[Federal Register Volume 65, Number 209 (Friday, October 27, 2000)]
[Rules and Regulations]
[Pages 64352-64357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27584]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-200018; FRL-6892-2]


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: Final rule.

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SUMMARY: EPA is issuing 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 the 
effective date of this final SIP call. EPA is issuing this SIP call 
because we find, in light of the Birmingham area's continued 
nonattainment for ozone, that the Alabama SIP is substantially 
inadequate to attain the 1-hour ozone national ambient air quality 
standard (NAAQS). In light of this finding, section 110(k)(5) of the 
Clean Air Act (CAA) authorizes EPA to require Alabama to submit a 1-
hour ozone attainment plan for the Birmingham area to correct this 
inadequacy. 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).

EFFECTIVE DATE: November 27, 2000.

ADDRESSES: Persons interested in examining these documents should make 
an appointment with the appropriate office at least 24 hours before the 
visiting day. Please reference file AL-200018. The Region 4 office may 
have additional background documents not available at the other 
locations. Copies of documents relative to this action are available 
for public inspection during normal business hours at the following 
locations:
    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. Ms. Bingham can also be reached via 
electronic mail at <a href="/cdn-cgi/l/email-protection#c381aaada4aba2aeed88aaaea1a6b1afba83a6b3a2eda4acb5"><span class="__cf_email__" data-cfemail="80c2e9eee7e8e1edaecbe9ede2e5f2ecf9c0e5f0e1aee7eff6">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The supplemental information is organized in 
the following order:
I. Background
II. Why is EPA issuing this 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?
IV. Response to Comments received on the Proposed SIP call
V. Administrative Requirements

I. Background

    On November 15, 1990, Jefferson and Shelby Counties, Alabama, were 
designated as the Birmingham marginal ozone nonattainment area. Section 
182(f)(1)(A) of the CAA provides for an exemption for New Source Review 
offsets for nitrogen oxides (NO<INF>X</INF>) in ozone nonattainment 
areas where a state shows and EPA agrees that additional NO<INF>X</INF> 
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 NO<INF>X</INF> exemption under 
this statutory provision for the Birmingham marginal ozone 
nonattainment area (58 FR 45439).
    Section 107(d)(3)(E) of the CAA sets forth five specific 
requirements that states must include in a redesignation request in 
order for EPA to redesignate an area from nonattainment to attainment. 
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) is dated

[[Page 64353]]

September 4, 1992, and issued by the Director, Air Quality Management 
Division, Subject: Procedures for Processing Requests to Redesignate 
Areas to Attainment (Calcagni Memorandum).
    Based on three years of air quality data from 1991-1993, the 
Birmingham area attained the 1-hour ozone standard, 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 State of Alabama through ADEM submitted a request for redesignation 
of the Birmingham marginal ozone nonattainment area to attainment on 
March 16, 1995. In a letter dated February 15, 1995, addressing the 
prehearing submittal, EPA requested that ADEM submit supplemental 
information needed for the redesignation request to be approvable. ADEM 
submitted this supplemental information to EPA on July 21, 1995. A 
direct 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 contained a 30 day period for 
public comment on the redesignation request.
    Prior to publication of the document, EPA determined that the area 
registered a violation of the 1-hour ozone NAAQS based on an exceedance 
that occurred August 18, 1995. As a result, EPA directed the Office of 
Federal Register to recall the direct final rule 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 NO<INF>X</INF> 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 violations 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 revision that would 
provide for the attainment of the 1-hour ozone NAAQS. Because ADEM 
submitted the final commitment without Board adoption which prevented 
approval into the federally enforceable SIP, Region 4 informed the 
State that a SIP call would be initiated.
    The proposed rulemaking notice announcing the SIP call was 
published in the Federal Register on December 16, 1999, (See 64 FR 
70205). In that action, EPA proposed to require the State of Alabama to 
submit an attainment SIP within six months after final action is taken 
on the SIP call and to implement controls by May 2003.

II. Why is EPA Issuing This 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 
issuing this SIP call, because violations of the 1-hour ozone NAAQS 
have been recorded in the Birmingham area for the last several 3-year 
periods, which were 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 
plan as a SIP revision for the Birmingham area because EPA finds the 
current Alabama SIP inadequate to assure attainment and maintenance of 
the 1-hour ozone NAAQS. Also, in consideration of the length of time 
that has passed since the required attainment date of November 15, 
1993, the substantial air quality modeling already completed, and the 
ongoing discussions with ADEM, 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 
Revision Responding to This SIP Call?

    If EPA finds the State of Alabama has failed to submit a complete 
1-hour ozone attainment plan for the Birmingham nonattainment area as 
required by this SIP call, or disapproves the attainment plan, EPA will 
apply sanctions within 18 months of the finding as authorized by 
sections 110(m), 179(a)(1), and 179(a)(2) of the CAA. Sanctions 
available to EPA under section 179 of the CAA include highway sanctions 
and emission offsets. Pursuant to EPA implementing regulations at 40 
CFR 52.31, the emission offset sanction is applied first. 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 CAA sections 179(a) and (b)(1) 
and 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, CAA section 110(c) 
provides that EPA promulgate a federal implementation plan (FIP) no 
later than 24 months after a finding of failure to submit a SIP unless 
the State of Alabama has submitted and EPA has approved the attainment 
plan.

IV. Response to Comments Received on the Proposed SIP Call

    EPA received seventeen comments in response to the proposed SIP 
call. EPA compiled the comments into seven categories, and they are 
addressed below.
    Comment 1. ``Even though ADEM'' s regulatory development is short 
in comparison to most states, a minimum of six months is necessary from 
proposal to effective date. If, for example, significant comments are 
received, this process can be even longer. Moreover, a sufficient time 
period should be given to enable the stakeholder group to provide 
adequate input. Six months is simply not enough time to fully address 
the area's ozone problem.''
    Response: 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. EPA can allow up to 18 
months for a State to submit a plan, but has the discretion to 
determine what is a reasonable timeframe for submission of a plan in 
response to a SIP call. EPA believes that six months is reasonable. In 
a letter dated February 4, 1997, EPA requested that the State of 
Alabama provide a timeline identifying when a 1-hour attainment SIP 
would be submitted. In response, ADEM submitted a timeline in a letter 
dated March 13, 1997, that had a submission date for the 1-hour 
attainment SIP of March 1998. Because of several policy changes 
associated with the new 8-hour ozone standard, EPA requested 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. That

[[Page 64354]]

commitment included a final submittal date of September 1999. In 
consideration of the length of time that EPA has already spent working 
with ADEM in an effort to develop an attainment plan and the 
substantial air quality modeling already completed toward this end, EPA 
believes it is reasonable to require the State of Alabama to submit the 
attainment SIP in six months. ADEM prepared a draft attainment 
demonstration and submitted it to EPA on September 10, 1999. EPA 
submitted comments on the draft submittal, and ADEM submitted a revised 
attainment demonstration on April 21, 2000, in response to EPA's 
comments. The draft attainment demonstration would achieve the emission 
reductions through controls on power plants and a low sulfur fuel 
program. EPA Region 4 continues to work with ADEM to resolve all 
remaining issues with the draft plan to ensure that the regulations 
necessary for attainment are adopted in a timely fashion.
    Comment 2. ``The consultative requirements of our Conformity SIP 
require that the signatory parties be given an opportunity to comment 
on a draft SIP revision before undertaking the rulemaking process. This 
lengthens the time between EPA's preliminary approval of our draft SIP 
revision and the beginning of the formal rulemaking process.''
    Response: The transportation conformity interagency consultation 
process is continuous throughout the development of a SIP and 
transportation plans. Its purpose is to ensure that the transportation 
plan is developed in a manner that supports the state's efforts toward 
attainment/maintenance of the 1-hour ozone NAAQS. If consultation is 
conducted on a continual basis and issues are discussed up-front in the 
plan development stage, then it should not lengthen the rulemaking 
process. In fact, consultation should streamline it, by resolving 
issues early in the process. Formal concurrence by all interagency 
partners is not a prerequisite for the State to move forward in its SIP 
development and rulemaking.
    Comment 3. ``EPA has acknowledged the difficulties, both technical 
and procedural, in preparing approvable ozone attainment SIPs across 
the country by frequently extending submission and attainment times in 
other urban areas.''
    Response: EPA has provided flexibility for some areas with respect 
to SIP submission requirements and with attainment dates. In the early 
to mid-1990's, EPA was concerned that many areas in the eastern United 
States were having difficulty demonstrating attainment by the statutory 
deadline because of the potential transport of ozone and its precursors 
(volatile organic compounds (VOCs) and NO<INF>X</INF>) from other 
States. On March 2, 1995, EPA issued a policy document, entitled Ozone 
Attainment Demonstrations, providing that eastern states that 
participated in a process to assess regional transport could follow a 
two-phase submission process for attainment demonstrations for ozone 
nonattainment areas classified as serious or severe. The 37 easternmost 
states participated in this process, which was called the Ozone 
Transport Assessment Group (OTAG). OTAG also included representatives 
from industry, environmental groups, and academia. Over approximately 
two years, OTAG conducted studies and made recommendations to EPA. In 
response to OTAG recommendations, EPA called on twenty-two states and 
the District of Columbia to reduce emissions of NO<INF>X</INF> that 
were transported to other states (NO<INF>X</INF> SIP Call) , 63 FR 
57356 (October 27, 1998).
    In addition, EPA has issued guidance providing that an area that is 
affected by transport may receive an attainment date extension that 
reflects the time for the implementation of regional NO<INF>X</INF> 
reductions or the attainment date for any upwind nonattainment area 
that is the source of transport and that has a later attainment date.
    The policy concerning SIP submission dates for serious and severe 
areas is inapplicable here. The regional analysis that formed the basis 
for the two-phased approach for serious and severe areas has been 
completed since 1998. EPA addressed more fully in the response to 
comment 1, the factors EPA considered in determining the appropriate 
SIP submittal date for the Birmingham attainment demonstration.
    With respect to the attainment date for the Birmingham area, EPA is 
not setting an attainment date through this action. Alabama will need 
to establish an appropriate attainment date in its SIP submittal. At 
this time, EPA believes that the attainment demonstration for 
Birmingham should provide for attainment by November 2003, since EPA is 
unaware of any evidence that Birmingham is affected by transport from a 
nonattainment area with an attainment date later than 2003.
    Comment 4. ``A new local stakeholder group should be required and 
constituted which includes representatives from health, government, 
business, environmental, and public interests. This group will advise 
and provide input for the SIP. The potential exists for considerable 
local opposition to the plan if the public is not involved in the 
planning process.''
    Response: It is important to note that EPA does not require states 
to form a stakeholders group to assist with the development of SIPs, 
including attainment demonstrations. It is up to the state to decide 
whether or not to involve a stakeholder group. EPA does require that 
the State of Alabama hold a public hearing before submitting a final 
SIP. Therefore, the public will have an opportunity to provide input on 
the Birmingham 1-hour ozone attainment demonstration at the public 
hearing.
    Although not required, in 1997, ADEM did form an Advisory Committee 
to assist with the development of a control strategy for the Birmingham 
area. Representatives from ADEM, other State agencies, EPA, private 
industry, and other local stakeholders made up this Advisory Committee.
    Comment 5. ``EPA's delay in addressing the draft SIP has put the 
EPA desired compliance deadline of May 2003 in jeopardy for Alabama 
Power. Without an approved SIP, we are quickly reaching the point where 
a May 2003 compliance deadline is not possible at any reasonable cost. 
We have already had to postpone awarding a contract for required 
equipment and are in the process of rescheduling the planned unit 
outages. We have control over our unit outages, however the equipment 
implementation challenges aren't necessarily confined to internal 
resources. In fact, most critical paths pertain to external 
circumstances. There are many NO<INF>X</INF> control projects in the 
region, with many vying for the same supply materials, manufacturers, 
and labor. The more delay in obtaining an approved Alabama SIP from 
EPA, the longer it will take to procure these finite external 
resources.''
    Response: Alabama Power did not specify in its comment letter the 
types of controls that would be implemented at the two utility plants 
identified in the draft attainment demonstration. Even if Alabama Power 
chose a more complicated control to implement such as selective 
catalytic reduction, EPA has estimated that this control could be 
readily installed within 21 months which is within the timeframe to 
meet a 2003 compliance deadline. With respect to Alabama Power 
experiencing a delay due to the lack of supply materials, 
manufacturers, and labor, EPA examined each of these considerations and 
found that an adequate supply of each would be available. For a more 
detailed

[[Page 64355]]

discussion on all of this information, see the report released in 
September 1998, by the EPA Office of Air and Radiation, Acid Rain 
Division entitled, ``Feasibility of Installing NO<INF>X</INF> Control 
Technologies in 2003.'' The web address for the feasibility report is 
http://www.epa.gov/capi/ipm/npr.htm.
    Comment 6. ``The plan should address the underlying issues of 
transportation planning and sprawling development patterns that can 
result from unintelligent transportation investments. Thus, the plan 
should be comprehensive and incorporate a balanced portfolio of 
available control strategies. I agree that the State of Alabama should 
develop a plan that will solve the ozone pollution problem in Jefferson 
and Shelby counties. The plan needs to be comprehensive and must 
incorporate input from the public. The following elements should be 
included: all available control measures--including vehicle emissions 
testing and transportation control measures which were not included in 
the draft SIP revision.''
    Response: Birmingham is designated as a marginal nonattainment area 
for the ozone NAAQS. In marginal nonattainment areas, EPA does not 
require that vehicle emissions testing be used as a control measure. 
Further, EPA does not require states to implement any particular 
transportation control measures. To demonstrate attainment of the 
NAAQS, the State has the option of choosing between a variety of 
control measures. States are given this flexibility to ensure that the 
most effective and feasible control measures for the affected area are 
implemented. In its draft plan, Alabama has opted to place stricter 
standards on two utilities and to continue implementing its low sulfur 
fuel program. Alabama also adopted an emergency rule to require 
reformulated gasoline or a low sulfur fuel in 1998, to provide further 
reductions in ozone precursors in the Birmingham nonattainment area. 
Alabama's low sulfur fuel rule indirectly addresses concerns relating 
to the impact of mobile sources due to sprawl by requiring stricter 
standards for fuel. Further, on December 21, 1999, EPA finalized the 
Tier 2/Low Sulfur rules which place stricter standards on cars, light 
duty trucks and the fuel used to operate these vehicles. Under that 
program, cars will be cleaner nationwide starting in model year 2004.
    Comment 7. ``USEPA should call upon ADEM to educate and involve the 
public with respect to modeling of air quality conditions in the region 
and modeling of improvements to air quality resulting from alternative 
control strategies. As we are beginning to see in Atlanta, strategies 
to comply with air quality standards have become a complex computer 
modeling exercise unknown, and without USEPA intervention unknowable, 
to even the most attentive and interested stakeholders. A public 
education and involvement program focusing upon the modeling component 
of SIP development should condition any extension of the submittal 
date.''
    Response: ADEM and the Jefferson County Bureau of Environmental 
Health both have Education and Outreach programs that focus on 
educating the public on various issues including air quality modeling. 
EPA does not have the authority to require states to sponsor such 
education and outreach programs. However, EPA does support the outreach 
efforts of both ADEM and Jefferson County through the CAA section 105 
grant program, and encourages them to continue to work with and inform 
the public about air quality issues.

Final Action

    EPA finds that the State of Alabama's SIP is inadequate in that it 
fails to assure attainment and maintenance of the 1-hour ozone NAAQS 
for the Birmingham nonattainment area. To address this inadequacy, EPA 
is calling on the State of Alabama to submit a 1-hour ozone attainment 
plan as a SIP revision for the Birmingham nonattainment area within six 
months of the publication date of today's action. In addition, the 
sanctions contained in sections 179(a) and (b) of the CAA and in 40 CFR 
50.31 will apply in accordance with 40 CFR 50.31 if EPA determines that 
the State fails to submit the required attainment demonstration plan 
for Birmingham, or the State submits a plan that EPA finds is 
incomplete or that EPA disapproves.

V. 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 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Policies that have federalism implications defined in the Executive 
Order to include regulations that 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.
    This final rule does not have federalism implications. It will 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. In issuing this SIP Call, EPA is 
acting under section 110(k)(5), which requires the Agency to require a 
State to correct a deficiency that EPA has found in the State 
implementation plan (SIP). Through this action, EPA has determined that 
the Birmingham 1-hour ozone nonattainment area has been in violation of 
the 1-hour ozone NAAQS over the last several 3-year periods and is 
requiring the State to submit a plan demonstrating how the area can be 
brought back into attainment. This action calling on the State does not 
change the established relationship between the State and EPA under 
title I of the CAA. Under title I of the CAA States have the primary 
responsibility to develop plans to attain and maintain the NAAQS. The 
State has discretion to choose the control requirements necessary to 
bring the area into attainment with the NAAQS. Finally, this action 
will not impose substantial direct compliance costs. This action 
affects one area in one State. While the State will incur some costs to 
develop the plan, those costs are not expected to be substantial. 
Moreover, under section 105 of the CAA, the federal government supports 
the States' SIP development activities by providing partial funding of 
State programs for the prevention and control of air pollution. Thus, 
Executive Order 13132 does not apply to this rule. Although section 6 
of Executive Order 13132 does not apply to this rule, EPA did consult 
extensively with State and local officials regarding the requirements 
of this SIP Call as noted in section I and in response to comment 1 
above.

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

[[Page 64356]]

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 final 
rulemaking is not subject to Executive Order 13045 because it is not 
economically significant, nor does it involve decisions on 
environmental health or safety risks that may disproportionately affect 
children.

D. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    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 requires the State of Alabama to 
develop a SIP to attain the national ambient air quality standard for 
ozone for the Birmingham, Alabama, area. There are no tribal 
governments affected by this rulemaking. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

E. Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute 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 organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's final rulemaking 
on small entities, small entity is defined as: (1) A small business as 
defined in the Small Business Administration's (SBA) regulations at 13 
CFR 12.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    I certify that this action will not have a significant economic 
impact on a substantial number of small entities. The SIP Call does not 
establish any new requirements applicable to small entities. EPA is 
issuing this SIP call because it finds that the State of Alabama's SIP 
is inadequate to assure attainment and maintenance of the 1-hour ozone 
NAAQS for the Birmingham nonattainment area. In submitting its 1-hour 
ozone attainment plan SIP revisions as required by this SIP call, 
Alabama has discretion in formulating the components of that attainment 
plan.

F. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) (``UMRA''), establishes requirements for Federal agencies to assess 
the effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, 2 
U.S.C. 1532, EPA generally must prepare a written statement, including 
a cost-benefit analysis, for any proposed or final rule that ``includes 
any Federal mandate that may result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more * * * in any one year. A ``Federal mandate'' is 
defined under section 421(6), 2 U.S.C. 658(6), to include a ``Federal 
intergovernmental mandate'' and a ``Federal private sector mandate.'' A 
``Federal intergovernmental mandate,'' in turn, is defined to include a 
regulation that ``would impose an enforceable duty upon State, local, 
or tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i), 
except for, among other things, a duty that is ``a condition of Federal 
assistance,'' section 421(5)(A)(i)(I). A ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector,'' with certain exceptions, section 421(7)(A), 
2 U.S.C. 658(7)(A).
    EPA believes that it is questionable whether a requirement to 
submit a SIP revision constitutes a federal mandate. The obligation for 
a State to revise its SIP arises out of sections 110(a) and 110(k)(5) 
of the CAA and is not legally enforceable by a court of law, and at 
most is a condition for continued receipt of highway funds. Therefore, 
it is possible to view an action requiring such a submittal as not 
creating any enforceable duty within the meaning of section 
421(5)(9a)(I) of UMRA (2 U.S.C. 658(a)(I)). Even if it did, the duty 
could be viewed as falling within the exception for the condition of 
Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 
658(5)(a)(i)(I)).
    In addition, even if the obligation for a State to revise its SIP 
does create an enforceable duty within the meaning of UMRA, this SIP 
Call does not trigger section 202 of UMRA because the aggregate to the 
State, local, and tribal governments to comply are less than 
$100,000,000 in any one year. Because this SIP Call does not trigger 
section 202 of UMRA, the requirement in section 205 of UMRA that EPA 
identify and consider a reasonable number of regulatory alternatives 
and adopt to the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule is not applicable.
    Furthermore, EPA is not directly establishing any regulatory 
requirements that may significantly impact or uniquely affect small 
governments, including tribal governments. Thus, EPA is not obligated 
to develop under section 203 of UMRA a small government agency plan. 
Finally, with regard to the intergovernmental consultation provisions 
of section 204 of UMRA, EPA carried out numerous consultations with the 
State of Alabama over several years as noted in section I above and in 
response to comment 1.

G. Submission to Congress and the Comptroller General

    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

[[Page 64357]]

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. section 804(2).

H. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
of 1995 (NTTAA) 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.
    EPA believes that VCS are inapplicable to this action. Today's 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 December 26, 2000. Filing a 
petition for reconsideration by the Administrator of this final action 
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 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, Hydrocarbons, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and 
recordkeeping requirements.

    Dated: October 19, 2000.
Carol M. Browner,
Administrator.
    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

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

Subpart B--Alabama

    2. Section 52.66 is amended by designating the existing text as 
paragraph (a) and adding a new paragraph (b) to read as follows:


Sec. 52.66  Control Strategy: Ozone.

* * * * *
    (b) The State of Alabama is required to submit an attainment 
demonstration SIP for the Birmingham 1-hour ozone nonattainment area by 
April 27, 2000. For purposes of the SIP revision required by this 
section, EPA may make a finding as applicable under section 179(a)(1)-
(4) of the CAA, 42 U.S.C. 7509(a)(1)-(4), starting the sanctions 
process set forth in section 179(a) of the CAA. Any such finding will 
be deemed a finding under Sec. 52.31(c) and sanctions will be imposed 
in accordance with the order of sanctions and the terms for such 
sanctions established in Sec. 52.31.

[FR Doc. 00-27584 Filed 10-26-00; 8:45 am]
BILLING CODE 6560-50-U


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