[Federal Register Volume 62, Number 83 (Wednesday, April 30, 1997)]
[Proposed Rules]
[Pages 23421-23422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11076]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL-40-7142; FRL-5818-4]


Approval and Promulgation of Implementation Plans for the State 
of Alabama-Proposed Disapproval of the Request to Redesignate the 
Birmingham, Alabama (Jefferson and Shelby Counties) Marginal Ozone 
Nonattainment Area to Attainment and the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove the State of Alabama's request 
submitted through the Alabama Department of Environmental Management 
(ADEM) to redesignate the Birmingham marginal ozone nonattainment area 
(Jefferson and Shelby Counties) to attainment and the associated 
maintenance plan as a revision to the State Implementation Plan (SIP). 
Prior to the end of the close of the administrative record, EPA 
determined that the area registered a violation of the ozone national 
ambient air quality standard (NAAQS). As a result, the Birmingham area 
no longer meets the statutory criteria for redesignation to attainment 
of the ozone NAAQS.

DATES: Comments on this proposed action must be received in writing by 
May 30, 1997.

ADDRESSES: Written comments on this action should be addressed to 
Kimberly Bingham at the Environmental Protection Agency, Region 4, Air 
Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303.
    Copies of documents relative to this action are available for 
public inspection during normal business hours at the following 
locations. The interested persons wanting to examine these documents 
should make an appointment with the appropriate office at least 24 
hours before the visiting day. Reference file AL-40-7142. The Region 4 
office may have additional background documents not available at the 
other locations.

Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303. Kimberly Bingham, (404) 
562-9038.
Alabama Department of Environmental Management, 1751 Congressman, W. L. 
Dickinson Drive, Montgomery, Alabama 36109.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038.

SUPPLEMENTARY INFORMATION: On March 16, 1995, ADEM submitted a request 
to EPA to redesignate the Birmingham, Alabama, marginal ozone 
nonattainment area to attainment. On that date, they also submitted a 
maintenance plan for the area as a revision to the Alabama SIP.
    According to section 107(d)(3)(E) of the Clean Air Act (CAA), 42 
U.S.C. 7407(d)(3)(E), redesignation requests must meet five specific 
criteria in order for EPA to redesignate an area from nonattainment to 
attainment:
    1. The Administrator determines that the area has attained the 
ozone 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 implementation plan and 
applicable Federal air pollution 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.
    The EPA provided guidance on redesignation in the General Preamble 
for the Implementation of the CAAA of 1990, 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) of the amended Act is dated September 4, 1992, and issued 
by the Director, Air Quality Management Division, Subject: Procedures 
for Processing Requests to Redesignate Areas to Attainment (Calcagni 
Memorandum).
    The State submitted its request for redesignation on March 16, 
1995. The request included information showing that the Birmingham area 
had three years of air quality attainment data from 1990-1993. The area 
continued to maintain the ozone NAAQS through 1994. The submittal was 
rendered administratively complete on April 11, 1995. Supplemental 
information needed for the submittal to be approvable which was 
initially requested from ADEM in a February 15, 1995, letter addressing 
the prehearing submittal was submitted 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 as drafted contained a thirty 
day period for public comment on the redesignation request.
    Prior to publication of the document and therefore prior to close 
of the administrative record, EPA determined that the area registered a 
violation of the ozone NAAQS on August 18, 1995. The EPA directed the 
Office of Federal Register to recall the document from being published. 
The ambient data has been quality assured according to established 
procedures for validating such monitoring data. The State of Alabama 
does not contest that the area violated the NAAQS for ozone during

[[Page 23422]]

the 1995 ozone season. As a result, the Birmingham area no longer meets 
the statutory criteria for redesignation to attainment of the ozone 
NAAQS found in section 107(d)(3)(E)(i) of the CAA. The maintenance plan 
SIP revision is also not approvable because its demonstration is based 
on a level of ozone precursor emissions in the ambient air thought to 
represent an inventory of emissions that would provide for attainment 
and maintenance. That underlying basis of the maintenance plan's 
demonstration is no longer valid due to the violation of the NAAQS that 
occurred during the 1995 ozone season.
    Even though the Regional Administrator signed the direct final rule 
prior to the violation, the document was not published. Since the 
Agency's decision was neither published nor subject to notice or 
comment, EPA neither proposed nor took final action with respect to the 
redesignation.
    The Administrator is prohibited under section 107(d)(3)(E)(i) from 
redesignating an area to attainment when it has not attained the NAAQS. 
Furthermore, section 107(d)(1)(A) defines a nonattainment area as ``any 
area that does not meet'' the NAAQS. Consequently, if a violation 
occurs prior to EPA's final action on redesignation, the area is no 
longer in attainment and does not meet the definition of an attainment 
are under section 107. The EPA has consistently followed these 
principles in disapproving redesignations for areas that violate the 
NAAQS while their requests are pending. In the September 4, 1992, 
policy memorandum of John Calcagni, EPA stated: ``Regions should advise 
States of the practical planning consequences if EPA disapproves the 
redesignation request or if the request is invalidated because of 
violations recorded during EPA's review.'' See for example, 59 FR 22757 
dated May 3, 1994, disapproving the redesignation of Richmond, Virginia 
due to violations occurring after the proposed approval; 61 FR 50718 
dated September 27, 1996, disapproving the redesignation request for 
the Kentucky portion of the Cincinnati-Hamilton nonattainment area; and 
61 FR 19193 dated May 1, 1996, disapproving of the redesignation 
request for Pittsburgh, Pennsylvania.

Proposed Action

    EPA is proposing to disapprove the State of Alabama's March 16, 
1995, redesignation request and maintenance plan SIP revision.
    EPA is soliciting public comments on this document and on issues 
relevant to EPA's proposed action. Comments will be considered before 
taking final action. Interested parties may participate in the Federal 
rulemaking procedure by submitting written comments to the person 
listed in the ADDRESSES section.
    The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the CAA. The Agency 
has determined that this action does not conform with the statute as 
amended and should be disapproved. The Agency has examined the issue of 
whether this action should be reviewed only under the provisions of the 
law as it existed on the date of submittal to the Agency (i.e., prior 
to November 15, 1990) and has determined that the Agency must apply the 
new law to this revision.
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, is therefore not 
subject to review by the Office of Management and Budget. In addition, 
this action does not impose any enforceable duty or contain any 
unfunded mandate as described in the Unfunded Mandates Reform Act of 
1995 (Pub. L. 104-4), or require prior consultation with State 
officials as specified by Executive Order 12875 (58 FR 58093, October 
28, 1993), or involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994).
    Because this action is not subject to notice-and-comment 
requirements under the Administrative Procedure Act or any other 
statute, it is not subject to the provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.).

Redesignation--State-Submitted Requests

    EPA's denial of the State's redesignation request under section 
107(d)(3)(E) does not affect any existing requirements applicable to 
small entities nor does it impose new requirements. The area retains 
its current designation status and will continue to be subject to the 
same statutory requirements. To the extent that the area must adopt 
regulations, based on its nonattainment status, EPA will review the 
effect of those actions on small entities at the time the state submits 
those regulations. Therefore, I certify (for Table 2 and 3 
redesignations, use: ``The Administrator certifies * * *'') that denial 
of the redesignation request will not affect a substantial number of 
small entities.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by reference, Intergovernmental relations, 
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

40 CFR Part 81

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

    Authority: 42 U.S.C. 7401-7671q.

    Dated: April 15, 1997.
A. Stanley Meiburg,
Acting Regional Administrator.
[FR Doc. 97-11076 Filed 4-29-97; 8:45 am]
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