Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations 60957 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 15, 

2008. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this action for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action may not be 

challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: October 1, 2008. 

Elin D. Miller, 

Regional Administrator, Region 10. 

■ Chapter I, title 40 of the Code of 

Federal Regulations is amended as 

follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart C—Alaska 

■ 2. Section 52.97 is added to read as 

follows: 

§ 52.70 Interstate Transport for the 1997 8- 

hour ozone and PM2.5 NAAQS. 

On February 7, 2008, the Alaska 

Department of Environmental 

Conservation submitted a SIP revision 

to meet the requirements of Clean Air 

Act section 110(a)(2)(D)(i). EPA has 

approved this submittal. 

[FR Doc. E8–24279 Filed 10–14–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2005–AL–0002–200819; 

FRL–8727–7] 

Approval and Promulgation of 

Implementation Plans: Alabama: 

Approval of Revisions to the Visible 

Emissions Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve revisions to the Visible 

Emissions portion of the State 

Implementation Plan (SIP) submitted to 

EPA by the State of Alabama, via the 

Alabama Department of Environmental 

Management (ADEM), on September 11, 

2003 (the ‘‘2003 ADEM submittal’’), and 

amended by a revision submitted to 

EPA on August 22, 2008 (the ‘‘2008 

ADEM amendment’’). The open burning 

portion of the State of Alabama’s 2003 

ADEM submittal was previously 

approved in a separate action on March 

9, 2006 (71 FR 12138) and is not 

relevant to this action. These revisions 

amend the requirements for units that 

are required to operate continuous 

opacity monitoring systems (COMS) and 

that are not subject to any opacity limits 

other than those of the Alabama SIP. 

DATES: Effective Date: This rule will be 

effective November 14, 2008. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2005–AL–0002. All documents in the 

docket are listed on the 

www.regulations.gov Web site. Although 

listed in the index, some information is 

not publicly available, i.e., Confidential 

Business Information or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through 

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: Mr. 

Joel Huey, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, Region 4, U.S. Environmental 

Protection Agency, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9104. 

Mr. Huey can also be reached via 

electronic mail at huey.joel@epa.gov. 

For information regarding the Alabama 

SIP, contact Ms. Stacy Harder at the 

same address listed above. The 

telephone number is (404) 562–9042. 

Ms. Harder can also be reached via 

electronic mail at harder.stacy@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Is the Background for This Action? 

II. What Action Is EPA Taking? 

III. Response to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What Is the Background for This 

Action? 

On September 11, 2003, ADEM 

submitted a request for EPA approval of 

a SIP submittal containing proposed 

revisions to the Visible Emissions 

portion of the Alabama SIP, found at 

ADEM Administrative Code (AAC) 

Chapter 335–3–4–.01, ‘‘Visible 

Emissions,’’ and pertaining to sources of 

particulate matter (PM) emissions. In an 

action published on April 12, 2007 (72 

FR 18428), EPA proposed to approve the 

proposed revisions contingent upon 

Alabama submitting a revised SIP 

submittal addressing EPA’s concerns 

regarding impacts of the rule changes on 

attainment of the National Ambient Air 

Quality Standards (NAAQS), as set forth 

in 72 FR 18428–18434. EPA’s proposal 

notice stated that the State would have 

to provide EPA with a revised SIP 

submittal consistent with certain 

changes described by EPA in our April 

12, 2007, notice of proposed 


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1The director’s discretion provisions under 

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

unchanged by this SIP revision, so periods of excess 

emissions allowed in a permit pursuant to those 

provisions would continue to be allowed, as noted 

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

provisions are not being revised by ADEM or 

reviewed by EPA at present, nothing in this notice 

should be considered as approving those 

provisions. 

2This equation includes the variable, T1, to 

represent periods of startup, shutdown, load change 

and rate change (or other short intermittent periods 

upon terms approved by ADEM’s Director and 

included in a State-issued permit) because such 

periods are allowed under both the existing SIP and 

the proposed revision, although EPA expects that 

such periods will not occur during most days. In 

calculating average opacity over a quarter in the 

April 12, 2007, proposal, EPA also used a range of 

values for such periods. 

rulemaking, before EPA would approve 

the revisions. 

EPA provided the public with 60 days 

to submit comments on our proposed 

rule and the specific changes needed to 

make the Alabama submittal approvable 

into the Alabama SIP. At the request of 

a commenter, EPA extended the public 

comment period by 30 days to July 11, 

2007. We received four comment letters 

from industry representatives and one 

from the State air pollution control 

agency, all of which were in favor of the 

rulemaking. We received one comment 

letter, submitted on behalf of four 

environmental groups, opposed to it. In 

general, comments received that were 

adverse to the proposed rulemaking 

expressed concerns related to air quality 

impacts, particularly on the particulate 

matter NAAQS, suggested inadequate 

modeling analyses by EPA, and 

expressed concern with EPA’s technical 

assessment of the relationship between 

opacity and particulate matter mass 

emissions. These comments, and EPA’s 

responses to them, are discussed in 

more detail below in Part III, ‘‘Response 

to Comments.’’ 

Following the close of the comment 

period, EPA and ADEM discussed some 

of the issues raised by the commenters, 

including comments regarding the 

potential impact of a revised Visible 

Emissions rule on attainment of the 

PM2.5 NAAQS in Alabama. Documents 

memorializing these conversations are 

part of the docket for this action. As a 

result of these discussions, ADEM 

decided to submit the necessary 

revisions proposed by EPA in our April 

2007 Federal Register notice to support 

final approval. ADEM also decided to 

include an additional limitation on 

opacity based on public comments. This 

additional provision limits subject 

sources to a daily opacity average of no 

more than 22 percent, excluding periods 

of startup, shutdown, load change and 

rate change (or other short intermittent 

periods upon terms approved by 

ADEM’s Director and included in a 

State-issued permit).1 This 22 percent 

cap was selected because it is equivalent 

to the maximum daily opacity average 

allowable under the current approved 

SIP, which allows opacity of up to 40 

percent for 24 six-minute averages per 

day and up to 20 percent for the 

remainder of the day, excluding periods 

of startup, shutdown, load change and 

rate change (or other short intermittent 

periods upon terms approved by 

ADEM’s Director and included in a 

State-issued permit). That is, under both 

the existing SIP and the August 22, 

2008, revisions, if a source were to 

operate at its maximum allowable 

opacity for an entire calendar day, 

excluding periods of startup, shutdown, 

load change and rate change (or other 

short intermittent periods upon terms 

approved by ADEM’s Director and 

included in a State-issued permit), the 

opacity average for that day would be 22 

percent. The equation below illustrates 

the calculation of 22 percent average 

daily opacity allowed under the current 

SIP when T1, the number of six-minute 

average periods of startup, shutdown, 

load change and rate change (or other 

short intermittent periods upon terms 

approved by ADEM’s Director and 

included in a State-issued permit), is 

zero.2

100 40 20 % % 1 ( ) opacity opacity 24 six minute averages ×T % + ×− ( ) + % opacity six minute averages

240 six minute 

( ) × −− ( ) −

−

240 24 T1

averages

=22% opacity

We derived allowable average daily 

opacity equations for the current SIPapproved rule and the 2008 ADEM 

submittal, substituted various 

exemption durations (T1) in the 

equations, determined the 

corresponding allowable average daily 

opacities, and organized the results as 

shown in Table 1 below. 

TABLE 1—CALCULATED ALLOWABLE AVERAGE DAILY OPACITY LEVELS FOR VARIOUS STARTUP, SHUTDOWN, LOAD

CHANGE, AND RATE CHANGE DURATIONS (T1), USING ALABAMA’S CURRENT SIP-APPROVED RULE AND THE 2008 

ADEM SUBMITTAL

Calculated allowable average daily opacity (percent) for various startup, shutdown, load change, and rate change durations (T1) 

T1 = 0 T1 = 12 T1 = 24 T1 = 48 T1 = 120 T1 = 216 T1 = 240 

Current SIP Approved 

Rule .......................... 22.0 26.0 30.0 38.0 62.0 94.0 100.0 

2008 ADEM Submittal 22.0 25.9 29.8 37.6 61.0 92.2 100.0 

The text of the new paragraphs added 

to AAC Chapter 335–3–4–.01 now reads 

as follows: 

(3) The conditions in paragraphs (4) and (5) 

of this rule apply to each emissions unit that 

meets all of the following requirements: 

(a) A Continuous Opacity Monitoring 

System (COMS) is used for indication of 

opacity of emissions; 

(b) With respect to opacity limitations, the 

units are subject only to the opacity 

provisions stated in paragraph (1) of this rule; 

and 

(c) The COMS system utilized is required 

to comply with the requirements of 40 CFR 


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3The additional revisions are as follows in the 

underlined text: 

AAC 335–3–4–.01(1)(a): ‘‘ Except as provided in 

subparagraphs (b), (c), (d), or (e) of this paragraph, 

and paragraph (3) of this rule, no person shall 

discharge into the atmosphere from any source of 

emission, particulate of an opacity greater than that 

designated as twenty percent (20%) opacity, as 

determined by a six (6) minute average.’’ 

335–3–4–.01(1)(b): ‘‘For a person not covered by 

paragraphs (3), (4), and (5) of this rule, [d]uring one 

six (6) minute period in any sixty (60) minute 

period, a person may discharge into the atmosphere 

from any source of emission, particulate of an 

opacity not greater than that designated as forty 

percent (40%) opacity.’’ 

335–3–4–.01(2): ‘‘For a person subject to 

subparagraph (1)(b) of this rule, [c]ompliance with 

opacity standards in this rule shall be determined 

by conducting observations in accordance with 

Reference Method 9 in Appendix A, 40 CFR Part 

60, as the same may be amended requiring a six (6) 

minute average as determined by twenty-four (24) 

consecutive readings, at intervals of fifteen (15) 

seconds each.’’ 

4Although this new opacity standard would only 

apply to certain sources using COMS, consistent 

with EPA’s and ADEM’s credible evidence rules, 

nothing in the rule as revised should be construed 

to preclude the use of COMS to enforce the existing 

standard or the use of EPA Method 9 to enforce the 

revised standard. 

60.13 or 40 CFR 75.14 (if applicable) and is 

required to be certified in accordance with 

the requirements of 40 CFR part 60, 

Appendix B, Performance Specification 1. 

(4) Except as otherwise exempt under 

subparagraphs (1)(c) or (1)(d) of this rule, no 

permittee shall discharge into the atmosphere 

from any source of emission, particulate of an 

opacity greater than that designated as 

twenty percent (20%) opacity, as determined 

by a six (6) minute average, except that 

during each calendar quarter, the permittee 

may discharge into the atmosphere from any 

emissions unit qualifying under paragraph 

(3) of this rule, particulate with an opacity 

exceeding 20% for not more than twenty-four 

(24), six (6) minute periods in any calendar 

day, if such periods do not exceed 2.0 

percent of the source calendar quarter 

operating hours for which the opacity 

standard is applicable and for which the 

COMS is indicating valid data. 

(5) No permittee shall discharge into the 

atmosphere from any source of emission 

particulate of an opacity greater than 22% 

(excluding exempt periods allowed under 

subparagraphs (1)(c) and (1)(d) of this rule) 

averaged over each calendar day. 

(6) For a person subject to paragraph (4) of 

this rule, compliance with the opacity 

standards in this rule shall be determined by 

COMS data. 

(7) For emissions units described in 

paragraph (3) above, the permittee shall 

comply with paragraphs (4) and (5) within 6 

months of EPA approval of paragraphs (3), 

(4), (5), and (6). Until 6 months after EPA 

approval of paragraphs (3), (4), (5), and (6), 

emissions units described by paragraph (3) 

above shall be subject to the emission limit 

in subparagraph (1)(a) of this rule, the 

exceptions in subparagraphs (1)(b), (1)(c) and 

(1)(d) of this rule, and the compliance 

measurement techniques in paragraph (2) of 

this rule. 

For overall completeness of the 

changes to the Visible Emissions rule, 

ADEM also made minor revisions to 

AAC rules 335–3–4–.01(1)(a), 335–3–4– 

.01(1)(b), and 335–3–4–.01(2).3 In 

accordance with the requirements of the 

Clean Air Act (CAA), as identified by 

EPA in our April 2007 proposed rule, 

ADEM held a public hearing on these 

revisions on August 6, 2008. The stateadopted revisions were submitted to 

EPA on August 22, 2008. 

II. What Action Is EPA Taking? 

Today’s action addresses revisions to 

Alabama SIP rule 335–3–4–.01 (‘‘Visible 

Emissions’’), submitted initially in 2003 

and significantly revised and resubmitted on August 22, 2008. These 

revisions amend the requirements for 

units that operate COMS and that are 

not subject to any opacity limits other 

than those of the Alabama SIP.4 After 

consideration of the comments received 

in response to EPA’s April 12, 2007, 

proposed rule and the State’s final SIP 

revision submittal of August 22, 2008, 

EPA is taking final action to approve the 

revisions to the Visible Emissions 

portion of the Alabama SIP rule. EPA is 

taking this action pursuant to section 

110(k) of the CAA. 

This final action is based on EPA’s 

determination that the proposed SIP 

revision satisfies the requirements of 

section 110(l) of the CAA. Consistent 

with our discussion of these issues in 

the proposed rulemaking (see 72 FR 

18428), and after consideration of all 

public comments submitted thereon, 

this determination is based upon our 

findings that (1) the revision would not 

increase the allowable average opacity 

levels; and (2) the relationship between 

changes in opacity and increases or 

decreases in ambient PM2.5 levels 

cannot be quantified readily for the 

sources subject to this SIP revision, and 

is particularly uncertain for short-term 

analyses. In the proposal we calculated 

the ‘‘average quarterly opacity’’ allowed 

under both the existing SIP and the 

proposed revision and showed that the 

proposed revision, with changes 

specified in the notice, would result in 

no greater average quarterly opacity 

allowed than what is allowed under the 

current standard. Accordingly, we relied 

primarily on the first finding for a 

conclusion that the proposed revision, 

with changes, satisfied the requirements 

of section 110(l) with respect to the 

annual PM NAAQS. We relied on the 

second finding for a conclusion that the 

proposed revision satisfied the 

requirements of section 110(l) with 

respect to the 24-hour PM NAAQS. 

In evaluating the changes submitted 

by Alabama on August 22, 2008, EPA 

notes that the revised rule as submitted 

is consistent with, but not limited to, 

the revisions outlined by EPA in the 

proposal notice. EPA’s April 12, 2007, 

notice proposed to approve a revised 

rule, if one were submitted, allowing up 

to 2.4 hours per day of operation at 

opacity levels in excess of 20 percent, 

provided that the total of such periods 

did not exceed 2 percent of operating 

time in a quarter, excluding periods of 

startup, shutdown, load change and rate 

change (or other short intermittent 

periods upon terms approved by 

ADEM’s Director and included in a 

State-issued permit). The changes 

identified by EPA were intended to 

ensure that the allowable average 

quarterly opacity under the revised rule 

would be at least as stringent as (i.e., 

equal to or lower than) that allowed by 

the current approved SIP, and to clarify 

that only a single version of the opacity 

standard applies to any unit. 

As discussed above, the rule as 

submitted includes not only the limits 

identified by EPA in the proposal notice 

but also an additional restriction that a 

source’s daily average opacity may not 

exceed 22 percent, excluding periods of 

startup, shutdown, load change and rate 

change (or other short intermittent 

periods upon terms approved by 

ADEM’s Director and included in a 

State-issued permit). As a result, unlike 

the opacity limits evaluated in the 

proposal, the average daily opacity 

allowed under the proposed revision as 

submitted is now no greater than under 

the current SIP. In this way, the rule as 

submitted allows us to evaluate the 

possible impact of changes to the 

opacity standard on the daily PM 

NAAQS using the approach we 

identified in the proposal for evaluating 

the possible impact of changes on the 

annual PM NAAQS. Since a calendar 

day is the shortest period over which 

compliance with the PM NAAQS is 

measured, EPA believes it is appropriate 

under this approach to evaluate whether 

the allowed average opacity over a 

calendar day would be any greater 

under the proposed revision, as 

submitted, as compared to the existing 

SIP. Accordingly, EPA believes both of 

the findings cited in the April 12, 2007, 

proposal provide support for our 

conclusion that the proposed revision as 

submitted satisfies the requirements of 

section 110(l) with respect to the 24- 

hour PM NAAQS. 

The Alabama Visible Emissions rule 

revision being approved today provides, 

for sources meeting the criteria of the 

revised rule, two situations where 

opacity levels above 20 percent are 


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allowed: (1) 24 six-minute averages per 

day of up to 100 percent opacity, 

provided that no subject source can 

exceed a daily average opacity of 22 

percent, excluding periods of startup, 

shutdown, load change and rate change 

(or other short intermittent periods 

upon terms approved by ADEM’s 

Director and included in a State-issued 

permit); and (2) periods of startup, 

shutdown, load change and rate change 

(or other short intermittent periods 

upon terms approved by ADEM’s 

Director and included in a State-issued 

permit). The provisions in the first 

instance above do not apply if a source 

exceeds 20 percent opacity for more 

than two percent of the remaining 

operating time in a quarter, after 

subtracting out periods of startup, 

shutdown, load change and rate change 

(or other short intermittent periods 

upon terms approved by ADEM’s 

Director and included in a State-issued 

permit). 

III. Response to Comments 

EPA proposed to approve the Visible 

Emissions portion of the SIP revision 

contained in the 2003 ADEM submittal, 

provided the State revised it as 

described in the April 12, 2007, Federal 

Register Notice and submitted it as a 

SIP revision. At the request of a 

commenter, EPA extended the 60-day 

public comment period to 90 days, 

ending July 11, 2007. 72 FR 32569 (June 

13, 2007). The final rule reflects our 

consideration of the State’s revision 

submitted on August 22, 2008, and all 

comments received on the proposed 

action. This section responds to the 

significant comments. 

Comment 1: Commenters objected to 

EPA’s approval of Paragraphs (3), (4) 

and (5) of AAC rule 335–3–4–.01, 

stating that doing so would be 

approving an ‘‘automatic exemption’’ 

from certain emission limitations that 

must function on a ‘‘continuous basis’’ 

and would result in a violation of 

Section 302(k) of the CAA and 40 CFR 

51.100(z). 

Response: The revisions to ACC rule 

335–3–4–.01 amend the requirements 

for certain units that operate COMS and 

are, therefore, revisions to the rule itself. 

A source that meets the requirements of 

the revised standard will be in 

continuous compliance with the 

standard. The provisions of the CAA 

and its implementing regulations cited 

by the commenters do not require that 

all SIP measures require compliance 

with the same numerical emission 

limitation at all times. See Kamp v. 

Hernandez, 752 F.2d 1444 (9 Cir.), 

modified, 778 F.2d 527 (9th Cir. 1985). 

EPA believes the rule, as amended, does 

not violate Section 302(k) of the CAA 

and 40 CFR 51.100(z). 

Comment 2: Commenters stated that 

EPA’s analysis of ACC rule 335–3–4–.01 

is ‘‘illegal’’ because an ‘‘analysis 

premised on the notion that a relaxation 

is acceptable as long as average 

emissions are equal to or no lower than 

the status quo runs afoul of Hall, which 

explicitly rejected that type of analysis.’’ 

Response: The 9th Circuit Court of 

Appeals decision in Hall v. U.S. E.P.A., 

273 F.3d 1146, does not require EPA to 

disapprove the SIP revision at issue. It 

is not binding precedent in the 11th 

Circuit Court of Appeals, and two other 

circuits have agreed with EPA’s view 

that a SIP revision may be approved 

under section 110(l) ‘‘unless the agency 

finds it will make air quality worse.’’ 

See Kentucky Resources Council, Inc. v. 

EPA, 467 F.3d 986 (6th Cir. 2006); 

GHASP v. EPA, No. 06–61030 (5th Cir. 

Aug. 13, 2008). Furthermore, although 

the Hall court adopted an approach, 

based on the facts of that case, under 

which ‘‘EPA must be able to conclude 

that the particular plan revision before 

it is consistent with the development of 

an overall plan capable of meeting the 

Act’s attainment requirements,’’ EPA 

believes this revision is consistent with 

development of an overall plan capable 

of demonstrating attainment in a timely 

fashion. 

Comment 3: Commenters stated that 

EPA must perform modeling analysis at 

every facility subject to the Alabama 

Visible Emissions rule at AAC rule 335– 

3–4–.01 and suggest that the State and 

EPA will be abdicating their 

responsibility to protect the NAAQS if 

they do not perform modeling analysis 

for every facility subject to the proposed 

rule. 

Response: EPA disagrees with the 

commenters that modeling is required at 

every facility. As a matter of law, the 

CAA does not require EPA to perform 

modeling analysis at every facility 

subject to the Alabama Visible 

Emissions rule. For purposes of 

analyzing SIP revisions, as long as EPA 

evaluates all of the information before it 

in light of its expertise and has a 

reasonable basis for concluding that the 

rule revision satisfies the requirements 

of section 110(l) of the CAA, we are 

authorized to act on a SIP revision. As 

set forth in the proposed rule, we 

believe our technical analysis supports 

approval of the proposed revisions to 

the Visible Emissions portion of the 

Alabama SIP, rule 335–3–4–.01. See 72 

FR 18428, 18431 (April 12, 2007). 

Comment 4: Commenters stated that 

CAA section 110(l) requires EPA to 

evaluate whether the proposed SIP 

revision will make the ambient air 

worse and whether the existing SIP and 

the proposed revisions, taken together, 

will still achieve the necessary pollution 

reductions required for the State to 

continue to meet the NAAQS. 

Response: Under section 110(l) of the 

CAA, EPA may not approve revisions to 

SIPs if the revisions would interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress, or any other applicable 

requirement of the CAA. Therefore, in 

determining whether to approve the 

revisions to Alabama’s Visible 

Emissions rule, we considered the 

relevant impacts of the proposed change 

in light of the type of requirement 

affected by the requested revision. In 

this instance, the State is proposing 

revisions to its opacity requirements. 

EPA notes that the opacity standard 

itself is not a NAAQS and that the PM 

emission reduction standards remain 

unchanged in the approved Alabama 

SIP. We have considered the impact of 

Alabama’s proposed revision on the 

NAAQS for PM10 and PM2.5, and on 

other applicable requirements, and 

determined that it satisfies the 

requirements of CAA section 110(l). 

Comment 5: Commenters opposed 

EPA’s approval of paragraphs (3), (4) 

and (5) of AAC rule 135–3–4–.01, 

stating that EPA’s analysis did not 

include whether the current rule ‘‘as is’’ 

is adequately protective of the NAAQS 

and, therefore, EPA’s comparison 

analysis is incapable of providing the 

information necessary to evaluate the 

2003 ADEM submittal. 

Response: The CAA requires EPA to 

evaluate the initial SIP submittal as well 

as all proposed revisions pursuant to the 

conditions set forth in section 110(l) of 

the CAA as cited above. EPA interprets 

the requirements of section 110(l) to 

apply with respect to the specific 

changes being proposed. EPA does not 

interpret section 110(l) to require a full 

attainment or maintenance 

demonstration before any changes to a 

SIP may be approved. See Kentucky 

Resources Council, Inc. v. EPA, 467 F.3d 

986 (6th Cir. 2006); see also e.g., 70 FR 

53 (Jan. 3, 2005), 70 FR 28429 (May 18, 

2005) (proposed and final rules, upheld 

in Kentucky Resources, which discuss 

EPA’s interpretation of section 110(l)). 

In this action, the State proposed only 

revisions to its opacity requirements. 

We evaluated the proposed revisions in 

light of the relationship between opacity 

and PM emissions and determined that 

a reliable and direct correlation could 

not be readily established, particularly 

for short-term periods. Nonetheless, 

there is at least an indirect relationship 

between opacity and PM emissions, 

including the use of opacity to track the 


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5Measurement of the Opacity and Mass 

Concentration of Particulate Emissions by 

Transmissometry, EPA–650/2–74–128, p3. 6Measurement of the Opacity and Mass 

Concentration of Particulate Emissions by 

Transmissometry, EPA–650/2–74–128, p 21. 

effectiveness of PM control equipment 

operation, and we considered the 

impact of Alabama’s 2003 and 2008 

revisions on the NAAQS for PM10 and 

PM2.5 and on other applicable emission 

limits. We concluded that these SIP 

revisions satisfy the requirements of 

CAA section 110(l). 

Comment 6: Commenters stated that 

EPA’s rationale for approving AAC rule 

335–3–4–.01, ‘‘Visible Emissions,’’ is 

not correct because AAC rule 335–3– 

14–.03(1)(h)(2), ‘‘Emergency Exception,’’ 

serves essentially the same purpose as a 

‘‘malfunction exception.’’ Therefore, 

ADEM’s claim that there is pressing 

need to adopt a new two-percent 

exemption lacks merit. 

Response: We did not consider AAC 

rule 335–3–14–.03(1)(h)(2), ‘‘Emergency 

Exception,’’ in our decision to approve 

revisions to ACC rule 335–3–4–.01, 

‘‘Visible Emissions.’’ EPA notes that it 

does not interpret AAC rule 335–3–14– 

.03(1)(h)(2) as providing the same sort of 

exemption for equipment malfunctions 

that is included in other SIPs (and 

would be approvable, subject to certain 

limitations, under current EPA policy 

and guidance). Section 110(l) requires 

us to evaluate proposed SIP revisions in 

relation to applicable requirements of 

the CAA, not state rules. EPA is not 

basing our approval of the revision on 

the lack of a ‘‘malfunction exemption’’ 

in Alabama’s SIP. 

Comment 7: Commenters stated that 

EPA may not have complied with the 

Agency’s SIP Consistency Policy. If not, 

then the Regional Administrator was not 

authorized as a matter of law to 

promulgate the proposed SIP revision. 

Response: EPA complied with its SIP 

consistency policy. Documentation of 

the process is contained in the docket 

for this rule. 

Comment 8: Commenters stated that 

modeling shows the revisions to AAC 

rule 335–3–4–.01 would interfere with 

the PM2.5 NAAQS. 

Response: EPA does not agree that the 

modeling submitted by the commenters 

shows the revisions to the Alabama 

Visible Emissions rule would interfere 

with the PM2.5 NAAQS. First, the 

modeling submitted by the commenters 

assumed that maximum PM emissions 

will occur at 100 percent opacity and 

that 100 percent opacity will occur 

when the electrostatic precipitator (ESP) 

is turned off. Commenters did not 

submit data to support this assumption. 

Data reviewed by EPA in considering 

this SIP revision suggest a wide 

variation in opacity associated with PM 

emission rates across a range of 

operating conditions for ESPs. For 

example, data from Review of 

Concurrent Mass Emission and Opacity 

Measurements for Coal-burning Utility 

and Industrial Boilers (EPA–600/7–80– 

062), which is listed in the docket for 

this rule and is publicly available, on 

similarly equipped and operated coalfired electric utilities illustrate the 

variability of opacity with respect to 

ESP operation and of opacity with 

particulate matter emissions. In one 

example, a facility equipped with a fully 

energized ESP exhibited 22 percent 

opacity and a PM emissions rate of 

0.314 lbs PM per million British thermal 

units (BTU). During another test run 

under the same operating conditions, 

this facility exhibited a 45 percent 

increase in opacity to 32 percent 

opacity, but a 60 percent decrease in PM 

emissions rate to 0.126 lbs PM per 

million BTU. Moreover, during another 

test series for this facility in which the 

ESP was fully energized for one run, 

then turned off for another run, the 

opacity remained constant at 22 percent. 

Thus, evidence in the docket indicates 

that, at least for some sources, there is 

not a universal correlation between 

operating conditions of the ESP and 

opacity. 

Second, one commenter also stated 

that the facility could operate at 100 

percent opacity for consecutive periods 

of 2.4 hours per day and up to 4.8 hours 

in two days back-to-back, thus creating 

the potential for significant short-term 

impacts on ambient air quality. The 

commenter is correct, provided that 

these periods of operation do not cause 

the source to exceed two percent of the 

source calendar operating hours or an 

average daily opacity of 22 percent. 

Given Alabama’s newly adopted rule, in 

a hypothetical situation in which a 

source operated at 100 percent opacity 

for 2.4 hours, the facility would be 

limited to no more than 13.3 percent 

opacity for the remainder of the day; 

this limit is two-thirds of the otherwise 

generally applicable limit of 20 percent. 

EPA notes that the 24-hour PM NAAQS 

are measured on a calendar-day basis, 

not as a rolling 24-hour average. 

Accordingly, EPA does not believe the 

possibility that a facility could operate 

for 4.8 hours in two consecutive 

calendar days indicates that the revised 

rule would interfere with attainment 

and maintenance of the 24-hour PM 

NAAQS. Furthermore, as discussed 

below, nothing in the Visible Emissions 

rule excuses a source from compliance 

with any applicable PM emission limit. 

The AERMOD model (a regulatory 

dispersion model) requires several 

inputs, including PM emission rate. 

Some commenters assumed a 

correlation between opacity and PM 

emission rate as part of their efforts to 

model the impact of the revised opacity 

rule on PM emissions and ambient PM 

concentrations. Opacity, the degree to 

which emissions reduce the 

transmission of light and obscure the 

view of an object in the background,5 is 

a condition, not a pollutant. For a useful 

relationship to exist between the opacity 

and mass concentration of the 

particulate emissions from a pollution 

source, the characteristics of the 

particles (size, shape, and composition) 

must be sufficiently constant, and for a 

conventional transmissometer (e.g., 

COMS) to be useful as a monitor of the 

mass concentration, the particulate 

characteristics must remain constant 

over a useful period of time.6

There is a general relationship 

between opacity and PM, which 

generally develops over longer periods 

of time. While opacity is used as an 

indicator of compliance with PM limits 

in certain regulatory programs, 

establishing a relationship between PM 

and opacity that holds for all sources, 

fuels, control devices, and operating 

modes can be complex. Opacity may not 

be a reliable indicator of short-term 

mass emissions, or for use in projecting 

changes in short-term PM ambient air 

quality concentrations. A given opacity 

level can be associated with a range of 

mass emissions, the level of which 

depends on fuels, industry, boiler type, 

and controls. Although source-specific 

correlations between opacity and mass 

emissions can be established for some 

sources, none have been for the sources 

subject to this SIP revision and therefore 

assumptions must be made about how a 

change in the opacity rule might affect 

the level of PM mass emissions being 

modeled. These assumptions made 

about the relationship drive model 

results and, thus, are important in 

evaluating the result of the modeling 

exercise. 

For the modeling submittals on the 

Colbert Plant, commenters assumed 

maximum opacity for maximum 

duration from turned-off PM emission 

control devices. They developed and 

used differing PM emission rates, one 

set of rates being four times larger than 

the other set of rates, underscoring the 

uncertainty inherent with relating 

opacity values to mass emissions. They 

both failed to include impacts of nearby 

emission sources and of secondary PM 

emissions, and they both used 

cumulative PM mass sizing estimates 

from AP–42 in their calculation of PM10

and PM2.5; however, one commenter 


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used an incorrect value that 

overpredicts PM2.5, and underpredicts 

PM10, by 2.3 times. One commenter 

included condensable PM emissions. 

PM emissions associated with turnedoff control devices are expected to be 

higher than PM emissions associated 

with more commonly occurring 

transient malfunctions of control 

devices, even though maximum opacity 

may occur from either situation. In 

order to examine the impact of 

Alabama’s rule change on the NAAQS, 

we would need additional information 

on the range of emission rates associated 

with 100 percent opacity and other 

opacity levels. Estimation of PM 

emissions for a given opacity value is 

difficult without measurements and is 

the major deficiency and limitation of 

any modeling for this rule change. The 

range of emission rates that could 

produce 100 percent opacity is not 

known and is not discussed or 

established in the modeling submitted 

during the public comment period. 

Therefore, although the modeling 

presented by commenters shows the 

possibility of an impact on the NAAQS 

under a worst-case scenario, the 

modeling does not convincingly 

demonstrate the impact of the rule 

change on the NAAQS because the level 

of PM emissions while operating at 100 

percent opacity, and the source-specific 

relationship between opacity and PM 

emissions, are uncertain and are not 

demonstrated in the public record. For 

these reasons, the modeling cannot 

show that the rule change will interfere 

with the 24-hour NAAQS. 

Comment 9: Commenters disagreed 

with EPA’s assertion that ‘‘the 

relationship between changes in opacity 

and increases or decreases in ambient 

PM2.5 levels cannot be quantified readily 

and is particularly uncertain for shortterm and site specific analyses.’’ 

Response: EPA’s assertion is 

consistent with the findings contained 

in Review of Concurrent Mass Emission 

and Opacity Measurements for Coalburning Utility and Industrial Boilers 

(EPA–600/7–80–062), which is listed in 

the docket for this rule and is publicly 

available. That report was developed 

from over 400 concurrent particulate 

matter and opacity measurements and 

found that any useful and definitive 

relationships between stack particulate 

mass emission rates and their 

corresponding opacity levels appear to 

be site specific. In addition, as stated in 

the proposal notice, the uncertainty in 

assumptions about a correlation 

between opacity levels and ambient PM 

concentrations on short-term periods or 

site specific analyses is a function of 

many factors, including differences in 

the mass of particles that exist at the 

point of COMS measurement in the 

stack, the total mass of particles exiting 

the stack, including condensable 

particles that form immediately upon 

exposure to the ambient atmosphere, 

and the mass of particles an ambient 

sampler is capable of collecting. 

Commenters submitted no information 

that demonstrates that opacity can be 

reliably correlated with mass emissions 

over short time periods for a range of 

sources (or these specific sources) 

without performing site-specific 

analyses, and EPA is aware of none. 

Comment 10: Commenters stated that 

analyzing air quality impacts on a 

quarterly basis is not appropriate 

because EPA already has 24-hour 

NAAQS standards for PM10 and PM2.5. 

Response: As we stated in the notice 

of proposed rulemaking and earlier in 

this final rule, section 110(l) prohibits 

EPA from approving any revision to a 

SIP that would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement. In this instance we believe 

that because the State regulation at issue 

pertains to opacity, the primary CAA 

requirements of concern should be 

impacts on compliance with the 

NAAQS for PM10 and PM2.5, which 

include both daily and annual 

standards. The quarterly time frame 

commenters refer to is used in AAC rule 

335–3–4–.01(4) to prohibit a source 

from operating at higher opacity levels 

for greater than 2 percent of the source 

operating hours per calendar quarter. In 

light of this specific provision that 

applies on a quarterly basis, and 

because analyzing for impacts on a 

quarterly basis provides a conservative 

basis for assessing impacts on an annual 

basis, we decided it appropriate to 

analyze air quality impacts on a 

quarterly basis to judge interference 

with the annual standards, and we 

concluded the requirements of section 

110(l) have been satisfied with respect 

to all of the PM NAAQS. 

Comment 11: Commenters stated that 

the 2003 revisions to AAC rule 335–3– 

4–.01, and the conditions set forth in the 

April 12, 2007, notice of proposed 

rulemaking, would lead to interference 

with compliance with mass particulate 

matter limits. As evidence that its 

assertion was correct, the commenters 

stated that if Tennessee Valley 

Authority (TVA) were to turn off its 

control equipment for any of its units at 

the Colbert plant for 2.4 consecutive 

hours, TVA would violate the PM 

standard (0.12 lb/mmBtu) at that unit. 

Response: The PM limit of 0.12 lb/ 

mmBtu under the Alabama SIP does not 

include any exempt periods and 

continues to apply regardless of any 

revisions to the opacity rule. EPA lacks 

the data necessary to determine 

quantitatively what impact, if any, the 

revisions to the rule would or could 

have on ambient PM emissions. As 

described earlier, the commenters’ 

assertion of an approach that allows one 

to determine the amount of ambient PM 

emissions based on an increase in stack 

opacity is fraught with questionable 

assumptions such as de-energized 

control devices yielding 100 percent 

opacity and 100 percent opacity 

providing maximum PM emissions. 

IV. Final Action 

EPA is taking final action to approve 

the Visible Emissions portion of the SIP 

revisions submitted to EPA by the State 

of Alabama on September 11, 2003, and 

August 22, 2008. EPA is approving the 

revision of paragraphs (1) and (2), and 

addition of paragraphs (3), (4), (5), (6), 

and (7) to AAC rule 335–3–4–.01, 

‘‘Visible Emissions.’’ 

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 action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

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 


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Federal Register / Vol. 73, No. 200 / Wednesday, October 15, 2008 / Rules and Regulations 60963 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 15, 2008. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: October 1, 2008. 

J.I. Palmer, Jr., 

Regional Administrator, Region 4. 

■ 40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart B—Alabama 

■ 2. Section 52.50(c) is amended by 

revising the entry for ‘‘Section 335–3– 

4.01’’ to read as follows: 

§ 52.50 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED ALABAMA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 

* * * * * * * 

Chapter 335–3–4 Control of Particulate Emissions 

Section 335–3–4–.01 Visible Emissions ........................................... 9/30/2008 10/15/2008 [Insert citation 

of publication].

* * * * * * * 

* * * * * 

[FR Doc. E8–24031 Filed 10–14–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2008–0132; FRL–8382–7] 

Thiencarbazone-methyl; Pesticide 

Tolerances 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

tolerances for residues of 

thiencarbazone-methyl [methyl 4-[[[(4,5- 

dihydro-3-methoxy-4-methyl-5-oxo-1H1,2,4-triazol-1-yl)- 

carbonyl]amino]sulfonyl]-5-methyl-3- 

thiophenecarboxylate], per se, in or on 

field corn, pop corn, sweet corn, and 

wheat; combined residues of 

thiencarbazone-methyl and its 

metabolite BYH 18636-MMT [5- 

methoxy-4-methyl-2,4-dihydro-3H1,2,4-triazol-3-one], calculated as the 

parent compound, in or on livestock 

commodities; and indirect or 

inadvertent combined residues of 

thiencarbazone-methyl and its 

metabolite BYH 18636-MMT-glucoside 

[2-hexopyranosyl-5-methoxy-4-methyl2,4-dihydro-3H-1,2,4-triazol-3-one], 

calculated as the parent compound, in 

or on soybeans. Bayer CropScience 

requested these tolerances under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA). 

DATES: This regulation is effective 

October 15, 2008. Objections and 

requests for hearings must be received 

on or before December 15, 2008, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2008–0132. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(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 


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