Environmental Protection Agency (EPA).
Final rule.
EPA is taking final action to approve the December 10, 2007, submission by the State of Alabama, through the Alabama Department of Environmental Management (ADEM) as demonstrating that the State meets the state implementation plan (SIP) requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA or the Act) for the 1997 8-hour ozone national ambient air quality standards (NAAQS). Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP. Alabama certified that the Alabama SIP contains provisions that ensure the 1997 8-hour ozone NAAQS is implemented, enforced, and maintained in Alabama (hereafter referred to as “infrastructure submission”). Alabama's infrastructure submission, provided to EPA on December 10, 2007, addressed all the required infrastructure elements for the 1997 8-hour ozone NAAQS. Additionally, EPA is responding to adverse comments received on EPA's March 17, 2011, proposed approval of Alabama's December 10, 2007, infrastructure submission.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2010–0720. All documents in the docket are listed on the
Nacosta C. Ward, 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. The telephone number is (404) 562–9140. Ms. Ward can be reached via electronic mail at
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-hour average concentrations, thus states were required to provide submissions to address sections 110(a)(1) and (2) of the CAA for this new NAAQS. Alabama provided its infrastructure submission for the 1997 8-hour ozone NAAQS on December 10, 2007. On March 17, 2011, EPA proposed to approve Alabama's December 10, 2007, infrastructure submission for the 1997 8-hour ozone NAAQS.
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.
• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM
EPA intended the statements in the proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP-approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM
Unfortunately, the Commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issue in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such
The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPs are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.
Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions.
Notwithstanding that section 110(a)(2) states that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1).
Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C (
Given the potential ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM
Significantly, the 2007 Guidance did not explicitly refer to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief a state's submission should establish that the state has the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM
Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA.
EPA is taking final action to approve Alabama's infrastructure submission as demonstrating that the State meets the applicable requirements of sections 110(a)(1) and (2) of the CAA for the 1997 8-hour ozone NAAQS. Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP. Alabama, through ADEM, certified that the Alabama SIP contains provisions that ensure the 1997 8-hour ozone NAAQS is implemented, enforced, and maintained in Alabama.
Alabama's infrastructure submission, provided to EPA on December 10, 2007, addressed all the required infrastructure elements for the 1997 8-hour ozone NAAQS. EPA has determined that Alabama's December 10, 2007, infrastructure submission is consistent with section 110 of the CAA. Additionally, EPA is responding to adverse comments received on EPA's March 17, 2011, proposed approval of Alabama's December 10, 2007, infrastructure submission. The responses to comments are found in Section IV below.
EPA received one set of comments on the March 17, 2011, proposed rulemaking to approve Alabama's December 10, 2007, infrastructure submission as meeting the requirements of sections 110(a)(1) and (2) of the CAA for the 1997 8-hour ozone NAAQS. Generally, the Commenter's concerns relate to whether EPA's approval of Alabama's December 10, 2007, infrastructure submission is in compliance with section 110(l) of the CAA, and whether EPA's approval will interfere with the State's compliance with the CAA's prevention of significant deterioration (PSD) requirements. A full set of the comments provided on behalf of the Kentucky Environmental Foundation (hereinafter referred to as “the Commenter”) is provided in the docket for today's final action. A summary of the comments and EPA's response are provided below.
EPA notes that the 1997 8-hour ozone standards as published in a July 18, 1997, final rulemaking notice (62 FR 38856) and effective September 18, 1997, are 0.08 parts per million (ppm), which is effectively 0.084 ppm or 84 ppb due to the rounding convention and not “effectively 85 parts per billion (ppb)” as the Commenter stated. Further, EPA agrees that the Agency has made the determination that the 1997 8-hour ozone NAAQS is not as protective as needed for public health and welfare, and as the Commenter mentioned, the Agency established a new ozone NAAQS at 75 ppb. However, the Agency is currently reconsidering the 2008 8-hour ozone NAAQS, and has not yet designated areas for any subsequent NAAQS.
Finally, while it is not clear which areas the Commenter refers to in stating “EPA has yet to ensure these areas have plans to meet” the 1997 ozone NAAQS, EPA believes this concern is addressed by the requirements under section 172, Part D, Title I of the Act for states with nonattainment areas for the 1997 ozone NAAQS to submit nonattainment plans. As discussed in EPA's notice proposing approval of the Alabama infrastructure SIP, submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA are outside the scope of this action, as such plans are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172.
EPA has consistently interpreted section 110(l) as not requiring a new attainment demonstration for every SIP submission. The following actions are examples of where EPA has addressed
Further, EPA does not agree with the Commenter's assertion that the Agency cannot provide additional clarification in response to a comment concerning section 110(l) and take a final approval action without “providing the public with an opportunity to comment on EPA's Clean Air Act § 110(l) analysis.” Clearly such a broad proposition is incorrect where the final rule is a logical outgrowth of the proposed rule. In fact, the proposition that providing an analysis for the first time in response to a comment on a rulemaking per se violates the public's opportunity to comment has been rejected by the D.C. Circuit Court of Appeals.
Finally, as previously mentioned, EPA's approval of Alabama's December 10, 2007, infrastructure submission does not make any substantive revision that could result in any change in emissions, so there is no further “analysis” beyond whether the state has adequate provisions in its SIP to address the infrastructure requirements for the 1997 8-hour ozone NAAQS. EPA's March 17, 2011, proposed rulemaking goes through each of the relevant infrastructure requirements and provides detailed information on how Alabama's SIP addresses the relevant infrastructure requirements. Beyond making a general statement indicating that Alabama's submission is not in compliance with section 110(l) of the CAA, the Commenter does not provide comments on EPA's detailed analysis of each infrastructure requirement to indicate that Alabama's infrastructure submission for the 1997 8-hour ozone NAAQS is deficient in meeting these individual requirements. Therefore, the Commenter has not provided a basis to question the Agency's determination that Alabama's December 10, 2007, infrastructure submission meets the requirements for the infrastructure submission for the 1997 8-hour ozone NAAQS, including section 110(l) of the CAA.
EPA also disagrees with the specific example provided by the Commenter that the section 110(a)(2)(J) requirement for public notification for the 1997 8-hour ozone NAAQS based on 85 ppb interferes with a public notification program that should exist for a 75 ppb ozone level, and “EPA would be condoning the states providing information that can physical[ly] hurt people.” As noted in Response 1, Alabama's December 10, 2007, infrastructure submission was provided to address the 1997 8-hour ozone NAAQS and was submitted prior to EPA's promulgation of the 2008 8-hour ozone in March 2008. Thus, Alabama provided sufficient information at that time to meet the requirement for the 1997 8-hour ozone NAAQS which is the subject of this action.
Finally, members of the public do get information related to the more recent NAAQS via the Air Quality Index (AQI) for ozone. When EPA promulgated the 2008 NAAQS (73 FR 16436, March 27, 2008), EPA revised the AQI for ozone to show that at the level of the 2008 ozone NAAQS the AQI is set to 100, which indicates unhealthful ozone levels. It is this revised AQI that EPA uses to both forecast ozone levels and to provide notice to the public of current air quality. The EPA AIRNOW system uses the revised AQI as its basis for ozone. In addition, when Alabama forecasts ozone and provides real-time ozone information to the public, either through the AIRNOW system or through its own internet based system, the State uses the
EPA further assumes that the Commenter's statement “if a SIP provides an ozone NAAQS of 85 ppb for PSD purposes” refers to a hypothetical SIP-approved PSD program that only requires owners and operators of sources subject to PSD to make the demonstration discussed above for the 1997 ozone NAAQS, and not for the 2008 ozone NAAQS. However, the Commenter gives no indication that Alabama's SIP-approved PSD program suffers from this alleged defect. EPA has examined the relevant provision in Alabama's SIP, Regulation 335–3–14–.04(2)(10)—
Furthermore, as discussed in detail above, the infrastructure SIP makes no substantive change to any provision of Alabama's SIP-approved PSD program, and therefore does not violate the requirements of section 110(l). Had Alabama submitted a SIP revision that substantively modified its PSD program to limit the required demonstration to just the 1997 ozone NAAQS, then the comment might have been relevant to a 110(l) analysis of that hypothetical SIP revision. However, in this case, the comment gives no basis for EPA to conclude that the Alabama infrastructure SIP would interfere with any applicable requirement of the Act.
EPA concludes that approval of Alabama's December 10, 2007, infrastructure submission will not make the status quo air quality worse and is in fact consistent with the development of an overall plan capable of meeting the Act's requirements. Accordingly, when applying section 110(l) to this submission, EPA finds that approval of Alabama's December 10, 2007, infrastructure submission is consistent with section 110 (including section 110(l)) of the CAA.
The commenter asserted that because EPA does not require the use of a specific model, states use no modeling or use deficient modeling to evaluate these impacts. Specifically, the commenter alleged: “[m]any states abuse this lack of an explicitly named model by claiming that because no model is explicitly named, no modeling is required or use of completely irrelevant modeling (
To support the argument that EPA should designate a particular model and require states to use it, the Commenter attached and incorporated by reference a prior petition for rulemaking requesting that EPA designate such a model.
1. Exhibit 1: Comments from Camille Sears on the Ninth Conference on Air Quality Modeling (
2. Exhibit 2: “Response to Petitions for Review, Supplemental Briefs, and Amicus Brief” regarding the Desert Rock Energy Company, LLC from Ann Lyons, EPA Region 9—Office of Regional Counsel and Brian L. Doster/Elliot Zenick, EPA Headquarters—Office of General Counsel (January 8, 2009);
3. Exhibit 3: Report, The Kentucky Natural Resources and Environmental Protection Cabinet, A Cumulative Assessment of the Environmental Impacts Caused by Kentucky Electric Generating Units, (December 17, 2001);
4. Exhibit 4: Letter from Richard A. Wayland, Director of the Air Quality Assessment Division, EPA Office Air Quality and Planning Standards to Robert Ukeiley regarding Mr. Ukeiley's Freedom of Information Act (FOIA) request on behalf of the Sierra Club for documents related to EPA development of a modeling protocol for PM
5. Exhibit 5: Expert Report of Lyle R. Chinkin and Neil J. M. Wheeler, Analysis of Air Quality Impacts, prepared for Civil Action No. IP99–1693 C–M/S
6. Exhibit 6: Illinois Environmental Protection Agency, Bureau of Air, Assessing the impact on the St. Louis Ozone Attainment Demonstration from the proposed electrical generating units in Illinois” (September 25, 2003);
7. Exhibit 7: Memorandum from Stephen D. Page, Director, EPA Office Air Quality and Planning Standards entitled, “Modeling Procedures for Demonstrating Compliance with the PM
8. Exhibit 8: E-mail from Scott B. (Title and Affiliation not provided), to Donna Lucchese, (Title and Affiliation not provided), entitled, “Ozone impact of point source” (Date described as “Early 2000”);
9. Exhibit 9: E-mail from Mary Portanova, EPA, Region 5, to Noreen Weimer, EPA, Region 5, entitled “FOIA—Robert Ukeiley—RIN–02114–09” (October 20, 2009, 10:05 CST);
10. Exhibit 10: Synopsis from PSD Modeling Workgroup—EPA/State/Local Workshop, New Orleans (May 17, 2005);
11. Exhibit 11: Letter from Carl E. Edlund, P.E., Director, EPA, Region 6 Multimedia Planning and Permitting Division to Richard Hyde, P.E. Deputy Director of the Office of Permitting and Registration, Texas Commission on Environmental Quality regarding
12. Exhibit 12: Memorandum from John S. Seitz, Director, EPA Office of Air Quality Planning & Standards entitled, “Interim Implementation of New Source Review Requirements for PM
13. Exhibit 13: Presentation by Erik Snyder and Bret Anderson (Titles and Affiliations not provided), to R/S/L Workshop, Single Source Ozone/PM
14. Exhibit 14: Letter from Richard D. Scheffe, PhD, Senior Science Advisor, EPA, Office of Air Quality Planning & Standards to Abigail Dillen in response to an inquiry regarding the applicability of the Scheffe Point Source Screening Tables (July 28, 2000);
15. Exhibit 15: Presentation by Gail Tonnesen, Zion Wang, Mohammad Omary, Chao-Jung Chien (University of California, Riverside); Zac Adelman (University of North Carolina); Ralph Morris et al. (ENVIRON Corporation Int., Novato, CA) to the Ozone MPE, TAF Meeting, Review of Ozone Performance in WRAP Modeling and Relevance to Future Regional Ozone Planning, (July 30, 2008).
Finally, the Commenter stated that “EPA has issued guidance suggesting [that] PSD sources should use the ozone limiting method for NO
At the outset, EPA notes that although the Commenter sought to incorporate by reference the prior petition for rulemaking requesting EPA to designate a particular model for use by states for this purpose, the Agency is not required to respond to that petition in the context of acting upon the infrastructure submission. In reviewing the infrastructure submission, EPA is evaluating the state's submission in light of current statutory and regulatory requirements, not in light of potential requirements that EPA has been requested to establish in a petition. Moreover, the petition arose in a different context, requests different relief, and raises other issues unrelated to those concerning ozone modeling raised by the Commenter in this action. EPA believes that the appropriate place to respond to the issues raised in the petition is in a petition response. Accordingly, EPA is not responding to the July 28, 2010 petition in this action. The issues raised in that petition are under separate consideration.
EPA believes that the comment concerning the approvability of the infrastructure submission based upon whether the SIP specifies the use of a particular model are germane to this action, but EPA disagrees with the Commenter's conclusions. The Commenter stated that the SIP submittals “do not comply with Clean Air Act 110(a)(2)(J), (K), and (D)(i)(II) because the SIP submittals do not identify a specific model to use in PSD permitting to demonstrate that a proposed source [or] modification will not cause or contribute to a violation of the ozone NAAQS.” EPA's PSD permitting regulations are found at 40 CFR 51.166 and 52.21. PSD requirements for SIPs are found in 40 CFR 51.166. Similar PSD requirements for SIPs that have been disapproved with respect to PSD and for SIPs incorporating EPA's regulations by reference are found in 40 CFR 52.21. The PSD regulations require an ambient impact analysis for ozone for proposed major stationary sources and major modifications to obtain a PSD permit (40 CFR 51.166(b)(23)(i), (i)(5)(i)(f),
(1) All applications of air quality modeling involved in this subpart shall be based on the applicable models, data bases, and other requirements specified in Appendix W of this part (Guideline on Air Quality Models).
(2) Where an air quality model specified in Appendix W of this part (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific State program. Written approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures set forth in § 51.102.
These parts of 40 CFR part 51 and 52 are the umbrella SIP components that states have either adopted by reference or the states have been approved or delegated authority to incorporate the PSD requirements of the CAA. As discussed above, these part 51 and 52 PSD provisions refer to 40 CFR part 51, Appendix W for the appropriate model to utilize for the ambient impact assessment. 40 CFR part 51, Appendix W is the Guideline on Air Quality models and Section 1.0.a. states:
The
Appendix W Section 5.2.1. includes the
Estimating the Impact of Individual Sources. Choice of methods used to assess the impact of an individual source depends on the nature of the source and its emissions.
Appendix W Section 5.2.1.c. provides that the model users (state and local permitting authorities and permitting applicants) should work with the appropriate EPA Regional Office on a case-by-case basis to determine an adequate method for performing an air quality analysis for assessing ozone impacts. Due to the complexity of modeling ozone and the dependency on the regional characteristics of atmospheric conditions, EPA believes this is an appropriate approach rather than specifying one particular preferred model nationwide, which may not be appropriate in all circumstances. Instead, the choice of method “depends on the nature of the source and its emissions. Thus, model users should consult with the Regional Office * * *.” Appendix W Section 5.2.1.c. Therefore, EPA continues to believe it is appropriate for permitting authorities to consult and work with EPA Regional Offices as described in Appendix W, including section 3.0.b and c, 3.2.2, and 3.3, to determine the appropriate approach to assess ozone impacts for each PSD required evaluation.
The current SIP meets the requirements of 40 CFR 51.166(l)(1). Specifically, the Alabama SIP states at Alabama Air Regulations 335–3–14–.04 (11)
All estimates of ambient concentrations required under this Rule shall be based on the applicable air quality models, data bases, and other requirements specified in the “Guideline on Air Quality Models”. (U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, N.C. 27711).
This statement in the federally approved Alabama SIP is a direct reference to EPA's “Guideline on Air Quality Models” at 40 CFR part 51, Appendix W. The commitment in Alabama's SIP to implement and adopt air quality models utilizing 40 CFR part 51, Appendix W as a basis is appropriate and consistent with federal regulations.
Alabama requires that PSD permit applications contain an analysis of ozone impacts from the proposed project.
As a second point, the Commenter asserted that states abuse this lack of an explicitly named model by claiming that because no model is explicitly named, no modeling is required or use of completely irrelevant modeling is allowed.
EPA agrees that States should not be using inappropriate analytical tools in this context. For example, the Commenter's Exhibit 14 does discuss the inappropriateness of using a screening technique referred to as the “Scheffe Tables.” The Commenter is correct that the use of “Scheffe Tables” and other particular screening techniques, which involve ratios of nitrogen oxides (NO
For ozone, a proposed emission source's impacts are dependent upon local meteorology and pollution levels in the surrounding atmosphere. Ozone is formed from chemical reactions in the atmosphere. The impact a new or modified source can have on ozone levels is dependent, in part, upon the existing atmospheric pollutant loading already in the region with which emissions from the new or modified source can react. In addition, meteorological parameters such as wind
Commenter's Exhibit 13 includes a list of issues to evaluate, which aid in considering if the existing photochemical grid modeling databases are acceptable, and discusses the need for permitting authorities to consult with the EPA Regional Office in determining if photochemical grid modeling would be appropriate for conducting an ozone impacts analysis. In these documents EPA has indicated that photochemical grid modeling (
The use of reactive plume models may also be appropriate under certain circumstances. EPA has approved the use of plume models in some instances, but these models are not always appropriate because of the difficulty in obtaining the background information to make an appropriate assessment of the photochemistry and meteorology impacts.
EPA has not selected a specific “preferred” model for conducting an ozone impact analysis. Model selection normally depends upon the details about the modeling systems available and if they are appropriate for assessing the impacts from a proposed new source or modification. Considering that a photochemical modeling system with inputs, including meteorological and emissions data, that would also have to be evaluated for model performance, could potentially be costly and time consuming to develop, EPA has taken a case-by-case evaluation approach. Such photochemical modeling databases are typically developed so that impacts of regulatory actions across multiple sources can be evaluated, and therefore the time and financial costs can be absorbed by the regulatory body. It is these types of databases that have the potential to be used to assess single source ozone impacts after they have been developed as part of a regional modeling demonstration to support a SIP. From a cost and time requirement standpoint, EPA would generally not expect a single source to develop an entire photochemical modeling system just to evaluate its individual impacts on an air quality region, as long as other methods of analyzing ozone impacts are available and acceptable to EPA.
When an existing photochemical modeling system is deemed appropriate, it is an excellent tool to evaluate the ozone impact that a single source's emissions can have on an air quality region in the context of PSD modeling and should be evaluated for potential use. More often now than 10 or 15 years ago, a photochemical modeling system may be available that covers the geographic area of concern. EPA notes that even where photochemical modeling is readily available, it should be evaluated as part of the development of a modeling protocol, in consultation with the Regional Office to determine its appropriateness for conducting an impact analysis for a particular proposed source or modification.
In summary, the Commenter states that many States abuse this lack of an explicitly named model by claiming that because no model is explicitly named, no modeling is required or use of completely irrelevant modeling is allowed. For the reasons described in this response to comment, we do not believe that one modeling system is presently appropriate to designate for all situations, yet that does not relieve proposed sources and modifications from the obligation of making the required demonstration under the applicable PSD rules. The Alabama SIP contains a direct reference for use of the procedures specified in EPA's “Guideline on Air Quality Models” (40 CFR Part 51 Appendix W) for estimating ambient concentrations of criteria pollutants, including ozone (Alabama Air Pollution Control Regulation 335–3–14–.04(11)
In conclusion, for the reasons stated above it is difficult to identify and implement a standardized national model for ozone. EPA has had a standard approach in its PSD SIP and FIP rules of not mandating the use of a particular model for all circumstances, instead treating the choice of a particular method for analyzing ozone impacts as circumstance-dependent. EPA then determines whether the State's implementation plan revision submittal meets the PSD SIP requirements. For purposes of review for this infrastructure SIP, Alabama has an EPA-approved PSD SIP that meets the EPA PSD SIP requirements.
Finally, the Commenter argued that EPA's March 2011 guidance concerning modeling for the 1-hour nitrogen dioxide (NO
EPA's recent March 2011 guidance for the NO
As previously mentioned, these two techniques do not attempt to estimate the amount of ozone that might be generated, and the models in which these techniques are applied are not designed or formulated to even account for the potential generation of ozone from emissions of NO/NO
In summary, the Commenter asserts that the OLM technique models of ozone chemistry for a single source and that this modeling helps a source demonstrate compliance with the NO
For the reasons discussed above, EPA does not believe that the comments provide a basis for not approving the infrastructure submission. In short, EPA has not modified the Guidelines in Appendix W for ozone impacts analysis for a single source (Appendix W part 5.2.1.c.) to require use of a specific model as the Commenter requests. EPA finds that the State has the appropriate regulations to operate the PSD program consistent with federally-approved requirements. Furthermore, we disagree that states are required to designate a specific model in the SIP, because App. W states that state and local agencies should consult with EPA on a case-by-case basis to determine what analysis to require.
As already described, ADEM has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that the 1997 8-hour ozone NAAQS are implemented, enforced, and maintained in Alabama. EPA is taking final action to approve Alabama's December 10, 2007, infrastructure submission for the 1997 8-hour ozone NAAQS because this submission is consistent with section 110 of the CAA.
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
• 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
• 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
The Congressional Review Act, 5 U.S.C. 801
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 September 12, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *