[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49154-49158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24942]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL-40-7142; FRL-5895-5]


Approval and Promulgation of Implementation Plans for the State 
of Alabama

    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: Final rule.

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SUMMARY: EPA is disapproving the State of Alabama's request submitted 
through the Alabama Department of Environmental Management's (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 
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

[[Page 49155]]

statutory criteria for redesignation to attainment of the ozone NAAQS.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: 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. Copies of documents relative to this action are 
available for public inspection during normal business hours at the 
following locations:

Environmental Protection Agency, Region 4, Air Planning Branch, 1 
Forsyth, 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 Clean Air Act Amendment 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 was submitted on July 21, 1995. A direct final rule 
proposing approval of the redesignation request was signed by the 
Regional Administrator and forwarded to the EPA Federal Register Office 
on August 15, 1995 for publication. The direct final rule as drafted 
contained a thirty day period for public comment on the proposed 
approval of the redesignation request.
    Prior to publication of the document, EPA determined that the area 
registered a violation of the ozone NAAQS on August 18, 1995. EPA 
therefore directed the Office of the Federal Register to recall the 
proposed direct final rule from publication. The ambient data which 
formed the basis of the registered violation was 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 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. After the violations had been quality-
assured, EPA issued a notice of proposed rulemaking proposing to 
disapprove the redesignation request, 62 FR 23421 (April 30, 1997). 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.
    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 an attainment area as ``any 
area that meets'' 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 area under 
section 107. 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.

Request for Comments

    EPA published a document on April 30, 1997, (62 FR 23421), 
proposing disapproval of the maintenance plan and redesignation request 
and soliciting comments on the disapproval and relevant issues. EPA 
received comments on the proposal. Those comments and the response 
thereto are summarized below.
    Comment #1--``EPA inappropriately considered monitored exceedances 
which occurred after the redesignation request was submitted. If the 
Agency had considered only the monitor data which preceded the 
redesignation request, then EPA should have allowed the direct final 
rule granting redesignation which had been signed by the regional 
administrator to be published in the Federal Register. If EPA had taken 
this action, then the Birmingham area could possibly be enjoying 
attainment status at this time.''
    Response--Section 107(d)(1)(A)(ii) of the Act provides that an 
attainment area is one that ``meets'' the NAAQS. Section 
107(d)(3)(E)(I) of the Act prohibits EPA from redesignating an area to 
attainment unless EPA determines that the area ``has attained'' the 
NAAQS. By use of the words ``has attained'' (in the present perfect 
tense), Congress expressed its intent that EPA may not redesignate an 
area unless it determines that the area is attaining the standard at 
the time EPA takes its final action. It is not sufficient that at some 
previous time the area ``had'' attained the NAAQS. EPA must find that 
the area, in the words of the statute, ``has'' attained the NAAQS. 
Congress expressed the same intent in the definition of an attainment 
area in CAA section 107(d)(1)(A)(ii) as an area

[[Page 49156]]

that meets the NAAQS. Therefore, contrary to the commenters' 
contention, it was not ``inappropriate'' for EPA to consider 
``exceedances which occurred after the redesignation request was 
submitted.'' Indeed, EPA was obligated to consider such data.
    EPA's redesignation policy (Calcagni Memo) provides that if 
monitoring data indicates a violation of the NAAQS before a 
redesignation action is effective, the redesignation should not be 
approved. EPA may not lawfully redesignate a nonattainment area to 
attainment unless it is attaining the air quality standard at the time 
EPA takes its final action. Thus, it is not sufficient that an area 
show that it had attained the standard prior to submission of its 
redesignation request. If, during the pendency of EPA's review of the 
redesignation request, exceedances occur that EPA determines constitute 
a violation, EPA is obligated to consider those in determining whether 
the area is attaining the standard. Thus, EPA was obligated to 
disapprove the request to redesignate the Birmingham nonattainment 
area, since it could not determine that the area had attained the 
standard at the time of the final rulemaking.
    EPA recently reaffirmed its adherence to the principle that an area 
may not be redesignated to attainment if it violates the standard while 
its request for redesignation is pending in a notice of proposed 
correction to the designation of LaFourche Parish, Louisiana (62 FR 
38237, July 17, 1997). After publication of a direct final notice 
approving the area's redesignation request, but prior to its effective 
date, a violation of the NAAQS for ozone was recorded at an area 
monitor. The direct final notice restated EPA's interpretation of the 
statute: ``If the monitoring data records a violation of the NAAQS 
before the direct final action is effective, approval of the 
redesignation will be withdrawn and a proposed disapproval substituted 
for the direct final approval (60 FR 43021-43022, August 18, 1995). 
Nonetheless, EPA did not withdraw its approval of the redesignation 
action, and the area was redesignated to attainment. EPA's proposed 
correction notice states that allowing the redesignation to become 
effective was in conflict with the statute, EPA policy, and with the 
statement in the direct final notice itself.
    The LaFourche redesignation was also at odds with other actions 
regarding areas that EPA determined had violated the NAAQS while their 
redesignation requests were pending: Richmond, Virginia, (59 FR 22757, 
May 3, 1994) (final notice of disapproval); the Pittsburgh-Beaver 
Valley nonattainment area, (61 FR 19193, May 1, 1996) (final notice of 
disapproval); the Kentucky portion of the Cincinnati-Hamilton 
nonattainment area, (61 FR 50718, September 27, 1996) (final notice of 
disapproval); and the Ohio portion of the Cincinnati-Hamilton 
nonattainment area, (62 FR 7194, February 18, 1997) (notice of proposed 
disapproval).
    Based on the statute, policy, and history of EPA rulemakings, it is 
clear that redesignating Birmingham to attainment in the face of 
monitored violations would be an error. EPA was obliged to disapprove 
the request to redesignate.
    The United States Court of Appeals for the Third Circuit recently 
upheld EPA's interpretation of its statutory obligation to consider 
exceedances occurring after submission of redesignation requests. 
Southwestern Pennsylvania Growth Alliance v. Browner, No. 96-3364 (July 
28, 1997). The Court affirmed the application of this interpretation 
even as to exceedances that occurred more than eighteen months after 
the submission of a redesignation request.
    Comment #2--``In our opinion, EPA failed to consider appropriately 
the local extreme weather conditions which occurred during the summer 
of 1995 and the associated ozone exceedances. ADEM pointed out to EPA 
that July 1995 had more days above 95 degrees Fahrenheit than any July 
in over 60 years and that August 1995 was the hottest August on record. 
The nine day period between August 10 and August 18 is the third 
highest such event in over 60 years. Seven of the eleven exceedances 
measured in Birmingham in 1995 occurred during this nine day period.''
    Comment #3--``It is EPA's own policy to consider exceptional 
weather events regarding achievement of ozone air quality standards. 
Yet, EPA stated in a January 11, 1996, letter to ADEM that the summer 
of 1995 was not the hottest summer in the last ten years nationally, 
and that the conditions during 1995 cannot be considered an exceptional 
weather event.''
    Responses--The commenters contended that even if EPA were correct 
in considering violations that occurred after the redesignation request 
was submitted, EPA should have found such exceedances ``attributable to 
extreme weather.'' But even if 1995 were determined to have been an 
exceptionally hot year for Birmingham (and 1990, only five years 
earlier, was even hotter), this provides no grounds for excluding 
quality-assured monitored exceedances of the ozone standard. EPA's 
applicable regulations governing ozone attainment provide no basis for 
excluding data due to exceptionally hot weather (See 40 CFR 50.9 
Appendix D and H and part 58). By contrast, the regulations regarding 
particulate matter expressly authorize adjustments to take into account 
exceptional events (See 40 CFR 50.6 and Appendix K, section 2.4 
``Adjustments for Exceptional Events and Trends''). The methods used by 
EPA to determine whether an area is attaining the ozone standard were 
decided upon through notice and comment rulemaking and EPA is bound by 
those methods until they are changed through further rulemaking on that 
subject.
    EPA's ``Guideline on the Identification and Use of Air Quality Data 
Affected by Exceptional Events'' sets forth guidance regarding 
exceptional events that may sufficiently influence the data for various 
criteria pollutants so as to provide a basis for possible exclusion of 
data for various regulatory purposes. ``The guideline has no regulatory 
or legal significance regarding use of any air quality data. Use or 
non-use of air quality data, whether flagged or not, must be subject to 
full public disclosure and rulemaking procedures.'' Guideline at 5. 
Thus, use or non-use of the data is determined by the appropriate 
statutory or regulatory authority, which does not provide for exclusion 
of ozone data based on hot weather. Moreover, only one of the l8 
exceptional events defined in the Guideline applies to ozone data--
stratospheric ozone intrusion. A stratospheric ozone intrusion occurs 
when a parcel of air originating in the stratosphere falls directly to 
the surface of the earth (such as occasionally happens during severe 
thunderstorms). Such events are infrequent, very localized, and of 
short duration. No allegation that a stratospheric ozone intrusion 
occurred has been made with respect to Birmingham. Other climatological 
occurrences, including stagnations and inversions, were considered and 
rejected as possible exceptional events for data flagging purposes. 
Thus, neither EPA's regulations nor guidance furnish a justification 
for excluding quality assured ozone exceedances from consideration 
based upon a finding that they are an ``extreme weather event'' due to 
hot weather. It is undisputed that Birmingham experienced eleven 
exceedances during the summer of 1995.
    Hot weather does not provide a basis for excluding documented 
exceedances from consideration. While EPA recognizes that high 
temperatures can

[[Page 49157]]

play a role in ozone formation, quality assured data reflect the 
quality of the air people are breathing. Exceedances of the standard 
have been determined to cause measurable health effects in healthy 
individuals. Compliance with the ozone NAAQS is determined using three 
consecutive years of data to account for year-to-year variations in 
emissions and meteorological conditions. These determinations were made 
pursuant to long-standing EPA regulations, and this rulemaking is not 
the appropriate forum for comments regarding the ozone standard or the 
methodology for determining attainment of the standard. Even if 
temperatures were unusually high in 1995 (and they were not as high as 
in 1990), in light of the methodology used to determine attainment of 
the ozone NAAQS, there is no basis for ignoring the violations 
monitored during the time period. Because the area has not adequately 
reduced its VOC and NOX emissions, it is subject to ozone 
exceedances whenever meteorological conditions are conducive to ozone 
formation. The nine exceedances that occurred in the Birmingham area in 
1996 proves that temperature is not the only precursor for ozone 
formation. One of the goals of the CAA is to minimize the health risks 
that people encounter. Since meteorological conditions cannot be 
controlled, the way to reduce health risks due to ozone in the 
Birmingham area is to reduce the anthropogenic emissions of VOC and 
NOX. (See 61 FR 19193, 191195-19197, May 1, 1996) 
(disapproval of Pittsburgh-Beaver Valley request for redesignation to 
attainment for ozone).
    Moreover, in a study entitled ``Clean Air Act Ozone Design Value 
Study, Final Report, dated December, 1994 EPA considered the impact of 
meteorology in ozone formation and found that ``high temperature by 
itself is not sufficient to produce high ozone concentrations'' (pages 
7-18). It also determined ozone design values should not be adjusted 
for meteorology, since ``compliance with the ozone standard is judged 
on the basis of the actual ambient air quality measurements. It is the 
actual ambient air quality, not a hypothetical adjusted value, which is 
of concern with respect to the potential for adverse health impacts.'' 
It concluded that a meteorologically adjusted design value may not be 
the best indicator of the air people actually breathe, and is a major 
departure from current EPA policy.
    In Southwestern Pennsylvania Growth Alliance v. Browner, No. 
96.3364 (July 28, 1997), the United States Court of Appeals for the 
Third Circuit recently rejected petitioners' argument that an 
allegation that exceedances were caused by transport should result in 
excluding data from consideration in redesignation actions.
    ``Accordingly, we accept the EPA's position that the origin of the 
ozone that caused exceedances at issue is legally irrelevant.'' 
Similarly, here, the allegation that hot weather may have contributed 
to exceedances is legally irrelevant.

Final Action

    EPA is disapproving the State of Alabama's March 16, 1995, 
redesignation request and maintenance plan SIP revision. The Agency has 
reviewed this request for redesignation and approval of the maintenance 
plan as a 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.
    Nothing in this action should be construed as permitting or 
allowing or establishing a precedent for any future request for 
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.

Executive Order 12866

    The Office of Management and Budget (OMB) has reviewed this 
regulatory action pursuant to E.O. 12866.

Regulatory Flexibility Act

    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.
    EPA's disapproval of the State request under section 110 and 
subchapter I, part D of the CAA does not affect any existing 
requirements applicable to small entities. Any pre-existing federal 
requirements remain in place after this disapproval. Federal 
disapproval of the state submittal does not affect its state-
enforceability. Moreover, EPA's disapproval of the submittal does not 
impose any new Federal requirements. Therefore, EPA certifies that this 
disapproval action does not have a significant impact on a substantial 
number of small entities because it does not remove existing 
requirements and impose any new Federal requirements.
    EPA's denial of the State's redesignation request under section 
107(d)(3)(E) of the CAA 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. Therefore, the Regional 
Administrator certifies that the disapproval of the redesignation 
request will not affect a substantial number of small entities.

Unfunded Mandates

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
private sector, of $100 million or more. Under section 205, EPA must 
select the most cost-effective and least burdensome alternative that 
achieves the objectives of the rule and is consistent with statutory 
requirements. Section 203 requires EPA to establish a plan for 
informing and advising any small governments that may be significantly 
or uniquely impacted by the rule.
    EPA has determined that the disapproval action promulgated does not 
include a Federal mandate that may result in estimated costs of $100 
million or more to either State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action disapproves 
pre-existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 
section 804(2).

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Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 18, 1997. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

List of Subjects in 40 CFR Part 81

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

    Dated: September 5, 1997.
A. Stan Meiburg,
Acting Regional Administrator.

    Chapter I, title 40, Code of Federal Regulations, is amended as 
follows:

PART 52--[AMENDED]

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

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

Subpart B--Alabama

    2. Section 52.66 is added to read as follows:


Sec. 52.66  Control Strategy: Ozone.

    The redesignation request submitted by the State of Alabama, on 
March 16, 1995 for the Birmingham marginal ozone nonattainment area 
from nonattainment to attainment was disapproved on September 19, 1997.

[FR Doc. 97-24942 Filed 9-18-97; 8:45 am]
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