[Federal Register Volume 64, Number 241 (Thursday, December 16, 1999)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31724]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
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.
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
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:
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?
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
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.
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
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
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
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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