nonimmigrant workers in temporary 

or seasonal agricultural (H–2A) 

employment and the enforcement of the 

contractual obligations applicable to 

employers of such nonimmigrant 

workers. 74 FR 45906, Sept. 4, 2009. 

The proposed rule provided a comment 

period through October 5, 2009. The 

agencies have received several requests 

to extend the comment period and have 

decided to extend the comment period 

to October 20, 2009. Given the 

complexity of the proposed rule and the 

level of interest, as well as The 

Department’s interest in receiving 

comments, the comment period is being 

extended until October 20, 2009. 

Signed in Washington, DC, this 29th day of 

September 2009. 

Jane Oates, 

Assistant Secretary, Employment and 

Training Administration. 

Shelby Hallmark, 

Acting Assistant Secretary, Employment 

Standards Administration. 

[FR Doc. E9–23806 Filed 9–30–09; 11:15 am] 

BILLING CODE 4510–FP–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2005–AL–0002–200913; 

FRL–8959–3] 

Approval and Promulgation of 

Implementation Plans: Alabama: 

Proposed Approval of Revisions to the 

Visible Emissions Rule and Alternative 

Proposed Disapproval of Revisions to 

the Visible Emissions Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: On April 3, 2009, EPA 

granted a February 25, 2009, petition 

seeking reconsideration of an October 

15, 2008, final action approving a State 

Implementation Plan (SIP) revision 

regarding the State of Alabama’s visible 

emissions rules. As part of its 

reconsideration process, EPA is now 

proposing to either affirm the previous 

rulemaking (which approved the 

revisions) or, alternatively, amend its 

previous rulemaking (i.e., disapproving 

the revisions). EPA is seeking public 

comment on the issues raised in the 

petition for reconsideration as well as 

the actions proposed in this notice. EPA 

is also seeking public comment on the 

relationship between opacity and 

particulate matter mass emissions. 

Following its evaluation of the issues 

raised in the petition for 

reconsideration, and any information 

submitted during the public comment 

process, EPA will take final action 

either affirming the previous rulemaking 

or amending the previous rulemaking 

and disapproving the revisions to the 

visible emissions portion of Alabama’s 

SIP. 

DATES: Comments must be received on 

or before November 16, 2009. 

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. E-mail: benjamin.lynorae@epa.gov. 

3. Fax: 404–562–9019. 

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, Regulatory Development 

Section, Air Planning Branch, Air, 


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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 to 4:30, 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 e-mail, 

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 e-mail comment directly 

to EPA without going through 

www.regulations.gov, your e-mail 

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: EPA has established a docket 

for this action under Docket 

Identification No. EPA–R04–OAR– 

2005–AL–0002. All documents in the 

docket are listed on 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 through 

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 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lynorae Benjamin, Chief, 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) 562–9041. Ms. Benjamin can also 

be reached via electronic mail at 

lynorae.benjamin@epa.gov. For 

information regarding the Alabama SIP, 

contact Mr. Zuri Farngalo at the same 

address listed above. The telephone 

number is (404) 562–9152. Mr. Farngalo 

can also be reached via electronic mail 

at farngalo.zuri@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Is the Background for This Action? 

II. What Are EPA’s Current Proposals? 

A. Proposal to Affirm the October 15, 2008, 

Action and Approve the 2003/2008 

Submittals 

B. Proposal To Amend the October 15, 

2008, Action and Disapprove the 2003/ 

2008 Submittals 

III. What Additional Information Would EPA 

Like To Receive? 

IV. Proposed Actions 

V. Statutory and Executive Order Reviews 

I. What Is the Background for This 

Action? 

On September 11, 2003, the Alabama 

Department of Environmental 

Management (ADEM) submitted a 

request for EPA approval of a SIP 

submittal (2003 Submittal) containing 

proposed revisions to the visible 

emissions portion of the Alabama SIP, 

found at ADEM Administrative Code 

Chapter 335–3–4–.01, ‘‘Visible 

Emissions,’’ and pertaining to sources of 

particulate matter (PM) emissions. In an 

action published on April 12, 2007 (72 

FR 18428), EPA proposed to approve the 

proposed revisions contingent upon 

Alabama submitting a revised SIP 

submittal addressing EPA’s concerns 

regarding impacts of the rule changes on 

attainment of the National Ambient Air 

Quality Standards (NAAQS), as set forth 

in 72 FR 18428–18434. EPA’s proposal 

notice explained that the State would 

have to provide EPA with a revised SIP 

submittal consistent with certain 

changes described by EPA in our April 

12, 2007, notice of proposed rulemaking 

before EPA would approve the 

revisions. 

EPA provided the public with 60 days 

to submit comments on the April 12, 

2007, proposed rule and the specific 

changes needed to make the Alabama 

submittal approvable into the Alabama 

SIP. At the request of a commenter, EPA 

extended the public comment period by 

30 days to July 11, 2007. EPA received 

four comment letters from industry 

representatives and one from the State 

air pollution control agency, all of 

which were in favor of the rulemaking. 

EPA received one comment letter, 

submitted on behalf of four 

environmental groups, opposed to the 

approval. In general, comments received 

that were adverse to the proposed 

rulemaking expressed concerns related 

to air quality impacts (particularly on 

the PM NAAQS), modeling analyses, 

EPA’s technical assessment of the 

relationship between opacity and PM 

mass emissions, and application of 

Section 110(l) of the Clean Air Act 

(CAA). These comments, and EPA’s 

responses to them, are discussed in 

more detail in EPA’s final action on 

Alabama’s SIP revisions taken on 

October 15, 2008 (73 FR 60957). 

Following the close of the comment 

period, EPA and ADEM discussed some 

of the issues raised by the commenters, 

including comments regarding the 

potential impact of a revised visible 

emissions rule on attainment of the 

PM2.5 NAAQS in Alabama. Documents 

memorializing these conversations are 

part of the docket for EPA’s final action. 

As a result of these discussions, ADEM 

decided to submit the necessary 

revisions proposed by EPA in the April 

2007 Federal Register notice to support 

final approval. These revisions, 

submitted to EPA on August 22, 2008 

(2008 Submittal), and the 2003 

Submittal amend the requirements for 

units that are required to operate 

continuous opacity monitoring systems 

(COMS) and that are not subject to any 

opacity limits other than those of the 

Alabama SIP. ADEM also decided to 

include an additional limitation on 

opacity based on public comments on 

EPA’s proposal. This additional 

provision limits subject sources to a 

daily opacity average of no more than 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 


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1The director’s discretion provisions under 

Alabama rule 335–3–4–.01(1)(c) and (d) would be 

unchanged by this SIP revision, so periods of excess 

emissions allowed in a permit pursuant to those 

provisions would continue to be allowed, as noted 

here. EPA notes that, as the director’s discretion 

provisions are not being revised by ADEM or 

reviewed by EPA at present, nothing in this notice 

should be considered as endorsing those previously 

approved provisions. 

2The original petition raised approximately eight 

issues summarized as follows: (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 action; (5) the rule does 

not represent reasonably available control 

technology (RACT) which is required because 

Alabama has PM2.5 nonattainment areas; (6) EPA’s 

approval was not consistent with either section 

110(l) or 193 due to likely increases in short-term 

PM emissions; (7) EPA’s final action was 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. 

3EPA’s view has been that if the SIP revision does 

not interfere with attainment or maintenance of the 

PM2.5 NAAQS, then it is unlikely to interfere with 

other applicable requirements. For example, if EPA 

concludes that actual emissions of PM2.5 allowed 

under the SIP are not increasing as a result of the 

SIP revision, then no additional control 

requirements would be required under section 193 

(assuming it otherwise applies to this action). 

Similarly, EPA anticipates that if the opacity 

standard is consistent with attainment of the 

NAAQS, then it would be an ‘‘appropriate’’ 

standard for purposes of Part 51, and would not 

interfere with other applicable requirements such as 

RACT. EPA solicits comment on these issues and 

whether there are other applicable requirements 

that require independent analysis under section 

110(l) or other portions of the CAA. 

4EPA also accepts modeling demonstrations, as 

when an area is seeking approval of a maintenance 

plan, and in some cases (for areas designated 

attainment) EPA has accepted an analysis 

demonstrating that the SIP revision will not 

interfere with maintenance or other CAA 

requirements. 

5 In addition, the Response to Comment 

document prepared by EPA for the final rule also 

addressed several issues raised by Petitioners. 

permit).1 For further information about 

the technical details regarding the SIP 

revisions, see EPA’s October 15, 2008, 

final action (73 FR 60957). The 2003 

Submittal and the 2008 Submittal are 

referred to collectively in this notice as 

the ‘‘2003/2008 Submittals.’’ 

On October 15, 2008, EPA took final 

action to incorporate into the Alabama 

SIP, Alabama’s revisions to its visible 

emissions rule (the rule changes 

included in the 2003/2008 Submittals). 

73 FR 60957. This final action was 

effective on November 14, 2008. By its 

terms, the Alabama state 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 

the Alabama Environmental Council 

and other parties (Petitioners). The first 

petition for reconsideration, dated 

December 12, 2008, raised procedural 

and substantive concerns with EPA’s 

October 15, 2008, final action, and was 

denied by EPA via letter on January 15, 

2009. The second petition, dated 

February 25, 2009, raised additional 

procedural and substantive issues. EPA 

granted the second petition via letter on 

April 3, 2009. The main issues raised by 

the February 25, 2009, petition can be 

summarized as follows: (1) That EPA 

ignored Petitioners’ December 31, 2008, 

comments regarding the DC Circuit’s 

vacatur of the 40 CFR part 63 provisions 

pertaining to startup, shutdown, and 

malfunction and its impact on the 

opacity SIP revision; (2) that a new 

comment period was required because 

the 2007 proposal was not approvable 

‘‘as is’’; (3) that EPA’s conclusion that 

greater opacity does not necessarily 

mean greater PM emissions was 

irrational; (4) that EPA failed to make an 

‘‘appropriate inquiry’’ under section 

110(l) and 40 CFR 51.112 to protect the 

NAAQS—there was no equivalency 

determination, only reliance on 

uncertainty; (5) that documents received 

as part of a Freedom of Information Act 

request indicate that some groups were 

given more access to the rulemaking 

than others, thus supporting the 

reopening of the public comment 

period; (6) that if the public comment 

period were reopened, EPA would be 

presented with information that would 

compel EPA to disapprove the SIP 

revisions; and (7) that the petition also 

incorporated the original petition 

issues.2 Both petitions are included in 

the docket for this action. 

In the letter granting the February 

2009 petition for reconsideration, EPA 

committed to conduct this 

reconsideration through a new 

rulemaking process. Through this 

process, which begins with this public 

notice, EPA is allowing for public 

comment and will make a determination 

either affirming its previous action and 

approving the revisions or amending the 

previous action and disapproving the 

revisions. 

II. What Are EPA’s Current Proposals? 

A. Proposal To Affirm the October 15, 

2008, Action and Approve the 2003/ 

2008 Submittals 

As was discussed in EPA’s October 

15, 2008, rulemaking, EPA believes that 

the primary issue in considering 

whether these SIP revisions were 

approvable was determining whether 

the approval of the revisions was 

consistent with section 110(l) of the 

CAA. In particular, determination of 

consistency with section 110(l) depends 

upon whether the proposed revisions 

would interfere with attainment of the 

NAAQS by increasing emissions of 

PM2.5.3 Section 110(l) of the CAA 

provides in part that: 

The Administrator shall not approve 

a revision of a [SIP] if the revision 

would interfere with any applicable 

requirement concerning attainment and 

reasonable further progress (as defined 

in section 7501 of this title), or any 

other applicable requirement of [the 

Act]. 

In evaluating whether a SIP revision 

would interfere with attainment or 

maintenance, as required by section 

110(l), EPA generally considers whether 

the SIP revision will allow for an 

increase in actual emissions to the air 

over what is allowed under the existing 

federally-approved SIP.4 EPA has 

concluded that preservation of the 

status quo air quality during the time 

new attainment or maintenance 

demonstrations are being prepared will 

prevent interference with CAA 

requirements, including the States’ 

obligations to develop timely 

demonstrations. EPA does not believe 

that areas must produce a complete 

demonstration to make any revisions to 

the SIP, provided the status quo air 

quality is preserved. 

The 2003/2008 Submittals at issue 

were the subject of extensive 

consideration because the question of 

whether they were expected to result in 

an increase in emissions of criteria 

pollutants, particularly PM2.5, was a 

difficult issue to analyze technically. 

Opacity itself is not a criteria pollutant. 

Rather, 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.) Opacity requirements 

are significant environmentally for 

many reasons, including that they may 

be used as an indicator of the 

effectiveness of emission controls for 

PM emissions. Opacity may also be used 

to assist with implementation and 

enforcement of PM emission standards. 

EPA’s prior approval notice provides 

extensive discussion of the reasons why 

EPA concluded in that notice that 

section 110(l) had been satisfied. 73 FR 

60957 (October 15, 2008).5 In particular, 

EPA stated as grounds for this 

conclusion that: ‘‘(1) The revision 

would not increase the allowable 


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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.’’ 73 FR 60959. 

In light of the issues raised in the 

February 2009 petition for 

reconsideration, including Petitioners’ 

arguments regarding the need to 

complete an equivalency determination 

under section 110(l), and the concerns 

about the nature of the relationship 

between opacity and PM, EPA is 

reconsidering and soliciting comment 

on its conclusion that the SIP revisions 

satisfied the requirements of section 

110(l). If EPA concludes, following 

public comment on this reconsideration 

notice, that these two grounds remain 

an appropriate basis for approving the 

SIP revisions as meeting the 

requirements of section 110(l), and 

concludes that Petitioners have not 

identified other issues that lead to the 

conclusion that the SIP revisions 

interfere with any applicable 

requirement of the CAA, then EPA 

anticipates that it would affirm its prior 

approval of the SIP revisions. 

Thus, EPA is now accepting comment 

on our previously articulated basis for 

approving the 2003/2008 Submittals, on 

the issues raised in the February 2009 

petition for reconsideration, and how 

the issues raised in the February 2009 

petition may impact EPA’s previous 

basis for approving the 2003/2008 

Submittals. 

B. Proposal To Amend the October 15, 

2008, Action and Disapprove the 2003/ 

2008 Submittals 

In the February 25, 2009, petition for 

reconsideration, Petitioners lay out their 

rationale for why EPA should amend 

the October 2008 rulemaking and 

disapprove for the 2003/2008 

Submittals. As part of the current 

reconsideration process, EPA is (1) 

outlining the following rationale, which 

could form the basis for amending the 

October rulemaking action; (2) 

proposing to amend the October 

rulemaking and disapprove the 2003/ 

2008 Submittals based on the discussion 

below, and any other issues that may 

come to light as part of the public 

comment received through this notice; 

and (3) taking comment on this 

proposed alternate disapproval action 

and rationale. 

Rationale for Proposed Disapproval 

The most significant issue raised by 

petitioners in the February 25, 2009, 

petition is that approval of the 2003/ 

2008 Submittals was not consistent with 

Section 110(l) because, petitioners 

explain, the ‘‘bundling of high opacity 

periods’’ would result in increases in 

PM mass emissions, thus ‘‘interfering’’ 

with attainment and maintenance of the 

PM NAAQS. 

The 2003/2008 Submittals allow for 

higher maximum opacity levels from the 

applicable facilities that were not 

previously authorized. In some cases, 

these increases may be up to 100 

percent opacity. These visible emissions 

of up to 100 percent opacity for a certain 

period of time will be considered 

lawful—a distinct difference between 

the 2003/2008 SIP proposal and the 

previous SIP-approved rule. These types 

of emissions will be allowed from 

approximately 19 facilities affected by 

the rule change, including older coalfired utilities, cement manufacturing 

facilities, and pulp and paper facilities, 

among others. Some of the affected 

facilities are located in or near the 

Birmingham, Alabama, area, which is 

currently designated as nonattainment 

for PM2.5. Alabama also has a partial 

county that is part of the Chattanooga, 

Tennessee, PM2.5 nonattainment area, 

and one of the affected facilities is 

located near that area. In addition, the 

Birmingham area currently has a 

monitor that has registered design 

values above the 1997 8-hour ozone 

standard and is considered in violation 

of that NAAQS. As a result of the ozone 

violation, Alabama submitted a SIP 

revision, which was approved in a July 

30, 2009, rulemaking (74 FR 37977) to 

adopt contingency measures for the 

Birmingham area. 

As was discussed earlier in this 

notice, both Alabama’s previous visible 

emissions rule and the revised rule 

allow for opacity of 100 percent for 

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). The 

previous rule, however, did not 

otherwise allow for opacity of 100 

percent and allowed, instead, for 

opacity of up to 40 percent for one sixminute period per hour. Thus, in 

addition to periods of startup, 

shutdown, load change and rate change 

(or other short intermittent periods), the 

revised Alabama rule allows the same 

maximum time of excess opacity in a 

single day (up to 144 minutes per day) 

as the previous SIP-approved rule. The 

revised rule allows for an increase in the 

upper limit from 40 percent opacity to 

100 percent opacity. Further, the revised 

rule allows for a daily aggregate of the 

24 six-minute periods per day as 

opposed to 24 hourly periods per day. 

The petition for reconsideration 

outlines several reasons why petitioners 

believe the 2003/2008 Submittals are 

not approvable, including (in 

paraphrase): (1) The 22 percent average 

daily opacity cap is illegal because it 

incorporates automatic exemptions, as 

does the rest of the opacity rule, making 

it illegal under the DC Circuit’s decision 

in Sierra Club v. EPA, 551 F.3d 1019 

(DC Cir. 2008) (vacating certain 

provisions in 40 CFR part 63 regarding 

periods of startup, shutdown, and 

malfunction); (2) the 22 percent average 

daily opacity cap provision does not 

represent RACT; (3) approval of the 22 

percent average daily opacity cap 

provision was illegal because there is no 

support for the proposition that 

allowing bundling of high opacity 

periods would allow no more 

particulate than the old regulatory 

scheme which allowed 40 percent 

opacity once per hour; and (4) the 22 

percent average daily opacity cap 

provision would still allow the bundling 

of high opacity periods, thereby failing 

to ensure compliance with three-hour 

mass emission limitations. 

Based on the information received to 

date, EPA believes that increases or 

decreases in PM2.5 emissions based on 

short-term increases in opacity cannot 

be quantified readily for the sources 

subject to this SIP revision. There are 

several contributors to the uncertainties 

associated with relating mass emissions 

to increases in opacity, including: (1) 

Differences between combustion 

technology characteristics and fuel 

components, (2) differences in control 

technology types, temperatures at which 

they operate, and load characteristics, 

(3) the recognition that both opacity and 

mass emissions are subject to significant 

variability over short periods of time 

and fluctuations such that one may act 

independently of the other, and (4) 

differences between the mass of 

particles that exists at the point of 

opacity measurement by the COMS (e.g., 

in the stack) and the direct PM2.5 that 

forms immediately upon exiting the 

stack (that are related to fuel 

components more than to control 

technology). 

A significant issue for these SIP 

revisions is the degree of uncertainty 

that exists, and how to apply section 

110(l) in the event EPA determines there 

is extreme uncertainty based on 

currently available data. Alabama has 

not provided EPA with an affirmative 

demonstration that the 2003/2008 

Submittals will not interfere with 

attainment and maintenance of the 

NAAQS, reasonable further progress, or 

any other applicable requirement of the 

CAA—particularly for facilities located 


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in or near PM nonattainment areas. 

Petitioners argue that in order to 

preserve the integrity of the SIP revision 

process, section 110(l) requires more 

than mere uncertainty, i.e., an inability 

to predict with confidence, based on 

current data, the effect of changes on the 

opacity standard with respect to 

attainment of the NAAQS. Rather, 

section 110(l) requires an affirmative 

conclusion that the revision at issue will 

not interfere with any NAAQS or 

applicable requirement. Thus, one 

possible approach suggested by the 

petition would be to conclude that the 

SIP revisions could not be approved 

until additional data and analysis (e.g., 

source-specific testing) was submitted 

that provided a reasonable basis for 

concluding that the revision would not 

interfere with applicable requirements. 

This approach would provide protection 

for the NAAQS, consistent with the 

overall goals of the CAA. EPA solicits 

comment on this approach, particularly 

if the uncertainty (based on the 

available record) is too great to provide 

a basis for concluding that the SIP 

revisions are likely to interfere with 

timely attainment of the PM2.5 NAAQS, 

as a basis to amend and disapprove of 

the 2003/2008 Submittals. 

III. What Additional Information 

Would EPA Like To Receive? 

The relationship between opacity and 

PM mass emissions is a key component 

to evaluating the October 2008 

rulemaking under Section 110(l). Thus, 

in addition to soliciting comments on 

the above proposals, EPA is also seeking 

comment on the relationship between 

opacity and the NAAQS (the PM10 and 

PM2.5 NAAQS in particular). This 

information will help EPA gather 

additional information regarding 

petitioners’ claims and Section 110(l). 

EPA specifically seeks public comment 

on the nature of the relationship 

between opacity and PM mass 

emissions over both the short and long 

term and when the opacity and PM 

mass emissions may have a predictable 

relationship to one another (e.g., when 

an opacity level of a certain amount 

would predict a PM mass emission of 

another certain amount). The public is 

encouraged to provide the following 

types of data and analyses to assist with 

EPA’s reconsideration of its action on 

the 2003/2008 Submittals. Sourcespecific data from Alabama facilities 

affected by the 2003/2008 Submittals 

would provide particularly pertinent 

information; however, the following list 

of data/information would assist EPA in 

its analysis of the submittals: 

• Concurrent measurements from 

COMS and PM continuous emission 

monitoring systems, along with fuel 

analyses, process data, control device 

descriptions, and operational data; 

• Concurrent opacity and PM 

emissions measurements, along with 

fuel analyses, process data, control 

device descriptions, and operational 

data; 

• Information on relationships, 

empirical or modeled, between opacity 

and PM emissions (both filterable and 

condensable), such as statistical 

analyses that attempt to relate or 

correlate opacity with PM emissions 

(both filterable and condensable); 

• Data on conditions—such as those 

associated with fuel, source, 

combustion, load, control, or particle 

characteristics—under which 

relationships exist between opacity and 

PM emissions; 

• Other parameters that can be 

measured and related to PM emissions; 

• Relationships between opacity and 

particle size, especially for fine PM; 

• Benefit and/or cost information on 

compliance methods that measure PM 

on a direct, continuous basis and 

methods that rely on indicators, such as 

opacity, and/or rely on ongoing but 

infrequent PM emissions testing; and 

• Any data supporting the particular 

issues raised in the petition for 

reconsideration. 

EPA is now accepting public 

comment on the various bases identified 

in the petition for reconsideration, or 

that otherwise may be articulated, for 

amending the October rulemaking and 

disapproving the 2003/2008 Submittals. 

IV. Proposed Actions 

This rulemaking is part of EPA’s 

reconsideration process on our October 

15, 2008, final action approving 

Alabama’s visible emissions SIP 

revisions. EPA is seeking public 

comment on proposals to affirm our 

prior action, which approved the SIP 

revisions, or amend and disapprove the 

revisions to Alabama SIP rule 335–3–4– 

.01 (‘‘Visible Emissions’’), submitted 

initially in 2003 and significantly 

revised and re-submitted on August 22, 

2008. 

The public is encouraged to submit 

any comments that it would like EPA to 

specifically respond to as part of this 

reopening of the public comment 

period. The October 15, 2008, final 

action remains in effect at this time. The 

Docket for this reopening has been 

populated with all the relevant 

information and is available 

electronically and in hardcopy in the 

Region 4 Office. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132, Federalism 

F. Executive Order 13175, Coordination With 

Indian Tribal Governments 

G. Executive Order 13045, Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’ 

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

‘‘answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * *’’ 44 U.S.C. 

3502(3)(A). 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

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 rule will not have a significant 

impact on a substantial number of small 

entities because SIP proposals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply propose 

approval of requirements that the State 

is already imposing. Therefore, because 

the Federal SIP approval or disapproval 

proposals do 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 


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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 costeffective 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 approval 

or 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 approve or disapprove preexisting 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 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 approve or 

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. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

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 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 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. 

The 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. 

Dated: September 10, 2009. 

Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. E9–23793 Filed 10–1–09; 8:45 am] 

BILLING CODE 6560–50–P 


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