[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Rules and Regulations]
[Pages 59633-59635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27539]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-050-9953(a); FRL-6461-8]


Approval and Promulgation of Implementation Plans: Revisions to 
the Alabama Department of Environmental Management (ADEM) 
Administrative Code for the Air Pollution Control Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to the Alabama Department of 
Environmental Management's (ADEM) Administrative Code submitted on 
April 22, 1999, by the State of Alabama. These revisions were made to 
comply with the regulations set forth in the Clean Air Act (CAA). 
Included in this document are revisions to Chapter 335-3-1--General 
Provisions which establishes Credible Evidence regulations and Chapter 
335-3-14--Air Permits which allows exemptions for projects which are 
found to be beneficial to the environment.

DATES: This direct final rule is effective January 3, 2000 without 
further notice, unless EPA receives adverse comment by December 3, 
1999. If adverse comment is received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Kimberly Bingham at the 
EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta, 
Georgia 30303.
    Copies of the State submittal(s) are available at the following 
addresses for inspection during normal business hours:
    Air and Radiation Docket and Information Center (Air Docket 6102), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460.
    Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303-8960.
    Alabama Department of Environmental Management, 400 Coliseum 
Boulevard, Montgomery, Alabama 36110-2059.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham of the EPA Region 4, 
Air Planning Branch at (404) 562-9038 and at the above address.

SUPPLEMENTARY INFORMATION:

I. Analysis of State's Submittal

    Listed below is a summary of the revisions to the Alabama State 
implementation plan (SIP) on which EPA is taking action in this 
document.

Chapter 335-3-1--General Provisions

Rule 335-3-1-.13--Credible Evidence
    On February 24, 1997, EPA promulgated regulations under sections 
113(a) and 113(e)(1) of the CAA that gave EPA the authority to use all 
available data to prove CAA violations (See 62 FR 8314-8328). EPA 
required states to incorporate provisions into their SIPs to ensure 
that the states have the ability to use any available data or 
``credible evidence'' to determine violations. To comply, the ADEM 
submitted rule 335-3-1-.13 to EPA Region 4 for approval. This new rule 
allows the use of any credible evidence that is both reference test 
data and comparable non-reference test data. The data will be used to 
prove or disprove violations of the State of Alabama's regulations in 
enforcement actions.

Chapter 335-3-14--Air Permits Authorizing Construction in Clean Air 
Areas [Prevention of Significant Deterioration Permitting (PSD)]

Rule 335-3-14.04(2)(ff)
    ADEM is revising its PSD rules to allow an exemption for 
modifications or projects that are proven to be beneficial to the 
environment. These regulations would require that an ambient air 
quality analysis be completed before the project can be approved. Class 
1 areas must also not be affected by the new project. Moreover, the 
public notification requirements of the PSD regulations would also have 
to be met.
Rule 335-3-14.04(2)(gg)
    The rule was revised to include a definition for Pollution 
Prevention Projects that can also be exempted if proven to be 
environmentally beneficial. ADEM defines Pollution Prevention Projects 
as any activity that through process changes, product reformulation or 
substitution of less polluting raw materials, eliminates or reduces the 
release of air pollutants (including fugitive emissions) and other 
pollutants to the environment prior to recycling, treatment, or 
disposal. It does not mean recycling (other than certain ``in process 
recycling'' practices), energy recovery, treatment, or disposal.
Rule 335-3-14-.04(8)(m)
    This rule lists the PSD exemptions for projects that are 
environmentally beneficial.

II. Final Action

    EPA is approving the aforementioned changes to the State of 
Alabama's SIP because they are consistent with the CAA and EPA policy. 
The EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective January 3, 2000 
without further notice unless the Agency receives adverse comments by 
December 3, 1999.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period. Parties interested in commenting 
should

[[Page 59634]]

do so at this time. If no such comments are received, the public is 
advised that this rule will be effective on January 3, 2000 and no 
further action will be taken on the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order (E.O.) 12866, entitled 
``Regulatory Planning and Review.''

B. Executive Orders on Federalism

    Under E.O. 12875, EPA may not issue a regulation that is not 
required by statute and that creates a mandate upon a state, local, or 
tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected state, local, and tribal 
governments, the nature of their concerns, copies of written 
communications from the governments, and a statement supporting the 
need to issue the regulation.
    In addition, E.O. 12875 requires EPA to develop an effective 
process permitting elected officials and other representatives of 
state, local, and tribal governments ``to provide meaningful and timely 
input in the development of regulatory proposals containing significant 
unfunded mandates.'' Today's rule does not create a mandate on state, 
local or tribal governments. The rule does not impose any enforceable 
duties on these entities. Accordingly, the requirements of section 1(a) 
of E.O. 12875 do not apply to this rule.
    On August 4, 1999, President Clinton issued a new executive order 
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),) 
which will take effect on November 2, 1999. In the interim, the current 
Executive Order 12612 (52 FR 41685 (October 30, 1987)) on federalism 
still applies. This rule will not have a substantial direct effect on 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 12612. 
The rule affects only one State, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act.

C. Executive Order 13045

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to E.O. 13045 because it does not involve 
decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly affects or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, E.O. 13084 requires EPA to develop an effective 
process permitting elected and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.'' Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This final rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the Clean Air Act do not create any new 
requirements but simply approve requirements that the State is already 
imposing. Therefore, because the Federal SIP approval does not create 
any new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
annual costs to State, local, or tribal governments in the aggregate; 
or to private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated does not 
include a Federal mandate that may result in estimated annual costs of 
$100 million or more to either State, local, or tribal governments in 
the aggregate, or to the private sector. This Federal action approves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small

[[Page 59635]]

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 rule 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 rule is not a ``major'' rule as defined by 5 U.S.C. 
804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

I. Petitions for Judicial Review

    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 January 3, 2000. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule 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, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

    Dated: October 5, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Chapter I, title 40, 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.

                                                            EPA Approved Alabama Regulations
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                                                                                        EPA
             State citation                      Title subject           Adoption     approval                   Federal Register notice
                                                                           date         date
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Chapter No. 335-3-1--General Provision
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Section 335-3-1-.13.....................  Credible Evidence..........     04/13/99     11/03/99  [Insert citation of publication]
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                                                            Chapter No. 335-3-14--Air Permits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 335-3-14-.04(ff-gg).............  Air Permits Authorizing         04/13/99     11/03/99  [Insert citation of publication]
                                           Construction in Clean Air
                                           Areas [Prevention of
                                           Significant Deterioration
                                           (PSD)].
Section335-3-14-.04(8)(m)...............  Air Permits Authorizing         04/13/99     11/03/99  [Insert citation of publication]
                                           Construction in Clean Air
                                           Areas [Prevention of
                                           Significant Deterioration
                                           (PSD)].
 
                   *                  *                  *                  *                  *                  *                  *
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Subpart B--Alabama

    2. Section 52.50 is amended by revising the table heading and 
adding three new entries in the table in paragraph (c) to read as 
follows:


Sec. 52.50  Identification of plan.

* * * * *
    (c) EPA approved regulations.
* * * * *
[FR Doc. 99-27539 Filed 11-2-99; 8:45 am]
BILLING CODE 6560-50-P