
[Federal Register: September 23, 2009 (Volume 74, Number 183)]
[Proposed Rules]               
[Page 48478-48480]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23se09-21]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2007-0359; FRL-8960-8]

 
Approval and Promulgation of Implementation Plans, Alabama: Clean 
Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a portion of the State 
Implementation Plan (SIP) revision submitted by the State of Alabama, 
through the Alabama Department of Environmental Management (ADEM), on 
March 7, 2007. This action proposes to approve the portion of the March 
7, 2007, submittal that addresses State reporting requirements under 
the Nitrogen Oxide (NOX) SIP Call and the Clean Air 
Interstate Rule (CAIR) found in 40 CFR 51.122 and 51.125 as amended by 
the CAIR rulemakings. Specifically, in this action EPA is proposing to 
approve revisions to Chapter 335-3-1 ``General Provisions.'' In 
previous rulemakings, EPA took action on the other portions of the 
March 7, 2007, SIP submittal, which included revisions to Chapters 335-
3-5, and 335-3-8 (October 1, 2007, 72 FR 55659) and Chapter 335-3-17 
(March 26, 2009, 74 FR 13118). Although the DC Circuit Court found CAIR 
to be flawed, the rule was remanded without vacatur and thus remains in 
place. Thus, EPA is continuing to approve CAIR provisions into SIPs as 
appropriate. CAIR, as promulgated, requires States to reduce emissions 
of sulfur dioxide (SO2) and NOX that 
significantly contribute to, or interfere with maintenance of, the 
national ambient air quality standards (NAAQS) for fine particulates 
and/or ozone in any downwind state. CAIR establishes budgets for 
SO2 and NOX for States that contribute 
significantly to

[[Page 48479]]

nonattainment in downwind States and requires the significantly 
contributing States to submit SIP revisions that implement these 
budgets. States have the flexibility to choose which control measures 
to adopt to achieve the budgets, including participation in EPA-
administered cap-and-trade programs addressing SO2, 
NOX annual, and NOX ozone season emissions. This 
action is being taken pursuant to section 110 of the Clean Air Act 
(CAA).

DATES: Written comments must be received on or before October 23, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2007-0359, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: benjamin.lynorae@epa.gov.
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2007-0359,'' 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: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2007-0359.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http:/
/www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which 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 Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Stacy Harder, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number 
is (404) 562-9042. Ms. Harder can also be reached via electronic mail 
at harder.stacy@epa.gov. For information pertaining to the Alabama 
State SIP, please contact Mr. Zuri Farngalo, by phone at (404) 562-
9152, or electronic mail at farngalo.zuri@epa.gov.

SUPPLEMENTARY INFORMATION:

I. What Action Is EPA Proposing To Take?
II. What Is the Regulatory History of CAIR?
III. What Is EPA's Analysis of Alabama's Submission?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What Action Is EPA Proposing To Take?

    EPA is proposing to approve a SIP revision submitted by ADEM, on 
March 7, 2007, pertaining to rules for CAIR. The revisions include 
changes to Chapter 335-3-1 ``General Provisions.'' Specifically, ADEM 
is amending Section 335-3-1-.14 ``Emissions Reporting Requirements 
Relating to Budgets for NOx Emissions,'' and adding a new Section 335-
3-1-.16 ``Emissions Reporting Requirements Relating to Budgets for 
SO2 and NOX Emissions.'' These revisions became 
State effective on April 3, 2007.

II. What Is the Regulatory History of CAIR?

    EPA published CAIR on May 12, 2005 (70 FR 25162). In this rule, EPA 
determined that 28 States and the District of Columbia contribute 
significantly to nonattainment and interfere with maintenance of the 
NAAQS for fine particles (PM2.5) and/or 8-hour ozone in 
downwind States in the eastern part of the country. As a result, EPA 
required those upwind States to revise their SIPs to include control 
measures that reduce emissions of SO2, which is a precursor 
to PM2.5 formation, and/or NOX, which is a 
precursor to both ozone and PM2.5 formation. For 
jurisdictions that contribute significantly to downwind 
PM2.5 nonattainment, CAIR sets annual State-wide emission 
reduction requirements (i.e., budgets) for SO2 and annual 
State-wide emission reduction requirements for NOX. 
Similarly, for jurisdictions that contribute significantly to 8-hour 
ozone nonattainment, CAIR sets State-wide emission reduction 
requirements or budgets for NOX for the ozone season (May 
1st to September 30th). Under CAIR, States may implement these 
reduction requirements by participating in the EPA-administered cap-
and-trade programs or by adopting any other control measures.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision to vacate and remand both CAIR and 
the associated CAIR Federal Implementation Plans (FIP) in their 
entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008). 
However, in response to EPA's petition for rehearing, the Court issued 
an order remanding CAIR to EPA without vacating either CAIR or the CAIR 
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The 
Court

[[Page 48480]]

thereby left CAIR in place in order to ``temporarily preserve the 
environmental values covered by CAIR'' until EPA replaces it with a 
rule consistent with the Court's opinion. Id. at 1178. The Court 
directed EPA to ``remedy CAIR's flaws'' consistent with its July 11, 
2008, opinion, but declined to impose a schedule on EPA for completing 
that action. Id.
    According to 40 CFR 51.125, each state submitting a CAIR SIP 
revision must provide for emissions reporting requirements of 
SO2 and NOX emissions data. EPA is proposing to 
approve revisions to Alabama's Section 335-3-1-.14 and addition of 
Section 335-3-1-.16 to fulfill this requirement. Consistent with 40 CFR 
51.121, these rule revisions allow the State to make the transition 
from the NOX budget trading program (NOX SIP 
Call) to the CAIR NOX ozone season trading program, 
beginning with the 2009 ozone season. Alabama's NOX budget 
trading program does not apply to any ozone season after the 2008 ozone 
season.
    This proposed action is consistent with the Court's decision in 
North Carolina v. EPA discussed above. While the Court identified 
several issues with CAIR, the rule was not vacated because of the loss 
of environmental benefit generated by the rule. As EPA works to remedy 
CAIR to satisfy the Court, CAIR remains in effect, including its 
trading programs. Currently, Alabama's NOX SIP Call trading 
program ends after the 2008 ozone season, and so to continue the 
environmental benefits of the trading program, consistent with CAIR and 
the Court's opinion, Alabama must revise its SIP, as proposed, to 
transition into the CAIR NOX trading program.

IV. Proposed Action

    EPA is proposing to approve the aforementioned revisions, 
specifically, Chapter 335-3-1, Sections 335-3-1-.14, and 335-3-1-.16 
into the Alabama SIP. These revisions were submitted by ADEM on March 
7, 2007, and are consistent with EPA regulations, policy, and guidance.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: September 11, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.
[FR Doc. E9-22904 Filed 9-22-09; 8:45 am]

BILLING CODE 6560-50-P
