[Federal Register Volume 74, Number 57 (Thursday, March 26, 2009)]
[Rules and Regulations]
[Pages 13118-13122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6647]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0359-200823(a); FRL8781-7]


Approval and Promulgation of Implementation Plans; Revisions to 
the Alabama State Implementation Plan; Birmingham and Jackson Counties

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Alabama State Implementation Plan (SIP) for two separate areas: 
Birmingham nonattainment area and Jackson County nonattainment area for 
both the 8-hour ozone and the PM2.5 National Ambient Air Quality 
Standard. On March 7, 2007, and on January 8, 2009, revisions of the 
transportation conformity criteria and procedures related to 
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures were submitted to EPA 
for approval by the state of Alabama. The intended effect is to update 
the transportation conformity criteria and procedures in the Alabama 
SIP.

DATES: This direct final rule is effective May 26, 2009 without further 
notice, unless EPA receives adverse comment by April 27, 2009 If EPA 
receives such comments, it 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: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0359, by one of the following methods:
    (a) http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    (b) E-mail: [email protected].
    (c) Fax: (404) 562-9019.
    (d) Mail: ``EPA-R04-OAR-2007-0359,'' Air Quality Modeling and 
Transportation 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.
    (e) Hand Delivery or Courier: Amanetta Wood, Air Quality Modeling 
and Transportation 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. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2007-0359.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which

[[Page 13119]]

means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through http://www.regulations.gov, your 
e-mail address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Quality Modeling and 
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if 
at all possible, you contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to schedule your inspection. The Regional 
Office's official hours of business are Monday through Friday, 8:30 to 
4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Amanetta Wood, Air Quality Modeling 
and Transportation 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. Ms. 
Wood's telephone number is 404-562-9025. She can also be reached via 
electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Transportation Conformity
II. Background for This Action
    A. Federal Requirements
    B. Birmingham Conformity SIP
    C. Jackson County Conformity SIP
III. State Submittal and EPA Evaluation
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews

I. Transportation Conformity

    Transportation conformity is required under section 176(c) of the 
Clean Air Act (``CAA'' or ``Act'') to ensure that federally supported 
highway, transit projects, and other activities are consistent with 
(``conform to'') the purpose of the SIP. Conformity currently applies 
to areas that are designated nonattainment and to areas that have been 

redesignated to attainment after 1990 (maintenance areas) with plans 
developed under section 175A of the Act, for the following 
transportation related criteria pollutants: ozone, particulate matter 
(e.g., PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide 
(NO10).
    Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant criteria 
pollutants, also known as national ambient air quality standards 
(NAAQS). The transportation conformity regulation is found in 40 CFR 
Part 93 and provisions related to conformity SIPs are found in 40 CFR 
51.390.

II. Background for This Action

A. Federal Requirements

    EPA promulgated the Federal transportation conformity criteria and 
procedures (``Conformity Rule'') on November 24, 1993 (58 FR 62188). 
Among other elements, the rule required states to address all 
provisions of the Conformity Rule in their SIPs, frequently referred to 
as ``conformity SIPs''. Under 40 CFR 51.390, most sections of the 
Conformity Rule were required to be incorporated into the SIP verbatim. 
States were also allowed to tailor all or portions of the following 
three sections of the Conformity Rule to meet their states' individual 
circumstances: 40 CFR 93.105 (which addresses consultation procedures); 
40 CFR 93.122(a)(4)(ii) (which addresses written commitments to control 
measures that are not included in a metropolitan planning 
organization's (MPO's) transportation plan and transportation 
improvement program that must be obtained prior to a conformity 
determination, and the requirement that such commitments, when they 
exist, must be fulfilled); and 40 CFR 93.125(c) (which addresses 
written commitments to mitigation measures that must be obtained prior 
to a project-level conformity determination, and the requirement that 
project sponsors must comply with such commitments, when they exist).
    On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed 
into law. SAFETEA-LU revised section 176(c) of the CAA's transportation 
conformity provisions. One of the changes streamlined the requirements 
for conformity SIPs. Under SAFETEA-LU, states are now required to 
address and tailor only the following three sections of the Conformity 
Rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), 
and 40 CFR 93.125(c). In general, states are no longer required to 
submit conformity SIP revisions that address the other sections of the 
Conformity Rule. These changes took effect on August 10, 2005, when 
SAFETEA-LU was signed into law.

B. Birmingham Conformity SIP

    Effective June 15, 2004, EPA designated the entire counties of 
Jefferson and Shelby in the Birmingham, Alabama Area, as nonattainment 
for the 1997 8-hour ozone standard. On May 12, 2006, EPA redesignated 
the 1997 8-hour ozone Birmingham Nonattainment Area to attainment for 
the 1997 8-hour ozone NAAQS (71 FR 27631). Effective April 5, 2005, EPA 
designated the entire counties of Jefferson and Shelby, and a portion 
of the county of Walker in the Birmingham Area, as nonattainment for 
the PM2.5 standard. The current designation status of the Birmingham 
PM2.5 Area is nonattainment. For further information, see 40 CFR 81 for 
Birmingham, Alabama air quality planning areas and designations.
    The Birmingham Metropolitan Planning Organization (BMPO) is the MPO 
for the entire Birmingham 1997 8-hour ozone Area, and for most of the 
Birmingham PM2.5 Area. BMPO's planning boundary includes Jefferson and 
Shelby Counties in Alabama. The portion of Walker County, Alabama that 
is designated nonattainment as part of the Birmingham PM2.5 
Nonattainment Area is not within the BMPO planning boundary, and thus 
is considered a ``donut'' area for the purposes of implementing 
transportation conformity in this area. Per the Transportation 

Conformity Rule, the MPO's conformity determination is not complete 
without a regional analysis that considers the projects in the MPO area 
as well as the donut areas that are within the

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nonattainment/maintenance area. For the purposes of implementing 8-hour 
ozone and PM2.5 conformity, BMPO serves as the lead agency for the 
preparation, consultation, and distribution of the conformity 
determinations. BMPO coordinates with the Alabama Department of 
Transportation for travel-related information for the portion of Walker 
County that is included in the PM2.5 Nonattainment Area.
    The Birmingham area has previously established a transportation 
conformity SIP. In 2002, EPA approved the State of Alabama's SIP 
revision which incorporated by reference 40 CFR part 93, subpart A (67 
FR 50808), as well as rules consistent with 40 CFR 93.105, 93.122 
(a)(4)(ii), and 93.125(c) for the Birmingham area. In addition, the 
Birmingham area had established a Memorandum of Agreement (MOA) for 
implementing the conformity Criteria and Consultation Procedure. The 
new conformity SIP (the subject of this rulemaking) has removed any 
incorporation by reference and has revised the MOA to be consistent 
with the SAFETEA-LU revisions to the CAA (Pub. L. 109-59) and 
subsequent regulations published on January 24, 2008 (73 FR 4420).

C. Jackson County Conformity SIP

    Effective April 5, 2005, EPA designated Hamilton County in 
Tennessee, and portions of Walker and Catoosa Counties in Georgia, and 
a portion of Jackson County, Alabama in the Tri-state Chattanooga Area, 
as nonattainment for the PM2.5 standard. The current designation status 
of the Tri-state Chattanooga PM2.5 Area is nonattainment (including the 
portion of Jackson County, Alabama). Thus, this area also has to meet 
transportation conformity requirements.
    The Chattanooga Transportation Planning Organization (CHCNGA TPO) 
is the MPO for most of the Tri-state Chattanooga PM2.5 Area. CHCNGA 
TPO's planning boundary includes Hamilton County in Tennessee, and 
Walker and Catoosa Counties in Georgia. Portions of Walker and Catoosa 
Counties in Georgia, and Jackson County, Alabama, are not within the 
CHCNGA TPO planning boundary, and thus are considered ``donut'' areas 
for the purposes of implementing transportation conformity in this 
area. CHCNGA TPO coordinates with the Alabama Department of 
Transportation for travel-related information for the portion of 
Jackson County that is included in the PM2.5 Nonattainment Area. 
Additionally, the Georgia Department of Transportation coordinates with 
the Alabama Department of Transportation for travel-related information 
for Walker and Catoosa that are included in the PM2.5 Nonattainment 
Area.
    As a newly designated nonattainment area, the portion of Jackson 
County, Alabama that is a part of the Tri-state Chattanooga PM2.5 Area 
does not have a previous conformity SIP. The State of Tennessee and the 
State of Georgia will establish conformity procedures for Hamilton 
County in Tennessee, and portions of Walker and Catoosa Counties in 
Georgia for their respective states in their individual conformity 
SIPs. The SIP revision at issue now includes the conformity procedures 
for the portion of Jackson County, Alabama that is included as part of 
the Tri-state Chattanooga PM2.5 Area.

III. State Submittal and EPA Evaluation

    On March 7, 2007, the State of Alabama, through the Alabama 
Department of Environmental Management (ADEM), submitted the State's 
transportation conformity and consultation interagency Memorandum of 
Agreement (MOA) to EPA as a revision to the SIP, addressing the 8-hour 
ozone maintenance area and the PM2.5 Nonattainment Area. The Alabama 
transportation conformity MOA establishes procedures for interagency 
consultation and supersedes the April 3, 2003, incorporation into the 
SIP of Chapter 335-3-17 (which included previous procedures for 
interagency consultation). Alabama Administrative Code (AAC) Chapter 
335-3-17 incorporated EPA regulations found in 40 CFR Part 93, Subpart 
A (July 1, 1997), and 62 FR 43780 (August 15, 1997), by reference and 
originally only applied to the 1997 8-hour ozone Birmingham 
Nonattainment Area. The revision to Chapter 335-3-17 that EPA is 
approving now no longer incorporates the federal transportation 
conformity rules by reference, but still includes all the minimum 
requirements of the federal rules. In addition, consistent with ADEM's 
SIP submittal, AAC Chapter 335-3-17 will now apply to all nonattainment 
and maintenance areas in Alabama.
    On January 8, 2009, the State of Alabama, through ADEM, submitted a 
SIP revision to the March 2007 Alabama Administrative Code (AAC) 
Chapter 335-3-17-.01. This action addresses the March 7, 2007 as well 
as the January 8, 2009, submission.
    The State of Alabama developed its consultation rule (AAC Chapter 
335-3-17) based on the elements contained in 40 CFR 93.105, 
93.122(a)(4)(ii), and 93.125(c) and included it in the MOA. As a first 
step, the State worked with the existing transportation planning 
organization's interagency committee that included representatives 
from: ADEM; the Alabama Department of Transportation (DOT); the 
Birmingham Regional Planning Commission (BRPC); Birmingham Metropolitan 
Planning Organization, Federal Highway Administration--Alabama 
Division; Federal Transit Administration; Jefferson County Department 
of Health (JCDH); Jefferson County Transit Authority (B-JCTA); and EPA. 
The interagency committee met regularly and drafted the consultation 
rules considering elements in 40 CFR 93.105, 93.122(a)(4)(ii), and 
93.125(c), and integrated the local procedures and processes into the 
consultation MOA. The consultation process developed in this MOA is for 
the State of Alabama. The MOA is enforceable against the parties by 
their consent in the MOA to allow the Attorney General for the State of 
Alabama to sue any or all of the agencies for specific performance or 
other relief on behalf of the citizens of Alabama. On January 4, 2007, 
ADEM held a public hearing for the transportation conformity MOA and 
rulemaking. The final MOA was issued by Alabama on April 3, 2007, and 
subsequently submitted to EPA as a SIP revision. On October 8, 2008, 
ADEM held a public hearing for a second revision to the transportation 
conformity rulemaking. The final rulemaking package for the second 
revision was issued by Alabama on December 12, 2008, and subsequently 
submitted to EPA as a SIP revision.
    EPA has evaluated this SIP revision and has determined that the 
State has met the requirements of federal transportation conformity 
rules as described in 40 CFR part 51, subpart T and 40 CFR part 93, 
subpart A. ADEM has satisfied the public participation and 
comprehensive interagency consultation requirement during development 
and adoption of the MOA at the local level. Therefore, EPA is approving 
the revision to the Alabama SIP, as well as AAC Chapters 335-3-17-.01 
and .02, ``Conformity of Federal Actions to State Implementation 
Plans.'' EPA's rules requires the states to develop their own processes 
and procedures for interagency consultation among the Federal, state, 
and local agencies and resolution of conflicts meeting the criteria in 
40 CFR 93.105. The SIP revision must include processes and procedures 
to be followed by the MPO, state DOT, and U.S. Department of 
Transportation in consulting with the state and local air quality 
agencies and

[[Page 13121]]

EPA before making conformity determinations. The transportation 
conformity SIP revision must also include processes and procedures for 
the state and local air quality agencies and EPA to coordinate the 
development of applicable SIPs with MPOs, state DOTs, and the U.S. 
Department of Transportation.
    EPA has reviewed the submittal to ensure consistency with the CAA 
as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 and 40 CFR 
51.390) governing state procedures for transportation conformity and 
interagency consultation and have concluded that the submittal is 
approvable. Details of our review are set forth in a technical support 
document (TSD), which has been included in the docket for this action. 
Specifically, in the TSD, we identify how the submitted procedures 
satisfy our requirements under 40 CFR 93.105 for interagency 
consultation with respect to the development of transportation plans 
and programs, SIPs, and conformity determinations, the resolution of 
conflicts, and the provision of adequate public consultation, and our 
requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for 
enforceability of control measures and mitigation measures.

IV. Public Comment and Final Action

    For the reasons set forth above, EPA is taking action under section 
110 of the Act to approve the MOA implementing the conformity criteria 
and consultation procedures revision to the Alabama SIP pursuant to the 
CAA, as a revision to the Alabama SIP. As a result of this action, the 
Birmingham area's previously SIP-approved conformity procedures for the 
Birmingham area (79 FR 7487, April 23, 2003) will be replaced by the 
procedures adopted by State of Alabama on February 23, 2007, and 
December 12, 2008, submitted to EPA on March 7, 2007, and January 8, 
2009, for approval, and now being approved into the SIP. This action 
also establishes consultation procedures for the portion of Jackson 
County designated nonattainment, adopted by the State of Alabama on 
February 23, 2007, and December 12, 2008, and submitted to EPA on March 
7, 2007, and January 8, 2009, for approval. Additionally, this action 
will approve the revision of Chapter 335-3-1-.14 and the addition of 
Chapter 335-3-1-.16, in order to fulfill the emission reporting 
requirements under 40 CFR 51.125.
    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 May 26, 2009 
without further notice unless the Agency receives adverse comments by 
April 27, 2009.
    If 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. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on May 26, 2009 and no 
further action will be taken on the proposed rule.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by May 26, 2009. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register; rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may

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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, 
Intergovernmental relations, Incorporation by reference, Nitrogen 
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile 
organic compounds.

    Dated: February 25, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart (B)--Alabama

0
2. Section 52.50(e) is amended by adding a new entry at the end of the 
table for ``Conformity SIP for Birmingham and Jackson County'' to read 
as follows:


Sec.  52.50  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Alabama Non-Regulatory Provisions
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                                       Applicable           State
    Name of nonregulatory SIP        geographic or     submittal date/  EPA approval date        Explanation
            provision              nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Conformity SIP for Birmingham     Jefferson County,        12/12/2008  3/26/2009 [Insert
 and Jackson County.               Shelby County,                       citation of
                                   Jackson County.                      publication].
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[FR Doc. E9-6647 Filed 3-25-09; 8:45 am]
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