[Federal Register Volume 70, Number 248 (Wednesday, December 28, 2005)]
[Rules and Regulations]
[Pages 76694-76697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24474]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[R04-OAR-2005-AL-0001-200520a; FRL-8014-9]
Approval and Promulgation of Implementation Plans; Alabama;
Nitrogen Oxides Budget and Allowance Trading Program, Phase II
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving State Implementation Plan (SIP) revisions
submitted by the State of Alabama on February 23, 2005. The revision
responds to the EPA's regulation entitled, ``Interstate Ozone
Transport: Response to Court Decisions on the Nitrogen Oxides
(NOX) SIP Call, NOX SIP Call Technical
Amendments, and Section 126 Rules,'' otherwise known as the
``NOX SIP Call Phase II.'' This revision satisfies EPA's
rule that requires Alabama to submit NOX SIP Call Phase II
revisions needed to achieve the necessary incremental reductions of
NOX. The intended effect of this SIP revision is to reduce
emissions of NOX in order to help attain the National
Ambient Air Quality Standard (NAAQS) for ozone. The revision also
corrects a typographical error and deletes an expired provision
pertaining to open burning in Morgan County, Alabama in 2003.
DATES: This direct final rule is effective February 27, 2006 without
further notice, unless EPA receives adverse comment by January 27,
2006. 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: Submit your comments, identified by Regional Material in
EDocket (RME) ID No. R04-OAR-2005-AL-0001, by one of the following
methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Web site: http://docket.epa.gov/rmepub/ RME, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Once in the system, select ``quick search,''
then key in the appropriate RME Docket identification number. Follow
the on-line instructions for submitting comments.
[[Page 76695]]
3. E-mail: [email protected].
4. Fax: (404) 562-9019.
5. Mail: ``R04-OAR-2005-AL-0001,'' 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.
6. Hand Delivery or Courier. Deliver your comments to: Stacy
DiFrank, 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 RME ID No. R04-OAR-2005-AL-
0001. EPA's policy is that all comments received will be included in
the public docket without change and may be made available on-line at
http://docket.epa.gov/rmepub/, 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 information that you
consider to be CBI or otherwise protected through RME, regulations.gov,
or e-mail. The EPA RME Web site and the Federal regulations.gov Web
site are ``anonymous access'' systems, 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 RME or 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.
Docket: All documents in the electronic docket are listed in the
RME index at http://docket.epa.gov/rmepub/. 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 RME
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: Stacy DiFrank, 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)
562-9042. Ms. DiFrank can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On October 27, 1998, EPA published a final rule known as the
``NOX SIP Call'' (See 63 FR 57356). The NOX SIP
Call requires 22 states, including the State of Alabama, and the
District of Columbia (DC) to meet statewide NOX emission
budgets during the ozone season in order to reduce the amount of ground
level ozone that is transported across the eastern United States (Phase
I). EPA identified NOX emission reductions by source
category that could be achieved by suing cost-effective measures. The
source categories include electric generating units (EGUs), non-
electric generating units (non-EGUs), internal combustion (IC) engines,
and cement kilns. EPA determined that state-wide NOX
emission budgets based on the implementation of these cost effective
controls for each affected jurisdiction are to be met by the year 2007.
The Phase I NOX SIP Call gave states the flexibility to
decide which source categories to regulate in order to meet the
statewide budgets. IC engines were not addressed by Alabama in response
to Phase I, but are addressed in Phase II. For more information
regarding the specifics of these Phase I source categories and budgets,
see 66 FR 27047, May 16, 2001.
A number of parties, including certain States as well as industry
and labor groups, challenged the NOX SIP Call rule. On March
2, 2000 (65 FR 11222), EPA published additional technical amendments to
the NOX SIP Call in the Federal Register. On March 3, 2000,
the D.C. Circuit issued its decision on the NOX SIP Call,
ruling in favor of EPA on all the major issues. Michigan v. EPA, 213
F.3d 663 (D.C. Cir. 2000). The DC Circuit Court denied petitioners'
requests for rehearing or rehearing en banc on July 22, 2000. However,
the Circuit Court remanded four specific elements to EPA for further
action: (1) The definition of EGU, (2) the level of control for
stationary IC engines, (3) the geographic extent of the NOX
SIP Call for Georgia and Missouri, and (4) the inclusion of Wisconsin.
On March 5, 2001, the U.S. Supreme Court declined to hear an appeal by
various utilities, industry groups and a number of upwind states from
the DC Circuit's ruling on EPA's NOX SIP Call rule.
On October 13, 2000, the Alabama Department of Environmental
Management (ADEM) submitted a draft NOX emission control
rule to the EPA. On March 12, 2001, ADEM submitted final revisions to
its SIP that complied with the requirements of the NOX SIP
Call Phase I (see 66 FR 27047, May 16, 2001).
EPA published a final rule, dated April 21, 2004 (69 FR 21604),
that addresses the remanded portion of the NOX SIP Call
Rule. This rule is entitled, ``Interstate Ozone Transport: Response to
Court Decisions on the NOX SIP Call, NOX SIP Call
Technical Amendments, and Section 126 Rules,'' otherwise known as the
``NOX SIP Rule Phase II.'' This action finalizes specific
changes in response to the Court's rulings on the NOX SIP
Call. Specifically, it finalizes certain aspects of the definitions of
EGU and non-EGU, the control level assumed for large stationary IC
engines in the NOX SIP Call, partial State budgets for
Georgia, Missouri, Alabama, and Michigan in the NOX SIP
Call, changes to the statewide NOX budgets, the SIP
submittal dates for the required States to address the Phase II portion
of the budget, and for Georgia and Missouri to submit full SIPs meeting
the NOX SIP Call and the exclusion of Wisconsin from the
NOX SIP Call (See 69 FR 21604, April 21, 2004). This final
rule also requires States that submitted NOX SIP Call Phase
I revisions to submit Phase II SIP Revisions as needed to achieve the
necessary incremental reductions of NOX.
Additional emission reductions required as a result of this final
rulemaking are reflected in the Phase II
[[Page 76696]]
portion of the State's emission budget. On April 11, 2000, in response
to the Court's decision, EPA notified Alabama of the maximum amount of
NOX emissions allowed for the State during the ozone season.
This emission budget reflected adjustments to Alabama's NOX
emission budget to reflect the Court's decision that Georgia and
Missouri should not be included in full. Although the Court did not
order EPA to modify Alabama's budget, the EPA believes these
adjustments are consistent with the Court's decision.
II. Analysis of State's Submittal
The State of Alabama submitted a revision to its SIP on February
23, 2005. The revision responds to the NOX SIP Call Phase II
(69 FR 21604, April 21, 2004). ADEM is revising its regulations to
remain consistent with EPA requirements. The addition of the proposed
regulation to Chapter 335-3-8, specifically Rule 335-3-8-.04, fulfills
this requirement.
The NOX SIP Call Phase II (69 FR 21604) required
NOX reductions for 4,968 tons for Alabama. However, upon
further calculation it was determined that the required NOX
reduction for Alabama is 4,895 tons.
The revision also includes changes to Rule 335-3-3. A typographical
error is corrected in Rule 335-3-3-.01(2), changing the word ``not'' to
``nor'' in the second sentence and 335-3-3-.01(2)(d) is being revised
to delete an expired provision pertaining to open burning in Morgan
County in 2003.
III. Final Action
EPA is approving the aforementioned changes to the SIP. EPA is
publishing this rule without prior proposal because the Agency views
this as a non-controversial 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 February 27, 2006
without further notice unless the Agency receives adverse comments by
January 27, 2006.
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 do so at this time. If no such comments are received, the public
is advised that this rule will be effective on February 27, 2006 and no
further action will be taken on the proposed rule. Please note that if
we receive adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, we may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
IV. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it 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).
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
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 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
In reviewing SIP submissions, EPA's rule is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
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 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 action is not a ``major rule'' as defined by 5 U.S.C
804(2).
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 February 27, 2006. 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, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
[[Page 76697]]
recordkeeping requirements, Volatile organic compounds.
Dated: December 9, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
0
Chapter I, Title 40, Code of Federal Regulations, 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(c) is amended by revising entries for ``Section 335-3-
3.01'' and ``Section 335-3-8.04'' to read as follows:
Sec. 52.50 Identification of plan.
* * * * *
(c) * * *
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State
State citation Title/subject effective date EPA approval date Explanation
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Chapter 335-3-3 Control of Open Burning and
Incineration
* * * * * * *
Section 335-3-3-.01........ Open Burning........ mm/dd/yy 12/28/05 [insert citation of
publication].
* * * * * * *
Chapter 335-3-8 Control of Nitrogen Oxide
Emissions
* * * * * * *
Section 335-3-8-.04........ Standards for mm/dd/yy 12/28/05 [insert citation of
Stationary publication].
Reciprocating
Internal Combustion
Engines.
* * * * * * *
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[FR Doc. 05-24474 Filed 12-27-05; 8:45 am]
BILLING CODE 6560-50-M