[Federal Register Volume 76, Number 52 (Thursday, March 17, 2011)]
[Proposed Rules]
[Pages 14611-14616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6229]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0720-201039 FRL-9282-3]


Approval and Promulgation of Implementation Plans; Alabama; 
110(a)(1) and (2) Infrastructure Requirements for the 1997 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve the State Implementation Plan 
(SIP), submitted by the State of Alabama, through the Alabama 
Department of Environmental Management (ADEM) as demonstrating that the 
State meets the 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 standard (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.

DATES: Written comments must be received on or before April 18, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-0720, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-9140.
    4. Mail: ``EPA-R04-OAR-2010-0720,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, 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. 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-
2010-0720. 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

[[Page 14612]]

``anonymous access'' system, which 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 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. 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: 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 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under Sections 110(a)(1) and (2)?
III. What is EPA's analysis of how Alabama addressed the elements of 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm (See 62 FR 
38856). By statute, SIPs meeting the requirements of sections 110(a)(1) 
and (2) are to be submitted by states within three years after 
promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) 
require states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the NAAQS. States were required to submit such SIPs for 
the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However, 
intervening litigation over the 1997 8-hour ozone NAAQS created 
uncertainty about how to proceed and many states did not provide the 
required ``infrastructure'' SIP submission for this newly promulgated 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS. 
EPA entered into a consent decree with Earthjustice which required EPA, 
among other things, to complete a Federal Register notice announcing 
EPA's determinations pursuant to section 110(k)(1)(B) as to whether 
each state had made complete submissions to meet the requirements of 
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. 
Subsequently, EPA received an extension of the date to complete this 
Federal Register notice until March 17, 2008, based upon agreement to 
make the findings with respect to submissions made by January 7, 2008. 
In accordance with the consent decree, EPA made completeness findings 
for each state based upon what the Agency received from each state as 
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans; 
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or 
failed to submit a complete SIP that provided the basic program 
elements of section 110(a)(2) necessary to implement the 1997 8-hour 
ozone NAAQS (See 73 FR 16205). For those states that did receive 
findings, the findings of failure to submit for all or a portion of a 
state's implementation plan established a 24-month deadline for EPA to 
promulgate a Federal Implementation Plan (FIP) to address the 
outstanding SIP elements unless, prior to that time, the affected 
states submitted, and EPA approved, the required SIPs.
    The findings that all or portions of a state's submission are 
complete established a 12-month deadline for EPA to take action upon 
the complete SIP elements in accordance with section 110(k). Alabama's 
infrastructure submission was received by EPA on December 10, 2007, and 
was determined to be complete on March 27, 2008. Alabama was among 
other states that did not receive findings of failure to submit because 
it had provided a complete submission to EPA to address the 
infrastructure elements for the 1997 8-hour ozone NAAQS by March 1, 
2008. Today's action is proposing to approve Alabama's infrastructure 
submission for which EPA made the completeness determination on March 
27, 2008. This action is not approving any specific rule, but rather 
proposing that Alabama's already approved SIP meets certain CAA 
requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

    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.

[[Page 14613]]

    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 mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA, and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) but does provide detail on how Alabama's SIP 
addresses 110(a)(2)(C).
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     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.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
Alabama consistent with the Clean Air Interstate Rule (CAIR). On 
December 23, 2008, CAIR was remanded by the DC Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final 
action to approve Alabama's SIP revision, which was submitted to 
comply with CAIR. See 72 FR 55659 (October 1, 2007). In so doing, 
Alabama's CAIR SIP revision addressed the interstate transport 
provisions in Section 110(a)(2)(D)(i) for the 1997 8-hour ozone 
NAAQS. In response to the remand of CAIR, EPA has since proposed a 
new rule to address the interstate transport of NOx and 
SOx in the eastern United States. See 75 FR 45210 (Aug. 
2, 2010) (``the Transport Rule''). However, because this rule has 
yet to be finalized, EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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     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.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     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.

III. What is EPA's analysis of how Alabama addressed the elements of 
Sections 110(a)(1) and (2) ``infrastructure'' provisions?

    Alabama's infrastructure submission addresses the provisions of 
sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Alabama's infrastructure submission provides an overview of the 
provisions of the Alabama Air Regulations relevant to air quality 
control regulations. The regulations described below have been 
federally approved in the Alabama SIP and include enforceable emission 
limitations and other control measures. Regulation 335-3-1-.03--Ambient 
Air Quality Standards, generally authorizes the ADEM to adopt rules for 
the control of air pollution in order to comply with NAAQS, including 
those necessary to obtain EPA approval under section 110 of the CAA. 
This regulation along with Regulation 335-1-.06--Compliance Schedule, 
set the schedule for compliance to be consistent with the requirements 
of the CAA. Regulation 335-1-.05--Sampling and Testing Methods, details 
the authority and means with which ADEM can require testing and 
emissions verification. EPA has made the preliminary determination that 
the provisions contained in these chapters and Alabama's practices are 
adequate to protect the 8-hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during 
startup, shutdown, or malfunction (SSM) of operations at a facility. 
EPA believes that a number of states have SSM provisions which are 
contrary to the CAA and existing EPA guidance, ``State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown'' (September 20, 1999), and the Agency plans to address 
such state regulations in the future. In the meantime, EPA encourages 
any state having deficient SSM provisions to take steps to correct it 
as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: 
Alabama's infrastructure submission provides information in Regulation 
335-1-.04--Monitoring, Records, and Reporting, with regard to the 
requirement of sources to submit emissions monitoring reports as 
prescribed by the Director. These entities collect air monitoring data, 
quality assure the results, and report the data. Regulation 335-1-.05--
Sampling and Testing Methods, details the authority and means with 
which ADEM can require testing and emissions verification. Alabama 
regulation 335-3-14-.04--Air Permits Authorizing Construction in Clean 
Air: Prevention of Significant Deterioration Permitting (PSD), 
describes the State's use of ambient air quality monitoring data for 
purposes of permitting new facilities and assessing major modifications 
to existing facilities. Annually, EPA approves the ambient air 
monitoring network plan for the state agencies. On July 1, 2010, 
Alabama submitted their plan to EPA. On October 8, 2010, EPA approved 
Alabama's monitoring network plan. Alabama's approved monitoring 
network plan can be accessed at http://www.regulations.gov using Docket 
ID No. EPA-R04-OAR-2010-0720. EPA has made the preliminary 
determination that Alabama's SIP and practices are adequate for the 
ambient air quality monitoring and data systems related to the 1997 8-
hour ozone NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: Regulation 335-3-14-.04--Air 
Permits Authorizing Construction in Clean Air Areas: Prevention of 
Significant Deterioration Permitting (PSD),--of Alabama's SIP describes 
the permit requirements for new major sources or major modifications of

[[Page 14614]]

existing sources in areas classified as attainment or unclassifiable 
under section 107(d)(1)(A)(ii) or (iii) of the CAA. This ensures that 
areas that are in attainment of the NAAQS at the time of designations 
prevent any significant deterioration in air quality. Regulation 335-3-
14-.05--Air Permits Authorizing Construction in or Near Nonattainment 
Areas, sets the permitting requirements for areas in or around non-
attainment areas, including any ozone non-attainment area. 
Additionally, Alabama submitted a SIP revision on June 21, 2006, which 
addresses the Ozone Implementation New Source Review (NSR) Update 
requirements to include nitrogen oxides (NOX) as an ozone 
precursor for permitting purposes for PSD and nonattainment NSR. 
Specifically, the Ozone Implementation NSR Update requirements included 
changes to major source thresholds for sources in certain classes of 
nonattainment areas, changes to offset ratios for marginal, moderate, 
serious, severe, and extreme ozone nonattainment areas, provisions 
addressing offset requirements for facilities that shut down or curtail 
operation, and a requirement stating that NOX emissions are 
ozone precursors. EPA took final action to approve these revisions to 
the Alabama SIP on May 1, 2008 (73 FR 23957), and finalized a 
correcting amendment on June 13, 2008 (73 FR 33696).
    EPA published a final action revising Alabama's greenhouse gas 
(GHG) regulations on December 29, 2010 (75 FR 81863). The revisions 
establish appropriate emission thresholds for determining which new 
stationary sources and modification projects become subject to 
Alabama's PSD permitting requirements for their GHG emissions. This 
rulemaking approves changes to ADEM's Rule 335-3-14-.04--Air Permits 
Authorizing Construction in Clean Air Areas: Prevention of Significant 
Deterioration Permitting (PSD), which addresses the thresholds for GHG 
permitting applicability in Alabama. EPA has made the preliminary 
determination that Alabama's SIP and practices are adequate for program 
enforcement of control measures including review of proposed new 
sources related to the 1997 8-hour ozone NAAQS.
    In this action, EPA is proposing to approve Alabama's 
infrastructure SIP for the 8-hour ozone NAAQS with respect to the 
general requirement in section 110(a)(2)(C) to include a program in the 
SIP that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. EPA is not 
proposing to approve or disapprove the state's existing minor NSR 
program itself to the extent that it is inconsistent with EPA's 
regulations governing this program. EPA believes that a number of 
states may have minor NSR provisions that are contrary to the existing 
EPA regulations for this program. EPA intends to work with states to 
reconcile state minor NSR programs with EPA's regulatory provisions for 
the program. The statutory requirements of section 110(a)(2)(C) provide 
for considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the states an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    EPA has made the preliminary determination that Alabama's SIP and 
practices are adequate for program enforcement of control measures 
including review of proposed new sources related to the 1997 8-hour 
ozone NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: In Chapter 335-3-14.04--Air Permits Authorizing 
Construction in Clean Air Areas: Prevention of Significant 
Deterioration Permitting (PSD), ADEM outlines how it will notify 
neighboring states of potential impacts from new or modified sources. 
Alabama does not have any pending obligation under section 115 and 126. 
Additionally, Alabama has federally approved regulations in its SIP 
that satisfy the requirements for the NOx SIP Call. See 67 FR 76316 
(December 12, 2002). EPA has made the preliminary determination that 
Alabama's SIP and practices are adequate for insuring compliance with 
the applicable requirements relating to interstate and international 
pollution abatement for the 1997 8-hour ozone NAAQS.
    5. 110(a)(2)(E) Adequate resources: ADEM is responsible for 
adopting air quality rules, revising SIPs, developing and tracking the 
budget, establishing the title V fees, and other planning needs. ADEM 
also coordinates agreements with local air pollution control programs. 
Additionally, SIP submittals contain this information in the submittal 
cover letter. On May 6, 2010, EPA submitted a letter to Alabama 
outlining 105 grant commitments and current status of these commitments 
for fiscal year 2009. The letter EPA submitted to Alabama can be 
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-0720. Annually, states update these grant commitments based on 
current SIP requirements, air quality planning, and applicable 
requirements related NAAQS. There were no outstanding issues, therefore 
the Alabama's grants were finalized and closed out. EPA has made the 
preliminary determination that Alabama has adequate resources for 
implementation of the 1997 8-hour ozone NAAQS.
    6. 110(a)(2)(F) Stationary source monitoring system: The Alabama 
infrastructure submission describes how the major source and minor 
source emission inventory programs collect emission data throughout the 
State and ensure the quality of data. This is outlined in Chapter 335-
3-1--General Provisions of the approved Alabama SIP. Specifically, 335-
3-1-.04--Monitoring, Records, and Reporting, 335-3-1-.07--Maintenance 
and Malfunctioning of Equipment; Reporting, and 335-3-1-.15--Emissions 
Inventory Reporting Requirements, all address portions of this 
requirement.
    Additionally, the National Emissions Inventory (NEI) is EPA's 
central repository for air emissions data. EPA published the Air 
Emissions Reporting Rule (AERR) on December 5, 2008, which modified the 
requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the seven criteria pollutants 
and the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. Alabama made its latest update to the NEI 
February 17, 2011. EPA compiles the emissions data, supplementing it 
where necessary, and releases it to the general public through the Web 
site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the 
preliminary determination that Alabama's SIP and practices are adequate 
for the stationary source monitoring systems related to the 1997 8-hour 
ozone NAAQS.
    7. 110(a)(2)(G) Emergency power: The Alabama SIP provides 
provisions in Chapter 335-3-2--Air Pollution Emergency for the 
identification of air

[[Page 14615]]

pollution emergency episodes. Episode criteria and emissions reduction 
plans are also covered in this chapter. These criteria have previously 
been approved by EPA. EPA believes these criteria are adequate to 
address ozone emergency episodes for the 1997 8-hour ozone NAAQS. EPA 
has made the preliminary determination that Alabama's SIP and practices 
are adequate for emergency powers related to the 1997 8-hour ozone 
NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: ADEM is responsible for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS. This authority is provided by 335-3-1-.03--Ambient 
Air Quality Standards, giving Alabama the ability and authority to 
respond to calls for SIP revisions, and the State has provided a number 
of SIP revisions over the years for implementation of the NAAQS. 
Specific to the 1997 8-hour ozone NAAQS, Alabama has provided the 
following submissions:
     January 27, 2005, SIP Revision (EPA approval, see 71 FR 
27631, January 25, 2006)--Redesignation request and 175A maintenance 
plan for the Birmingham, AL 8-hour Ozone Area
     June 21, 2006, SIP Revision (EPA approval, see 73 FR 
23957, May 1, 2008; EPA correcting amendment 73 FR 33696, June 13, 
2008) Clean Air Interstate Rule/New Source Review (NOX as a 
precursor to ozone)
     February 6, 2008, SIP Revision (EPA approval, see 74 FR 
37945, July 30, 2009) Birmingham 8-hour Ozone Contingency Measures

    In the Birmingham, Alabama maintenance plans, the State commits to 
provide additional SIP revisions for the 1997 8-hour ozone NAAQS 
pursuant to section 175A(b), and also commits to provide additional SIP 
revisions to implement contingency measures should one of the areas 
that was redesignated to attainment violate the 1997 8-hour ozone 
NAAQS. EPA has made the preliminary determination that Alabama's SIP 
and practices adequately demonstrate a commitment to provide future SIP 
revisions related to the 1997 8-hour ozone NAAQS when necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: Alabama's Air Regulation 335-3-1-.03--Ambient Air Quality 
Standards, describes how the State consults with air pollution control 
agencies in other states whose jurisdictions might be affected by SIP 
development activities. Additionally, ADEM has submitted for federal 
approval a regional haze plan which outlines consultation practices 
with Federal Land Managers. EPA has made the preliminary determination 
that Alabama's SIP and practices adequately demonstrate consultation 
with government officials related to the 1997 8-hour ozone NAAQS when 
necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: The 
State's emergency episode provisions, discussed above, provide for 
notification to the public when air pollution episodes occur. 
Furthermore, Alabama maintains a public Web site on which daily air 
quality index forecasts are posted for the Birmingham, Huntsville, 
Mobile, and Columbus areas. This Web site can be accessed at: http://adem.alabama.gov/programs/air/airquality.cnt. EPA has made the 
preliminary determination that Alabama's SIP and practices adequately 
demonstrate the State's ability to provide public notification related 
to the 1997 8-hour ozone NAAQS when necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: Alabama 
demonstrates its authority to regulate new and modified sources of 
ozone precursors, volatile organic compound and nitrogen oxides (VOCs 
and NOX), to assist in the protection of air quality in 
Alabama's Air Regulations Chapter 335-3-14-.04--Air Permits Authorizing 
Construction in Clean Air Areas: Prevention of Significant 
Deterioration Permitting (PSD). Alabama submitted a SIP revision on 
March 7, 2007, which addresses the Ozone Implementation NSR Update 
requirements to include NOX as an ozone precursor for 
permitting purposes. Specifically, the Ozone Implementation NSR Update 
requirements included changes to major source thresholds for sources in 
certain classes of nonattainment areas, changes to offset ratios for 
marginal, moderate, serious, severe, and extreme ozone nonattainment 
areas, provisions addressing offset requirements for facilities that 
shut down or curtail operation, and a requirement stating that 
NOX emissions are ozone precursors. EPA took final action to 
approve these changes to the Alabama SIP on May 1, 2008 (73 FR 23957), 
and published a correcting amendment on June 13, 2008 (73 FR 33696).
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under Part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. Alabama has submitted SIP revisions for approval to satisfy the 
requirements of the CAA section 169A, and the regional haze and best 
available retrofit technology rules contained in 40 CFR 51.308. These 
revisions are currently under review and will be acted on in a separate 
action. EPA has made the preliminary determination that Alabama's SIP 
and practices adequately demonstrate the State's ability to implement 
PSD programs and to provide for visibility protection related to the 
1997 8-hour ozone NAAQS when necessary.
    12. 110(a)(2)(K) Air quality and modeling/data: Alabama has the 
authority to conduct air quality modeling and report the results of 
such modeling to EPA, as contained in Alabama Air Regulations 335-3-
14-.04--Air Permits Authorizing Construction in Clean Air Areas: 
Prevention of Significant Deterioration Permitting (PSD). These 
regulations also show that ambient ozone monitoring is used, in 
conjunction with pre- and post-construction ambient air monitoring, to 
track local and regional scale changes in ozone concentrations. These 
regulations further demonstrate that Alabama has the authority to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 8-hour ozone NAAQS. Additionally, Alabama 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 1997 8-hour ozone NAAQS, for the Southeastern states. Taken as a 
whole, Alabama's air quality regulations demonstrate that ADEM has the 
authority to provide relevant data for the purpose of predicting the 
effect on ambient air quality of the 8-hour ozone NAAQS. EPA has made 
the preliminary determination that Alabama's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
and modeling, along with analysis of the associated data, related to 
the 1997 8-hour NAAQS when necessary.
    13. 110(a)(2)(L) Permitting fees: Alabama addresses the review of 
construction permits as previously discussed in 110(a)(2)(C). 
Permitting fees are collected through the state's title V fees program, 
which has been federally approved, and according to State regulations 
in 335-3-16-.04--

[[Page 14616]]

Permit Application Requirements. EPA has made the preliminary 
determination that Alabama's SIP and practices adequately provide for 
permitting fees related to the 1997 8-hour ozone NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities: ADEM coordinates with local governments affected by the SIP. 
Alabama's SIP also includes a description of the public participation 
process for SIP development. Alabama has consulted with local entities 
for the development of transportation conformity and has worked with 
the Federal Land Managers as a requirement of its regional haze rule. 
More specifically, Alabama adopted State-wide consultation procedures 
for the implementation of transportation conformity which includes the 
consideration of the development of mobile inventories for SIP 
development and the requirements that link transportation planning and 
air quality planning in nonattainment and maintenance areas. These 
consultation and participation procedures have been approved in the 
Alabama SIP as non-regulatory provisions, ``Alabama Interagency 
Transportation Conformity Memorandum of Agreement'' and ``Conformity 
SIP for Birmingham and Jackson County.'' These provisions were approved 
on May 11, 2000 and March 26, 2009, respectively. See 65 FR 30362 and 
74 FR 13118. Required partners covered by Alabama's consultation 
procedures include federal, state and local transportation and air 
quality agency officials. The state and local transportation agency 
officials are most directly impacted by transportation conformity 
requirements and are required to provide public involvement for their 
activities including the analysis which shows how they meet 
transportation conformity requirements. EPA has made the preliminary 
determination that Alabama's SIP and practices adequately demonstrate 
consultation/by affected local entities related to the 1997 8-hour 
ozone NAAQS when necessary.

IV. Proposed Action

    As described above, 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 proposing to approve 
Alabama's infrastructure submission for the 1997 8-hour ozone NAAQS 
because this submission is consistent with section 110 of the CAA.

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 
proposed 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 proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: March 7, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-6229 Filed 3-16-11; 8:45 am]
BILLING CODE 6560-50-P