[Federal Register Volume 64, Number 241 (Thursday, December 16, 1999)]
[Proposed Rules]
[Pages 70205-70207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31724]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-9927; FRL-6503-9]


Approval and Promulgation of State Implementation Plans (SIP) for 
the State of Alabama--Call for 1-hour Attainment Demonstration for the 
Birmingham, Alabama Marginal Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a State Implementation Plan (SIP) call to 
require the State of Alabama to submit a 1-hour ozone attainment SIP 
for the Birmingham marginal nonattainment area within six months of 
final action on the SIP call. EPA is proposing to issue this SIP call, 
because violations of the 1-hour ozone national ambient air quality 
standards (NAAQS) have continued to be recorded in the Birmingham area 
after the required attainment date of November 15, 1993. Exceedances of 
the 1-hour ozone NAAQS occurred in the Birmingham area during the 1995, 
1996, 1997, and 1998 ozone seasons. There are more than 3 exceedances 
of the 1-hour ozone NAAQS during the most recent 3 year period (96-98), 
indicating continuing violations of the NAAQS. EPA is authorized under 
section 110(k)(5) of the Clean Air Act (CAA) to issue this SIP call 
requiring the State of Alabama to develop a 1-hour ozone attainment SIP 
revision for the Birmingham area. If the State of Alabama fails to 
submit an attainment SIP in response to this SIP call, EPA will issue a 
finding that the State failed to submit a required SIP pursuant to 
section 179(a) of the CAA. The finding would start the clocks for 
mandatory sanctions and development of a federal implementation plan 
(FIP).

DATES: Comments on this proposed action must be received in writing by 
January 18, 2000.

ADDRESSES: Comments may be mailed to Kimberly Bingham at the EPA Region 
4 address listed below.
Environmental Protection Agency, Region 4 Air Planning Branch, Atlanta 
Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, Environmental Protection Agency, Atlanta Federal 
Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303. The telephone 
number is (404) 562-9038.

SUPPLEMENTARY INFORMATION: The supplemental information is organized in 
the following order:

I. Background
II. Why EPA is proposing a SIP call for the Birmingham marginal 
ozone nonattainment area.
III. What happens if the State of Alabama does not submit a SIP 
responding to this SIP call?

I. Background

    On November 15, 1990, Jefferson and Shelby Counties, Alabama, were 
designated as marginal ozone nonattainment areas. Section 182(f)(1)(A) 
of the Clean Air Act (CAA) provides for an exemption for New Source 
Review offsets for nitrogen oxides (NOX ) in ozone 
nonattainment areas where a state shows and EPA agrees that additional 
NOX reductions would not contribute to attainment of the 
ozone standard in that area. In 1992, the Alabama Department of 
Environmental Management (ADEM) requested and received from EPA a 
NOX exemption under this statutory provision for the 
Birmingham marginal ozone nonattainment area. At the time of the 
request, the Birmingham area was required to attain the NAAQS for ozone 
by November 15, 1993. Given this deadline, offsets from new sources of 
NOX applying for a permit to locate in the Birmingham area 
after November 15, 1992, would not in practice have been achieved prior 
to the expected ozone attainment date. Based on this information, EPA 
determined that the State of Alabama met the requirements of sections 
182(a) and 182(f) of the CAA for marginal nonattainment areas. 
Furthermore, EPA determined that the application of NOX 
provisions would not have contributed to the timely attainment of the 
ozone standard and subsequently approved the NOX exemption 
for the Birmingham area. (58 FR 45439).
    Section 107(d)(3)(E) of the CAA, set forth five specific 
requirements that states must include in a redesignation request in 
order for EPA to redesignate an area from nonattainment to attainment. 
The EPA provided guidance on redesignations in the General Preamble for 
the Implementation of the CAA, 57 FR 13498 (April 16, 1992), 
supplemented at 57 FR 18070 (April 28, 1992). The primary memorandum 
providing further guidance with respect to section 107(d)(3)(E) of the 
amended Act is dated September 4, 1992, and issued by the Director, Air 
Quality Management Division, Subject: Procedures for Processing 
Requests to Redesignate Areas to Attainment (Calcagni Memorandum).
    The State of Alabama through the Alabama Department of 
Environmental Management (ADEM) submitted a request for redesignation 
of the Birmingham marginal ozone nonattainment area to attainment on 
March 16, 1995. The request included information showing that the 
Birmingham area had three years of air quality attainment data from 
1990-1993, thus meeting the requirement for the area to attain the 1-
hour ozone NAAQS by November 15, 1993. The area continued to maintain 
the ozone NAAQS through 1994. The submittal was rendered 
administratively complete on April 11, 1995. Supplemental information 
needed for the submittal to be approvable initially requested from ADEM 
in a February 15, 1995, letter addressing the prehearing submittal, was 
submitted on July 21, 1995. A direct

[[Page 70206]]

final rule approving the redesignation request was signed by the 
Regional Administrator and forwarded to the EPA Federal Register Office 
on August 15, 1995. The direct final rule as drafted contained a 30 day 
period for public comment on the redesignation request.
    Prior to publication of the document and therefore prior to close 
of the administrative record, EPA determined that the area registered a 
violation of the ozone NAAQS on August 18, 1995. The EPA directed the 
Office of Federal Register to recall the document from being published. 
The ambient data was quality assured according to established 
procedures for validating such monitoring data. Subsequently, EPA 
withdrew the approval notice, and disapproved the maintenance plan and 
redesignation request. EPA also revoked the nitrogen oxides 
(NOX) waiver for the Birmingham area which was previously 
granted based on a determination that the area had clean air quality 
data (62 FR 49158, September 19, 1997). Additional exceedances of the 
1-hour ozone NAAQS were recorded in the Birmingham area during the 1996 
and 1997 ozone seasons, prompting EPA to request that the State of 
Alabama adopt a federally enforceable commitment to submit a SIP that 
would provide for the attainment of the 1-hour ozone NAAQS. ADEM 
submitted the final commitment without Board adoption, precluding 
approval into the federally enforceable SIP.

II. Why EPA Is Proposing a SIP Call for the Birmingham Marginal 
Ozone Nonattainment Area

    To assure that SIPs provide for the attainment and maintenance of 
the relevant NAAQS, section 110(k)(5) of the CAA authorizes EPA to find 
that a SIP is substantially inadequate to attain or maintain a NAAQS, 
and to require (``call for'') the State to submit, within a specified 
period, a SIP revision to correct the inadequacy. This CAA requirement 
for a SIP revision is known as a ``SIP call.'' The CAA authorizes EPA 
to allow a state up to 18 months to respond to a SIP call. EPA is 
proposing to issue this SIP call, because violations of the 1-hour 
ozone NAAQS have continued to be recorded in the Birmingham area after 
the required attainment date of November 15, 1993. EPA is authorized 
under section 110(k)(5) to issue this SIP call requiring the State of 
Alabama to develop a 1-hour ozone attainment SIP revision for the 
Birmingham area. In consideration of the length of time that has passed 
since the required attainment date of November 15, 1993, and the 
substantial air quality modeling already completed, EPA believes it is 
reasonable to require the State of Alabama to make the submittal within 
six months of finalization of this SIP call.

III. What Happens If the State of Alabama Does Not Submit a SIP 
Responding to This SIP Call?

    Section 179(a) sets forth four findings that form the basis for 
application of sanctions. The first finding, that a State has failed to 
submit a plan or one or more elements of a plan required under the CAA, 
is the finding relevant to this rulemaking. If the State of Alabama 
fails to submit the required plan in response to this SIP call, EPA 
will issue a finding under section 179(a) of the CAA that the State 
failed to make a required SIP submittal. If within 18 months of the 
finding, the State of Alabama has not submitted an attainment SIP that 
EPA determines is complete, then the emission offset sanction will 
apply automatically pursuant to CAA section 179(a) and 40 CFR 52.31. 
Under this sanction, the ratio of emission reductions that must be 
obtained to offset increased emissions caused by new major sources or 
modifications to major sources in the Birmingham area must be at least 
two to one. If the State of Alabama does not make a complete submission 
within six months after the offset sanction applies, then the highway 
funding sanction will apply, in accordance with 40 CFR 52.31. In 
addition, sanctions would apply in the same manner if the State of 
Alabama submits a plan that EPA determines is incomplete or that EPA 
disapproves. Finally, the CAA section 110(c) provides that EPA 
promulgate a FIP no later than 24 months after a finding of failure to 
submit a SIP under section 179(a) unless the State of Alabama has 
submitted and EPA has approved the attainment plan.

Proposed Action

    EPA is proposing to issue a SIP call to the State of Alabama for a 
1-hour ozone attainment SIP revision for the Birmingham nonattainment 
area and to require the State of Alabama to submit a plan within six 
months of a final SIP call. In addition, EPA is proposing that the 
sanctions contained in sections 179(a) and (b) of the CAA and in 40 CFR 
50.31 will apply if EPA makes a finding relevant to this required 
attainment demonstration plan for Birmingham. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the person listed in the ADDRESSES section.

IV. Administrative Requirements

A. Executive Order 12866

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

B. Executive Order 12875

    Under Executive Order 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, or EPA consults with those governments. If EPA complies by 
consulting, Executive Order 12875 requires EPA to 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 any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 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 Executive 
Order 12875 do not apply to this rule.

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 
Executive Order 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 Executive Order 13045 because it is not 
economically significant as determined under Executive Order 12866 and 
it

[[Page 70207]]

does not involve decisions intended to mitigate environmental health or 
safety risks that may disproportionately affect children.

D. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly 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, or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to 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, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials 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. This action does not involve 
or impose any requirements that affect Indian Tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

E. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.)(RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(Public Law No. 104-121)(SBREFA), provides that whenever an agency is 
required to publish a general notice of proposed rulemaking, it must 
prepare and make available an initial regulatory flexibility analysis, 
unless it certifies that the proposed rule, if promulgated, will not 
have ``a significant economic impact on a substantial number of small 
entities,'' 5 U.S.C. 605(b). Courts have interpreted the RFA to require 
a regulatory flexibility analysis only when small entities will be 
subject to the requirements of the rule. See, Motor and Equip, MFRS. 
Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998); United Distribution 
Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1985) (agency's 
certification need only consider the rule's impact on entities subject 
to the rule).
    The SIP Call would not establish requirements applicable to small 
entities. Instead, it would require Alabama to develop, adopt, and 
submit an attainment demonstration and would leave to Alabama the task 
of determining how to obtain those reductions, including which entities 
to regulate. Moreover, because Alabama would have discretion to choose 
which sources to regulate and how much emissions reductions each 
selected source would have to achieve EPA could not predict the effect 
of the rule on small entities.
    For these reasons, EPA appropriately certified that the proposed 
rule would not have a significant impact on a substantial number of 
small entities. Accordingly, the Agency did not prepare an initial RFA 
for the proposed rule.
    This rule would not have a significant impact on a substantial 
number of small entities because the rule does not establish 
requirements applicable to small entities. Therefore, I certify that 
this action will not have a significant impact on a substantial number 
of small entities.

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.

G. 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.

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 6, 1999.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 99-31724 Filed 12-15-99; 8:45 am]
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