[Federal Register Volume 74, Number 57 (Thursday, March 26, 2009)]
[Rules and Regulations]
[Pages 13118-13122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6647]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2007-0359-200823(a); FRL8781-7]
Approval and Promulgation of Implementation Plans; Revisions to
the Alabama State Implementation Plan; Birmingham and Jackson Counties
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve revisions to the
Alabama State Implementation Plan (SIP) for two separate areas:
Birmingham nonattainment area and Jackson County nonattainment area for
both the 8-hour ozone and the PM2.5 National Ambient Air Quality
Standard. On March 7, 2007, and on January 8, 2009, revisions of the
transportation conformity criteria and procedures related to
interagency consultation and enforceability of certain transportation-
related control measures and mitigation measures were submitted to EPA
for approval by the state of Alabama. The intended effect is to update
the transportation conformity criteria and procedures in the Alabama
SIP.
DATES: This direct final rule is effective May 26, 2009 without further
notice, unless EPA receives adverse comment by April 27, 2009 If EPA
receives such comments, it will publish a timely withdrawal of the
direct final rule in the Federal Register and inform the public that
the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0359, by one of the following methods:
(a) http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
(b) E-mail: [email protected].
(c) Fax: (404) 562-9019.
(d) Mail: ``EPA-R04-OAR-2007-0359,'' Air Quality Modeling and
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960.
(e) Hand Delivery or Courier: Amanetta Wood, Air Quality Modeling
and Transportation Section, Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2007-0359.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which
[[Page 13119]]
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at the Air Quality Modeling and
Transportation Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if
at all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Amanetta Wood, Air Quality Modeling
and Transportation Section, Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms.
Wood's telephone number is 404-562-9025. She can also be reached via
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Transportation Conformity
II. Background for This Action
A. Federal Requirements
B. Birmingham Conformity SIP
C. Jackson County Conformity SIP
III. State Submittal and EPA Evaluation
IV. Public Comment and Final Action
V. Statutory and Executive Order Reviews
I. Transportation Conformity
Transportation conformity is required under section 176(c) of the
Clean Air Act (``CAA'' or ``Act'') to ensure that federally supported
highway, transit projects, and other activities are consistent with
(``conform to'') the purpose of the SIP. Conformity currently applies
to areas that are designated nonattainment and to areas that have been
redesignated to attainment after 1990 (maintenance areas) with plans
developed under section 175A of the Act, for the following
transportation related criteria pollutants: ozone, particulate matter
(e.g., PM2.5 and PM10), carbon monoxide (CO), and nitrogen dioxide
(NO10).
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant criteria
pollutants, also known as national ambient air quality standards
(NAAQS). The transportation conformity regulation is found in 40 CFR
Part 93 and provisions related to conformity SIPs are found in 40 CFR
51.390.
II. Background for This Action
A. Federal Requirements
EPA promulgated the Federal transportation conformity criteria and
procedures (``Conformity Rule'') on November 24, 1993 (58 FR 62188).
Among other elements, the rule required states to address all
provisions of the Conformity Rule in their SIPs, frequently referred to
as ``conformity SIPs''. Under 40 CFR 51.390, most sections of the
Conformity Rule were required to be incorporated into the SIP verbatim.
States were also allowed to tailor all or portions of the following
three sections of the Conformity Rule to meet their states' individual
circumstances: 40 CFR 93.105 (which addresses consultation procedures);
40 CFR 93.122(a)(4)(ii) (which addresses written commitments to control
measures that are not included in a metropolitan planning
organization's (MPO's) transportation plan and transportation
improvement program that must be obtained prior to a conformity
determination, and the requirement that such commitments, when they
exist, must be fulfilled); and 40 CFR 93.125(c) (which addresses
written commitments to mitigation measures that must be obtained prior
to a project-level conformity determination, and the requirement that
project sponsors must comply with such commitments, when they exist).
On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed
into law. SAFETEA-LU revised section 176(c) of the CAA's transportation
conformity provisions. One of the changes streamlined the requirements
for conformity SIPs. Under SAFETEA-LU, states are now required to
address and tailor only the following three sections of the Conformity
Rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii),
and 40 CFR 93.125(c). In general, states are no longer required to
submit conformity SIP revisions that address the other sections of the
Conformity Rule. These changes took effect on August 10, 2005, when
SAFETEA-LU was signed into law.
B. Birmingham Conformity SIP
Effective June 15, 2004, EPA designated the entire counties of
Jefferson and Shelby in the Birmingham, Alabama Area, as nonattainment
for the 1997 8-hour ozone standard. On May 12, 2006, EPA redesignated
the 1997 8-hour ozone Birmingham Nonattainment Area to attainment for
the 1997 8-hour ozone NAAQS (71 FR 27631). Effective April 5, 2005, EPA
designated the entire counties of Jefferson and Shelby, and a portion
of the county of Walker in the Birmingham Area, as nonattainment for
the PM2.5 standard. The current designation status of the Birmingham
PM2.5 Area is nonattainment. For further information, see 40 CFR 81 for
Birmingham, Alabama air quality planning areas and designations.
The Birmingham Metropolitan Planning Organization (BMPO) is the MPO
for the entire Birmingham 1997 8-hour ozone Area, and for most of the
Birmingham PM2.5 Area. BMPO's planning boundary includes Jefferson and
Shelby Counties in Alabama. The portion of Walker County, Alabama that
is designated nonattainment as part of the Birmingham PM2.5
Nonattainment Area is not within the BMPO planning boundary, and thus
is considered a ``donut'' area for the purposes of implementing
transportation conformity in this area. Per the Transportation
Conformity Rule, the MPO's conformity determination is not complete
without a regional analysis that considers the projects in the MPO area
as well as the donut areas that are within the
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nonattainment/maintenance area. For the purposes of implementing 8-hour
ozone and PM2.5 conformity, BMPO serves as the lead agency for the
preparation, consultation, and distribution of the conformity
determinations. BMPO coordinates with the Alabama Department of
Transportation for travel-related information for the portion of Walker
County that is included in the PM2.5 Nonattainment Area.
The Birmingham area has previously established a transportation
conformity SIP. In 2002, EPA approved the State of Alabama's SIP
revision which incorporated by reference 40 CFR part 93, subpart A (67
FR 50808), as well as rules consistent with 40 CFR 93.105, 93.122
(a)(4)(ii), and 93.125(c) for the Birmingham area. In addition, the
Birmingham area had established a Memorandum of Agreement (MOA) for
implementing the conformity Criteria and Consultation Procedure. The
new conformity SIP (the subject of this rulemaking) has removed any
incorporation by reference and has revised the MOA to be consistent
with the SAFETEA-LU revisions to the CAA (Pub. L. 109-59) and
subsequent regulations published on January 24, 2008 (73 FR 4420).
C. Jackson County Conformity SIP
Effective April 5, 2005, EPA designated Hamilton County in
Tennessee, and portions of Walker and Catoosa Counties in Georgia, and
a portion of Jackson County, Alabama in the Tri-state Chattanooga Area,
as nonattainment for the PM2.5 standard. The current designation status
of the Tri-state Chattanooga PM2.5 Area is nonattainment (including the
portion of Jackson County, Alabama). Thus, this area also has to meet
transportation conformity requirements.
The Chattanooga Transportation Planning Organization (CHCNGA TPO)
is the MPO for most of the Tri-state Chattanooga PM2.5 Area. CHCNGA
TPO's planning boundary includes Hamilton County in Tennessee, and
Walker and Catoosa Counties in Georgia. Portions of Walker and Catoosa
Counties in Georgia, and Jackson County, Alabama, are not within the
CHCNGA TPO planning boundary, and thus are considered ``donut'' areas
for the purposes of implementing transportation conformity in this
area. CHCNGA TPO coordinates with the Alabama Department of
Transportation for travel-related information for the portion of
Jackson County that is included in the PM2.5 Nonattainment Area.
Additionally, the Georgia Department of Transportation coordinates with
the Alabama Department of Transportation for travel-related information
for Walker and Catoosa that are included in the PM2.5 Nonattainment
Area.
As a newly designated nonattainment area, the portion of Jackson
County, Alabama that is a part of the Tri-state Chattanooga PM2.5 Area
does not have a previous conformity SIP. The State of Tennessee and the
State of Georgia will establish conformity procedures for Hamilton
County in Tennessee, and portions of Walker and Catoosa Counties in
Georgia for their respective states in their individual conformity
SIPs. The SIP revision at issue now includes the conformity procedures
for the portion of Jackson County, Alabama that is included as part of
the Tri-state Chattanooga PM2.5 Area.
III. State Submittal and EPA Evaluation
On March 7, 2007, the State of Alabama, through the Alabama
Department of Environmental Management (ADEM), submitted the State's
transportation conformity and consultation interagency Memorandum of
Agreement (MOA) to EPA as a revision to the SIP, addressing the 8-hour
ozone maintenance area and the PM2.5 Nonattainment Area. The Alabama
transportation conformity MOA establishes procedures for interagency
consultation and supersedes the April 3, 2003, incorporation into the
SIP of Chapter 335-3-17 (which included previous procedures for
interagency consultation). Alabama Administrative Code (AAC) Chapter
335-3-17 incorporated EPA regulations found in 40 CFR Part 93, Subpart
A (July 1, 1997), and 62 FR 43780 (August 15, 1997), by reference and
originally only applied to the 1997 8-hour ozone Birmingham
Nonattainment Area. The revision to Chapter 335-3-17 that EPA is
approving now no longer incorporates the federal transportation
conformity rules by reference, but still includes all the minimum
requirements of the federal rules. In addition, consistent with ADEM's
SIP submittal, AAC Chapter 335-3-17 will now apply to all nonattainment
and maintenance areas in Alabama.
On January 8, 2009, the State of Alabama, through ADEM, submitted a
SIP revision to the March 2007 Alabama Administrative Code (AAC)
Chapter 335-3-17-.01. This action addresses the March 7, 2007 as well
as the January 8, 2009, submission.
The State of Alabama developed its consultation rule (AAC Chapter
335-3-17) based on the elements contained in 40 CFR 93.105,
93.122(a)(4)(ii), and 93.125(c) and included it in the MOA. As a first
step, the State worked with the existing transportation planning
organization's interagency committee that included representatives
from: ADEM; the Alabama Department of Transportation (DOT); the
Birmingham Regional Planning Commission (BRPC); Birmingham Metropolitan
Planning Organization, Federal Highway Administration--Alabama
Division; Federal Transit Administration; Jefferson County Department
of Health (JCDH); Jefferson County Transit Authority (B-JCTA); and EPA.
The interagency committee met regularly and drafted the consultation
rules considering elements in 40 CFR 93.105, 93.122(a)(4)(ii), and
93.125(c), and integrated the local procedures and processes into the
consultation MOA. The consultation process developed in this MOA is for
the State of Alabama. The MOA is enforceable against the parties by
their consent in the MOA to allow the Attorney General for the State of
Alabama to sue any or all of the agencies for specific performance or
other relief on behalf of the citizens of Alabama. On January 4, 2007,
ADEM held a public hearing for the transportation conformity MOA and
rulemaking. The final MOA was issued by Alabama on April 3, 2007, and
subsequently submitted to EPA as a SIP revision. On October 8, 2008,
ADEM held a public hearing for a second revision to the transportation
conformity rulemaking. The final rulemaking package for the second
revision was issued by Alabama on December 12, 2008, and subsequently
submitted to EPA as a SIP revision.
EPA has evaluated this SIP revision and has determined that the
State has met the requirements of federal transportation conformity
rules as described in 40 CFR part 51, subpart T and 40 CFR part 93,
subpart A. ADEM has satisfied the public participation and
comprehensive interagency consultation requirement during development
and adoption of the MOA at the local level. Therefore, EPA is approving
the revision to the Alabama SIP, as well as AAC Chapters 335-3-17-.01
and .02, ``Conformity of Federal Actions to State Implementation
Plans.'' EPA's rules requires the states to develop their own processes
and procedures for interagency consultation among the Federal, state,
and local agencies and resolution of conflicts meeting the criteria in
40 CFR 93.105. The SIP revision must include processes and procedures
to be followed by the MPO, state DOT, and U.S. Department of
Transportation in consulting with the state and local air quality
agencies and
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EPA before making conformity determinations. The transportation
conformity SIP revision must also include processes and procedures for
the state and local air quality agencies and EPA to coordinate the
development of applicable SIPs with MPOs, state DOTs, and the U.S.
Department of Transportation.
EPA has reviewed the submittal to ensure consistency with the CAA
as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 and 40 CFR
51.390) governing state procedures for transportation conformity and
interagency consultation and have concluded that the submittal is
approvable. Details of our review are set forth in a technical support
document (TSD), which has been included in the docket for this action.
Specifically, in the TSD, we identify how the submitted procedures
satisfy our requirements under 40 CFR 93.105 for interagency
consultation with respect to the development of transportation plans
and programs, SIPs, and conformity determinations, the resolution of
conflicts, and the provision of adequate public consultation, and our
requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for
enforceability of control measures and mitigation measures.
IV. Public Comment and Final Action
For the reasons set forth above, EPA is taking action under section
110 of the Act to approve the MOA implementing the conformity criteria
and consultation procedures revision to the Alabama SIP pursuant to the
CAA, as a revision to the Alabama SIP. As a result of this action, the
Birmingham area's previously SIP-approved conformity procedures for the
Birmingham area (79 FR 7487, April 23, 2003) will be replaced by the
procedures adopted by State of Alabama on February 23, 2007, and
December 12, 2008, submitted to EPA on March 7, 2007, and January 8,
2009, for approval, and now being approved into the SIP. This action
also establishes consultation procedures for the portion of Jackson
County designated nonattainment, adopted by the State of Alabama on
February 23, 2007, and December 12, 2008, and submitted to EPA on March
7, 2007, and January 8, 2009, for approval. Additionally, this action
will approve the revision of Chapter 335-3-1-.14 and the addition of
Chapter 335-3-1-.16, in order to fulfill the emission reporting
requirements under 40 CFR 51.125.
EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial submittal and anticipates no
adverse comments. However, in the proposed rules section of this
Federal Register publication, EPA is publishing a separate document
that will serve as the proposal to approve the SIP revision should
adverse comments be filed. This rule will be effective May 26, 2009
without further notice unless the Agency receives adverse comments by
April 27, 2009.
If EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on May 26, 2009 and no
further action will be taken on the proposed rule.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by May 26, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register; rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action may
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not be challenged later in proceedings to enforce its requirements.
(See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Intergovernmental relations, Incorporation by reference, Nitrogen
dioxide, Ozone, Reporting and recordkeeping requirements, Volatile
organic compounds.
Dated: February 25, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart (B)--Alabama
0
2. Section 52.50(e) is amended by adding a new entry at the end of the
table for ``Conformity SIP for Birmingham and Jackson County'' to read
as follows:
Sec. 52.50 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Alabama Non-Regulatory Provisions
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Applicable State
Name of nonregulatory SIP geographic or submittal date/ EPA approval date Explanation
provision nonattainment area effective date
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* * * * * * *
Conformity SIP for Birmingham Jefferson County, 12/12/2008 3/26/2009 [Insert
and Jackson County. Shelby County, citation of
Jackson County. publication].
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[FR Doc. E9-6647 Filed 3-25-09; 8:45 am]
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