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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

Approval and Promulgation of Implementation Plans: Revisions to

the Alabama Department of Environmental Management (ADEM)

Administrative Code for the Air Pollution Control Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving revisions to the Alabama Department of

Environmental Management's (ADEM) Administrative Code submitted on

April 22, 1999, by the State of Alabama. These revisions were made to

comply with the regulations set forth in the Clean Air Act (CAA).

Included in this document are revisions to Chapter 335-3-1--General

Provisions which establishes Credible Evidence regulations and Chapter

335-3-14--Air Permits which allows exemptions for projects which are

found to be beneficial to the environment.

DATES: This direct final rule is effective January 3, 2000 without

further notice, unless EPA receives adverse comment by December 3,

1999. If adverse comment is received, EPA will publish a timely

withdrawal of the direct final rule in the Federal Register and inform

the public that the rule will not take effect.

ADDRESSES: All comments should be addressed to: Kimberly Bingham at the

EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW, Atlanta,

Georgia 30303.

Copies of the State submittal(s) are available at the following

addresses for inspection during normal business hours:

Air and Radiation Docket and Information Center (Air Docket 6102),

U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC

20460.

Environmental Protection Agency, Region 4, Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303-8960.

Alabama Department of Environmental Management, 400 Coliseum

Boulevard, Montgomery, Alabama 36110-2059.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham of the EPA Region 4,

Air Planning Branch at (404) 562-9038 and at the above address.

SUPPLEMENTARY INFORMATION:

I. Analysis of State's Submittal

Listed below is a summary of the revisions to the Alabama State

implementation plan (SIP) on which EPA is taking action in this

document.

Chapter 335-3-1--General Provisions

Rule 335-3-1-.13--Credible Evidence

On February 24, 1997, EPA promulgated regulations under sections

113(a) and 113(e)(1) of the CAA that gave EPA the authority to use all

available data to prove CAA violations (See 62 FR 8314-8328). EPA

required states to incorporate provisions into their SIPs to ensure

that the states have the ability to use any available data or

``credible evidence'' to determine violations. To comply, the ADEM

submitted rule 335-3-1-.13 to EPA Region 4 for approval. This new rule

allows the use of any credible evidence that is both reference test

data and comparable non-reference test data. The data will be used to

prove or disprove violations of the State of Alabama's regulations in

enforcement actions.

Chapter 335-3-14--Air Permits Authorizing Construction in Clean Air

Areas [Prevention of Significant Deterioration Permitting (PSD)]

Rule 335-3-14.04(2)(ff)

ADEM is revising its PSD rules to allow an exemption for

modifications or projects that are proven to be beneficial to the

environment. These regulations would require that an ambient air

quality analysis be completed before the project can be approved. Class

1 areas must also not be affected by the new project. Moreover, the

public notification requirements of the PSD regulations would also have

to be met.

Rule 335-3-14.04(2)(gg)

The rule was revised to include a definition for Pollution

Prevention Projects that can also be exempted if proven to be

environmentally beneficial. ADEM defines Pollution Prevention Projects

as any activity that through process changes, product reformulation or

substitution of less polluting raw materials, eliminates or reduces the

release of air pollutants (including fugitive emissions) and other

pollutants to the environment prior to recycling, treatment, or

disposal. It does not mean recycling (other than certain ``in process

recycling'' practices), energy recovery, treatment, or disposal.

Rule 335-3-14-.04(8)(m)

This rule lists the PSD exemptions for projects that are

environmentally beneficial.

II. Final Action

EPA is approving the aforementioned changes to the State of

Alabama's SIP because they are consistent with the CAA and EPA policy.

The EPA is publishing this rule without prior proposal because the

Agency views this as a noncontroversial submittal and anticipates no

adverse comments. However, in the proposed rules section of this

Federal Register publication, EPA is publishing a separate document

that will serve as the proposal to approve the SIP revision should

adverse comments be filed. This rule will be effective January 3, 2000

without further notice unless the Agency receives adverse comments by

December 3, 1999.

If the EPA receives such comments, then EPA will publish a document

withdrawing the final rule and informing the public that the rule will

not take effect. All public comments received will then be addressed in

a subsequent final rule based on the proposed rule. The EPA will not

institute a second comment period. Parties interested in commenting

should

[[Page 59634]]

do so at this time. If no such comments are received, the public is

advised that this rule will be effective on January 3, 2000 and no

further action will be taken on the proposed rule.

III. Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from Executive Order (E.O.) 12866, entitled

``Regulatory Planning and Review.''

B. Executive Orders on Federalism

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation.

In addition, E.O. 12875 requires EPA to develop an effective

process permitting elected officials and other representatives of

state, local, and tribal governments ``to provide meaningful and timely

input in the development of regulatory proposals containing significant

unfunded mandates.'' Today's rule does not create a mandate on state,

local or tribal governments. The rule does not impose any enforceable

duties on these entities. Accordingly, the requirements of section 1(a)

of E.O. 12875 do not apply to this rule.

On August 4, 1999, President Clinton issued a new executive order

on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)

which will take effect on November 2, 1999. In the interim, the current

Executive Order 12612 (52 FR 41685 (October 30, 1987)) on federalism

still applies. This rule will not have a substantial direct effect on

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government, as specified in Executive Order 12612.

The rule affects only one State, and does not alter the relationship or

the distribution of power and responsibilities established in the Clean

Air Act.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is

determined to be ``economically significant'' as defined under E.O.

12866, and (2) concerns an environmental health or safety risk that EPA

has reason to believe may have a disproportionate effect on children.

If the regulatory action meets both criteria, the Agency must evaluate

the environmental health or safety effects of the planned rule on

children, and explain why the planned regulation is preferable to other

potentially effective and reasonably feasible alternatives considered

by the Agency.

This rule is not subject to E.O. 13045 because it does not involve

decisions intended to mitigate environmental health or safety risks.

D. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments. If the mandate is unfunded,

EPA must provide to the Office of Management and Budget, in a

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

of their concerns, and a statement supporting the need to issue the

regulation.

In addition, E.O. 13084 requires EPA to develop an effective

process permitting elected and other representatives of Indian tribal

governments ``to provide meaningful and timely input in the development

of regulatory policies on matters that significantly or uniquely affect

their communities.'' Today's rule does not significantly or uniquely

affect the communities of Indian tribal governments. Accordingly, the

requirements of section 3(b) of E.O. 13084 do not apply to this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency

to conduct a regulatory flexibility analysis of any rule subject to

notice and comment rulemaking requirements unless the agency certifies

that the rule will not have a significant economic impact on a

substantial number of small entities. Small entities include small

businesses, small not-for-profit enterprises, and small governmental

jurisdictions.

This final rule will not have a significant impact on a substantial

number of small entities because SIP approvals under section 110 and

subchapter I, part D of the Clean Air Act do not create any new

requirements but simply approve requirements that the State is already

imposing. Therefore, because the Federal SIP approval does not create

any new requirements, I certify that this action will not have a

significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under

the Clean Air Act, preparation of flexibility analysis would constitute

Federal inquiry into the economic reasonableness of state action. The

Clean Air Act forbids EPA to base its actions concerning SIPs on such

grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);

42 U.S.C. 7410(a)(2).

F. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

annual costs to State, local, or tribal governments in the aggregate;

or to private sector, of $100 million or more. Under section 205, EPA

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

include a Federal mandate that may result in estimated annual costs of

$100 million or more to either State, local, or tribal governments in

the aggregate, or to the private sector. This Federal action approves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

G. Submission to Congress and the Comptroller General

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

Small

[[Page 59635]]

Business Regulatory Enforcement Fairness Act of 1996, generally

provides that before a rule may take effect, the agency promulgating

the rule must submit a rule report, which includes a copy of the rule,

to each House of the Congress and to the Comptroller General of the

United States. EPA will submit a report containing this rule and other

required information to the U.S. Senate, the U.S. House of

Representatives, and the Comptroller General of the United States prior

to publication of the rule in the Federal Register. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This rule is not a ``major'' rule as defined by 5 U.S.C.

804(2).

H. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

NTTAA, EPA must consider and use ``voluntary consensus standards''

(VCS) if available and applicable when developing programs and policies

unless doing so would be inconsistent with applicable law or otherwise

impractical.

The EPA believes that VCS are inapplicable to this action. Today's

action does not require the public to perform activities conducive to

the use of VCS.

I. Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for

judicial review of this action must be filed in the United States Court

of Appeals for the appropriate circuit by January 3, 2000. Filing a

petition for reconsideration by the Administrator of this final rule

does not affect the finality of this rule for the purposes of judicial

review nor does it extend the time within which a petition for judicial

review may be filed, and shall not postpone the effectiveness of such

rule or action. This action may not be challenged later in proceedings

to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and

recordkeeping requirements, Sulfur oxides.

Dated: October 5, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Chapter I, title 40, Code of Federal Regulations, is amended as

follows:

PART 52--[AMENDED]

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

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

EPA Approved Alabama Regulations

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EPA

State citation Title subject Adoption approval Federal Register notice

date date

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Chapter No. 335-3-1--General Provision

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Section 335-3-1-.13..................... Credible Evidence.......... 04/13/99 11/03/99 [Insert citation of publication]

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Chapter No. 335-3-14--Air Permits

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Section 335-3-14-.04(ff-gg)............. Air Permits Authorizing 04/13/99 11/03/99 [Insert citation of publication]

Construction in Clean Air

Areas [Prevention of

Significant Deterioration

(PSD)].

Section335-3-14-.04(8)(m)............... Air Permits Authorizing 04/13/99 11/03/99 [Insert citation of publication]

Construction in Clean Air

Areas [Prevention of

Significant Deterioration

(PSD)].

* * * * * * *

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Subpart B--Alabama

2. Section 52.50 is amended by revising the table heading and

adding three new entries in the table in paragraph (c) to read as

follows:

Sec. 52.50 Identification of plan.

* * * * *

(c) EPA approved regulations.

* * * * *

[FR Doc. 99-27539 Filed 11-2-99; 8:45 am]

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