

[Federal Register: January 25, 2006 (Volume 71, Number 16)]
[Proposed Rules]               
[Page 4077-4087]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja06-26]                         

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2005-AL-0003-200539; FRL-8024-6]

 
Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Alabama; Redesignation of 
the Birmingham 8-Hour Ozone Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

SUMMARY: On November 16, 2005, the State of Alabama, through the 
Alabama Department of Environmental Management (ADEM), submitted a 
request for parallel processing to redesignate the Birmingham 8-hour 
ozone nonattainment area (Birmingham area) to attainment for the 8-hour 
ozone National Ambient Air Quality Standard (NAAQS); and for EPA 
approval of an Alabama draft State Implementation Plan (SIP) revision 
containing a maintenance plan with a 2017 end year for the Birmingham 
area. The Birmingham area is composed of two counties, Jefferson and 
Shelby. EPA is proposing to approve the 8-hour ozone redesignation 
request for the Birmingham area. Additionally, EPA is parallel 
processing the redesignation request and draft 8-hour ozone maintenance 
plan SIP revision for the Birmingham area (a required component of any 
redesignation to attainment) and is proposing approval of this draft 
maintenance plan because EPA has determined that the draft plan 
complies with the requirements of Section 175A of the Clean Air Act 
(CAA).
    This proposed approval is based on EPA's determination that Alabama 
has demonstrated that the Birmingham area has met the criteria for 
redesignation to attainment specified in the CAA, including the 
determination that the entire Birmingham area has attained the 8-hour 
ozone standard. In this action, EPA is also providing information on 
the status of its transportation conformity adequacy determination for 
the new motor vehicle emissions budgets (MVEBs) for the year 2017 that 
is contained in the 8-hour ozone maintenance plan for the Birmingham 
area. EPA is proposing to approve the 2017 MVEBs.

DATES: Written comments must be received on or before February 24, 
2006.

ADDRESSES: Submit your comments, identified Docket ID No. EPA-R04-OAR-
2005-AL-0003, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    2. E-mail: lakeman.sean@epa.gov.
    3. Fax: 404.562.9019.
    4. Mail: ``EPA-R04-OAR-2005-AL-0003'', 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.
    5. Hand Delivery or Courier. Deliver your comments to: Sean Lakeman 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division 12th floor, 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-
2005-AL-0003''. 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,


[[Page 4078]]

information that you consider to be CBI or otherwise protected. The 
http://www.regulations.gov Web site is an ``anonymous access'' system, 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 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 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 legal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, 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) 
562-9043. Mr. Lakeman can also be reached via electronic mail at 
lakeman.sean@epa.gov.


SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Proposed Actions Is EPA Taking?
II. What Is the Background for the Proposed Actions?
III. What Are the Criteria for Redesignation?
IV. Why Is EPA Proposing These Actions?
V. What Is the Effect of EPA's Proposed Actions?
VI. What Is EPA's Analysis of the Request?
VII. What Is An Adequacy Determination and What Is the Status of 
EPA's Adequacy Determination for the Birmingham 8-Hour Ozone 
Maintenance Area's New MVEBs for the Year 2017?
VIII. Proposed Actions on the Redesignation Request and Maintenance 
Plan SIP Revision Including Proposed Approval of the 2017 MVEBs
IX. Statutory and Executive Order Reviews

I. What Proposed Actions Is EPA Taking?

    Through this rulemaking, EPA is proposing to take several related 
actions. The Birmingham area is a basic 8-hour nonattainment ozone area 
and is composed of two counties, Jefferson and Shelby. EPA is proposing 
to determine that the Birmingham area has attained the 8-hour ozone 
standard, and has met the requirements for redesignation under section 
107(d)(3)(E) of the CAA. EPA is proposing to approve the redesignation 
request to change the legal designation of the Birmingham area from 
nonattainment to attainment for the 8-hour ozone NAAQS.
    EPA is also proposing to approve Alabama's 8-hour ozone maintenance 
plan for the Birmingham area (such approval being one of the CAA 
criteria for redesignation to attainment status). The maintenance plan 
is designed to help keep the Birmingham area in attainment for the 8-
hour ozone NAAQS through 2017.
    Additionally, through this rulemaking, EPA is announcing the status 
of EPA's Adequacy Process for the newly-established 2017 MVEBs for the 
Birmingham area. The Adequacy comment period for the 2017 MVEBs began 
on November 17, 2005, with EPA's posting of the availability of this 
submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/transp/conform/adequacy.htm
). The Adequacy comment period for the 2017 

MVEBs closed on December 19, 2005. No requests or adverse comments on 
this submittal were received during EPA's Adequacy comment period. EPA 
is proposing to approve the 2017 MVEBs. Please see section VII of this 
rulemaking for further explanation of this process.

II. What Is the Background for the Proposed Actions?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of nitrogen oxides (NOX) and volatile organic 
compounds (VOCs) react in the presence of sunlight to form ground-level 
ozone. NOX and VOC are referred to as precursors of ozone. 
The CAA establishes a process for air quality management through the 
NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This new standard is more stringent 
than the previous 1-hour ozone standard. Under EPA regulations at 40 
CFR part 50, the 8-hour ozone standard is attained when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ambient air quality ozone concentrations is less than or equal to 0.08 
ppm (i.e. 0.084 ppm when rounding is considered). (See 69 FR 23857 
(April 30, 2004) for further information). Ambient air quality 
monitoring data for the 3-year period must meet a data completeness 
requirement. The ambient air quality monitoring data completeness 
requirement is met when the average percent of days with valid ambient 
monitoring data is greater than 90 percent, and no single year has less 
than 75 percent data completeness as determined in Appendix I of part 
50. Specifically, section 2.3 of 40 CFR part 50, Appendix I, 
``Comparisons with the Primary and Secondary Ozone Standards'' states:

    The primary and secondary ozone ambient air quality standards 
are met at an ambient air quality monitoring site when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentration is less than or equal to 0.08 ppm. The number of 
significant figures in the level of the standard dictates the 
rounding convention for comparing the computed 3-year average annual 
fourth-highest daily maximum 8-hour average ozone concentration with 
the level of the standard. The third decimal place of the computed 
value is rounded, with values equal to or greater than 5 rounding 
up. Thus, a computed 3-year average ozone concentration of 0.085 ppm 
is the smallest value that is greater than 0.08 ppm.

    The CAA required EPA to designate as nonattainment any area that 
was violating the 8-hour ozone NAAQS based on the three most recent 
years of ambient air quality data. The Birmingham 8-hour ozone 
nonattainment area was designated using 2001 to 2003 ambient air 
quality data. The Federal Register document making these designations 
was signed on April 15, 2004, and published on

[[Page 4079]]

April 30, 2004, (69 FR 23857). The CAA contains two sets of 
provisions--subpart 1 and subpart 2--that address planning and control 
requirements for ozone nonattainment areas. (Both are found in title I, 
part D.) Subpart 1 (which EPA refers to as ``basic'' nonattainment) 
contains general, less prescriptive, requirements for nonattainment 
areas for any pollutant--including ozone--governed by a NAAQS. Subpart 
2 (which EPA refers to as ``classified'' nonattainment) provides more 
specific requirements for certain ozone nonattainment areas. Some 8-
hour ozone nonattainment areas are subject only to the provisions of 
subpart 1. Other 8-hour ozone nonattainment areas are also subject to 
the provisions of subpart 2. Under EPA's Phase I 8-hour ozone 
implementation rule (69 FR 23857), signed on April 15, 2004, an area 
was classified under subpart 2 based on its 8-hour ozone design value 
(i.e., the 3-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentrations), if it had a 1-hour design value at 
or above 0.121 ppm (the lowest 1-hour design value in Table 1 of 
subpart 2). All other areas are covered under subpart 1, based upon 
their 8-hour ambient air quality design values. The Birmingham area was 
originally designated as a ``basic'' 8-hour ozone nonattainment area by 
EPA on April 30, 2004, (69 FR 23857) and is subject to subpart 1 of 
part D. In 2005, the ambient ozone data for the Birmingham 
nonattainment area indicated no further violations of the 8-hour ozone 
standard, using data from the 3-year period of 2003-2005 (with the 
2003-2005 design value of 0.084 ppm), to demonstrate attainment.
    On November 16, 2005, Alabama requested redesignation to attainment 
for the 8-hour ozone standard for the Birmingham area. The 
redesignation request includes three years of complete, quality-assured 
ambient air quality data for the ozone seasons of 2003 through 2005, 
indicating the 8-hour ozone NAAQS had been achieved for the Birmingham 
area. The ozone season for this area is from April 1 until October 31 
of a calendar year. Under the CAA, nonattainment areas may be 
redesignated to attainment if sufficient, complete, quality-assured 
data is available for the Administrator to determine that the area has 
attained the standard and the area meets the other CAA redesignation 
requirements in section 107(d)(3)(E).

III. What Are the Criteria for Redesignation?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) allows for 
redesignation providing that: (1) The Administrator determines that the 
area has attained the applicable NAAQS; (2) the Administrator has fully 
approved the applicable implementation plan for the area under section 
110(k); (3) the Administrator determines that the improvement in air 
quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable SIP and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions; (4) the Administrator has fully approved a 
maintenance plan for the area as meeting the requirements of section 
175A; and, (5) the State containing such area has met all requirements 
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

1. ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, June 18, 1990;
2. ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
3. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
4. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
5. ``State Implementation Plan (SIP) Actions Submitted in Response 
to Clean Air Act (ACT) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
6. ``Technical Support Documents (TSD's) for Redesignation of Ozone 
and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G.T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
7. ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) 
On or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 
17,1993;
8. ``Use of Actual Emissions in Maintenance Demonstrations for Ozone 
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting 
Director, Air Quality Management Division, November 30, 1993;
9. ``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
10. ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

IV. Why Is EPA Proposing These Actions?

    On November 16, 2005, Alabama requested redesignation of the 
Birmingham area to attainment for the 8-hour ozone standard. EPA 
believes that Alabama has demonstrated that the Birmingham area has 
attained the standard and has met the requirements for redesignation 
set forth in section 107(d)(3)(E) of the CAA.

V. What Is the Effect of EPA's Proposed Actions?

    Approval of this redesignation request would change the official 
designation of the Birmingham area for the 8-hour ozone NAAQS found at 
40 CFR part 81. It would also incorporate into the Alabama SIP a plan 
for maintaining the 8-hour ozone NAAQS in the area through 2017. The 8-
hour ozone maintenance plan includes contingency measures to remedy 
future violations of the 8-hour ozone NAAQS, and establishes MVEBs of 
23 tons per day (tpd) for VOC, and 42 tpd for NOX for the 
year 2017.

VI. What Is EPA's Analysis of the Request?

    EPA is proposing to determine that the Birmingham 8-hour ozone 
nonattainment area has attained the 8-hour ozone standard, and that all 
redesignation criteria have been met. The basis for EPA's determination 
is as follows:
    (1) The Birmingham area has attained the 8-hour ozone NAAQS.
    EPA is proposing to determine that the area has attained the 8-hour 
ozone NAAQS. For ozone, an area may be considered to be attaining the 
8-hour ozone NAAQS if there are no violations, as determined in 
accordance with 40 CFR 50.10 and Appendix I of part 50, based on three 
complete, consecutive calendar years of quality-assured air quality 
monitoring data. To attain this standard, the 3-year average of the 
fourth-highest daily maximum 8-hour average ozone concentrations 
measured at each monitor within an area over

[[Page 4080]]

each year must not exceed 0.08 ppm. Based on the rounding convention 
described in 40 CFR part 50, Appendix I, the standard is attained if 
the design value is 0.084 ppm or below. The data must be collected and 
quality-assured in accordance with 40 CFR part 58, and recorded in the 
EPA Air Quality System (AQS). The monitors generally should have 
remained at the same location for the duration of the monitoring period 
required for demonstrating attainment.
    ADEM submitted ozone monitoring data from ten ambient ozone 
monitoring stations in the Birmingham area for the ozone seasons from 
2003 to 2005. This data has been quality assured and is recorded in 
AQS. The fourth high averages for 2003, 2004 and 2005, and the 3-year 
average of these values (i.e. design value), are summarized in the 
following table:

                                                  8-Hour Ozone
                                            [Parts per million, ppm]
----------------------------------------------------------------------------------------------------------------
                                                                              4th high 8-hr ozone average
                                                                     -------------------------------------------
                 Monitor                            County                                               3-year
                                                                         2003       2004       2005     average
----------------------------------------------------------------------------------------------------------------
Fairfield...............................  Jefferson.................      0.075      0.070      0.081      0.075
McAdory.................................  Jefferson.................      0.073      0.073      0.085      0.077
Hoover..................................  Jefferson.................      0.077      0.077      0.085      0.079
Pinson..................................  Jefferson.................      0.081      0.068      0.072      0.073
Tarrant.................................  Jefferson.................      0.075      0.068      0.084      0.075
Corner..................................  Jefferson.................      0.077      0.068      0.077      0.074
Providence..............................  Jefferson.................      0.070      0.070      0.079      0.073
N. Birmingham...........................  Jefferson.................      0.068      0.070      0.079      0.072
Leeds...................................  Jefferson.................      0.070      0.073      0.071      0.071
Helena..................................  Shelby....................      0.083      0.084      0.085      0.084
----------------------------------------------------------------------------------------------------------------

    The design value for an area is the highest design value recorded 
at any monitor in the area. Therefore, the design value for the 
Birmingham area is 0.084 ppm, which meets the standard as described 
above.
    ADEM has also committed to continue monitoring in these areas in 
accordance with 40 CFR part 58. In summary, EPA believes that the data 
submitted by Alabama provides an adequate demonstration that the 
Birmingham 8-hour ozone nonattainment area has attained the 8-hour 
ozone NAAQS.
    (2) Alabama has a fully approved SIP under section 110(k) for the 
Birmingham area and
    (5) Alabama has met all applicable requirements under section 110 
and part D of the CAA.
    Below is a summary of how these two criteria were met.
    EPA has determined that Alabama has met all applicable SIP 
requirements for purposes of redesignation for the Birmingham area 
under section 110 of the CAA (general SIP requirements). EPA has also 
determined that the Alabama SIP satisfies the criterion that it meets 
applicable SIP requirements for purposes of redesignation under part D 
of title I of the CAA (requirements specific to subpart 1 basic 8-hour 
ozone nonattainment areas) in accordance with section 107(d)(3)(E)(v). 
In addition, EPA has determined that the SIP is fully approved with 
respect to all applicable requirements for purposes of redesignation in 
accordance with section 107(d)(3)(E)(ii). In making these 
determinations, EPA ascertained which requirements are applicable to 
the area for purposes of redesignation and that if applicable they are 
fully approved under section 110(k). SIPs must be fully approved only 
with respect to applicable requirements.
    a. Alabama has met all applicable requirements under section 110 
and part D of the CAA.
    The September 4, 1992, Calcagni memorandum (see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E). Under this interpretation, to qualify for redesignation, 
states requesting redesignation to attainment must meet only the 
relevant CAA requirements that come due prior to the submittal of a 
complete redesignation request. See also Michael Shapiro memorandum, 
September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) 
(redesignation of Detroit-Ann Arbor, MI). Applicable requirements of 
the CAA that come due subsequent to the area's submittal of a complete 
redesignation request remain applicable until a redesignation is 
approved, but are not required as a prerequisite to redesignation. See 
section 175A(c) of the CAA; Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 
2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. 
Louis, Missouri).
    General SIP requirements: Section 110(a)(2) of title I of the CAA 
delineates the general requirements for a SIP, which include 
enforceable emissions limitations and other control measures, means, or 
techniques, provisions for the establishment and operation of 
appropriate devices necessary to collect data on ambient air quality, 
and programs to enforce the limitations. General SIP elements and 
requirements are delineated in section 110(a)(2) of title I, part A of 
the CAA. These requirements include, but are not limited to, the 
following: Submittal of a SIP that has been adopted by the state after 
reasonable public notice and hearing; provisions for establishment and 
operation of appropriate procedures needed to monitor ambient air 
quality; implementation of a source permit program; provisions for the 
implementation of part C requirements (Prevention of Significant 
Deterioration (PSD)) and provisions for the implementation of part D 
requirements (New Source Review (NSR) permit programs); provisions for 
air pollution modeling; and provisions for public and local agency 
participation in planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a state from significantly contributing to air 
quality problems in another state. To implement this provision, EPA has 
required certain states to establish programs to address the transport 
of air pollutants (NOX SIP Call, Clean Air Interstate Rule 
(CAIR)).

[[Page 4081]]

However, the section 110(a)(2)(D) requirements for a state are not 
linked with a particular nonattainment area's designation and 
classification in that state. EPA believes that the requirements linked 
with a particular nonattainment area's designation and classification 
are the relevant measures to evaluate in reviewing a redesignation 
request. The transport SIP submittal requirements, where applicable, 
continue to apply to a state regardless of the designation of any one 
particular area in the state.
    Thus, we do not believe that these requirements should be construed 
to be applicable requirements for purposes of redesignation. In 
addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The State will still be subject to these requirements 
after the area is redesignated. The section 110 and part D 
requirements, which are linked with a particular area's designation and 
classification, are the relevant measures to evaluate in reviewing a 
redesignation request. This approach is consistent with EPA's existing 
policy on applicability of conformity (i.e. for redesignations) and 
oxygenated fuels requirements, as well as with section 184 ozone 
transport requirements. See Reading, Pennsylvania, proposed and final 
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 
1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 
7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, 
December 7, 1995). See also the discussion on this issue in the 
Cincinnati redesignation (65 FR 37890, June 19, 2000), and in the 
Pittsburgh redesignation (66 FR 50399, October 19, 2001).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Any section 110 requirements that are linked to the Part D requirements 
for 8-hour ozone nonattainment areas are not yet due, since, as 
explained below, no Part D requirements applicable for purposes of 
redesignation under the 8-hour standard became due prior to submission 
of the redesignation request. Therefore, as discussed above, for 
purposes of redesignation, they are not considered applicable 
requirements.
    EPA has previously approved general requirements in the Alabama SIP 
addressing section 110 elements (May 31, 1972, 37 FR 10842).
    Part D requirements: EPA has also determined that the Alabama SIP 
meets applicable SIP requirements under part D of the CAA since no 
requirements applicable for purposes of redesignation became due prior 
to submission of the area's redesignation request. Sections 172-176 of 
the CAA, found in subpart 1 of part D, set forth the basic 
nonattainment requirements applicable to all nonattainment areas. 
Section 182 of the CAA, found in subpart 2 of part D, establishes 
additional specific requirements depending on the area's nonattainment 
classification. Subpart 2 is not applicable to the Birmingham area.
    Part D, subpart 1 applicable SIP requirements: For purposes of 
evaluating this redesignation request, the applicable part D, subpart 1 
SIP requirements for all nonattainment areas are contained in sections 
172(c)(1)-(9). A thorough discussion of the requirements contained in 
section 172 can be found in the General Preamble for Implementation of 
Title I (57 FR 13498). No requirements applicable for purposes of 
redesignation under part D became due prior to submission of the 
redesignation request, and therefore none is applicable to the area for 
purposes of redesignation. For example, the requirements for an 
attainment demonstration that meets the requirements of section 
172(c)(1) are not yet applicable, nor are the requirements for 
Reasonably Achievable Control Technology (RACT) and Reasonably 
Available Control Measures (RACM) (section 172(c)(1)), Reasonable 
Further Progress (RFP) (section 172(c)(2)), and contingency measures 
(section 172(c)(9)).
    In addition to the fact that no part D requirements applicable for 
purposes of redesignation became due prior to submission of the 
redesignation request and therefore are not applicable, EPA believes it 
is reasonable to interpret the conformity and NSR requirements as not 
requiring approval prior to redesignation.
    Section 176 Conformity Requirements: Section 176(c) of the CAA 
requires states to establish criteria and procedures to ensure that 
Federally supported or funded projects conform to the air quality 
planning goals in the applicable SIP. The requirement to determine 
conformity applies to transportation plans, programs and projects 
developed, funded or approved under title 23 of the United States Code 
and the Federal Transit Act (``transportation conformity'') as well as 
to all other Federally supported or funded projects (``general 
conformity''). State conformity revisions must be consistent with 
Federal conformity regulations relating to consultation, enforcement 
and enforceability that the CAA required the EPA to promulgate. EPA 
believes it is reasonable to interpret the conformity SIP requirements 
as not applying for purposes of evaluating the redesignation request 
under section 107(d) because state conformity rules are still required 
after redesignation and Federal conformity rules apply where state 
rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 
2001), upholding this interpretation. See also 60 FR 62748 (Dec. 7, 
1995, Tampa, FL).
    EPA has also determined that areas being redesignated need not 
comply with the requirement that a NSR program be approved prior to 
redesignation, provided that the area demonstrates maintenance of the 
standard without part D NSR in effect since PSD requirements will apply 
after redesignation. The rationale for this view is described in a 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation, dated October 14, 1994, entitled ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment.'' 
Alabama has demonstrated that the area will be able to maintain the 
standard without part D NSR in effect, and therefore, Alabama need not 
have a fully approved part D NSR program prior to approval of the 
redesignation request. Alabama's PSD program will become effective in 
the area upon redesignation to attainment. See rulemakings for Detroit, 
MI (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, OH (61 
FR 20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, October 
23, 2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996). 
Thus, the area has satisfied all requirements applicable for purposes 
of redesignation under section 110 and part D of the CAA.
    b. The area has a fully approved applicable SIP under section 
110(k) of the CAA.
    EPA has fully approved the applicable Alabama SIP for the 
Birmingham area under section 110(k) of the Clean Air Act for all 
requirements applicable for purposes of redesignation. EPA may rely on 
prior SIP approvals in approving a redesignation request, see Calcagni 
Memo at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 
F.3d 984, 989-90 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 
2001); plus any additional measures it may approve in conjunction with 
a redesignation action. See 68 FR 25426 (May 12, 2003) and citations 
therein.

[[Page 4082]]

Following passage of the CAA of 1970, Alabama has adopted and 
submitted, and EPA has fully approved at various times, provisions 
addressing section 110 elements under the 1-hour standard applicable in 
the Birmingham area (May 31, 1972, 37 FR 10842).
    As indicated above, EPA believes that the section 110 elements not 
connected with nonattainment plan submissions and not linked to the 
area's nonattainment status are not applicable requirements for 
purposes of redesignation. EPA also believes that since the part D 
requirements applicable for purposes of redesignation did not become 
due prior to submission of the redesignation request, they also are 
therefore not applicable requirements for purposes of redesignation.
    (3) The air quality improvement in the Birmingham 8-hour ozone area 
is due to permanent and enforceable reductions in emissions resulting 
from implementation of the SIP and applicable Federal air pollution 
control regulations and other permanent and enforceable reductions.
    EPA believes that Alabama has demonstrated that the observed air 
quality improvement in the area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP, 
Federal measures, and other state-adopted measures. EPA has determined 
that the implementation of the following permanent and enforceable 
emissions controls have reduced local NOX and VOC emissions 
and brought the area into attainment during 2003-2005:
    The Reid Vapor Pressure (RVP) Control Program--gasoline sold from 
June 1st until September 15th of each year, in Jefferson and Shelby 
Counties was required to have a RVP no greater than 7.0 pounds per 
square inch (psi).
    Since 2003, utility NOX controls on Alabama Power 
Company plants Gorgas (in Jefferson Co.) and Miller (in Shelby Co.) 
have been required for the period of May 1st to September 30th each 
year. NOX emission limitations have been established at 0.21 
lb/mmbtu for the two plants, based on a rolling 30-day average.
    Alabama's NOX SIP Call established a NOX 
budget from 2004 and beyond for large industrial sources such as 
boilers, turbines, and electric generating units that are subject to 
the NOX SIP Call.
    EPA has implemented several programs that have resulted in reduced 
emissions in recent years. For cars and light trucks, EPA has 
instituted the National Low Emissions Vehicles (NLEV) program, which 
went into effect nationally in 2001, and EPA's Tier 2 rules, which went 
into effect in 2004. In addition, Tier 2 standards for nonroad diesel 
engines were phased in between 2001 and 2004. Over time the phase-in of 
these programs has resulted in reductions in emissions as new vehicles 
have replaced older, higher-polluting vehicles. Further reductions have 
occurred as a result of further implementation of EPA standards for 
small spark-ignited engines (e.g. lawnmowers) and locomotives. The 
heavy duty highway truck engine rule also implemented reductions 
beginning in 2004.
    EPA promulgated the Tier 2 Motor Vehicle Emissions Standards and 
Gasoline Sulfur Control Requirements in 2000 (65 FR 6697).
    In addition to the reductions mentioned above, the State of Alabama 
is also relying on the following controls to maintain the 8-hour 
standard:

1. Onboard Refueling Vapor Recovery for Light-Duty Vehicles
2. Federal Non-road Diesel Engine Standards
3. Federal Marine Engine Requirements
4. Federal Locomotive Requirements
5. Consumer Solvents Requirements
6. Architectural and Industrial Maintenance Coatings Requirements
7. Automobile Refinishing Requirements
8. The National Emission Standards for Hazardous Air Pollutants 
(NESHAP); the majority of which are also VOCs
9. Phase II Acid Rain Program for NOX
10. Clean Air Interstate Rule (CAIR)
11. NOX SIP Call Phase II
12. Highway Diesel Fuel Sulfur Requirements

    Alabama has demonstrated that the implementation of permanent and 
enforceable emissions controls have reduced local VOC and 
NOX emissions. Alabama has also demonstrated that year-to-
year meteorological changes and trends have an impact on ozone 
precursor emissions and the formation of ozone but, that they are not 
the likely source of the overall, long-term improvement in ozone 
levels. EPA believes that permanent and enforceable emissions 
reductions in and surrounding the nonattainment area are the cause of 
the long-term improvement in ozone levels, and resulted in the area 
achieving attainment of the 8-hour ozone standard. Jefferson County 
alone has reduced point source NOX emissions by 37 percent 
from 2002 to 2004 and will reduce them by 65 percent by 2017. The whole 
area has reduced the total NOX emissions by 22 percent from 
2002 to 2004 and will reduce them by 45 percent by 2017. Additional 
reductions from outside the Birmingham area will be realized as the 
above programs are implemented throughout the State.

                     NOX Emissions From 2002 to 2004
                       [Tons per Summer Day, tpsd]
------------------------------------------------------------------------
              County/source category                   2002       2004
------------------------------------------------------------------------
Jefferson:
    Point.........................................        110         69
    Area..........................................          3          3
    Non-road......................................         18         17
                                                   ------------
        Total.....................................        131         89
                                                   ============
Shelby:
    Point.........................................         97         94
    Area..........................................          1          1
    Non-road......................................          6          6
                                                   ------------
        Total.....................................        104        101
                                                   ============
Total for the Birmingham area:
    Point.........................................        207        163
    Area..........................................          4          4
    Mobile........................................         57         54

[[Page 4083]]


    Non-road......................................         24         23
                                                   ------------
        Total.....................................        292        244
------------------------------------------------------------------------

    (4) The area has a fully approved maintenance plan pursuant to 
section 175A of the CAA.
    In conjunction with its request to redesignate the Birmingham 8-
hour ozone nonattainment area to attainment status, ADEM submitted a 
SIP revision to provide for the maintenance of the 8-hour ozone NAAQS 
in the Birmingham area for at least 10 years after the effective date 
of redesignation to attainment. Alabama requested that EPA ``parallel 
process'' the redesignation request and maintenance plan SIP revision. 
Under this procedure, the Regional Office works closely with Alabama 
while developing new or revised regulations. The State submits a copy 
of the proposed regulation or other revisions to EPA before conducting 
its public hearing. EPA reviews this proposed State action, and 
prepares a notice of proposed rulemaking. EPA's notice of proposed 
rulemaking is published in the Federal Register between the time frame 
Alabama submits its prehearing and final submittal. Alabama and EPA 
then provide for public comment periods on both the State action and 
the Federal action.
    After Alabama submits the final request and State-effective SIP 
revision (including a response to all public comments raised during the 
State's public participation process, and the approved maintenance plan 
for the Birmingham area), EPA will prepare a final rulemaking notice on 
the redesignation request and maintenance plan SIP revision. If 
Alabama's formal maintenance plan SIP revision contains changes which 
occur after EPA's notice of proposed rulemaking, such changes must be 
described in EPA's final rulemaking action. If Alabama's changes are 
significant, then EPA must decide whether it is appropriate to re-
propose the State's maintenance plan SIP revision action. In addition, 
if Alabama's final maintenance plan SIP revision changes significantly 
and/or is disapprovable in its final form, EPA will also not take final 
action to approve the Birmingham redesignation request because the 
existence of a fully EPA-approved maintenance plan is a necessary 
criterion for redesignation to attainment status.

a. What Is Required in a Maintenance Plan?

    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after the Administrator 
approves a redesignation to attainment. Eight years after the 
redesignation, Alabama must submit a revised maintenance plan which 
demonstrates that attainment will continue to be maintained for the 10 
years following the initial 10-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation as EPA deems 
necessary to assure prompt correction of any future 8-hour ozone 
violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memorandum, dated September 4, 1992, provides 
additional guidance on the content of a maintenance plan. An ozone 
maintenance plan should address five requirements: the attainment 
emissions inventory, maintenance demonstration, monitoring, 
verification of continued attainment, and a contingency plan.

b. Attainment Emissions Inventory

    Point source emissions were obtained for calendar year 2004 as a 
result of the annual data obtained from regulated facilities and 
projected to 2009, 2015 and 2017. Non-road mobile emissions were 
calculated using the most recent non-road model. On-road mobile source 
emissions were calculated using MOBILE 6.2 for 2004 and three horizon 
years, 2009, 2015 and 2017. Area source emissions were grown from the 
2002 National Emissions Inventory for 2004, 2009, 2015 and 2017. The 
maintenance plan establishes an attainment inventory for the year 2004. 
This attainment inventory identifies the level of emissions in the area 
which is sufficient to attain the 8-hour ozone standard.

c. Maintenance Demonstration

    The November 16, 2005, submittal includes a maintenance plan with a 
2017 end year for the Birmingham area. This demonstration:
    (i) Shows compliance and maintenance of the 8-hour ozone standard 
by assuring that current and future emissions of VOC and NOX 
remain at or below attainment year 2004 emissions levels. The year 2004 
was chosen as the attainment year because it is one of the most recent 
three years (i.e., 2003, 2004, and 2005) for which the Birmingham area 
has clean air quality data for the 8-hour ozone standard.
    (ii) Uses 2004 as the attainment year and includes future inventory 
projected years for 2009, 2015, and 2017.
    (iii) Identifies an ``out year'' at least 10 years after the time 
necessary for EPA to review and approve the maintenance plan. Per 40 
CFR part 93, MVEBs were established for the last year of the 
maintenance plan. See section VII below.
    (iv) Provides the following actual and projected emissions 
inventories for the Birmingham area.

                           NOX Emissions TPSD
------------------------------------------------------------------------
   County/source category        2004       2009       2015       2017
------------------------------------------------------------------------
Jefferson:
    Point...................         69         45         48         49
    Area....................          3          4          4          4

[[Page 4084]]


    Non-road................         17         14         11         10
                             ------------
        Total...............         89         63         63         63
                             ============
Shelby:
    Point...................         94         69         72         73
    Area....................          1          1          1          1
    Non-road................          6          5          4          4
                             ------------
        Total...............        101         75         77         78
                             ============
Total for the Birmingham
 area:
    Point...................        163        114        120        122
    Area....................          4          5          5          5
    Mobile \1\..............         54         39         24         21
    Non-road................         23         19         15         14
                             ------------
        Total...............        244        177        164        162
                             ============
2004 NOX Safety Margin *....  .........         67         80        82
------------------------------------------------------------------------
* After assigning 21 tpsd of the NOX safety margin to the NOX MVEB, the
  revised 2017 NOX safety margin will be 61 tpsd.
\1\ Since the transportation network is based on the two-County
  (Jefferson and Shelby) area, mobile source emissions were not broken
  out by county.


                           VOC Emissions TPSD
------------------------------------------------------------------------
   County/source category        2004       2009       2015       2017
------------------------------------------------------------------------
Jefferson:
    Point...................         13         14         17         18
    Area....................         57         47         51         52
    Non-road................         10          8          7          7
                             ------------
        Total...............         80         69         75         77
                             ============
Shelby:
    Point...................          2          2          2          2
    Area....................         11          9          9         10
    Non-read................          5          4          4          3
                             ------------
        Total...............         18         15         15         15
                             ============
Total for the Birmingham NA:
    Point...................         15         16         19         20
    Area....................         68         56         60         62
    Mobile \2\..............         32         28         20         19
    Non-road................         15         12         11         10
                             ------------
        Total...............        130        112        110        111
                             ============
2004 VOC Safety Margin *....  .........         18         20        19
------------------------------------------------------------------------
* After assigning 4 tpsd of the VOC safety margin to the VOC MVEB, the
  revised 2017 VOC safety margin will be 15 tpsd.
\2\ Since the transportation network is based on the two-County
  (Jefferson and Shelby) area, mobile source emissions were not broken
  out by county.

    A safety margin is the difference between the attainment level of 
emissions (from all sources) and the projected level of emissions (from 
all sources) in the maintenance plan. The attainment level of emissions 
is the level of emissions during one of the years in which the area met 
the NAAQS.

d. Monitoring Network

    There are currently ten monitors measuring ozone, located within 
Jefferson and Shelby Counties which provide air quality data for the 
entire Birmingham area. Alabama has committed in the maintenance plan 
to continue operation of the ozone monitors in compliance with 40 CFR 
part 58, and has addressed the requirement for monitoring.

e. Verification of Continued Attainment

    Alabama has the legal authority to enforce and implement the 
requirements of the ozone maintenance plan for the Birmingham area. 
This includes the authority to adopt, implement and enforce any 
subsequent emissions control contingency measures determined to be 
necessary to correct future ozone attainment problems.
    Alabama will track the progress of the maintenance plan by 
performing future reviews of actual emissions for the area using the 
latest emissions factors, models and methodologies. For the purpose of 
verifying continued attainment based upon the emissions inventory, 
major point sources of air

[[Page 4085]]

pollution will continue to submit data on an annual basis and area and 
mobile sources will continue to be quantified on a three-year cycle. 
The next overall emissions inventory will be compiled for 2005. For 
these periodic inventories, Alabama will review the assumptions made 
for the purpose of the maintenance demonstration concerning projected 
growth of activity levels. If any of these assumptions result in future 
growth greater than or equal to 10 percent, Alabama will re-project 
emissions and reassess the area's ability to maintain attainment.

f. Contingency Plan

    The contingency plan provisions are designed to promptly correct a 
violation of the NAAQS that occurs after redesignation. Section 175A of 
the CAA requires that a maintenance plan include such contingency 
measures as EPA deems necessary to assure that Alabama will promptly 
correct a violation of the NAAQS that occurs after redesignation. The 
maintenance plan should identify the contingency measures to be 
adopted, a schedule and procedure for adoption and implementation, and 
a time limit for action by the state. A state should also identify 
specific indicators to be used to determine when the contingency 
measures need to be implemented. The maintenance plan must include a 
requirement that a state will implement all measures with respect to 
control of the pollutant that were contained in the SIP before 
redesignation of the area to attainment in accordance with section 
175A(d).
    In the November 16, 2005, submittal, Alabama commits to implement 
all measures that were contained in the SIP before the redesignation as 
expeditiously as possible. Alabama also affirms that all programs 
instituted by Alabama and EPA will remain enforceable, and that sources 
are prohibited from reducing emissions controls following the 
redesignation of the area. In the submittal, Alabama commits to adopt, 
within 18 months of a violation, one or more contingency measures as 
needed to re-attain the standard. Alabama also identified that in the 
event that any individual monitor in the Birmingham area records an 
annual fourth high reading of 0.085 ppm or higher, Alabama will 
evaluate existing control measures to determine if further emission 
reduction measures should be implemented. Also, if periodic emissions 
inventory shows a future growth greater than or equal to ten percent, 
Alabama will re-project emissions and reassess the area's ability to 
maintain attainment. Alabama notes that all regulatory programs will be 
implemented within 18 months of a violation. The State will consider 
and implement one or more of the following contingency measures:
    RACT for NOX sources--The State would investigate other 
smaller point sources of lower thresholds for specific controls.
    RACT for additional VOC sources--Rules would be implemented for 
application of RACT to additional VOC sources not currently subject to 
RACT.
    Schedule for Point Source Regulation Development--A schedule for 
the development of NOX and/or VOC regulations from the time 
of a violation of the 8-hour ozone standard or inventory trigger of 
future growth follows:

1. Identify potential stationary sources for reductions--3 months
2. Identify applicable RACT--3 months
3. Initiate a stakeholder process--3 months
4. Draft SIP regulations--3 months
5. Initiate rulemaking process (including public comment period, 
hearing, Commission adoption and final submission to EPA)--6 months
    Completion no later than--18 months

    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: Attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan. The maintenance plan SIP 
revision submitted by Alabama for the Birmingham area meets the 
requirements of section 175A of the CAA.

VII. What Is an Adequacy Determination and What Is the Status of EPA's 
Adequacy Determination for the Birmingham 8-Hour Ozone Maintenance 
Area's New MVEBs for the Year 2017?

    Under the CAA, states are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (e.g., reasonable further progress SIPs and 
attainment demonstration SIPs) and maintenance plans create MVEBs for 
criteria pollutants and/or their precursors to address pollution from 
cars and trucks. Per 40 CFR part 93, a MVEB is established for the last 
year of the maintenance plan. The MVEB is the portion of the total 
allowable emissions in the maintenance demonstration that is allocated 
to highway and transit vehicle use and emissions. The MVEB serves as a 
ceiling on emissions from an area's planned transportation system. The 
MVEB concept is further explained in the preamble to the November 24, 
1993, transportation conformity rule (58 FR 62188). The preamble also 
describes how to establish the MVEB in the SIP and revise the MVEB.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the NAAQS. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEBs contained 
therein ``adequate'' for use in determining transportation conformity. 
Once EPA affirmatively finds the submitted MVEB is adequate for 
transportation conformity purposes, that MVEB must be used by state and 
federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
CAA. EPA's substantive criteria for determining ``adequacy'' of MVEBs 
are set out in 40 CFR 93.118(e)(4).
    EPA's process for determining ``adequacy'' consists of three basic 
steps: public notification of a SIP submission, a public comment 
period, and EPA's adequacy finding. This process for determining the 
adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 
1999 guidance, ``Conformity Guidance on Implementation of March 2, 
1999, Conformity Court Decision.'' This guidance was finalized in the 
Transportation Conformity Rule Amendments for the ``New 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards and Miscellaneous 
Revisions for Existing Areas; Transportation Conformity Rule 
Amendments--Response to Court Decision and Additional Rule Change'' on 
July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in 
making its adequacy determinations.
    Alabama's maintenance plan submission contained new VOC and 
NOX MVEBs for the year 2017. The availability of the SIP 
submission with these MVEBs was announced for public comment on EPA's 
adequacy Web page

[[Page 4086]]

on November 17, 2005, at: http://www.epa.gov/otaq/transp/conform/currsips.htm
.

    The EPA public comment period on adequacy of the 2017 MVEBs for the 
Birmingham area closed on December 19, 2005. EPA did not receive any 
adverse comments or requests for the submittal.
    EPA intends to make its determination of the adequacy of the 2017 
MVEBs for the Birmingham area for transportation conformity purposes in 
the final rulemaking on the Birmingham area 8-hour ozone redesignation. 
If EPA finds the 2017 MVEBs adequate for transportation conformity 
purposes prior to EPA's final approval, or finds the 2017 MVEBs 
adequate and approves the 2017 MVEBs in the final rulemaking action, 
the new MVEBs must be used for future transportation conformity 
determinations. The new 2017 MVEBs, if found adequate and approved in 
the final rulemaking, will be effective the date of publication of 
EPA's final rulemaking in the Federal Register. For required regional 
emissions analysis years that involve the year 2016 or before, the 
applicable budget for the purposes of conducting transportation 
conformity will be the applicable MVEBs from the Birmingham 1-hour 
ozone attainment demonstration or the 1-hour ozone maintenance plan. 
The 1-hour ozone attainment demonstration established MVEBs for the 
year 2003 of 65 tpd for NOX and 52 tpd for VOCs. The 1-hour 
ozone maintenance plan established MVEBs for the year 2015 of 41 tpd 
for NOX and 23 tpd for VOCs. For required regional emissions 
analysis years that involve the year 2017 or beyond, the applicable 
budget for the purposes of conducting transportation conformity 
analyses will be the 2017 VOC (23 tpsd) and NOX (42 tpsd) 
MVEB for this maintenance area.

Birmingham Area 2017 MVEBs

NOX, tpsd--42
VOC, tpsd--23

    EPA is proposing to approve the 2017 MVEBs because the maintenance 
plan demonstrates that expected emissions for the area in 2017, 
including the 2017 MVEBs plus the estimated emissions for all other 
source categories, will continue to maintain the 8-hour ozone standard.

VIII. Proposed Action on the Redesignation Request, the Maintenance 
Plan SIP Revision Including Proposed Approval of the 2017 MVEBs

    After evaluating Alabama's redesignation request, EPA has 
determined that it meets the redesignation criteria set forth in 
section 107(d)(3)(E) of the CAA. Based on the discussion of compliance 
with the redesignation criteria above, and on the fact that Alabama is 
in the process of completing the adoption of a maintenance plan meeting 
the requirements of section 175A, we conclude that the area will comply 
with the criteria for redesignation to attainment of the 8-hour ozone 
NAAQS. Therefore we are proposing to approve this redesignation request 
and maintenance plan. If the State substantially revises the 
maintenance plan from the version proposed by the State and reviewed 
here, this may result in the need for additional proposed rulemaking.
    Additionally, EPA is providing the status of its Adequacy 
Determination for the 2017 MVEBs and is proposing to approve the 2017 
MVEBs, submitted by Alabama for the Birmingham area, in conjunction 
with its redesignation request. Within 24 months from the effective 
date of the final rule for this action, the transportation partners 
will need to demonstrate conformity to these new MVEBs pursuant to 40 
CFR 93.104(e) as effectively amended by new section 172(c)(2)(E) of the 
CAA as added by the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act-A Legacy for Users (SAFETEA-LU), which was 
signed into law on August 10, 2005.

IX. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed 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 
proposed action merely proposes to approve state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Redesignation of an area to attainment under 
section 107(d)(3)(e) of the CAA does not impose any new requirements on 
small entities. Redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on sources. Accordingly, the Administrator certifies that this proposed 
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 proposes to approve 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 proposed 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 affects the status of a geographical area, does not impose any 
new requirements on sources, or allow a state to avoid adopting or 
implementing other requirements and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This proposed 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 and because the Agency does not have reason to 
believe that the rule concerns an environmental health risk or safety 
risk that may disproportionately affect children.
    In reviewing SIP submissions, EPA's role 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. Redesignation is an 
action that affects the status of a geographical area but does not 
impose any new requirements on sources. 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 proposed rule does not 
impose an information collection burden under the provisions

[[Page 4087]]

of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: January 17, 2006.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. E6-907 Filed 1-24-06; 8:45 am]

BILLING CODE 6560-50-P
