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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-9927; FRL-6503-9]

Approval and Promulgation of State Implementation Plans (SIP) for

the State of Alabama--Call for 1-hour Attainment Demonstration for the

Birmingham, Alabama Marginal Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a State Implementation Plan (SIP) call to

require the State of Alabama to submit a 1-hour ozone attainment SIP

for the Birmingham marginal nonattainment area within six months of

final action on the SIP call. EPA is proposing to issue this SIP call,

because violations of the 1-hour ozone national ambient air quality

standards (NAAQS) have continued to be recorded in the Birmingham area

after the required attainment date of November 15, 1993. Exceedances of

the 1-hour ozone NAAQS occurred in the Birmingham area during the 1995,

1996, 1997, and 1998 ozone seasons. There are more than 3 exceedances

of the 1-hour ozone NAAQS during the most recent 3 year period (96-98),

indicating continuing violations of the NAAQS. EPA is authorized under

section 110(k)(5) of the Clean Air Act (CAA) to issue this SIP call

requiring the State of Alabama to develop a 1-hour ozone attainment SIP

revision for the Birmingham area. If the State of Alabama fails to

submit an attainment SIP in response to this SIP call, EPA will issue a

finding that the State failed to submit a required SIP pursuant to

section 179(a) of the CAA. The finding would start the clocks for

mandatory sanctions and development of a federal implementation plan

(FIP).

DATES: Comments on this proposed action must be received in writing by

January 18, 2000.

ADDRESSES: Comments may be mailed to Kimberly Bingham at the EPA Region

4 address listed below.

Environmental Protection Agency, Region 4 Air Planning Branch, Atlanta

Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning

Section, Air Planning Branch, Air, Pesticides and Toxics Management

Division, Region 4, Environmental Protection Agency, Atlanta Federal

Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303. The telephone

number is (404) 562-9038.

SUPPLEMENTARY INFORMATION: The supplemental information is organized in

the following order:

I. Background

II. Why EPA is proposing a SIP call for the Birmingham marginal

ozone nonattainment area.

III. What happens if the State of Alabama does not submit a SIP

responding to this SIP call?

I. Background

On November 15, 1990, Jefferson and Shelby Counties, Alabama, were

designated as marginal ozone nonattainment areas. Section 182(f)(1)(A)

of the Clean Air Act (CAA) provides for an exemption for New Source

Review offsets for nitrogen oxides (NOX ) in ozone

nonattainment areas where a state shows and EPA agrees that additional

NOX reductions would not contribute to attainment of the

ozone standard in that area. In 1992, the Alabama Department of

Environmental Management (ADEM) requested and received from EPA a

NOX exemption under this statutory provision for the

Birmingham marginal ozone nonattainment area. At the time of the

request, the Birmingham area was required to attain the NAAQS for ozone

by November 15, 1993. Given this deadline, offsets from new sources of

NOX applying for a permit to locate in the Birmingham area

after November 15, 1992, would not in practice have been achieved prior

to the expected ozone attainment date. Based on this information, EPA

determined that the State of Alabama met the requirements of sections

182(a) and 182(f) of the CAA for marginal nonattainment areas.

Furthermore, EPA determined that the application of NOX

provisions would not have contributed to the timely attainment of the

ozone standard and subsequently approved the NOX exemption

for the Birmingham area. (58 FR 45439).

Section 107(d)(3)(E) of the CAA, set forth five specific

requirements that states must include in a redesignation request in

order for EPA to redesignate an area from nonattainment to attainment.

The EPA provided guidance on redesignations in the General Preamble for

the Implementation of the CAA, 57 FR 13498 (April 16, 1992),

supplemented at 57 FR 18070 (April 28, 1992). The primary memorandum

providing further guidance with respect to section 107(d)(3)(E) of the

amended Act is dated September 4, 1992, and issued by the Director, Air

Quality Management Division, Subject: Procedures for Processing

Requests to Redesignate Areas to Attainment (Calcagni Memorandum).

The State of Alabama through the Alabama Department of

Environmental Management (ADEM) submitted a request for redesignation

of the Birmingham marginal ozone nonattainment area to attainment on

March 16, 1995. The request included information showing that the

Birmingham area had three years of air quality attainment data from

1990-1993, thus meeting the requirement for the area to attain the 1-

hour ozone NAAQS by November 15, 1993. The area continued to maintain

the ozone NAAQS through 1994. The submittal was rendered

administratively complete on April 11, 1995. Supplemental information

needed for the submittal to be approvable initially requested from ADEM

in a February 15, 1995, letter addressing the prehearing submittal, was

submitted on July 21, 1995. A direct

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final rule approving the redesignation request was signed by the

Regional Administrator and forwarded to the EPA Federal Register Office

on August 15, 1995. The direct final rule as drafted contained a 30 day

period for public comment on the redesignation request.

Prior to publication of the document and therefore prior to close

of the administrative record, EPA determined that the area registered a

violation of the ozone NAAQS on August 18, 1995. The EPA directed the

Office of Federal Register to recall the document from being published.

The ambient data was quality assured according to established

procedures for validating such monitoring data. Subsequently, EPA

withdrew the approval notice, and disapproved the maintenance plan and

redesignation request. EPA also revoked the nitrogen oxides

(NOX) waiver for the Birmingham area which was previously

granted based on a determination that the area had clean air quality

data (62 FR 49158, September 19, 1997). Additional exceedances of the

1-hour ozone NAAQS were recorded in the Birmingham area during the 1996

and 1997 ozone seasons, prompting EPA to request that the State of

Alabama adopt a federally enforceable commitment to submit a SIP that

would provide for the attainment of the 1-hour ozone NAAQS. ADEM

submitted the final commitment without Board adoption, precluding

approval into the federally enforceable SIP.

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

Ozone Nonattainment Area

To assure that SIPs provide for the attainment and maintenance of

the relevant NAAQS, section 110(k)(5) of the CAA authorizes EPA to find

that a SIP is substantially inadequate to attain or maintain a NAAQS,

and to require (``call for'') the State to submit, within a specified

period, a SIP revision to correct the inadequacy. This CAA requirement

for a SIP revision is known as a ``SIP call.'' The CAA authorizes EPA

to allow a state up to 18 months to respond to a SIP call. EPA is

proposing to issue this SIP call, because violations of the 1-hour

ozone NAAQS have continued to be recorded in the Birmingham area after

the required attainment date of November 15, 1993. EPA is authorized

under section 110(k)(5) to issue this SIP call requiring the State of

Alabama to develop a 1-hour ozone attainment SIP revision for the

Birmingham area. In consideration of the length of time that has passed

since the required attainment date of November 15, 1993, and the

substantial air quality modeling already completed, EPA believes it is

reasonable to require the State of Alabama to make the submittal within

six months of finalization of this SIP call.

III. What Happens If the State of Alabama Does Not Submit a SIP

Responding to This SIP Call?

Section 179(a) sets forth four findings that form the basis for

application of sanctions. The first finding, that a State has failed to

submit a plan or one or more elements of a plan required under the CAA,

is the finding relevant to this rulemaking. If the State of Alabama

fails to submit the required plan in response to this SIP call, EPA

will issue a finding under section 179(a) of the CAA that the State

failed to make a required SIP submittal. If within 18 months of the

finding, the State of Alabama has not submitted an attainment SIP that

EPA determines is complete, then the emission offset sanction will

apply automatically pursuant to CAA section 179(a) and 40 CFR 52.31.

Under this sanction, the ratio of emission reductions that must be

obtained to offset increased emissions caused by new major sources or

modifications to major sources in the Birmingham area must be at least

two to one. If the State of Alabama does not make a complete submission

within six months after the offset sanction applies, then the highway

funding sanction will apply, in accordance with 40 CFR 52.31. In

addition, sanctions would apply in the same manner if the State of

Alabama submits a plan that EPA determines is incomplete or that EPA

disapproves. Finally, the CAA section 110(c) provides that EPA

promulgate a FIP no later than 24 months after a finding of failure to

submit a SIP under section 179(a) unless the State of Alabama has

submitted and EPA has approved the attainment plan.

Proposed Action

EPA is proposing to issue a SIP call to the State of Alabama for a

1-hour ozone attainment SIP revision for the Birmingham nonattainment

area and to require the State of Alabama to submit a plan within six

months of a final SIP call. In addition, EPA is proposing that the

sanctions contained in sections 179(a) and (b) of the CAA and in 40 CFR

50.31 will apply if EPA makes a finding relevant to this required

attainment demonstration plan for Birmingham. Interested parties may

participate in the Federal rulemaking procedure by submitting written

comments to the person listed in the ADDRESSES section.

IV. Administrative Requirements

A. Executive Order 12866

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

regulatory action from Executive Order 12866, entitled ``Regulatory

Planning and Review.''

B. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a state, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments. If EPA complies by

consulting, Executive Order 12875 requires EPA to provide to the Office

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

consultation with representatives of affected state, local and tribal

governments, the nature of their concerns, copies of any written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, Executive Order 12875

requires EPA to develop an effective process permitting elected

officials and other representatives of state, local and tribal

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

of regulatory proposals containing significant unfunded mandates.''

Today's rule does not create a mandate on state, local or tribal

governments. The rule does not impose any enforceable duties on these

entities. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

C. Executive Order 13045

Protection of Children from Environmental Health Risks and Safety

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

determined to be ``economically significant'' as defined under

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it is not

economically significant as determined under Executive Order 12866 and

it

[[Page 70207]]

does not involve decisions intended to mitigate environmental health or

safety risks that may disproportionately affect children.

D. Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is

not required by statute, that significantly or uniquely affects the

communities of Indian tribal governments, and that imposes substantial

direct compliance costs on those communities, unless the Federal

government provides the funds necessary to pay the direct compliance

costs incurred by the tribal governments, or EPA consults with those

governments. If EPA complies by consulting, Executive Order 13084

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

separately identified section of the preamble to the rule, a

description of the extent of EPA's prior consultation with

representatives of affected tribal governments, a summary of the nature

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

regulation. In addition, Executive Order 13084 requires EPA to develop

an effective process permitting elected officials and other

representatives of Indian tribal governments ``to provide meaningful

and timely input in the development of regulatory policies on matters

that significantly or uniquely affect their communities.''

Today's rule does not significantly or uniquely affect the

communities of Indian tribal governments. This action does not involve

or impose any requirements that affect Indian Tribes. Accordingly, the

requirements of section 3(b) of Executive Order 13084 do not apply to

this rule.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.)(RFA), as

amended by the Small Business Regulatory Enforcement Fairness Act

(Public Law No. 104-121)(SBREFA), provides that whenever an agency is

required to publish a general notice of proposed rulemaking, it must

prepare and make available an initial regulatory flexibility analysis,

unless it certifies that the proposed rule, if promulgated, will not

have ``a significant economic impact on a substantial number of small

entities,'' 5 U.S.C. 605(b). Courts have interpreted the RFA to require

a regulatory flexibility analysis only when small entities will be

subject to the requirements of the rule. See, Motor and Equip, MFRS.

Ass'n v. Nichols, 142 F.3d 449 (D.C. Cir. 1998); United Distribution

Cos. v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1985) (agency's

certification need only consider the rule's impact on entities subject

to the rule).

The SIP Call would not establish requirements applicable to small

entities. Instead, it would require Alabama to develop, adopt, and

submit an attainment demonstration and would leave to Alabama the task

of determining how to obtain those reductions, including which entities

to regulate. Moreover, because Alabama would have discretion to choose

which sources to regulate and how much emissions reductions each

selected source would have to achieve EPA could not predict the effect

of the rule on small entities.

For these reasons, EPA appropriately certified that the proposed

rule would not have a significant impact on a substantial number of

small entities. Accordingly, the Agency did not prepare an initial RFA

for the proposed rule.

This rule would not have a significant impact on a substantial

number of small entities because the rule does not establish

requirements applicable to small entities. Therefore, I certify that

this action will not have a significant impact on a substantial number

of small entities.

F. Unfunded Mandates

Under Section 202 of the Unfunded Mandates Reform Act of 1995

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

must prepare a budgetary impact statement to accompany any proposed or

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

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

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

must select the most cost-effective and least burdensome alternative

that achieves the objectives of the rule and is consistent with

statutory requirements. Section 203 requires EPA to establish a plan

for informing and advising any small governments that may be

significantly or uniquely impacted by the rule.

EPA has determined that the approval action promulgated does not

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

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

the aggregate, or to the private sector.

G. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act

(NTTAA) of 1995 requires Federal agencies to evaluate existing

technical standards when developing a new regulation. To comply with

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

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

unless doing so would be inconsistent with applicable law or otherwise

impractical.

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

action does not require the public to perform activities conducive to

the use of VCS.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

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

recordkeeping requirements, Sulfur oxides.

Dated: October 6, 1999.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doc. 99-31724 Filed 12-15-99; 8:45 am]

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