41914 Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Proposed Rules 

participation in SIP development by 

local political subdivisions affected by 

the SIP. Consultation and participation 

by affected local entities is authorized 

by the Georgia Air Quality Act: Article 

1: Air Quality (O.C.G.A. 12–9–5(b)(17)) 

and the Georgia Rule for Air Quality 

391–3–1–.15, Transportation 

Conformity, which defines the 

consultation procedures for areas 

subject to transportation conformity. 

Furthermore, GAEPD has demonstrated 

consultation with, and participation by, 

affected local entities through its work 

with local political subdivisions during 

the developing of its Transportation 

Conformity SIP and has worked with 

the Federal Land Managers as a 

requirement of the regional haze rule. 

EPA has made the preliminary 

determination that Georgia’s SIP and 

practices adequately demonstrate 

consultation with affected local entities 

related to the 2010 1-hour NO2 NAAQS 

when necessary. 

V. Proposed Action 

With the exception of the 

preconstruction PSD permitting 

requirements for major sources of 

section 110(a)(2)(C), prong 3 of 

(110(a)(2)D(i) and 110(a)(2)(J), and the 

interstate transport provisions 

pertaining to the contribution to 

nonattainment or interference with 

maintenance in other states and 

visibility of prongs 1, 2, and 4 of section 

110(a)(2)(D)(i), EPA is proposing to 

approve that Georgia’s March 25, 2013, 

SIP submission for the 2010 1-hour NO2

NAAQS has met the above-described 

infrastructure SIP requirements because 

these aspects of the submission are 

consistent with section 110 of the CAA. 

This proposed action, however, does not 

include the preconstruction PSD 

permitting requirements for major 

sources of section 110(a)(2)(C), prong 3 

of (D)(i), and (J), which have been 

approved in a separate action, or the 

interstate transport provisions 

pertaining to the contribution to 

nonattainment or interference with 

maintenance in other states of prongs 1, 

2 and 4 of section 110(a)(2)(D)(i), which 

will be addressed by EPA in a separate 

action. 

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. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

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 proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: June 10, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–15136 Filed 6–27–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2016–0294; FRL–9948–41– 

Region 4] 

Air Plan Approval; Alabama; CrossState Air Pollution Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of the October 26, 2015, State 

Implementation Plan (SIP) submittal 

from Alabama concerning the CrossState Air Pollution Rule (CSAPR). 

Under CSAPR, large electricity 

generating units (EGUs) in Alabama are 

subject to Federal Implementation Plans 

(FIPs) requiring the units to participate 

in CSAPR’s federal trading program for 

annual emissions of nitrogen oxides 

(NOX) and one of CSAPR’s two federal 

trading programs for annual emissions 

of sulfur dioxide (SO2). This action 

would approve into Alabama’s SIP the 

state’s regulations requiring Alabama 

EGUs to participate in new CSAPR state 

trading programs for annual NOX and 

SO2 emissions integrated with the 

CSAPR federal trading programs, 

replacing the corresponding FIP 

requirements. These CSAPR state 

trading programs are substantively 

identical to the CSAPR federal trading 

programs except with regard to the 

provisions allocating emission 

allowances among Alabama units. EPA 

is proposing to approve the portions of 

the SIP revision concerning these 

CSAPR state trading programs because 

these portions of the SIP revision meet 

the requirements of the Clean Air Act 

(CAA or Act) and EPA’s regulations for 

approval of a CSAPR full SIP revision 

replacing the requirements of a CSAPR 

FIP. Under the CSAPR regulations, 

approval of these portions of the SIP 

revision would automatically eliminate 

Alabama units’ obligations to participate 

in CSAPR’s federal trading programs for 

annual NOX and SO2 emissions under 

the corresponding CSAPR FIPs 

addressing interstate transport 

requirements for the 1997 and 2006 Fine 

Particulate Matter (PM2.5) national 

ambient air quality standards (NAAQS). 

Approval of these portions of the SIP 


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1Federal Implementation Plans; Interstate 

Transport of Fine Particulate Matter and Ozone and 

Correction of SIP Approvals, 76 FR 48208 (August 

8, 2011) (codified as amended at 40 CFR 52.38 and 

52.39 and subparts AAAAA through DDDDD of 40 

CFR part 97). 

2EPA has proposed to replace the terms 

‘‘Transport Rule’’ and ‘‘TR’’ in the text of the Code 

of Federal Regulations with the updated terms 

‘‘Cross-State Air Pollution Rule’’ and ‘‘CSAPR.’’ 80 

FR 75706 and 75759 (December 3, 2015). Except 

where otherwise noted, EPA uses the updated terms 

here. 

3EME Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 138 (D.C. Cir. 2015). 

4Although the court in EME Homer City 

Generation remanded Alabama’s Phase 2 SO2

budget because it determined that the budget was 

too stringent, nothing in the court’s decision affects 

Alabama’s authority to seek incorporation into its 

Continued 

revision would satisfy Alabama’s good 

neighbor obligation under the CAA to 

prohibit emissions which will 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 1997 and 2006 PM2.5

NAAQS in any other state. EPA is not 

proposing to act at this time on the 

portion of Alabama’s SIP submittal 

intended to replace Alabama units’ 

obligations to participate in CSAPR’s 

federal trading program for ozoneseason NOX emissions under a separate 

CSAPR FIP. 

DATES: Comments must be received on 

or before July 28, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No EPA–R04– 

OAR–2016–0294 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the Web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Steven Scofield, Air Regulatory 

Management Section, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. 

Scofield can be reached by telephone at 

(404) 562–9034 or via electronic mail at 

scofield.steve@epa.gov. 

SUPPLEMENTARY INFORMATION: 

This section provides additional 

information by addressing the 

following: 

I. Summary 

II. Background on CSAPR and CSAPRRelated SIP Revisions 

III. Conditions for Approval of CSAPRRelated SIP Revisions 

IV. Alabama’s SIP Submittal and EPA’s 

Analysis 

A. Alabama’s SIP Submittal 

B. EPA’s Analysis of Alabama’s Submittal 

1. Timeliness and Completeness of SIP 

Submittal 

2. Methodology Covering All Allowances 

Potentially Requiring Allocation 

3. Assurance That Total Allocations Will 

Not Exceed the State Budget 

4. Timely Submission of State-Determined 

Allocations to EPA 

5. No Changes to Allocations Already 

Submitted to EPA or Recorded 

6. No Other Substantive Changes to Federal 

Trading Program Provisions 

7. Complete, Substantively Identical 

Trading Program Provisions 

8. Only Non-Substantive Substitutions for 

the Term ‘‘State’’ 

9. Exclusion of Provisions Addressing 

Units in Indian Country 

V. EPA’s Proposed Action on Alabama’s 

Submittal 

VI. Statutory and Executive Order Reviews 

I. Summary 

EPA is proposing to approve the 

portions of the October 26, 2015, SIP 

submittal from Alabama concerning 

CSAPR1 trading programs for annual 

emissions of NOX and SO2. Large EGUs 

in Alabama are subject to CSAPR FIPs 

that require the units to participate in 

the federal CSAPR NOX Annual Trading 

Program and the federal CSAPR SO2

Group 2 Trading Program.2 CSAPR also 

provides a process for the submission 

and approval of SIP revisions to replace 

the requirements of CSAPR FIPs with 

SIP requirements under which a state’s 

units participate in CSAPR state trading 

programs that are integrated with and, 

with certain permissible exceptions, 

substantively identical to the CSAPR 

federal trading programs. 

The portions of the SIP revision 

proposed for approval would 

incorporate into Alabama’s SIP state 

trading program regulations for annual 

NOX and SO2 emissions that would 

replace EPA’s federal trading program 

regulations for those emissions for 

Alabama units for control periods in 

2017 and later years. EPA is proposing 

to approve these portions of the SIP 

revision because they meet the 

requirements of the CAA and EPA’s 

regulations for approval of a CSAPR full 

SIP revision replacing a federal trading 

program with a state trading program 

that is integrated with and substantively 

identical to the federal trading program 

except for permissible differences with 

respect to emission allowance allocation 

provisions. Under the CSAPR 

regulations, approval of these portions 

of the SIP revision would automatically 

eliminate the obligations of units in 

Alabama (but not any units in Indian 

country within Alabama’s borders) to 

participate in CSAPR’s federal trading 

programs for annual NOX and SO2

emissions under the corresponding 

CSAPR FIPs. EPA proposes to find that 

approval of these portions of the SIP 

revision would satisfy Alabama’s 

obligation pursuant to CAA section 

110(a)(2)(D)(i)(I) to prohibit emissions 

which will significantly contribute to 

nonattainment or interfere with 

maintenance of the 1997 and 2006 PM2.5

NAAQS in any other state. 

The Phase 2 SO2 budget established 

for Alabama in the CSAPR rulemaking 

has been remanded to EPA for 

reconsideration.3 If EPA finalizes 

approval of these portions of the SIP 

revision as proposed, Alabama will have 

fulfilled its obligations to provide a SIP 

that address the interstate transport 

provisions of CAA section 

110(a)(2)(D)(i)(I) with respect to the 

1997 and 2006 PM2.5 NAAQS. Thus, 

EPA would no longer be under an 

obligation to (nor would EPA have the 

authority to) address those interstate 

transport requirements through 

implementation of a FIP, and approval 

of these portions of the SIP revision 

would eliminate Alabama units’ 

obligations to participate in the federal 

CSAPR NOX Annual Trading Program 

and the federal CSAPR SO2 Group 2 

Trading Program. Elimination of 

Alabama units’ obligations to participate 

in the federal trading programs would 

include elimination of the federallyestablished Phase 2 budgets capping 

allocations of CSAPR NOX Annual 

allowances and CSAPR SO2 Group 2 

allowances to Alabama units under 

those federal trading programs. As 

approval of these portions of the SIP 

revision would eliminate Alabama’s 

remanded federally-established Phase 2 

SO2 budget and eliminate EPA’s 

authority to subject units in Alabama to 

a FIP, it is EPA’s opinion that 

finalization of approval of this SIP 

action would address the judicial 

remand of Alabama’s federallyestablished Phase 2 SO2 budget.4


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SIP of a state-established budget as stringent as the 

remanded federally-established budget or limits 

EPA’s authority to approve such a SIP revision. See 

42 U.S.C. 7416, 7410(k)(3). 

5See 40 CFR 52.38, 52.39. States also retain the 

ability to submit SIP revisions to meet their 

transport-related obligations using mechanisms 

other than the CSAPR federal trading programs or 

integrated state trading programs. 

6CSAPR also provides for a third, more 

streamlined form of SIP revision that is effective 

only for control periods in 2016 and is not relevant 

here. See § 52.38(a)(3), (b)(3); § 52.39(d), (g). 

7 § 52.38(a)(4), (b)(4); § 52.39(e), (h). 

8 § 52.38(a)(5), (b)(5); § 52.39(f), (i). 

9 § 52.38(a)(6), (b)(6); § 52.39(j). 

10 § 52.38(a)(5)(iv) and (v), (a)(6), (b)(5)(v) and (vi), 

(b)(6); § 52.39(f)(4) and (5), (i)(4) and (5), (j). 

Large electricity generating units in 

Alabama are also subject to an 

additional CSAPR FIP requiring them to 

participate in the federal CSAPR NOX

Ozone Season Trading Program. While 

Alabama’s SIP submittal also seeks to 

replace the requirements of the CSAPR 

FIP concerning Alabama units’ ozoneseason NOX emissions, EPA is not 

proposing to act on that portion of the 

SIP submittal at this time. Approval of 

this SIP revision concerning other 

CSAPR trading programs would have no 

effect on the CSAPR NOX Ozone Season 

Trading Program as applied to Alabama 

units, and the FIP requiring the units to 

participate in that program would 

remain in place. 

Section II of this document 

summarizes relevant aspects of the 

CSAPR federal trading programs and 

FIPs as well as the range of 

opportunities states have to submit SIP 

revisions to modify or replace the FIP 

requirements while continuing to rely 

on CSAPR’s trading programs to address 

the states’ obligations to mitigate 

interstate air pollution. Section III 

describes the specific conditions for 

approval of such SIP revisions. Section 

IV contains EPA’s analysis of Alabama’s 

SIP submittal, and Section V sets forth 

EPA’s proposed action on the submittal. 

Section VI addresses required statutory 

and Executive Order reviews. 

II. Background on CSAPR and CSAPRRelated SIP Revisions 

EPA issued CSAPR in July 2011 to 

address the requirements of CAA 

section 110(a)(2)(D)(i)(I) concerning 

interstate transport of air pollution. As 

amended, CSAPR requires 28 Eastern 

states to limit their statewide emissions 

of SO2 and/or NOX in order to mitigate 

transported air pollution unlawfully 

impacting other states’ ability to attain 

or maintain three NAAQS: The 1997 

ozone NAAQS, the 1997 annual PM2.5

NAAQS, and the 2006 24-hour PM2.5

NAAQS. The CSAPR emissions 

limitations are defined in terms of 

maximum statewide ‘‘budgets’’ for 

emissions of annual SO2, annual NOX, 

and/or ozone-season NOX by each 

covered state’s large EGUs. The CSAPR 

state budgets are implemented in two 

phases of generally increasing 

stringency, with the Phase 1 budgets 

applying to emissions in 2015 and 2016 

and the Phase 2 budgets applying to 

emissions in 2017 and later years. As a 

mechanism for achieving compliance 

with the emissions limitations, CSAPR 

established four federal emissions 

trading programs: A program for annual 

NOX emissions, a program for ozoneseason NOX emissions, and two 

geographically separate programs for 

annual SO2 emissions. CSAPR also 

established up to three FIPs applicable 

to the large electricity generating units 

in each covered state. Each CSAPR FIP 

requires a state’s units to participate in 

one of the four CSAPR trading 

programs. 

CSAPR includes provisions under 

which states may submit and EPA will 

approve SIP revisions to modify or 

replace the CSAPR FIP requirements 

while allowing states to continue to 

meet their transport-related obligations 

using either CSAPR’s federal emissions 

trading programs or state emissions 

trading programs integrated with the 

federal programs.5 Through such a SIP 

revision, a state may replace EPA’s 

default provisions for allocating 

emission allowances among the state’s 

units, employing any state-selected 

methodology to allocate or auction the 

allowances, subject to timing conditions 

and limits on overall allowance 

quantities. In the case of CSAPR’s 

federal trading program for ozoneseason NOX emissions (or an integrated 

state trading program), a state may also 

expand trading program applicability to 

include certain smaller electricity 

generating units. If a state wants to 

replace CSAPR FIP requirements with 

SIP requirements under which the 

state’s units participate in a state trading 

program that is integrated with and 

identical to the federal trading program 

even as to the allocation and 

applicability provisions, the state may 

submit a SIP revision for that purpose 

as well. However, no emissions budget 

increases or other substantive changes 

to the trading program provisions are 

allowed. A state whose units are subject 

to multiple CSAPR FIPs and federal 

trading programs may submit SIP 

revisions to modify or replace the 

requirements under either some or all of 

those FIPs. 

States can submit two basic forms of 

CSAPR-related SIP revisions effective 

for emissions control periods in 2017 or 

later years.6 Specific conditions for 

approval of each form of SIP revision 

are set forth in the CSAPR regulations, 

as described in section III below. Under 

the first alternative—an ‘‘abbreviated’’ 

SIP revision—a state may submit a SIP 

revision that upon approval replaces the 

default allowance allocation and/or 

applicability provisions of a CSAPR 

federal trading program for the state.7

Approval of an abbreviated SIP revision 

leaves the corresponding CSAPR FIP 

and all other provisions of the relevant 

federal trading program in place for the 

state’s units. 

Under the second alternative—a 

‘‘full’’ SIP revision—a state may submit 

a SIP revision that upon approval 

replaces a CSAPR federal trading 

program for the state with a state trading 

program integrated with the federal 

trading program, so long as the state 

trading program is substantively 

identical to the federal trading program 

or does not substantively differ from the 

federal trading program except as 

discussed above with regard to the 

allowance allocation and/or 

applicability provisions.8 For purposes 

of a full SIP revision, a state may either 

adopt state rules with complete trading 

program language, incorporate the 

federal trading program language into its 

state rules by reference (with 

appropriate conforming changes), or 

employ a combination of these 

approaches. 

The CSAPR regulations identify 

several important consequences and 

limitations associated with approval of 

a full SIP revision. First, upon EPA’s 

approval of a full SIP revision as 

correcting the deficiency in the state’s 

SIP that was the basis for a particular 

CSAPR FIP, the obligation to participate 

in the corresponding CSAPR federal 

trading program is automatically 

eliminated for units subject to the state’s 

jurisdiction without the need for a 

separate EPA withdrawal action, so long 

as EPA’s approval of the SIP is full and 

unconditional.9 Second, approval of a 

full SIP revision does not terminate the 

obligation to participate in the 

corresponding CSAPR federal trading 

program for any units located in any 

Indian country within the borders of the 

state, and if and when a unit is located 

in Indian country within a state’s 

borders, EPA may modify the SIP 

approval to exclude from the SIP, and 

include in the surviving CSAPR FIP 

instead, certain trading program 

provisions that apply jointly to units in 

the state and to units in Indian country 

within the state’s borders.10 Finally, if at 

the time a full SIP revision is approved 


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11 § 52.38(a)(7), (b)(7); § 52.39(k). 

12EME Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 138 (D.C. Cir. 2015). 

13 80 FR 75706, 75710, 75757 (December 3, 2015). 

14 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii), 

(b)(5)(vii); § 52.39(e)(2), (f)(6), (h)(2), (i)(6). 

15 In the context of the approval conditions for 

CSAPR-related SIP revisions, an ‘‘existing unit’’ is 

a unit for which EPA has determined default 

allowance allocations (which could be allocations 

of zero allowances) in the rulemakings establishing 

and amending CSAPR. A spreadsheet showing 

EPA’s default allocations to existing units is posted 

at www.epa.gov/crossstaterule/techinfo.html. 

16 § 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii); 

§ 52.39(e)(1), (f)(1), (h)(1), (i)(1). 

17See §§ 97.412(b)(10)(ii), 97.512(b)(10)(ii), 

97.612(b)(10)(ii), 97.712(b)(10)(ii). 

18 § 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A), 

(b)(5)(ii)(A); § 52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), 

(i)(1)(i). 

19 § 52.38(a)(4)(i)(B) and (C), (a)(5)(i)(B) and (C), 

(b)(4)(ii)(B) and (C), (b)(5)(ii)(B) and (C); 

§ 52.39(e)(1)(ii) and (iii), (f)(1)(ii) and (iii), (h)(1)(ii) 

and (iii), (i)(1)(ii) and (iii). 

EPA has already started recording 

allocations of allowances for a given 

control period to a state’s units, the 

federal trading program provisions 

authorizing EPA to complete the process 

of allocating and recording allowances 

for that control period to those units 

will continue to apply, unless EPA’s 

approval of the SIP revision provides 

otherwise.11

Certain CSAPR Phase 2 emissions 

budgets have been remanded to EPA for 

reconsideration.12 However, the CSAPR 

trading programs remain in effect and 

all CSAPR emissions budgets likewise 

remain in effect pending EPA final 

action to address the remands. The 

remanded budgets include the CSAPR 

Phase 2 SO2 emissions budget 

applicable to Alabama units under the 

federal CSAPR SO2 Group 2 Trading 

Program. 

In 2015, EPA proposed to update 

CSAPR to address Eastern states’ 

interstate air pollution mitigation 

obligations with regard to the 2008 

ozone NAAQS. Among other things, the 

proposed rule would amend the Phase 

2 emissions budget applicable to 

Alabama units under the CSAPR NOX

Ozone Season Trading Program and 

would make technical corrections and 

nomenclature changes that would apply 

throughout the CSAPR regulations, 

including the CSAPR FIPs at 40 CFR 

part 52 and the CSAPR federal trading 

program regulations for annual NOX, 

ozone-season NOX, and SO2 emissions 

at 40 CFR part 97.13

III. Conditions for Approval of CSAPRRelated SIP Revisions 

Each CSAPR-related abbreviated or 

full SIP revision must meet the 

following general submittal conditions: 

• Timeliness and completeness of SIP 

submittal. If a state wants to replace the 

default allowance allocation or 

applicability provisions of a CSAPR 

federal trading program, the complete 

SIP revision must be submitted to EPA 

by December 1 of the year before the 

deadlines described below for 

submitting allocation or auction 

amounts to EPA for the first control 

period for which the state wants to 

replace the default allocation and/or 

applicability provisions.14 This SIP 

submission deadline is inoperative in 

the case of a SIP revision that seeks only 

to replace a CSAPR FIP and federal 

trading program with a SIP and a 

substantively identical state trading 

program integrated with the federal 

trading program. The SIP submittal 

completeness criteria in section 2.1 of 

appendix V to 40 CFR part 51 also 

apply. 

In addition to the general submittal 

conditions, a CSAPR-related abbreviated 

or full SIP seeking to address the 

allocation or auction of emission 

allowances must meet the following 

further conditions: 

• Methodology covering all 

allowances potentially requiring 

allocation. For each federal trading 

program addressed by a SIP revision, 

the SIP revision’s allowance allocation 

or auction methodology must replace 

both the federal program’s default 

allocations to existing units 15 at 40 CFR 

97.411(a), 97.511(a), 97.611(a), or 

97.711(a), as applicable, and the federal 

trading program’s provisions for 

allocating allowances from the new unit 

set-aside (NUSA) for the state at 40 CFR 

97.411(b)(1) and 97.412(a), 97.511(b)(1) 

and 97.512(a), 97.611(b)(1) and 

97.612(a), or 97.711(b)(1) and 97.712(a), 

as applicable.16 In the case of a state 

with Indian country within its borders, 

while the SIP revision may neither alter 

nor assume the federal program’s 

provisions for administering the Indian 

country NUSA for the state, the SIP 

revision must include procedures 

addressing the disposition of any 

otherwise unallocated allowances from 

an Indian country NUSA that may be 

made available for allocation by the 

state after EPA has carried out the 

Indian country NUSA allocation 

procedures.17

• Assurance that total allocations will 

not exceed the state budget. For each 

federal trading program addressed by a 

SIP revision, the total amount of 

allowances auctioned or allocated for 

each control period under the SIP 

revision (prior to the addition by EPA of 

any unallocated allowances from any 

Indian country NUSA for the state) may 

not exceed the state’s emissions budget 

for the control period less the sum of the 

amount of any Indian country NUSA for 

the state for the control period and any 

allowances already allocated to the 

state’s units for the control period and 

recorded by EPA.18 Under its SIP 

revision, a state is free to not allocate 

allowances to some or all potentially 

affected units, to allocate or auction 

allowances to entities other than 

potentially affected units, or to allocate 

or auction fewer than the maximum 

permissible quantity of allowances and 

retire the remainder. 

• Timely submission of statedetermined allocations to EPA. The SIP 

revision must require the state to submit 

to EPA the amounts of any allowances 

allocated or auctioned to each unit for 

each control period (other than 

allowances initially set aside in the 

state’s allocation or auction process and 

later allocated or auctioned to such 

units from the set-aside amount) by the 

following deadlines.19 Note that the 

submission deadlines differ for amounts 

allocated or auctioned to units 

considered existing units for CSAPR 

purposes and amounts allocated or 

auctioned to other units. 

Units Year of the control period Deadline for submission to EPA of allocations or auction results 

Existing .............. 2017 and 2018 ........................................ June 1, 2016. 

2019 and 2020 ........................................ June 1, 2017. 

2021 and 2022 ........................................ June 1, 2018. 

2023 and later years ............................... June 1 of the fourth year before the year of the control period. 

Other .................. All years ................................................... July 1 of the year of the control period. 

• No changes to allocations already 

submitted to EPA or recorded. The SIP 

revision must not provide for any 

change to the amounts of allowances 

allocated or auctioned to any unit after 

those amounts are submitted to EPA or 


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20 § 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D), 

(b)(5)(ii)(D); § 52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), 

(i)(1)(iv). 

21 § 52.38(a)(4), (a)(5), (b)(4), (b)(5); § 52.39(e), (f), 

(h), (i). 

22 § 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii); 

§ 52.39(e)(1), (f)(2), (h)(1), (i)(2). 

23 § 52.38(b)(4)(i), (b)(5)(i). 

24 § 52.38(b)(4), (b)(5). 

25 §§ 52.38(a)(5)(iii), (b)(5)(iv); 52.39(f)(3), (i)(3). 

26 §§ 52.38(a)(5)(iv), (b)(5)(v); 52.39(f)(4), (i)(4). 

27 76 FR 48208, 48213 (August 8, 2011). 

28 40 CFR 52.38(a)(2), (b)(2); § 52.39(c); § 52.54(a), 

(b); § 52.55. 

29Consistent with the current CSAPR regulatory 

text, Alabama’s rules use the terms ‘‘Transport 

Rule’’ and ‘‘TR’’ instead of the updated terms 

‘‘Cross-State Air Pollution Rule’’ and ‘‘CSAPR’’. For 

simplicity, EPA uses the updated terms here except 

where otherwise noted. 

any change to any allowance allocation 

determined and recorded by EPA under 

the federal trading program 

regulations.20

• No other substantive changes to 

federal trading program provisions. The 

SIP revision may not substantively 

change any other trading program 

provisions, except in the case of a SIP 

revision that also expands program 

applicability as described below.21 Any 

new definitions adopted in the SIP 

revision (in addition to the federal 

trading program’s definitions) may 

apply only for purposes of the SIP 

revision’s allocation or auction 

provisions.22

In addition to the general submittal 

conditions, a CSAPR-related abbreviated 

or full SIP revision seeking to expand 

applicability under the CSAPR NOx 

Ozone Season Trading Program (or an 

integrated state trading program) must 

meet the following further conditions: 

• Only electricity generating units 

with nameplate capacity of at least 15 

MWe. The SIP revision may expand 

applicability only to additional fossil 

fuel-fired boilers or combustion turbines 

serving generators producing electricity 

for sale, and only by lowering the 

generator nameplate capacity threshold 

used to determine whether a particular 

boiler or combustion turbine serving a 

particular generator is a potentially 

affected unit. The nameplate capacity 

threshold adopted in the SIP revision 

may not be less than 15 MWe.23

• No other substantive changes to 

federal trading program provisions. The 

SIP revision may not substantively 

change any other trading program 

provisions, except in the case of a SIP 

revision that also addresses the 

allocation or auction of emission 

allowances as described above.24

In addition to the general submittal 

conditions and the other applicable 

conditions described above, a CSAPRrelated full SIP revision must meet the 

following further conditions: 

• Complete, substantively identical 

trading program provisions. The SIP 

revision must adopt complete state 

trading program regulations 

substantively identical to the complete 

federal trading program regulations at 

40 CFR 97.402 through 97.435, 97.502 

through 97.535, 97.602 through 97.635, 

or 97.702 through 97.735, as applicable, 

except as described above in the case of 

a SIP revision that seeks to replace the 

default allowance allocation and/or 

applicability provisions. 

• Only non-substantive substitutions 

for the term ‘‘State.’’ The SIP revision 

may substitute the name of the state for 

the term ‘‘State’’ as used in the federal 

trading program regulations, but only to 

the extent that EPA determines that the 

substitutions do not substantively 

change the trading program 

regulations.25

• Exclusion of provisions addressing 

units in Indian country. The SIP 

revision may not include references to 

or impose requirements on any unit in 

any Indian country within the state’s 

borders and must not include the 

federal trading program provisions 

governing allocation of allowances from 

any Indian country NUSA for the 

state.26

IV. Alabama’s SIP Submittal and EPA’s 

Analysis 

A. Alabama’s SIP Submittal 

In the CSAPR rulemaking, EPA 

determined that air pollution 

transported from Alabama would 

unlawfully affect other states’ ability to 

attain or maintain the 1997 ozone 

NAAQS, the 1997 annual PM2.5

NAAQS, and the 2006 24-hour PM2.5

NAAQS.27 Alabama units meeting the 

CSAPR applicability criteria are 

consequently subject to CSAPR FIPs 

that require participation in the CSAPR 

NOX Annual Trading Program, the 

CSAPR NOX Ozone Season Trading 

Program, and the CSAPR SO2 Group 2 

Trading Program.28

On October 26, 2015, Alabama 

submitted to EPA a SIP revision 

including provisions that, if all portions 

were approved, would incorporate into 

Alabama’s SIP CSAPR state trading 

program regulations that would replace 

the CSAPR federal trading program 

regulations with regard to Alabama 

units’ SO2, annual NOX, and ozoneseason NOX emissions for control 

periods in 2017 and later years. The SIP 

submittal includes three sets of duly 

adopted state rules: ADEM 

Administrative Code rules 335–3–5–.06 

through 335–3–5–.36, which establish 

Alabama’s ‘‘TR SO2 Group 2 Trading 

Program’’; rules 335–3–8–.07 through 

335–3–8–.38, which establish Alabama’s 

‘‘TR NOX Annual Trading Program’’; 

and rules 335–3–8–.39 through 335–3– 

8–.70, which establish Alabama’s ‘‘TR 

NOX Ozone Season Trading Program’’.29

In general, each individual rule in 

Alabama’s three sets of CSAPR state 

trading program rules is designed to 

replace one individual section (or in a 

few cases two or three sections) of the 

corresponding federal trading program 

regulations, and each set of rules is 

designed to collectively replace all 

sections of the corresponding federal 

trading program regulations. For 

example, Alabama rule 335–3–5–.06 is 

designed to replace 40 CFR 97.401 

through 97.403, while Alabama rules 

335–3–5–.06 through 335–3–5–.36 are 

designed to collectively replace all of 

subpart AAAAA of 40 CFR part 97 (i.e., 

40 CFR 97.401 through 97.435). 

With regard to form, some of the 

individual rules for each Alabama 

CSAPR state trading program are set 

forth as full regulatory text—notably the 

rules addressing program applicability, 

emissions budgets and variability limits, 

and allowance allocations—but most of 

the rules incorporate the corresponding 

federal trading program section or 

sections by reference. Several of the 

Alabama rules adopt cross-references to 

other Alabama rules in place of crossreferences to specific federal trading 

program sections that would be replaced 

by those other Alabama rules. 

With regard to substance, the rules for 

each Alabama CSAPR state trading 

program differ from the corresponding 

CSAPR federal trading program 

regulations in three main ways. First, 

the applicability provisions in the 

Alabama rules require participation in 

Alabama’s CSAPR state trading 

programs only for units in Alabama, not 

for units in any other state or in Indian 

country within the borders of Alabama 

or any other state. Second, the Alabama 

rules set forth a methodology for 

allocating emission allowances among 

Alabama units that differs from the 

default allowance allocation provisions 

in the federal trading program 

regulations. Finally, the Alabama rules 

omit a number of federal trading 

program provisions not applicable to 

Alabama’s state trading programs, 

including provisions setting forth the 

amounts of emissions budgets, NUSAs, 

Indian country NUSAs, and variability 

limits for other states; provisions 

addressing EPA’s procedures for 

allocating allowances from Indian 

country NUSAs; and provisions 

addressing EPA’s recordation of certain 

allowance allocations. 


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30Alabama’s current Phase 2 emissions budget 

under the CSAPR NOX Ozone Season Trading 

Program is 31,499 tons. 40 CFR 97.510(a)(1)(iv). 

Alabama’s proposed updated CSAPR emissions 

budget for ozone season NOX emissions is 9,979 

tons. 80 FR at 75770. 31 80 FR 52272 (September 22, 2015). 

32 40 CFR 97.410(a)(1)(iv); § 97.710(a)(1)(iv). 

33Since promulgating the current CSAPR 

regulations, EPA has learned of Indian country 

within Alabama’s borders. If any units were to 

locate in that area of Indian country in the future, 

EPA would determine at that time what actions, if 

any, should be taken to make CSAPR NOX Annual 

allowances and CSAPR SO2 Group 2 allowances 

available for allocation to those units. 

The Alabama SIP adopts the Phase 2 

annual NOX and SO2 budgets found at 

40 CFR 97.410(a)(1)(iv) and 

97.710(a)(1)(iv), respectively. Although 

the court in EME Homer City remanded 

Alabama’s Phase 2 SO2 budget because 

it determined that EPA required more 

emissions reductions than necessary to 

address the downwind air quality 

problems to which Alabama contributes, 

Alabama is voluntarily adopting a Phase 

2 SO2 budget that is equivalent to the 

federally-developed budget remanded 

by the court. Nothing in the court’s 

decision affects Alabama’s authority to 

seek incorporation into its SIP of a stateestablished budget as stringent as the 

remanded federally-established budget 

or limits EPA’s authority to approve 

such a SIP revision. See 42 U.S.C. 7416, 

7410(k)(3). Accordingly, EPA will 

evaluate the approvability of the 

Alabama SIP submission consistent 

with this budget. 

The SIP revision was submitted to 

EPA by a letter from the Director of the 

Alabama Department of Environmental 

Management. The letter and its 

enclosures describe steps taken by 

Alabama to provide public notice prior 

to adoption of the state rules. 

At this time, EPA is proposing to take 

action on the portions of Alabama’s SIP 

submittal designed to replace the federal 

CSAPR NOX Annual Trading Program 

and the federal CSAPR SO2 Group 2 

Trading Program with regard to 

Alabama units. EPA is not proposing to 

take action at this time on the portion 

of the SIP submittal designed to replace 

the federal CSAPR NOX Ozone Season 

Trading Program with regard to 

Alabama units. As noted in section II 

above, EPA has proposed to update 

CSAPR to address Eastern states’ 

interstate air pollution mitigation 

obligations with regard to the 2008 

ozone NAAQS. The proposal would 

further reduce the ozone-season NOX

emissions budgets for control periods in 

2017 and later years for a number of 

states, including Alabama.30 Action on 

the portion of Alabama’s SIP submittal 

related to ozone-season NOX emissions 

would be premature while the proposed 

update is pending because there is a 

foreseeable potential conflict between 

the total amount of allowances that 

would be allocated to Alabama units 

under Alabama’s state trading program, 

which reflects Alabama’s current ozoneseason NOX budget, and the total 

amount of allowances that could 

permissibly be allocated to the units 

under a final updated budget. 

EPA has previously approved a 

separate Alabama SIP revision replacing 

the default allowance allocation 

provisions of the CSAPR NOX Annual 

Trading Program, the CSAPR NOX

Ozone Season Trading Program, and the 

CSAPR SO2 Group 2 Trading Program 

for Alabama existing units for the 

control period in 2016.31

B. EPA’s Analysis of Alabama’s 

Submittal 

As described in section IV.A above, at 

this time EPA is taking action on the 

portions of Alabama’s SIP submittal 

designed to replace the federal CSAPR 

NOX Annual Trading Program and the 

federal CSAPR SO2 Group 2 Trading 

Program for Alabama units but not the 

portion of the SIP submittal designed to 

replace the federal CSAPR NOX Ozone 

Season Trading Program. The analysis 

discussed in this section addresses only 

the portions of Alabama’s SIP submittal 

on which EPA is taking action at this 

time. For simplicity, throughout this 

section EPA refers to the portions of the 

submittal on which EPA is proposing to 

take action as ‘‘the submittal’’ or ‘‘the 

SIP revision’’ without repeating the 

qualification that at this time EPA is 

analyzing and proposing to act on only 

portions of the SIP submittal. 

1. Timeliness and Completeness of SIP 

Submittal 

Alabama’s SIP revision seeks in part 

to replace the default allowance 

allocation provisions in the CSAPR 

federal trading program regulations for 

annual NOX and SO2 emissions as 

applied to Alabama units with state 

regulations establishing a different statedetermined methodology, starting with 

the control periods in 2017. Under 40 

CFR 52.38(a)(5)(i)(B) and 52.39(h)(1)(ii), 

the deadline for submission of statedetermined allowance allocations for 

the 2017 and 2018 control periods is 

June 1, 2016, which under 

§§ 52.38(a)(5)(vi) and 52.39(i)(6) makes 

December 1, 2015, the deadline for 

submission to EPA of a complete SIP 

revision establishing state-determined 

allocations for those control periods. 

Alabama submitted its SIP revision to 

EPA on October 26, 2015, and EPA has 

determined that the submittal complies 

with the applicable minimum 

completeness criteria in section 2.1 of 

appendix V to 40 CFR part 51. Because 

Alabama’s SIP revision was timely 

submitted and meets the applicable 

completeness criteria, it meets the 

conditions under 40 CFR 52.38(a)(5)(vi) 

and 52.39(i)(6) for timely submission of 

a complete SIP revision. 

2. Methodology Covering All 

Allowances Potentially Requiring 

Allocation 

Paragraphs 335–3–8-.14(1) and 335– 

3–5-.13(1) of the Alabama rules set forth 

total amounts of 71,962 CSAPR Annual 

NOX allowances and 213,258 CSAPR 

SO2 Group 2 allowances, respectively, 

that would be allocated to Alabama 

units for each control period in 2017 

and later years according to the 

allocation procedures set forth under 

the remaining paragraphs of Alabama 

rules 335–3–8-.14 and 335–3–5-.13 

(Paragraphs 335–3–8-.13(1) and 335–3– 

5-.12(1) set forth the same amounts as 

the respective state emissions budgets, 

in conjunction with the corresponding 

variability limits). These totals match 

the amounts of the respective Phase 2 

emissions budgets for Alabama 

established under the federal trading 

program regulations for annual NOX and 

SO2 emissions, thereby addressing the 

full quantities of allowances that could 

be allocated to Alabama units under the 

default allocation provisions for the 

federal trading programs.32 As noted 

earlier, although the Phase 2 SO2

emissions budget was remanded 

because the court in EME Homer City 

determined that the budget was too 

stringent, nothing in the court’s decision 

affects Alabama’s authority to seek 

incorporation into its SIP of a stateestablished budget as stringent as the 

remanded federally-established budget 

or limits EPA’s authority to approve 

such a SIP revision. See 42 U.S.C. 7416, 

7410(k)(3). Because the current CSAPR 

federal trading program regulations for 

annual NOX and SO2 emissions do not 

provide for portions of Alabama’s 

overall emissions budgets to be 

allocated pursuant to the Indian country 

NUSA allocation procedures, there is no 

current need for the Alabama rules 

establishing CSAPR state trading 

programs for annual NOX and SO2

emissions to include provisions 

addressing the disposition of otherwise 

unallocated allowances from an Indian 

country NUSA that might be made 

available by EPA for state allocation.33

The allocation provisions in the 

Alabama rules therefore enable 

Alabama’s SIP revision to meet the 


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34EPA has proposed to make certain technical 

corrections to the CSAPR FIP and federal trading 

program regulations in order to more accurately 

reflect EPA’s intent as described in the CSAPR 

rulemaking and has also proposed to replace ‘‘TR’’ 

with ‘‘CSAPR’’ throughout the regulations (for 

example, ‘‘TR NOX Annual unit’’ would become 

‘‘CSAPR NOX Annual unit’’). See 80 FR 75706, 

75758. Because the proposed technical corrections 

merely clarify and do not change EPA’s 

interpretations, where the proposed corrections 

would apply to a provision incorporated by 

reference in the Alabama rules, EPA would 

interpret the Alabama rules as reflecting the 

corrections. Further, EPA anticipates that if the 

proposed nomenclature updates are finalized, the 

final CSAPR federal regulations would explicitly 

provide that terms that include ‘‘CSAPR’’ 

encompass otherwise identical terms in approved 

SIP revisions that include ‘‘TR’’. 

35 40 CFR 52.38(a)(5)(ii); § 52.39(i)(2). 

36 Instances where Alabama’s CSAPR state trading 

program rules omit provisions of the CSAPR federal 

trading program regulations are discussed in 

sections IV.B.7 and 9 below. 

37Alabama’s CSAPR state trading program rules 

for SO2 emissions do not contain a comparable 

substitution provision. 

condition under 40 CFR 52.38(a)(5)(i) 

and 52.39(i)(1) that the state’s allocation 

or auction methodology must cover all 

allowances potentially requiring 

allocation by the state. 

3. Assurance That Total Allocations 

Will Not Exceed the State Budget 

As discussed in section IV.B.2 above, 

paragraphs 335–3–8–.14(1) and 335–3– 

5–.13(1) of the Alabama rules set forth 

the total amounts of CSAPR Annual 

NOX allowances and CSAPR SO2 Group 

2 allowances to be allocated to Alabama 

units for each control period under the 

state trading programs; these total 

amounts equal the amounts of the 

respective annual NOX and SO2

emissions budgets established for 

Alabama units under the CSAPR federal 

trading program regulations; and under 

the current CSAPR federal trading 

program regulations for annual NOX and 

SO2 there is no possibility of additional 

allowances from an Indian country 

NUSA being allocated to Alabama units. 

EPA has not yet allocated or recorded 

CSAPR allowances for the control 

periods in 2017 or later years. The 

allocation methodology in Alabama’s 

SIP revision therefore meets the 

condition under 40 CFR 52.38(a)(5)(i)(A) 

and 52.39(i)(1)(i) that, for each trading 

program, the total amount of allowances 

allocated under the SIP revision (before 

the addition of any otherwise 

unallocated allowances from an Indian 

country NUSA) may not exceed the 

state’s budget for the control period less 

the amount of the Indian country NUSA 

for the state and any allowances already 

allocated and recorded by EPA. 

4. Timely Submission of StateDetermined Allocations to EPA 

Paragraphs 335–3–8–.14(2)(a) through 

(d) and 335–3–5–.13(2)(a) through (d) of 

the Alabama rules provide for all 

allowance allocations to Alabama units 

established under the Alabama rules to 

be submitted to EPA by the following 

deadlines: allocations for the control 

periods in 2017 and 2018, by June 1, 

2016; allocations for the control periods 

in 2019 and 2020, by June 1, 2017; 

allocations for the control periods in 

2021 and 2022, by June 1, 2018; and 

allocations for later control periods, by 

June 1 of the fourth or fifth year before 

the year of the control period. These 

submission deadlines match or precede 

the submission deadlines discussed in 

section III above (specifically, the 

deadlines under 40 CFR 52.38(a)(5)(i)(B) 

and 52.39(i)(1)(ii) for allocations to units 

considered existing units for CSAPR 

purposes and the submission deadlines 

under §§ 52.38(a)(5)(i)(C) and 

52.39(i)(1)(iii) for allocations to other 

units). Alabama’s SIP revision therefore 

meets the conditions under 40 CFR 

52.38(a)(5)(i)(B) and (C) and 

52.39(i)(1)(ii) and (iii) requiring that the 

SIP revision provide for submission of 

state-determined allowance allocations 

to EPA by the deadlines specified in 

those provisions. 

5. No Changes to Allocations Already 

Submitted to EPA or Recorded 

The Alabama rules include no 

provisions allowing alteration of 

allocations after the allocation amounts 

have been provided to EPA and no 

provisions allowing alteration of any 

allocations made and recorded by EPA 

under the federal trading program 

regulations, thereby meeting the 

condition under 40 CFR 52.38(a)(5)(i)(D) 

and 52.39(i)(1)(iv). 

6. No Other Substantive Changes to 

Federal Trading Program Provisions 

With the exception of the provisions 

addressing allowance allocations 

discussed above, the Alabama state 

trading program rules generally 

incorporate sections of the 

corresponding federal trading program 

regulations by reference or set forth full 

text that is very similar to the text in the 

corresponding federal trading program 

regulations.34 Some of the differences 

between the Alabama rules and the 

corresponding federal trading program 

regulations are clearly non-substantive. 

For example, in instances where an 

Alabama rule contains full text 

substituting for the text of a section of 

the federal trading program regulations, 

the remaining Alabama rules adopt 

cross-references to the full-text Alabama 

rule in place of cross-references to the 

section of the federal trading program 

regulations that would be replaced by 

the full-text Alabama rule. The Alabama 

rules also contain definitions for certain 

terms used in the state trading 

programs’ allocation provisions that are 

not used in the federal trading program 

regulations, as expressly permitted 

under the CSAPR regulations.35 Most of 

the remaining differences between the 

Alabama rules and the corresponding 

sections of the federal trading program 

regulations consist of non-substantive 

renumbering of the provisions.36

In addition to the clearly nonsubstantive or expressly authorized 

differences summarized above, a few of 

Alabama’s rules contain other 

differences from the federal trading 

program regulations. In each case, EPA 

has determined that the changes do not 

represent substantive changes to the 

federal trading program regulations. 

First, paragraphs 335–3–8–.08(1)(c), 

335–3–8–.09(1)(a), 335–3–8–.34(2)(a), 

335–3–5–.07(1)(c), 335–3–5–.08(1)(a), 

and 335–3–5–.32(2)(a) of the Alabama 

rules require Alabama units to submit 

certain petitions, statements, and 

notices not only to EPA but also to the 

Alabama Department of Environmental 

Management. Because the additional 

notification requirements do not alter 

the respective authorities or 

responsibilities of EPA and the 

Department, EPA considers the 

requirements to be non-substantive 

changes. 

Second, paragraphs 335–3–8– 

.20(2)(a), 335–3–8–.23(2)(a), 335–3–5– 

.18(2)(a), and 335–3–5–.21(2)(a) of the 

Alabama rules provide that, like EPA, 

the Department will not adjudicate 

certain private legal disputes. Because 

the Department is not required to 

adjudicate such disputes under the 

federal trading program regulations in 

any event, these additions to the text of 

the state trading program rules merely 

clarify that the Department is not 

undertaking a new adjudication 

responsibility under the state trading 

programs. EPA therefore considers these 

additions to be non-substantive changes. 

Third, paragraph 335–3–8–.07(2)(b)8. 

of the Alabama CSAPR state trading 

program rules for annual NOX emissions 

substitutes a reference to Alabama rule 

335–3–16–.01 (an Alabama air permit 

program rule) for a reference to 40 CFR 

70.2 (the definitions section of the 

federal regulations governing state 

operating permit programs under CAA 

title V) in the corresponding CSAPR 

federal trading program definition of 

‘‘permitting authority.’’ 37 Although 

substitutions to definitions in the 

CSAPR federal trading program 

regulations generally are not permissible 


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38For the same reason, Alabama’s state rules 

could permissibly omit 40 CFR 97.421(g) and 

97.721(g), which address recordation of first-round 

NUSA allocations. Note that notwithstanding the 

lack of provisions addressing recordation of NUSA 

allocations in Alabama’s state trading program 

rules, EPA would retain authority to complete the 

recordation of 2016 NUSA allocations to Alabama 

units because EPA has already started recording 

allocations to Alabama units of allowances for the 

compliance periods in 2016. See 40 CFR 52.38(a)(7); 

§ 52.39(k). 

in a CSAPR-related SIP revision, in this 

case the substitution has no substantive 

effect, for two reasons. First, the state 

trading program rule, like the CSAPR 

federal trading program definition, 

includes a reference to the definition of 

‘‘permitting authority’’ in 40 CFR 71.2 

(the definitions section of the federal 

operating permit program under CAA 

title V) which encompasses the 

definition of ‘‘permitting authority’’ in 

§ 70.2, so all the intended possible 

meanings of ‘‘permitting authority’’ are 

captured in the state trading program 

rules despite the loss of the reference to 

40 CFR 70.2. Second, Alabama rule 

335–3–16–.01 contains no definition of 

‘‘permitting authority,’’ so the 

substitution does not introduce any 

new, unintended meanings of 

‘‘permitting authority’’ in the state 

trading program rules. EPA therefore 

considers the substitution to be a nonsubstantive change. 

Finally, paragraphs 335–3–8–.10(2)(a) 

and (b) and 335–3–5–.09(2)(a) and (b) of 

the Alabama rules substitute references 

to Alabama rule 335.3.16–.13(3) (the 

Alabama rule addressing minor permit 

modification procedures) for references 

to 40 CFR 70.7(e)(2) (the minor permit 

modification procedures section of the 

federal regulations governing state 

operating permit programs under CAA 

title V) in the federal trading program 

regulations regarding title V permit 

requirements. As applied to Alabama 

units only, the substituted Alabama rule 

provisions are substantively identical to 

the provisions in 40 CFR 70.7(e)(2) that 

would be replaced. Because in the 

context of Alabama’s CSAPR state 

trading programs these particular 

provisions need to address only 

Alabama units and not units from other 

states participating in the CSAPR 

trading programs, EPA determines that 

these substitutions have no substantive 

effect. 

For the reasons discussed above, EPA 

has determined that none of the textual 

additions or substitutions made to the 

CSAPR federal trading program 

regulations in Alabama’s corresponding 

CSAPR state trading program rules are 

substantive, and that Alabama’s SIP 

revision therefore meets the conditions 

under 40 CFR 52.38(a)(5) and 52.39(i) of 

making no substantive changes to the 

provisions of the federal trading 

program regulations beyond the 

provisions addressing allowance 

allocations. 

7. Complete, Substantively Identical 

Trading Program Provisions 

With the following exceptions, the 

Alabama rules comprising Alabama’s 

CSAPR state trading program for annual 

NOX emissions either incorporate by 

reference or adopt full-text replacements 

for all of the provisions of 40 CFR 

97.402 through 97.435, and the Alabama 

rules comprising Alabama’s CSAPR 

state trading program for SO2 emissions 

either incorporate by reference or adopt 

full-text replacements for all of the 

provisions of 40 CFR 97.702 through 

97.735. The first exception is that 

Alabama rules 335–3–8–.13 and 335–3– 

5–.12, which generally address the 

amounts of emissions budgets and 

related quantities, omit the provisions of 

40 CFR 97.410 and 97.710 setting forth 

the amounts of the Phase 1 emissions 

budgets, NUSAs, and variability limits 

for Alabama; the amounts of the Phase 

2 NUSAs for Alabama; and the amounts 

of all emissions budgets, NUSAs, Indian 

country NUSAs, and variability limits 

for other states. Omission of the 

Alabama Phase 1 emissions budget and 

NUSA amounts is appropriate because 

Alabama’s state trading programs do not 

apply to emissions occurring in Phase 1 

of CSAPR. Omission of the default 

Alabama NUSA amounts under the 

federal trading program regulations is 

appropriate because the allocation 

procedures under Alabama’s state 

trading programs establish NUSA 

amounts differently. Omission of the 

budget, NUSA, Indian country NUSA, 

and variability limit provisions for other 

states from state trading programs in 

which only Alabama units participate 

does not undermine the completeness of 

the state trading programs. 

The second exception is that Alabama 

rules 335–3–8–.14 and 335–3–5–.13, 

generally addressing allowance 

allocations, omit 40 CFR 97.411(b)(2) 

and 97.412(b) and 97.711(b)(2) and 

97.712(b), concerning EPA’s 

administration of Indian country 

NUSAs. Omission of these provisions 

from Alabama’s state trading program 

rules is required, as discussed in section 

IV.B.9 below. 

The third exception is that Alabama 

rules 335–3–8–.24 and 335–3–5–.22, 

which generally incorporate by 

reference the federal trading programs’ 

recordation schedule provisions, 

exclude from incorporation by reference 

40 CFR 97.421(a), (b), (h), and (i) and 

97.721(a), (b), (h), and (i), respectively, 

concerning EPA’s schedule for 

recording certain allowance allocations. 

The federal trading program provisions 

at §§ 97.421(a) and (b) and 97.721(a) and 

(b), which address recordation of 

allocations to units considered existing 

units for CSAPR purposes of allowances 

for the compliance periods in 2015 and 

2016, do not need to be included in 

Alabama’s state trading program rules 

because those allocations have already 

been recorded. The federal trading 

program provisions at §§ 97.421(h) and 

97.721(h), which address recordation of 

allocations from Indian country NUSAs, 

are appropriately excluded from state 

trading programs because a state may 

not administer an Indian country 

NUSA. The federal trading program 

provisions at §§ 97.421(i) and 97.721(i), 

which address recordation of secondround NUSA allocations, are not needed 

in Alabama’s state trading program rules 

because Alabama would provide EPA 

the amounts of its NUSA allocations on 

the earlier schedule applicable to 

allocations to units considered existing 

units for CSAPR purposes.38 Omission 

of these provisions from Alabama’s state 

trading programs therefore does not 

undermine the completeness of the state 

trading programs. 

Because none of the omissions 

undermines the completeness of the 

Alabama’s state trading programs and 

because, as discussed in section IV.B.6 

above, EPA has determined that 

Alabama’s SIP revision makes no other 

substantive changes to the provisions of 

the federal trading program regulations 

beyond the provisions addressing 

allowance allocations, Alabama’s SIP 

revision meets the condition under 40 

CFR 52.38(a)(5) and 52.39(i) that the SIP 

revision must adopt complete state 

trading program regulations 

substantively identical to the complete 

federal trading program regulations at 

40 CFR 97.402 through 97.435, 97.502 

through 97.535, 97.602 through 97.635, 

or 97.702 through 97.735, as applicable, 

except for permissible differences in 

allowance allocation and/or 

applicability provisions. 

8. Only Non-Substantive Substitutions 

for the Term ‘‘State’’ 

Paragraphs 335–3–8–.08(1)(a)1. and 

335–3–5–.07(1)(a)1. of the Alabama 

rules substitute the term ‘‘the State of 

Alabama’’, and paragraphs 335–3–8– 

.08(1)(b) and 335–3–5–.07(1)(b) of the 

Alabama rules similarly substitute the 

term ‘‘the State’’ (meaning Alabama), for 

the phrase ‘‘a State (or Indian country 

within the borders of such State)’’ in the 

corresponding federal trading program 

regulations at 40 CFR 97.410(a)(1) and 

97.710(a)(1) and at §§ 97.410(b) and 


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41922 Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Proposed Rules 

39Since promulgating the current CSAPR 

regulations, EPA has learned of Indian country 

within Alabama’s borders. If any units were to 

locate in that area of Indian country in the future, 

EPA would determine at that time what actions, if 

any, should be taken to make CSAPR NOX Annual 

allowances and CSAPR SO2 Group 2 allowances 

available for allocation to those units. 

40Consistent with the current CSAPR regulatory 

text, the Alabama rules use the terms ‘‘Transport 

Rule’’ and ‘‘TR’’ instead of the updated terms 

‘‘Cross-State Air Pollution Rule’’ and ‘‘CSAPR’’. 

97.710(b), respectively. These 

provisions of the Alabama rules define 

the units that are required to participate 

in Alabama’s CSAPR state trading 

programs. The substitutions 

appropriately exclude units located in 

other states and units located in Indian 

country with the borders of Alabama or 

any other state, thereby limiting the 

applicability of Alabama’s state trading 

programs to units that are subject to 

Alabama’s jurisdiction. These 

substitutions do not substantively 

change the provisions of CSAPR’s 

federal trading program regulations. The 

remaining Alabama rules do not 

substitute for the term ‘‘State’’ as used 

in the federal trading program 

regulations. Alabama’s SIP revision 

therefore meets the condition under 40 

CFR 52.38(a)(5)(iii) and 52.39(i)(3) that 

the SIP revision may substitute the 

name of the state for the term ‘‘State’’ as 

used in the federal trading program 

regulations, but only to the extent that 

EPA determines that the substitutions 

do not substantively change the 

provisions of the federal trading 

program regulations. 

9. Exclusion of Provisions Addressing 

Units in Indian Country 

The Alabama rules do not set forth 

any full text provisions directly 

addressing units in Indian country 

within the state’s borders. As discussed 

in section IV.B.8 above, paragraphs 335– 

3–8–.08(1)(a)1. and 335–3–5–.07(1)(a)1. 

of the Alabama rules define the units 

required to participate in Alabama’s 

state trading programs in a manner that 

appropriately excludes units located in 

Indian country within Alabama’s 

borders from coverage under Alabama’s 

CSAPR state trading programs. 

Although various other provisions of the 

CSAPR federal trading program 

regulations incorporated by reference 

into the Alabama rules without 

modification refer to units in Indian 

country, the clear exclusion of any such 

units from coverage under the state 

trading program applicability 

provisions—in other words, the fact that 

such units are not ‘‘TR NOX Annual 

units’’ or ‘‘TR SO2 Group 2 units’’ for 

purposes of the state trading programs— 

renders the remaining provisions of 

Alabama’s state trading program rules 

inoperative as to the units. EPA 

therefore interprets the Alabama rules as 

not imposing any requirements on units 

located in Indian country within the 

state’s borders. 

As discussed in section IV.B.7 above, 

Alabama rules 335–3–8–.14 and 335–3– 

5–.13, which address allowance 

allocations under the state trading 

programs, contain no provisions 

replacing 40 CFR 97.411(b)(2), 

97.412(b), 97.711(b)(2), or 97.712(b), the 

portions of the corresponding federal 

trading program regulations governing 

allocations of allowances from Indian 

country NUSAs Thus, the Alabama 

rules do not include any express state 

rule provisions concerning 

administration of Indian country 

NUSAs. Further, Alabama rules 335–3– 

8–.24 and 335–3–5–.22, which generally 

incorporate by reference the federal 

trading programs’ recordation schedule 

provisions, exclude 40 CFR 97.421(h) 

and 97.721(h), respectively, provisions 

addressing recordation of Indian 

country NUSA allocations. EPA notes 

that paragraphs 335–3–8–.14(3)(i) and 

335–3–5–.13(3)(i) of the Alabama rules, 

which incorporate by reference the 

federal trading program regulations 

generally addressing corrections of 

incorrect allocations, fail to exclude 40 

CFR 97.411(c)(5)(iii) and 

97.711(c)(5)(iii), addressing corrections 

of certain incorrect Indian country 

NUSA allocations. However, the 

regulations governing approval of 

CSAPR-related SIP revisions do not 

expressly require exclusion of these 

federal trading program provisions 

(unlike the Indian country NUSA 

allocation provisions) and, further, the 

provisions are inoperative as to 

Alabama because the CSAPR federal 

trading program regulations do not 

currently establish Indian country 

NUSAs for Alabama.39 EPA therefore 

interprets the Alabama state rules as 

sufficiently excluding provisions 

addressing administration of the Indian 

country NUSA provisions under the 

federal trading programs. 

In summary, EPA has determined that 

Alabama’s SIP revision adequately 

meets the condition under 40 CFR 

52.38(a)(5)(iv) and 52.39(i)(4) of not 

including references to or imposing 

requirements on any unit in any Indian 

country within the state’s borders and 

not including the federal trading 

program provisions governing allocation 

of allowances from any Indian country 

NUSA for the state. 

V. EPA’s Proposed Action on Alabama’s 

Submittal 

EPA is proposing to approve the 

portions of Alabama’s October 26, 2015, 

SIP submittal concerning the 

establishment for Alabama units of 

CSAPR state trading programs for 

annual NOX and SO2 emissions for 

compliance periods in 2017 and later 

years. The proposed revision would 

adopt into the SIP the state trading 

program rules codified in ADEM 

Administrative Code rules 335–3–8–.07 

through 335–3–8–.38 (establishing 

Alabama’s ‘‘TR NOX Annual Trading 

Program’’) and 335–3–5–.06 through 

335–3–5–.36 (establishing Alabama’s 

‘‘TR SO2 Group 2 Trading Program’’).40

These Alabama CSAPR state trading 

programs would be integrated with the 

federal CSAPR NOX Annual Trading 

Program and the federal CSAPR SO2

Group 2 Trading Program, respectively, 

and would be substantively identical to 

the federal trading programs except with 

regard to the allowance allocation 

provisions. Following approval of these 

portions of the proposed SIP revision, 

Alabama units therefore would 

generally be required to meet 

requirements under Alabama’s CSAPR 

state trading programs equivalent to the 

requirements the units otherwise would 

have been required to meet under the 

corresponding CSAPR federal trading 

programs, but allocations to Alabama 

units of CSAPR NOX Annual allowances 

for compliance periods in 2017 and later 

years would be determined according to 

the SIP’s allocation provisions at 

Alabama rule 335–3–8–.14 instead of 

EPA’s default allocation provisions at 40 

CFR 97.411(a), 97.411(b)(1), and 

97.412(a), and allocations to Alabama 

units of CSAPR SO2 Group 2 allowances 

would be determined according to the 

SIP’s allocation provisions at Alabama 

rule 335–3–5–.13 instead of EPA’s 

default allocation provisions at 40 CFR 

97.711(a), 97.711(b)(1), and 97.712(a). 

EPA is proposing to approve these 

portions of the SIP revision because 

they meet the requirements of the CAA 

and EPA’s regulations for approval of a 

CSAPR full SIP revision replacing a 

federal trading program with a state 

trading program that is integrated with 

and substantively identical to the 

federal trading program except for 

permissible differences with respect to 

emission allowance allocation 

provisions, as discussed in section IV 

above. 

EPA promulgated the FIPs requiring 

Alabama units to participate in the 

federal CSAPR NOX Annual Trading 

Program and the federal CSAPR SO2

Group 2 Trading Program in order to 

address Alabama’s obligations under 

CAA section 110(a)(2)(D)(i)(I) with 


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Federal Register / Vol. 81, No. 124 / Tuesday, June 28, 2016 / Proposed Rules 41923 

41 40 CFR 52.38(a)(6); § 52.39(j); see also 

§ 52.54(a)(1); § 52.55(a). 

42EME Homer City Generation, L.P. v. EPA, 795 

F.3d 118, 138 (D.C. Cir. 2015). 

43Although the court in EME Homer City 

Generation remanded Alabama’s Phase 2 SO2

budget because it determined that the budget was 

too stringent, nothing in the court’s decision affects 

Alabama’s authority to seek incorporation into its 

SIP of a state-established budget as stringent as the 

remanded federally-established budget or limits 

EPA’s authority to approve such a SIP revision. See 

42 U.S.C. 7416, 7410(k)(3). 

respect to the 1997 and 2006 PM2.5

NAAQS in the absence of SIP provisions 

addressing those requirements. 

Approval of the portions of Alabama’s 

SIP submittal adopting CSAPR state 

trading program rules for annual NOX

and SO2 substantively identical to the 

corresponding CSAPR federal trading 

program regulations (or differing only 

with respect to the allowance allocation 

methodology) would correct the same 

deficiency in the SIP that otherwise 

would be corrected by those CSAPR 

FIPs. Under the CSAPR regulations, 

upon EPA’s full and unconditional 

approval of a SIP revision as correcting 

the SIP’s deficiency that is the basis for 

a particular CSAPR FIP, the obligation 

to participate in the corresponding 

CSAPR federal trading program is 

automatically eliminated for units 

subject to the state’s jurisdiction (but 

not for any units located in any Indian 

country within the state’s borders).41

The proposed approval of the portions 

of Alabama’s SIP submittal establishing 

CSAPR state trading program rules for 

annual NOX and SO2 emissions 

therefore would result in automatic 

termination of the obligations of 

Alabama units to participate in the 

federal CSAPR NOX Annual Trading 

Program and the federal CSAPR SO2

Group 2 Trading Program. Approval of 

these portions of the SIP revision would 

therefore satisfy Alabama’s obligation 

pursuant to CAA section 

110(a)(2)(D)(i)(I) to prohibit emissions 

which will significantly contribute to 

nonattainment or interfere with 

maintenance of the 1997 and 2006 PM2.5

NAAQS in any other state. 

As noted in section II above, the 

Phase 2 SO2 budget established for 

Alabama in the CSAPR rulemaking has 

been remanded to EPA for 

reconsideration.42 If EPA finalizes 

approval of these portions of the SIP 

revision as proposed, Alabama will have 

fulfilled its obligations to provide a SIP 

that address the interstate transport 

provisions of CAA section 

110(a)(2)(D)(i)(I) with respect to the 

1997 and 2006 PM2.5 NAAQS. Thus, 

EPA would no longer be under an 

obligation to (nor would EPA have the 

authority to) address those transport 

requirements through implementation 

of a FIP, and approval of these portions 

of the SIP revision would eliminate 

Alabama units’ obligations to participate 

in the federal CSAPR NOX Annual 

Trading Program and the federal CSAPR 

SO2 Group 2 Trading Program. 

Elimination of Alabama units’ 

obligations to participate in the federal 

trading programs would include 

elimination of the federally-established 

Phase 2 budgets capping allocations of 

CSAPR NOX Annual allowances and 

CSAPR SO2 Group 2 allowances to 

Alabama units under those federal 

trading programs. As approval of these 

portions of the SIP revision would 

eliminate Alabama’s remanded 

federally-established Phase 2 SO2

budget and eliminate EPA’s authority to 

subject units in Alabama to a FIP, it is 

EPA’s opinion that finalization of 

approval of this SIP action would 

address the judicial remand of 

Alabama’s federally-established Phase 2 

SO2 budget.43 Large electricity 

generating units in Alabama are subject 

to an additional CSAPR FIP requiring 

them to participate in the federal 

CSAPR NOX Ozone Season Trading 

Program. While Alabama’s SIP submittal 

also seeks to replace the CSAPR FIP 

requirements addressing Alabama units’ 

ozone-season NOX emissions, EPA is 

not proposing to act on that portion of 

the SIP submittal at this time. Approval 

of this SIP revision concerning other 

CSAPR trading programs would have no 

effect on the CSAPR NOX Ozone Season 

Trading Program as applied to Alabama 

units, and the FIP requiring the units to 

participate in that program would 

remain in place. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submittal that 

complies with the provisions of the Act 

and applicable federal regulations. See 

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

Thus, in reviewing SIP submittals, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

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 proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

Matter, Reporting and recordkeeping 

requirements, Sulfur oxides. 

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

Dated: June 10, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–15146 Filed 6–27–16; 8:45 am] 

BILLING CODE 6560–50–P 


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