46664 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules 

This proposed regulatory action is not 

a significant regulatory action subject to 

review by OMB under section 3(f) of 

Executive Order 12866. 

We have also reviewed this regulatory 

action under Executive Order 13563, 

which supplements and explicitly 

reaffirms the principles, structures, and 

definitions governing regulatory review 

established in Executive Order 12866. 

To the extent permitted by law, 

Executive Order 13563 requires that an 

agency— 

(1) Propose or adopt regulations only 

on a reasoned determination that their 

benefits justify their costs (recognizing 

that some benefits and costs are difficult 

to quantify); 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are taking this regulatory action 

only on a reasoned determination that 

its benefits justify its costs. In choosing 

among alternative regulatory 

approaches, we selected those 

approaches that maximize net benefits. 

Based on the analysis that follows, the 

Department believes that this regulatory 

action is consistent with the principles 

in Executive Order 13563. 

In accordance with both Executive 

orders, the Department has assessed the 

potential costs and benefits of this 

regulatory action. The potential costs 

associated with this regulatory action 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the Department’s 

programs and activities. 

We have also determined that this 

regulatory action does not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

Intergovernmental Review: This 

program is subject to Executive Order 

12372 and the regulations in 34 CFR 

part 79. One of the objectives of the 

Executive order is to foster an 

intergovernmental partnership and a 

strengthened Federalism. The Executive 

order relies on processes developed by 

State and local governments for 

coordination and review of proposed 

Federal financial assistance. 

This document provides early 

notification of our specific plans and 

actions for this program. 

Accessible Format: Individuals with 

disabilities can obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

Dated: August 1, 2012. 

Alexa Posny, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

[FR Doc. 2012–19162 Filed 8–3–12; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0079; FRL–9708–6] 

Approval and Promulgation of 

Implementation Plans; State of 

Alabama: General and Transportation 

Conformity & New Source Review 

Prevention of Significant Deterioration 

for Fine Particulate Matter (PM2.5) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

changes to the Alabama State 

Implementation Plan (SIP), submitted 

by the Alabama Department of 

Environmental Management (ADEM) to 

EPA on May 2, 2011. The SIP revision 

modifies Alabama’s New Source Review 

(NSR), Prevention of Significant 

Deterioration (PSD), and Nonattainment 

New Source Review (NNSR) programs 

as well as general and transportation 

conformity regulations. Specifically, the 

May 2, 2011, SIP revision adopts federal 

NSR permitting requirements provisions 

into the Alabama SIP regarding 

implementation of the PM2.5 national 

ambient air quality standards (NAAQS), 

revises the State’s NNSR rules, and 

updates the State’s general and 

transportation conformity regulations. 

All changes in the May 2, 2011, SIP 

revision are necessary to comply with 

federal requirements. EPA is proposing 

approval of Alabama’s May 2, 2011, 

revision to the Alabama SIP because the 

Agency has preliminarily determined 

that the changes are consistent with the 

Clean Air Act (CAA or Act). 

DATES: Comments must be received on 

or before September 5, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0079, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

online instructions for submitting 

comments. 

2. Email: R4-RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: EPA–R04–OAR–2012–0079 

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: Ms. 

Lynorae Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 


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1Alabama’s May 2, 2011, SIP revision also made 

changes to the state’s New Source Performance 

Standards (NSPS) and National Emission Standards 

for Hazardous Air Pollutants (NESHAP) (at 

Chapters 335–3–10 and 11 respectively) and title V 

regulations at Chapter 335–3–16 to adopt recent 

federal changes to the NSPS and NESHAP and 

major source operating permits regulations 

respectively. However, EPA is not proposing action 

to approve these revisions as they are not part of 

the Alabama federally approved SIP. 

2 In this document IBR means incorporate or 

incorporates by reference. 

3Alabama’s May 2, 2011, SIP revision also made 

changes to its NNSR regulations to be consistent 

with federal NSR regulations including provisions 

promulgated in the NSR PM2.5 Rule, PM2.5 PSD 

Increment-SILs-SMC Rule and other NSR 

rulemakings. EPA will consider action on this 

portion of Alabama’s May 2, 2011, SIP in a separate 

rulemaking. 

4EPA’s authority to implement the SILs and SMC 

for PSD purposes has been challenged by the Sierra 

Club. Sierra Club v. EPA, Case No. 10–1413 United 

States Court of Appeals for the District of Columbia 

(D.C. Circuit Court). 

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–2012– 

0079. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the Alabama SIP, 

contact Ms. Twunjala Bradley, 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

Telephone number: (404) 562–9352; 

email address: 

bradley.twunjala@epa.gov. For 

information regarding NSR, contact Mrs. 

Yolanda Adams, Air Permits Section, at 

the same address above. Telephone 

number: (404) 562–9214; email address: 

adams.yolanda@epa.gov. For 

information regarding PM2.5 NAAQS, 

contact Mr. Joel Huey, Regulatory 

Development Section, at the same 

address above. Telephone number: (404) 

562–9104; email address: 

huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. What actions are EPA proposing? 

II. What is EPA’s proposed action for the NSR 

implementation requirements for the 

PM2.5 NAAQS? 

III. What is EPA’s proposed action for 

changes to Alabama’s general and 

transportation conformity regulations? 

IV. Proposed Action 

V. Statutory and Executive Order Reviews 

I. What actions are EPA proposing? 

On May 2, 2011, ADEM submitted a 

SIP revision to EPA for approval into 

the Alabama SIP to adopt federal 

requirements for NSR permitting, and 

general and transportation conformity.1

Alabama’s SIP revision makes changes 

to the regulations at Administrative 

Code for Division 3: Chapter 335–3– 

14—Permits and Chapter 335–3–17— 

Conformity of Federal Actions to State 

Implementation Plans to comply with 

federal NSR permitting and conformity 

regulations respectively. First, the May 

2, 2011, SIP revision addresses NSR 

requirements amended in the May 16, 

2008, final rulemaking entitled 

‘‘Implementation of the New Source 

Review Program for Particulate Matter 

Less Than 2.5 Micrometers’’ (73 FR 

28321) and the October 20, 2010, final 

rulemaking entitled ‘‘Final Rule 

Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC): Final Rule, (PM2.5 PSD 

Increment-SILs-SMC Rule)’’ (75 FR 

64864). Second, the submission revises 

the State’s NNSR regulations to be 

consistent with federal NSR regulations. 

Lastly, Alabama’s SIP revision changes 

the State’s general and transportation 

conformity regulations which 

incorporate by reference (IBR) 2 the 

federal conformity updates. Pursuant to 

section 110 of the CAA, EPA is 

proposing to approve these changes, 

with the exception of the three elements 

below, into the Alabama SIP. 

The three elements of ADEM’s May 2, 

2011, SIP revision which EPA is not 

proposing to approve in this action are: 

(1) The NNSR changes amended at rule 

335–3–14–.05; 3 (2) SIL thresholds and 

provisions promulgated in EPA’s PM2.5

PSD Increment-SILs-SMC Rule (75 FR 

64864, October 20, 2010); 4 and (3) the 

term ‘‘particulate matter emissions’’ 

when accounting for condensable 

particles for PM2.5 emission limits for 

the definition of ‘‘regulated NSR 

pollutant’’ (77 FR 15656, March 16, 

2012). EPA will consider action on the 

NNSR changes and SILs provisions 

separate from this rulemaking. 

II. What is EPA’s proposed action for 

the NSR implementation requirements 

for the PM2.5 NAAQS? 

Today’s proposed action to revise 

Alabama’s SIP relates to EPA’s NSR 

PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule. In the NSR 

PM2.5 Rule, EPA finalized regulations to 

implement the NSR program for the 

PM2.5 NAAQS. As a result of EPA’s final 

NSR PM2.5 Rule, states were required to 


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5EPA anticipates taking action on Alabama’s May 

2, 2011, SIP revision NNSR changes in a separate 

rulemaking. 

submit SIP revisions to EPA no later 

than May 16, 2011, to address these 

requirements for both the PSD and 

NNSR programs. EPA’s PM2.5 PSD 

Increment-SILs-SMC Rule established 

PSD increments, SILs and SMC which 

address additional components for 

making PSD permitting determinations 

for PM2.5 NAAQS. These requirements 

address air quality modeling and 

monitoring provisions for fine particle 

pollution in areas protected by the PSD 

program (that is attainment or 

unclassifiable/attainment areas for the 

NAAQS). The PM2.5 PSD IncrementSILs-SMC Rule required states to submit 

SIP revisions to adopt the required PSD 

increments by July 20, 2012. Together 

these two rules address the NSR 

permitting requirements needed to 

implement the PM2.5 NAAQS. 

Alabama’s May 2, 2011, SIP revision 

adopts into the Alabama SIP the PSD 

and NNSR5 requirements promulgated 

in these two rules to be consistent with 

federal regulations. More detail on the 

NSR PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule can be found 

in EPA’s May 16, 2008 (73 FR 28321), 

and October 20, 2010 (75 FR 64864), 

final rules respectively and are 

summarized below. 

A. Fine Particulate Matter and the 

NAAQS 

Fine particles in the atmosphere are 

made up of a complex mixture of 

components. Common constituents 

include sulfate; nitrate; ammonium; 

elemental carbon; a great variety of 

organic compounds; and inorganic 

material (including metals, dust, sea 

salt, and other trace elements) generally 

referred to as ‘‘crustal’’ material, 

although it may contain material from 

other sources. Airborne particulate 

matter (PM) with a nominal 

aerodynamic diameter of 2.5 

micrometers or less (a micrometer is 

one-millionth of a meter, and 2.5 

micrometers is less than one-seventh the 

average width of a human hair) are 

considered to be ‘‘fine particles’’ and are 

also known as PM2.5. ‘‘Primary’’ 

particles are emitted directly into the air 

as a solid or liquid particle (e.g., 

elemental carbon from diesel engines or 

fire activities, or condensable organic 

particles from gasoline engines). 

‘‘Secondary’’ particles (e.g., sulfate and 

nitrate) form in the atmosphere as a 

result of various chemical reactions. 

The health effects associated with 

exposure to PM2.5 include potential 

aggravation of respiratory and 

cardiovascular disease (i.e., lung 

disease, decreased lung function, 

asthma attacks and certain 

cardiovascular issues). Epidemiological 

studies have indicated a correlation 

between elevated PM2.5 levels and 

premature mortality. Groups considered 

especially sensitive to PM2.5 exposure 

include older adults, children, and 

individuals with heart and lung 

diseases. For more details regarding 

health effects and PM2.5 see EPA’s Web 

site at http://www.epa.gov/oar/ 

particlepollution/ (See heading ‘‘Health 

and Welfare’’). 

On July 18, 1997 (62 FR 38652), EPA 

revised the NAAQS for PM to add new 

standards for fine particles, using PM2.5

as the indicator. Previously, EPA used 

PM10 (inhalable particles smaller than or 

equal to 10 micrometers in diameter) as 

the indicator for the PM NAAQS. EPA 

established health-based (primary) 

annual and 24-hour standards for PM2.5, 

setting an annual standard at a level of 

15.0 micrograms per cubic meter (mg/ 

m3) and a 24-hour standard at a level of 

65 mg/m3. At the time the 1997 primary 

standards were established, EPA also 

established welfare-based (secondary) 

standards identical to the primary 

standards. The secondary standards are 

designed to protect against major 

environmental effects of PM2.5, such as 

visibility impairment, soiling, and 

materials damage. On October 17, 2006 

(71 FR 61236), EPA revised the primary 

and secondary 24-hour NAAQS for 

PM2.5 to 35 mg/m3 and retained the 

existing annual PM2.5 NAAQS of 15.0 

mg/m3. 

B. What is the NSR program? 

The CAA NSR program is a 

preconstruction review and permitting 

program applicable to certain new and 

modified stationary sources of air 

pollutants regulated under the CAA. 

The program includes a combination of 

air quality planning and air pollution 

control technology requirements. The 

CAA NSR program is composed of three 

separate programs: PSD, NNSR, and 

Minor NSR. PSD is established in part 

C of title I of the CAA and applies in 

areas that meet the NAAQS— 

‘‘attainment areas’’—as well as areas 

where there is insufficient information 

to determine if the area meets the 

NAAQS—‘‘unclassifiable areas.’’ The 

NNSR program is established in part D 

of title I of the CAA and applies in areas 

that are not in attainment of the 

NAAQS—‘‘nonattainment areas.’’ The 

Minor NSR program addresses 

construction or modification activities 

that do not qualify as ‘‘major’’ and 

applies regardless of the designation of 

the area in which a source is located. 

Together, these programs are referred to 

as the NSR program. EPA regulations 

governing the implementation of these 

programs are contained in 40 CFR 

sections 51.160–.166; 52.21, .24; and 

part 51, appendix S. 

Section 109 of the CAA requires EPA 

to promulgate a primary NAAQS to 

protect public health and a secondary 

NAAQS to protect public welfare. Once 

EPA sets those standards, states must 

develop, adopt, and submit a SIP to EPA 

for approval that includes emission 

limitations and other control measures 

to attain and maintain the NAAQS. See 

CAA section 110. Each SIP is also 

required to include a preconstruction 

review program for the construction and 

modification of any stationary source of 

air pollution to assure the maintenance 

of the NAAQS. The applicability of the 

PSD program to a major stationary 

source must be determined in advance 

of construction and is a pollutantspecific determination. Once a major 

source is determined to be subject to the 

PSD program (and thus is a PSD source), 

among other requirements, it must 

undertake a series of analyses to 

demonstrate that it will use the best 

available control technology (BACT) 

and will not cause or contribute to a 

violation of any NAAQS or increment. 

Alabama’s May 2, 2011, SIP submittal 

revises the state’s PSD and NNSR 

permitting regulations. 

C. NSR PM2.5 Implementation Rule 

On May 16, 2008, EPA finalized the 

NSR PM2.5 Rule to implement the PM2.5

NAAQS, including changes to the NSR 

program (73 FR 28321). The NSR PM2.5

Rule revised the federal NSR program 

requirements to establish the framework 

for implementing preconstruction 

permit review for the PM2.5 NAAQS in 

both attainment and nonattainment 

areas. Specifically, the NSR PM2.5 Rule 

established the following NSR 

requirements to implement the PM2.5

NAAQS: (1) Require NSR permits to 

address directly emitted PM2.5 and 

precursor pollutants; (2) establish 

significant emission rates for direct 

PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

nitrogen oxides (NOx)); (3) establish 

PM2.5 emission offsets; (4) provide 

exceptions to PM10 grandfathering 

policy; and (5) require states to account 

for gases that condense to form particles 

(condensables) in PM2.5 and PM10

emission limits in PSD or NNSR 

permits. Additionally, the NSR PM2.5

Rule authorized states to adopt 

provisions in their NNSR rules that 

would allow interpollutant offset 

trading. Alabama’s May 2, 2011, SIP 

revision addresses the PSD and NNSR 


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6Additional information on this issue can also be 

found in an August 12, 2009, final order on a title 

V petition describing the use of PM10 as a surrogate 

for PM2.5. In the Matter of Louisville Gas & Electric 

Company, Petition No. IV–2008–3, Order on 

Petition (August 12, 2009). 

7Sources that applied for a PSD permit under the 

federal PSD program on or after July 15, 2008, are 

already excluded from using the 1997 PM10

Surrogate Policy as a means of satisfying the PSD 

requirements for PM2.5. See 76 FR 28321. 

8The comment period for this proposed 

rulemaking ended May 15, 2012. 

9 In addition to the NSPS for PM, it is noted that 

states regulated ‘‘particulate matter emissions’’ for 

many years in their SIPs for PM, and the same 

indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

10EPA proposed approval of the PSD IncrementsSILs-SMC Rule on September 21, 2007 (72 FR 

54112). 

requirements related to EPA’s May 16, 

2008, NSR PM2.5 Rule. A few key issues 

described in greater detail below 

include the PM10 surrogate and 

grandfathering policy and the 

condensable provision. 

1. PM10 Surrogate and Grandfathering 

Policy 

After EPA promulgated the NAAQS 

for PM2.5 in 1997, (62 FR 38652, July 18, 

1997) the Agency issued a guidance 

document entitled ‘‘Interim 

Implementation of New Source Review 

Requirements for PM2.5.’’ John S. Seitz, 

EPA, October 23, 1997 (the ‘‘Seitz 

Memo’’). The Seitz Memo was designed 

to help states implement NSR 

requirements pertaining to the new 

PM2.5 NAAQS in light of technical 

difficulties posed by PM2.5 at that time. 

Specifically, the Seitz Memo stated: 

‘‘PM–10 may properly be used as a 

surrogate for PM–2.5 in meeting NSR 

requirements until these difficulties are 

resolved.’’ 

EPA also issued a guidance document 

entitled ‘‘Implementation of New 

Source Review Requirements in PM–2.5 

Nonattainment Areas’’ (the ‘‘2005 PM2.5

NNSR Guidance’’)) on April 5, 2005, the 

date that EPA’s PM2.5 nonattainment 

area designations became effective for 

the 1997 NAAQS. The 2005 PM2.5 NNSR 

Guidance provided direction regarding 

implementation of the nonattainment 

major NSR provisions in PM2.5

nonattainment areas in the interim 

period between the effective date of the 

PM2.5 nonattainment area designations 

(April 5, 2005) and EPA’s promulgation 

of final PM2.5 NNSR regulations. Besides 

re-affirming the continuation of the 

PM10 Surrogate Policy for PM2.5

attainment areas set forth in the Seitz 

Memo, the 2005 PM2.5 NNSR Guidance 

recommended that until EPA 

promulgated the PM2.5 major NSR 

regulations, ‘‘States should use a PM10

nonattainment major NSR program as a 

surrogate to address the requirements of 

nonattainment major NSR for the PM2.5

NAAQS.’’ 

In the NSR PM2.5 Rule, EPA required 

that major stationary sources seeking 

permits must begin directly satisfying 

the PM2.5 requirements, as of the 

effective date of the rule, rather than 

relying on PM10 as a surrogate, with two 

exceptions. The first exception is the 

‘‘grandfathering’’ provision in the 

federal PSD program at 40 CFR 

52.21(i)(1)(xi). This grandfathering 

provision applied to sources that had 

applied for, but had not yet received, a 

final and effective PSD permit before the 

July 15, 2008, effective date of the May 

16, 2008, final rule. The second 

exception was that states with SIPapproved PSD programs could continue 

to implement the Seitz Memo’s PM10

Surrogate Policy for up to three years 

(until May 2011) or until the individual 

revised state PSD programs for PM2.5 are 

approved by EPA, whichever came first. 

For additional information on the NSR 

PM2.5 Rule, see 73 FR 28321.6

On February 11, 2010, EPA proposed 

to repeal the grandfathering provision 

for PM2.5 contained in the federal PSD 

program at 40 CFR 52.21(i)(1)(xi) and to 

end early the PM10 Surrogate Policy 

applicable in states that have a SIPapproved PSD program. See 75 FR 6827. 

In support of this proposal, EPA 

explained that the PM2.5

implementation issues that led to the 

adoption of the PM10 Surrogate Policy in 

1997 have been largely resolved to a 

degree sufficient for sources and 

permitting authorities to conduct 

meaningful permit-related PM2.5

analyses. 

On May 18, 2011 (76 FR 28646), EPA 

took final action to repeal the PM2.5

grandfathering provision at 40 CFR 

52.21(i)(1)(xi). This final action ended 

the use of the 1997 PM10 Surrogate 

Policy for PSD permits under the federal 

PSD program at 40 CFR 52.21. In effect, 

any PSD permit applicant previously 

covered by the grandfathering provision 

(for sources that completed and 

submitted a permit application before 

July 15, 2008) 7 that did not have a final 

and effective PSD permit before the 

effective date of the repeal would no 

longer be able to rely on the 1997 PM10

Surrogate Policy to satisfy the PSD 

requirements for PM2.5 unless the 

application included a valid surrogacy 

demonstration. See 76 FR 28646. 

Alabama’s May 2, 2011, SIP revision did 

not adopt the grandfathering provision 

at 40 CFR 52.21(i)(1)(xi) in accordance 

with the repeal of the PM2.5

grandfathering provision. 

2. ‘‘Condensable’’ Provision 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 

pollutant’’ for PSD to add a paragraph 

providing that ‘‘particulate matter (PM) 

emissions, PM2.5 emissions and PM10

emissions’’ shall include gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures and that 

on or after January 1, 2011, such 

condensable particulate matter shall be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM, PM2.5 and 

PM10 in permits. See 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(vi) and 

‘‘Emissions Offset Interpretative Ruling’’ 

(40 CFR part 51, appendix S). A similar 

paragraph added to the NNSR rule does 

not include ‘‘particulate matter (PM) 

emissions.’’ See 40 CFR 

51.165(a)(1)(xxxvii)(D). 

On March 16, 2012 (77 FR 15656), 

EPA proposed a rulemaking to amend 

the definition of ‘‘regulated NSR 

pollutant’’ promulgated in the NSR 

PM2.5 Rule regarding the PM 

condensable provision at 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(i) and 

EPA’s Emissions Offset Interpretative 

Ruling.8 The rulemaking proposes to 

remove the inadvertent requirement in 

the NSR PM2.5 Rule that the 

measurement of condensable 

‘‘particulate matter emissions’’ be 

included as part of the measurement 

and regulation of ‘‘particulate matter 

emissions.’’ The term ‘‘particulate 

matter emissions’’ includes particles 

that are larger than PM2.5 and PM10 and 

is an indicator measured under various 

New Source Performance Standards 

(NSPS) (40 CFR part 60).9 Alabama’s 

May 2, 2011, SIP revision adopts EPA’s 

definition for regulated NSR pollutant 

for condensables (at 40 CFR 

51.166(b)(49)(vi)), including the term 

‘‘particulate matter emissions,’’ as 

promulgated in the NSR PM2.5 Rule. 

EPA’s review of Alabama’s May 2, 2011, 

SIP revision with regard to the NSR 

PM2.5 Rule condensable provision is 

provided below in Section II.E. 

D. PM2.5 PSD-Increment-SILs-SMC Rule 

As mentioned above, EPA finalized 

the PM2.5 PSD Increment-SILs-SMC Rule 

to provide additional regulatory 

requirements under the PSD program 

regarding the implementation of the 

PM2.5 NAAQS for NSR.10 Specifically, 

the rule establishes the following to 

implement the PM2.5 NAAQS for the 

PSD program: (1) PM2.5 increments 

pursuant to section 166(a) of the CAA to 

prevent significant deterioration of air 

quality in areas meeting the NAAQS; (2) 


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11Section 169(4) of the CAA provides that the 

baseline concentration of a pollutant for a particular 

baseline area is generally the same air quality at the 

time of the first application for a PSD permit in the 

area. 

12Baseline dates are pollutant specific. That is, a 

complete PSD application establishes the baseline 

date only for those regulated NSR pollutants that 

are projected to be emitted in significant amounts 

(as defined in the regulations) by the applicant’s 

new source or modification. Thus, an area may have 

different baseline dates for different pollutants. 13EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQs with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. EPA rather retained the annual and 24-hour 

NAAQS for PM2.5 as if PM2.5 was a new pollutant 

even though EPA had already developed air quality 

criteria for PM generally. See 75 FR 64864 (October 

20, 2012). 14EPA interprets 166(a) to authorize EPA to 

promulgate pollutant-specific PSD regulations 

meeting the requirements of section 166(c) and 

166(d) for any pollutant for which EPA promulgates 

a NAAQS after 1977. 

SILs used as a screening tool (by a major 

source subject to PSD) to evaluate the 

impact a proposed major source or 

modification may have on the NAAQS 

or PSD increment; and (3) a SMC, (also 

a screening tool) used by a major source 

subject to PSD to determine the 

subsequent level of data gathering 

required for a PSD permit application 

for emissions of PM2.5. 

Alabama’s May 2, 2011, SIP revision 

adopts the NSR changes promulgated in 

the PM2.5 PSD Increment-SILs-SMC Rule 

to be consistent with the federal NSR 

regulations and to implement the state’s 

NSR program for the PM2.5 NAAQS. 

More detail on the PM2.5 PSD 

Increment-SILs-SMC Rule can be found 

in EPA’s final rule (75 FR 64864, 

October 20, 2010) and is summarized 

below. More details regarding 

Alabama’s revision to its NSR 

regulations are also summarized below 

in Section II.E.2. 

1. What are PSD increments? 

As established in part C of title I of 

the CAA, EPA’s PSD program protects 

public health from adverse effects of air 

pollution by ensuring that construction 

of new or modified sources in 

attainment or unclassifiable/attainment 

areas does not lead to significant 

deterioration of air quality while 

simultaneously ensuring that economic 

growth will occur in a manner 

consistent with preservation of clean air 

resources. Under section 165(a)(3) of the 

CAA, a PSD permit applicant must 

demonstrate that emissions from the 

proposed construction and operation of 

a facility ‘‘will not cause, or contribute 

to, air pollution in excess of any 

maximum allowable increase or 

allowable concentration for any 

pollutant.’’ In other words, when a 

source applies for a permit to emit a 

regulated pollutant in an area that meets 

the NAAQS, the state and EPA must 

determine if emissions of the regulated 

pollutant from the source will cause 

significant deterioration in air quality. 

Significant deterioration occurs when 

the amount of the new pollution 

exceeds the applicable PSD increment, 

which is the ‘‘maximum allowable 

increase’’ of an air pollutant allowed to 

occur above the applicable baseline 

concentration 11 for that pollutant. PSD 

increments prevent air quality in clean 

areas from deteriorating to the level set 

by the NAAQS. Therefore an increment 

is the mechanism used to estimate 

‘‘significant deterioration’’ of air quality 

for a pollutant in an area. 

For PSD baseline purposes, a baseline 

area for a particular pollutant emitted 

from a source includes the attainment or 

unclassifiable/attainment area in which 

the source is located as well as any 

other attainment or unclassifiable/ 

attainment area in which the source’s 

emissions of that pollutant are projected 

(by air quality modeling) to result in an 

ambient pollutant increase of at least 1 

mg/m3 (annual average). See 40 CFR 

52.21(b)(15)(i). Under EPA’s existing 

regulations, the establishment of a 

baseline area for any PSD increment 

results from the submission of the first 

complete PSD permit application and is 

based on the location of the proposed 

source and its emissions impact on the 

area. Once the baseline area is 

established, subsequent PSD sources 

locating in that area need to consider 

that a portion of the available increment 

may have already been consumed by 

previous emissions increases. In 

general, the submittal date of the first 

complete PSD permit application in a 

particular area is the operative ‘‘baseline 

date.’’ 12 On or before the date of the 

first complete PSD application, 

emissions generally are considered to be 

part of the baseline concentration, 

except for certain emissions from major 

stationary sources. Most emissions 

increases that occur after the baseline 

date will be counted toward the amount 

of increment consumed. Similarly, 

emissions decreases after the baseline 

date restore or expand the amount of 

increment that is available. See 75 FR 

64864. As described in the PM2.5 PSD 

Increment-SILs-SMC Rule, pursuant to 

the authority under section 166(a) of the 

CAA, EPA promulgated numerical 

increments for PM2.5 as a new 

pollutant 13 for which the NAAQS were 

established after August 7, 1977,14 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III) using 

the ‘‘contingent safe harbor’’ approach. 

See 75 FR 64864 (October 20, 2010) and 

table at 40 CFR 51.166(c)(1). 

In addition to PSD increments for the 

PM2.5 NAAQS, the PM2.5 PSD 

Increment-SILs-SMC Rule amended the 

definition at 40 CFR 51.166 and 52.21 

for ‘‘major source baseline date’’ and 

‘‘minor source baseline date’’ (including 

trigger dates) to establish the PM2.5

NAAQS specific dates associated with 

the implementation of PM2.5 PSD 

increments (75 FR 64864, October 20, 

2010). In accordance with section 166(b) 

of the CAA, EPA required the states to 

submit revised implementation plans to 

EPA for approval (to adopt the PM2.5

PSD increments) within 21 months from 

promulgation of the final rule (by July 

20, 2012). Each state was responsible for 

determining how increment 

consumption and the setting of the 

minor source baseline date for PM2.5

would occur under its own PSD 

program. Regardless of when a State 

begins to require PM2.5 increment 

analysis and how it chooses to set the 

PM2.5 minor source baseline date, the 

emissions from sources subject to PSD 

for PM2.5 for which construction 

commenced after October 20, 2010, 

(major source baseline date) consume 

the PM2.5 increment and should be 

included in the increment analyses 

occurring after the minor source 

baseline date is established for an area 

under the state’s revised PSD program. 

As discussed in detail in Section II.E.2, 

Alabama’s May 2, 2011, SIP revision 

adopts the PM2.5 increment permitting 

requirements promulgated in the PM2.5

PSD Increment-SILs-SMC Rule. 

2. What are SILs and SMCs? 

EPA’s PM2.5 PSD Increment-SILs-SMC 

Rule, also established SILs and SMC for 

the PM2.5 NAAQS to address air quality 

modeling and monitoring provisions for 

fine particle pollution in areas protected 

by the PSD program (that is areas that 

are designated attainment or 

unclassifiable/attainment for the 

NAAQS). The SILs and SMC are 

numerical values that represent 

thresholds of insignificant, i.e., de 

minimis, modeled source impacts or 

monitored (ambient) concentrations, 

respectively. The de minimis principle 

is grounded in a decision described by 

the court case Alabama Power Co. v. 

Costle, 636 F.2d 323, 360 (D.C. Cir. 

1980). In this case, reviewing EPA’s 

1978 PSD regulations, the court 

recognized that ‘‘there is likely a basis 

for an implication of de minimis 

authority to provide exemption when 

the burdens of regulation yield a gain of 

trivial or no value.’’ 636 F.2d at 360. See 

75 FR 64864 (October 20, 2010). EPA 


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15On April 6, 2012, EPA filed a brief with the 

D.C. Circuit court defending the Agency’s authority 

to implement SILs and SMC for PSD purposes. 

16A cumulative analysis is a modeling analysis 

used to show that the allowable emissions increase 

from the proposed source along with other emission 

increases from existing sources, will not result in 

a violation of either the NAAQS or increment. 

17 40 CFR 51.165(b) require states to operate a 

preconstruction review permit program for major 

stationary sources that wish to locate in an 

attainment or unclassifiable area but would cause 

or contribute to a violation of the NAAQS. 

established such values for PM2.5 in the 

PM2.5 PSD Increment-SILs-SMC rule to 

be used as screening tools by a major 

source subject to PSD to determine the 

subsequent level of analysis and data 

gathering required for a PSD permit 

application for emissions of PM2.5. As 

part of the response to comments on 

October 20, 2010, final rulemaking, EPA 

explained that the agency agrees that the 

SILs and SMC used as de minimis 

thresholds for the various pollutants are 

useful tools that enable permitting 

authorities and PSD applicants to screen 

out ‘‘insignificant’’ activities; however, 

the fact remains that these values are 

not required by the Act as part of an 

approvable SIP program. EPA believes 

that most states are likely to adopt the 

SILs and SMC because of the useful 

purpose they serve regardless of our 

position that the values are not 

mandatory. Alternatively, states may 

develop more stringent values if they 

desire to do so. In any case, states are 

not under any SIP-related deadline for 

revising their PSD programs to add 

these screening tools. See 75 FR 64864, 

64900 (October 20, 2010). EPA is not 

proposing to approve the SILs 

provisions promulgated in the PSD 

portion of the PM2.5 PSD IncrementSILs-SMC Rule into the Alabama SIP 

PSD program in this rulemaking. EPA’s 

authority to implement the SILs and 

SMC for PSD purposes has been 

challenged by the Sierra Club. See 

Sierra Club v. EPA, Case No. 10–1413 

(D.C. Circuit Court).15 More details 

regarding Alabama’s changes to its NSR 

regulations are also summarized below 

in Section II.E. 

a. Significant Impact Levels 

SILs are numeric values derived by 

EPA that may be used to evaluate the 

impact a proposed major source or 

modification may have on the NAAQS 

or PSD increment. The primary purpose 

of the SILs is to identify a level of 

ambient impact that is sufficiently low 

relative to the NAAQS or increments 

that such impact can be considered 

insignificant or de minimis. EPA’s 

policy has been to allow the use of the 

SILs as de minimis thresholds under the 

NSR programs at 40 CFR 51.165(b) and 

part 51, appendix S, to determine 

whether the predicted ambient impact 

resulting from the emissions increase at 

a proposed major new stationary source 

or modification is considered to cause 

or contribute to a violation of the 

NAAQS. EPA has also allowed the SILs 

under the PSD program to determine: (1) 

When a proposed source’s ambient 

impacts warrants a comprehensive 

(cumulative) source impact analysis 16

and; (2) the size of the impact area 

within which the air quality analysis is 

completed (75 FR 64864, October 20, 

2010). 

In the PM2.5 PSD Increment-SILs-SMC 

Rule, EPA established the SILs 

threshold which reflects the degree of 

ambient impact on PM2.5 concentrations 

that can be considered de minimis and 

would justify no further analysis or 

modeling of the air quality impact of a 

source in combination with other 

sources in the area because the source 

would not cause or contribute to an 

exceedance of the PM2.5 NAAQS or the 

PM2.5 increments (75 FR 64864, October 

20, 2010). The PM2.5 PSD IncrementSILs-SMC Rule established SILs to 

evaluate the impact that a proposed new 

source or modification may have on the 

PM2.5 NAAQS or increment. When a 

proposed major new source or major 

modification of PM2.5 projects (using air 

quality modeling) has an impact less 

than the PM2.5 SILs, the proposed 

construction or modification is 

considered to not have a significant air 

quality impact and would not need to 

complete a cumulative impact analysis 

involving an analysis of other sources in 

the area. Additionally, a source with a 

de minimis ambient impact would not 

be considered to cause or contribute to 

a violation of the PM2.5 NAAQS or 

increments. 

The October 20, 2010, rule established 

the PM2.5 SILs at EPA’s existing NNSR 

regulations at 51.165(b) and the PSD 

regulations at 40 CFR 51.166(k)(2), 

52.21(k)(2) and part 51, appendix S as 

optional screening tools that became 

effective on December 20, 2010. Prior to 

the October 20, 2010, rule, the concept 

of a SIL was not previously incorporated 

into the PSD regulations. The 

regulations in 40 CFR 51.165(b) 17

establish the minimum requirements for 

nonattainment NSR programs in SIPs 

but apply specifically to major 

stationary sources and major 

modifications located in attainment or 

unclassifiable/attainment areas. See 40 

CFR 51.165(b). Where a PSD source 

located in such areas may have an 

impact on an adjacent nonattainment 

area, the PSD source must still 

demonstrate that it will not cause or 

contribute to a violation of the NAAQS 

in the adjacent area. Where emissions 

from a proposed PSD source or 

modification would have an ambient 

impact in a nonattainment area that 

would exceed the SILs, the source is 

considered to cause or contribute to a 

violation of the NAAQS and may not be 

issued a PSD permit without obtaining 

emissions reductions to compensate for 

its impact. See 40 CFR 51.165(b)(2)–(3). 

Alabama’s May 2, 2011, SIP submittal 

addresses the PM2.5 SILS thresholds and 

provisions promulgated in the October 

20, 2010, rule at 40 CFR 51.165(b)(2) 

and 51.166(k)(2). Further analysis of 

Alabama’s submission is explained 

below in Section II.E.2. 

b. Significant Monitoring 

Concentrations 

Under the CAA and EPA regulations, 

an applicant for a PSD permit is 

required to gather preconstruction 

monitoring data in certain 

circumstances. Section 165(a)(7) calls 

for ‘‘such monitoring as may be 

necessary to determine the effect which 

emissions from any such facility may 

have, or is having, on air quality in any 

areas which may be affected by 

emissions from such source.’’ In 

addition, section 165(e) requires an 

analysis of the air quality in areas 

affected by a proposed major facility or 

major modification and calls for 

gathering one year of monitoring data 

unless the reviewing authority 

determines that a complete and 

adequate analysis may be accomplished 

in a shorter period. These requirements 

are codified in EPA’s PSD regulations at 

40 CFR 51.166(m) and 40 CFR 52.21(m). 

In accordance with EPA’s Guideline for 

Air Quality Modeling (40 CFR part 51, 

Appendix W), the preconstruction 

monitoring data is primarily used to 

determine background concentrations in 

modeling conducted to demonstrate that 

the proposed source or modification 

will not cause or contribute to a 

violation of the NAAQS. See 40 CFR 

part 51, Appendix W, section 9.2. SMC 

are numerical values that represent 

thresholds of insignificant, i.e., de 

minimis, monitored (ambient) impacts 

on pollutant concentrations. In EPA’s 

PM2.5 PSD Increment-SILs-SMC Rule, 

EPA established a SMC of 4 mg/m3 for 

PM2.5 to be used as a screening tool by 

a major source subject to PSD to 

determine the subsequent level of data 

gathering required for a PSD permit 

application for emissions of PM2.5. 

Using the SMC as a screening tool, 

sources may be able to demonstrate that 

the modeled air quality impact of 

emissions from the new source or 


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18EPA interprets section 165(a)(3) of the CAA to 

allow the use of significance levels as a means to 

demonstrate that a source will not cause or 

contribute to any violation of the NAAQS or 

increments. The terms ‘‘cause or contribute to’’ and 

‘‘demonstrate’’ are ambiguous and EPA reasonably 

interprets the statue to allow sources that do not 

contribute significantly to ambient air 

concentrations of PM2.5 to demonstrate compliance 

through modeling of the source’s impact measured 

against the SILs. 

19Additional information on this issue can also 

be found in an April 25, 2010, comment letter from 

EPA Region 6 to the Louisiana Department of 

Environmental Quality regarding the SILs-SMC 

litigation. A copy of this letter can be found in the 

docket for today’s rulemaking at 

www.regulations.gov using docket ID: EPA–R04– 

OAR–2012–0079. 

20ADEM’s Rule 335–3–14–.05—Air Permits 

Authorizing Construction in or Near NonAttainment Areas applies to major stationary 

sources or modifications constructed in areas 

designated nonattainment as required under part D 

of title I of the CAA with respect to the NAAQS. 

However, in today’s rulemaking, EPA is only 

proposing to take action on the PSD provision and 

will take action on the NNSR changes in a separate 

action. 

modification, or the existing air quality 

level in the area where the source would 

construct, is less than the SMC, i.e., de 

minimis, and may be allowed to forego 

the preconstruction monitoring 

requirement for a particular pollutant at 

the discretion of the reviewing 

authority. See 75 FR 64864 (October 20, 

2010) and 40 CFR 51.166(i)(5) and 

52.21(i)(5). As mentioned above, SMCs 

are not minimum required elements of 

an approvable SIP under the CAA. This 

de minimis value is widely considered 

to be a useful component for 

implementing the PSD program, but is 

not absolutely necessary for the states to 

implement PSD programs. States can 

satisfy the statutory requirements for a 

PSD program by requiring each PSD 

applicant to submit air quality 

monitoring data for PM2.5 without using 

de minimis thresholds to exempt certain 

sources from such requirements. The 

SMC became effective under the Federal 

PSD program on December 20, 2010. 

However, states with EPA-approved 

PSD programs that adopt the SMC for 

PM2.5 may use the SMC, once it is part 

of an approved SIP, to determine when 

it may be appropriate to exempt a 

particular major stationary source or 

major modification from the monitoring 

requirements under its State PSD 

program. Alabama’s May 2, 2011, SIP 

revision adopts the SMC threshold into 

the Alabama SIP. More detail on 

Alabama’s SIP is discussed below in 

Section II.E.2 

c. SILs-SMC Litigation 

Recently, the Sierra Club filed suit 

challenging EPA’s authority to 

promulgate the PM2.5 SILs and SMC for 

PSD purposes as promulgated in the 

PM2.5 PSD Increment-SILs-SMC Rule. 

Sierra Club v. EPA, Case No. 10–1413 

(D.C. Circuit Court). Specifically, Sierra 

Club claims that the SILs and SMC 

screening tools adopted in the October 

20, 2010, rule are inconsistent with the 

CAA and EPA’s de minimis authority.18

See Sierra Club v. EPA, Case No. 10– 

1413 (D.C. Circuit). EPA responded to 

Sierra Club’s claims in a Brief dated 

April 6, 2012, which described the 

Agency’s authority to develop and 

promulgate SILs and SMC.19 A copy of 

EPA’s April 6, 2012, Brief can be found 

in the docket for today’s rulemaking at 

www.regulations.gov using docket ID: 

EPA–R04–OAR–2012–0079. 

E. What is EPA’s analysis of Alabama’s 

SIP revision adopting NSR PM2.5

implementation provisions? 

Alabama currently has a SIP-approved 

NSR program for new and modified 

stationary sources found at Chapter 

335–3–14. ADEM’s PSD preconstruction 

regulations are found at Rule 335–3–14– 

.04—Air Permits Authorizing 

Construction in Clean Air Areas 

(Prevention of Significant Deterioration 

(PSD)) and apply to major stationary 

sources or modifications constructed in 

areas designated attainment or 

unclassifiable/attainment as required 

under part C of title I of the CAA with 

respect to the NAAQS.20 Additionally, 

rule 335–3–14-.03 establishes general 

standards for granting permits in the 

state. ADEM’s May 2, 2011, changes to 

Chapter 335–3–14 were submitted to 

adopt into the State’s NSR permitting 

program PSD provisions promulgated in 

the NSR PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC rule. These 

changes to Alabama’s regulations 

became state effective on May 23, 2011. 

EPA is proposing to approve the 

changes at rule 335–3–14–.03 and .04 

into the Alabama SIP to be consistent 

with federal NSR regulations (at 40 CFR 

51.166 and 52.21) and the CAA. As 

mentioned earlier, EPA anticipates 

taking action on the May 2, 2011, SIP 

revision NNSR amendments in a 

separate rulemaking. 

1. NSR PM2.5 Implementation Rule 

Alabama’s May 2, 2011, SIP revision 

establishes that the State’s existing NSR 

permitting program requirements for 

PSD apply to the PM2.5 NAAQS and its 

precursors. Specifically, the SIP revision 

adopts the following NSR PM2.5 Rule 

PSD provisions into the Alabama SIP: 

(1) The requirement for NSR permits to 

address directly emitted PM2.5 and 

precursor pollutants; (2) significant 

emission rates for direct PM2.5 and 

precursor pollutants (SO2 and NOX) and 

(3) the requirement that conde dinsable 

PM be addressed in enforceable PM10

and PM2.5 emission limits included in 

PSD permits. The May 2, 2011, SIP 

revision changes (1) establish that the 

State’s NSR permitting program 

requirements for PSD apply to the PM2.5

NAAQS and its precursors; (2) recognize 

PM2.5 precursors at 335–3–14–.04(2)(b) 

and 335–3–14–.04(2)(w) (as amended at 

40 CFR 51.166(b)(23)(i)); (3) sets 

significant emission rates for both direct 

PM2.5 and PM2.5 precursors for major 

modifications at existing sources at 335– 

3–14–.04(2)(w) (as amended at 

51.166(b)(23)(i)); and (4) adopt the 

requirement that condensable PM10 and 

PM2.5 emissions be accounted for in PSD 

applicability determinations and in 

establishing emissions limitations for 

PM at 353–14–.04(2)(ww)(5) (as 

amended at 40 CFR 51.166(b)(49)). 

As mentioned above, Alabama’s May 

2, 2011, SIP revision also adopts into 

the State’s NSR regulations the 

requirement to address condensable PM 

in making applicability determinations 

and in establishing enforceable emission 

limits in PSD permits, as required under 

the NSR PM2.5 Rule. As discussed in 

Section II.C.2, under a separate action, 

EPA has proposed to correct the 

inadvertent inclusion of ‘‘particulate 

matter emissions’’ in the definition of 

‘‘regulated NSR pollutant’’ as an 

indicator for which condensable 

emissions must be addressed (77 FR 

75656, March 16, 2012). Further, on 

June 18, 2012, the State of Alabama 

provided a letter to EPA clarifying the 

State’s intent in light of EPA’s March 16, 

2012, proposed rulemaking. A copy of 

this letter can be found in the docket for 

today’s rulemaking at 

www.regulations.gov using docket ID: 

EPA–R04–OAR–2012–0079. 

Specifically, Alabama requested that 

EPA not approve the term ‘‘particulate 

matter emissions’’ (at rule 335–3–14– 

.04(ww)(5) and.05(ww)(2)) as part of the 

definition for ‘‘regulated NSR pollutant’’ 

regarding the inclusion of condensable 

emissions in applicability 

determinations and in establishing 

emissions limitations for PM. Therefore, 

given the State’s request and EPA’s 

intention to amend the definition of 

‘‘regulated NSR pollutant,’’ EPA is not 

proposing action to approve the 

terminology ‘‘particulate matter 

emissions’’ into the PSD regulations of 

the Alabama SIP for the condensable 

provision in the definition of ‘‘regulated 

NSR pollutant.’’ EPA is, however, 

proposing to approve into the Alabama 

SIP at 335–3–14–.04(ww)(5) the 

remaining condensable requirement at 

40 CFR 51.166(b)(49)(vi), which requires 


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21The provisions at 335–3–14–.03(1)(g) are 

consistent with SILs provisions at 40 CFR 51.165(b). 

22 In November 1993, EPA promulgated two sets 

of regulations to implement section 176(c). First, on 

November 24, EPA promulgated the Transportation 

Conformity Regulations (applicable to highways 

and mass transit) to establish the criteria and 

procedures for determining that transportation 

plans, programs, and projects which are funded 

under title 23 U.S.C. or the Federal Transit Act 

Continued 

that condensable emissions be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM2.5 and 

PM10. Alabama’s condensable provision 

will be consistent with the federal rule 

once EPA finalizes the March 16, 2012, 

rulemaking. EPA’s May 18, 2011 (76 FR 

28646), final rulemaking repealed the 

PM10 ‘‘grandfathering’’ provision, as 

noted in Section II.C above. Alabama’s 

May 2, 2011, SIP revision does not 

address 40 CFR 52.21(i)(1)(ix) 

promulgated in the NSR PM2.5 Rule and 

is in accordance with the repeal of the 

PM2.5 grandfathering provision. EPA has 

preliminarily determined that 

Alabama’s May 2, 2011, SIP revision is 

consistent with the NSR PM2.5 Rule for 

PSD and section 110 of the CAA. See 73 

FR 28321 (May 16, 2008). 

2. PM2.5 PSD Increment-SILs-SMC Rule 

Provisions 

Alabama’s May 2, 2011, SIP revision 

adopts, into the Alabama SIP, at Chapter 

335–3–14 the following PSD provisions 

promulgated in the PM2.5 PSD 

Increment-SILs-SMC Rule: (1) PSD 

increments for PM2.5 annual and 24- 

hour NAAQS pursuant to section 166(a) 

of the CAA; (2) SILs to be used as a 

screening tool to evaluate the impact a 

proposed major source or modification 

may have on the NAAQS or PSD 

increment; and (3) SMC, also used as a 

screening tool, to determine the level of 

data gathering required of a major 

source in support of its PSD permit 

application for PM2.5 emissions. 

Specifically, regarding the PSD 

increments, the SIP revision changes 

include: (1) The PM2.5 increments as 

promulgated in at 40 CFR 51.166(c)(1) 

and (p)(4) (for Class I Variances) and (2) 

amendments to the terms ‘‘major source 

baseline date’’ (at 40 CFR 

51.166(b)(14)(i)(c)) and 

52.21(b)(14)(i)(c)), ‘‘minor source 

baseline date’’(including establishment 

of the ‘‘trigger date’’) and ‘‘baseline 

area’’ (as amended at 51.166(b)(15)(i) 

and (ii) and 52.21(b)(15)(i)). These 

changes provide for the implementation 

of the PM2.5 PSD increments for the 

PM2.5 NAAQS in the state’s PSD 

program. In today’s action, EPA is 

proposing to approve Alabama’s May 2, 

2011, SIP revision provisions to address 

the PM2.5 PSD increment provisions 

promulgated in the PM2.5 PSD 

Increments SILs-SMC Rule. 

Regarding the SILs and SMC 

established in the October 20, 2010, 

PM2.5 PSD Increment-SILs-SMC Rule, 

the Sierra Club has challenged EPA’s 

authority to implement SILs and SMC. 

In a brief filed in the D.C. Circuit on 

April 6, 2012, EPA described the 

Agency’s authority under the CAA to 

promulgate and implement the SMC 

and SILs de minimis thresholds. With 

respect to the SMCs, Alabama’s SIP 

revision includes the SMC of 4 mg/m3

for PM2.5 NAAQS at rule 335–3– 

14.04(8)(h) that was added to the 

existing monitoring exemption at 40 

CFR 51.166(i)(5)(i)(c) and 

52.21(i)(5)(i)(c). EPA is proposing to 

approve the PM2.5 SMC into the 

Alabama SIP as EPA believes the use of 

the SMC is a valid exercise of the 

Agency’s de minimis authority. 

Furthermore, Alabama’s May 2, 2011, 

SIP revision is consistent with EPA’s 

current promulgated provisions in the 

October 20, 2010, rule. However, EPA 

notes that future Court action may 

require subsequent rule revisions and 

SIP revisions from Alabama. 

Alabama’s SIP revision to adopt the 

new PSD requirements for PM2.5

pursuant to the PM2.5 PSD IncrementSILs-SMC Rule also includes the new 

regulatory text at 40 CFR 51.166(k)(2) 

and 52.21(k)(2), concerning the 

implementation of SILs for PM2.5. EPA 

stated in the preamble to the PM2.5 PSD 

Increment-SILs-SMC Rule that we do 

not consider the SILs to be a mandatory 

SIP element, but regard them as 

discretionary on the part of regulating 

authority for use in the PSD permitting 

process. Nevertheless, as mentioned 

above, the PM2.5 SILs are currently the 

subject of litigation before the U.S. 

Court of Appeals. (Sierra Club v. EPA, 

Case No 10–1413, D.C. Circuit). In 

response to that litigation, EPA has 

requested that the Court remand and 

vacate the regulatory text in the EPA’s 

PSD regulations at paragraph (k)(2) so 

that EPA can make necessary 

rulemaking revisions to that text. In 

light of EPA’s request for remand and 

vacatur and the agency’s 

acknowledgement of the need to revise 

the regulatory text presently contained 

at paragraph (k)(2) of sections 51.166 

and 52.21, EPA does not believe that it 

is appropriate at this time to approve 

that portion of the State’s 

implementation plan revision that 

contains the affected regulatory text in 

the State’s PSD regulations, at rule 335– 

3–14–04(10)(b). Instead, EPA is taking 

no action at this time with regard to 

these specific provisions contained in 

the SIP revision. EPA anticipates taking 

action on the SILs portion of Alabama’s 

May 2, 2011, SIP revision in a separate 

rulemaking once the issue regarding the 

court case has been resolved. 

The PM2.5 PSD Increment-SILs-SMC 

rule promulgated PM2.5 SILs thresholds 

in the NNSR regulations at 40 CFR 

51.165(b)(2). Alabama’s May 2, 2011 

submission also adopts the PM2.5 SILs 

thresholds in their general permits 

provisions at rule 335–3–14–.03(1)(g) 21

to be consistent with amendments to 40 

CFR 51.165(b) in the PM2.5 PSD 

Increment-SILs-SMC Rule. In light of 

the fact that EPA did not request the 

court to remand and vacate language at 

51.165(b) and the agency has explained 

its authority to develop and promulgate 

SILs in the brief filed with the D.C. 

Circuit Court concerning the litigation, 

EPA is proposing to approve Alabama’s 

adoption of the PM2.5 SILs thresholds at 

335–3–14–.03(1)(g). EPA notes, 

however, that the SILs-SMC litigation is 

ongoing and therefore future Court 

action may require subsequent rule 

revisions and SIP submittals from the 

State of Alabama. 

The aforementioned amendments to 

Alabama’s SIP provide the framework 

for implementation of PM2.5 NAAQS in 

the states NSR permitting. Based on 

review and consideration of Alabama’s 

May 2, 2011, SIP revision, EPA has 

made the preliminary determination to 

approve the aforementioned PSD 

permitting provisions promulgated in 

the NSR PM2.5 Rule and PM2.5 PSD 

Increment-SILs-SMC Rule into the 

Alabama SIP to implement the NSR 

program for the PM2.5 NAAQS. 

III. What is EPA’s proposed action for 

changes to Alabama’s general and 

transportation conformity regulations? 

In addition to the adoption of NSR 

federal regulations mentioned above, 

Alabama’s SIP revision updates the 

State’s General Conformity regulations 

at Chapter 335–3–17—Conformity of 

Federal Actions to State Implementation 

Plans to be consistent with recent 

updates to federal General Conformity 

regulations promulgated on April 5, 

2010 (75 FR 17254). Alabama’s 

Conformity regulations at 335–3–17 

include Transportation Conformity rules 

at 335–3–17.01 and General Conformity 

rules at 335–3–17.02. Pursuant to 

section 176(c) of the CAA, General 

Conformity ensures that federal actions 

comply with the NAAQS. In order to 

meet this CAA requirement, a federal 

agency must demonstrate that every 

action that it undertakes, approves, 

permits or supports will conform to the 

appropriate State, Tribal or Federal 

Implementation Plan.22 Alabama IBR 


tkelley on DSK3SPTVN1PROD with PROPOSALS
46672 Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Proposed Rules 

conform with the SIP. See 58 FR 62188. On 

November 30, 1993, EPA promulgated regulations, 

known as the General Conformity Regulations 

(applicable to everything else), to ensure that other 

federal actions also conformed to the SIPs. See 58 

FR 63214). 

the federal General Conformity 

regulations at 40 CFR 93, Subpart B. 

Particularly, Alabama’s May 2, 2011, 

SIP submission updates the IBR date at 

335–3–17.02 to July 1, 2010, to be 

consistent with federal General 

Conformity rules (as promulgated on 

April 5, 2010) and updates its 

Transportation Conformity SIP at 335– 

3–17–.01 effective May 23, 2011, to 

include EPA’s transportation conformity 

rule updates regarding implementation 

of the PM2.5 and PM10 nonattainment 

and maintenance areas. EPA has 

preliminarily determined that 

Alabama’s May 2, 2011, updates to 

Alabama’s general and transportation 

Conformity regulations are consistent 

with CAA and EPA’s regulations 

governing conformity. 

IV. Proposed Action 

EPA is proposing to approve portions 

of Alabama’s May 2, 2011, SIP revision 

adopting federal regulations amended in 

the May 16, 2008, NSR PM2.5 Rule; the 

October 20, 2010, PM2.5 PSD IncrementSILs-SMC rule; and updates to the 

State’s general and transportation 

conformity regulations into the Alabama 

SIP with the exception of the provisions 

listed in Section I. EPA has made the 

preliminary determination that this SIP 

revision, with regard to aforementioned 

proposed actions, is approvable because 

it is consistent with section 110 of the 

CAA and EPA regulations regarding 

NSR permitting and conformity. 

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this 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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (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). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements. 

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

Dated: July 20, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–19048 Filed 8–3–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2012–0444; FRL–9711–7] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Fredericksburg 8-Hour Ozone 

Maintenance Area Revision to 

Approved Motor Vehicle Emissions 

Budgets 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

the Commonwealth of Virginia’s State 

Implementation Plan (SIP) submitted by 

the Virginia Department of 

Environmental Quality (VADEQ) on 

September 26, 2011. The SIP revision 

consists of updating the 2009 and 2015 

motor vehicle emission budgets 

(MVEBs) in the Fredericksburg 8-Hour 

Ozone Maintenance Area 

(Fredericksburg Area) by replacing the 

previously approved MVEBs with 

budgets developed using EPA’s Motor 

Vehicle Emissions Simulator emissions 

model (MOVES2010a). This action is 

being taken under the Clean Air Act 

(CAA). 

DATES: Written comments must be 

received on or before September 5, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R03–OAR–2012–0444 by one of the 

following methods: 

A. www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

B. Email: mastro.donna@epa.gov. 

C. Mail: EPA–R03–OAR–2012–0444, 

Donna Mastro, Acting Associate 

Director, Office of Air Program 

Planning, Mailcode 3AP30, U.S. 

Environmental Protection Agency, 

Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2012– 

0444. 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 


tkelley on DSK3SPTVN1PROD with PROPOSALS