[Federal Register Volume 63, Number 39 (Friday, February 27, 1998)]
[Rules and Regulations]
[Pages 9945-9948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[AK 17-1705; FRL-5971-4]


Clean Air Act Reclassification; Fairbanks, Alaska Nonattainment 
Area; Carbon Monoxide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: In this document EPA is making a final finding that the 
Fairbanks North Star Borough, Alaska, carbon monoxide (CO) 
nonattainment area has not attained the CO national ambient air quality 
standards (NAAQS) by December 31, 1995, the Clean Air Act (CAA) 
mandated attainment date for moderate nonattainment areas. This finding 
is based on EPA's review of monitored air quality data for compliance 
with the CO NAAQS. As a result of this finding, the Fairbanks North 
Star Borough CO nonattainment area is reclassified as a serious CO 
nonattainment area by operation of law. As a result of the 
reclassification, the State is to submit within 18 months from the 
effective date of this action a new State Implementation Plan (SIP) 
demonstrating attainment of the CO NAAQS as expeditiously as practical 
but no later than December 31, 2000, the CAA attainment date for 
serious areas.

EFFECTIVE DATE: This action is effective March 30, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Montel Livingston, Office of Air 
Quality, U.S. Environmental Protection Agency, Region 10, Seattle, 
Washington, (206) 553-0180.

SUPPLEMENTARY INFORMATION:

I. Background

A. CAA Requirements and EPA Actions Concerning Designation and 
Classifications

    The Clean Air Act Amendments of 1990 (CAA) were enacted on November 
15, 1990. Under section 107(d)(1)(C) of the CAA, each CO area 
designated nonattainment prior to enactment of the 1990 Amendments, 
such as the Fairbanks North Star Borough nonattainment area, was 
designated nonattainment by operation of law upon enactment of the 1990 
Amendments. Under section 186(a) of the CAA, each CO area designated 
nonattainment under section 107(d) was also classified by operation of 
law as either ``moderate'' or ``serious'' depending on the severity of 
the area's air quality problem. CO areas with design values between 9.1 
and 16.4 parts per million (ppm), such as the Fairbanks nonattainment 
area, were classified as moderate. These nonattainment designations and 
classifications were codified in 40 CFR part 81. See 56 FR 56694 
(November 6, 1991).
    States containing areas that were classified as moderate 
nonattainment by operation of law under section 107(d) were required to 
submit SIPs designed to attain the CO NAAQS as expeditiously as 
practicable but no later than December 31, 1995.1
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    \1\ The moderate area SIP requirements are set forth in section 
187(a) of the CAA and differ depending on whether the area's design 
value is below or above 12.7 ppm. The Fairbanks area has a design 
value below 12.7 ppm. 40 CFR 81.302.
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B. Effect of Reclassification

    CO nonattainment areas reclassified as serious are required to 
submit, within 18 months of the area's reclassification, SIP revisions 
providing for attainment of the CO NAAQS as expeditiously as 
practicable but no later than December 31, 2000. In addition, the State 
must submit a SIP revision that includes: (1) a forecast of vehicle 
miles traveled (VMT) for each year before the attainment year and 
provisions for annual updates of these forecasts; (2) adopted 
contingency measures; and (3) adopted transportation control measures 
and strategies to offset any growth in CO emissions from growth in VMT 
or number of vehicle trips. See CAA sections 187(a)(7), 187(a)(2)(A), 
187(a)(3), 187(b)(2), and 187(b)(1). Finally, upon the effective date 
of this reclassification, contingency measures in the moderate area 
plan for the Fairbanks nonattainment area must be implemented.

C. Attainment Determinations for CO Nonattainment Areas

    EPA makes attainment determinations for CO nonattainment areas 
based upon whether an area has two years (or eight consecutive 
quarters) of clean air quality data.2 Section 179(c)(1) of 
the CAA states that the attainment determination must be based upon an 
area's ``air quality as of the attainment date.''
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    \2\ See generally memorandum from Sally L. Shaver, Director, Air 
Quality Strategies and Standards Division, EPA, to Regional Air 
Office Directors, entitled ``Criteria for Granting Attainment Date 
Extensions, Making Attainment Determinations, and Determinations of 
Failure to Attain the NAAQS for Moderate CO Nonattainment Areas,'' 
October 23, 1995 (Shaver memorandum).
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    EPA determines a CO nonattainment area's air quality status in 
accordance with 40 CFR 50.8 and EPA policy.3 EPA has 
promulgated two NAAQS for CO: an 8-hour average concentration and a 1-
hour average concentration. Because there were no violations of the 1-
hour standard in the Fairbanks nonattainment area, this document 
addresses only the air quality status of the Fairbanks nonattainment 
area with respect to the 8-hour standard. The 8-hour CO NAAQS requires 
that not more than one non-overlapping 8-hour average in any 
consecutive two-year period per monitoring site can exceed 9.0 ppm 
(values below 9.5 are rounded down to 9.0 and they are not considered 
exceedances). The second exceedance of the 8-hour CO NAAQS at a given 
monitoring site within the same two-year period constitutes a violation 
of the CO NAAQS.
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    \3\ See memorandum from William G. Laxton, Director, Technical 
Support Division, entitled ``Ozone and Carbon Monoxide Design Value 
Calculations'', June 18, 1990. See also Shaver memorandum.
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D. Proposed Finding of Failure to Attain

    On August 8, 1997 EPA proposed to find that the Fairbanks North 
Star Borough CO nonattainment area had failed to attain the CO NAAQS by 
the applicable attainment date. 62 FR 42717. Fairbanks did not have two

[[Page 9946]]

consecutive clean years of CO data. This proposed finding was based on 
air quality data showing violations of the CO NAAQS at three monitoring 
sites during 1995, with the number of readings exceeding the 8 hour 
standard totaling 19. For the specific data considered by EPA in making 
this proposed finding, see 62 FR 42719.

E. Reclassification to a Serious Nonattainment Area

    EPA has the responsibility, pursuant to sections 179(c) and 
186(b)(2) of the CAA, for determining whether the Fairbanks North Star 
Borough CO nonattainment area attained the CO NAAQS by December 31, 
1995. Under section 186(b)(2)(A), if EPA finds that the area has not 
attained the CO NAAQS, the area is reclassified as serious by operation 
of law. There were 26 CO exceedances recorded in the years 1994-1995. 
Additional control strategies are needed to further reduce CO 
concentrations in order to attain the CO standard. Pursuant to section 
186(b)(2)(B) of the Act, EPA is publishing this notice to identify the 
Fairbanks area as failing to attain the standard and therefore 
reclassified as serious by operation of law.

II. Response to Comments on Proposed Finding

    During the public comment period on EPA's proposed finding, EPA 
received several comments. Below is EPA's response to all substantive 
comments received.

Air Quality Monitoring Data

    A commenter represented an association which had undertaken a 
detailed review of the air quality monitoring data from a variety of 
areas around the country using the Aerometric Information Retrieval 
System data base. Specifically, the report alleged that the Fairbanks 
North Star Borough Air Quality Division does not monitor the ambient 
air temperature within their CO monitor instrument enclosures to ensure 
that the station temperature remained within the 20-30 degree C range 
specified by the EPA reference method designation for the TECO 48 CO 
analyzers used at the sites where exceedances were recorded. Thus, the 
report concluded, these exceedances were measured by equipment that was 
being operated under untested specifications for which the analyzer has 
not been certified and are therefore open to question.
    Response: EPA Region 10 prepared a report dated August 27, 1997 
(located in our docket), regarding the quality of CO monitoring data 
collected in Fairbanks for the time period 1994 through 1996. The study 
focused on time periods when CO exceedances occurred (27 times at three 
sites in Fairbanks during the time period 1994 through 1996). The 
evaluation relied upon EPA monitoring guidelines in 40 CFR Part 58, the 
Quality Assurance Handbook for Air Pollution Measurement Systems--
Volume II: Ambient Air Specific Methods (Red book), and manufacturer 
recommended operations guidelines for CO analyzers. CO monitoring data, 
precision, and accuracy data used in EPA's analysis were extracted from 
the EPA Aerometric Information Retrieval System. Zero, span checks, 
audit results, site logs, and strip charts were obtained from ADEC and 
the local air pollution control agencies in Fairbanks. Specifications 
for the operation of individual CO analyzers were obtained from the 
instrument manufacturers and from the EPA list of air monitoring 
reference and equivalent methods.
    The analysis revealed that ADEC and the Fairbanks North Star 
Borough have closely followed EPA regulations and guidelines in the 
collection and quality assurance of CO monitoring data. While the 
building environment where the monitors were located was not monitored 
24 hours a day for every day of the year to show the area was always 
controlled to 20 deg. -30 deg. C, the analysis showed that:
    (a) all monitors were operated indoors.
    (b) all buildings containing monitors controlled their indoor 
temperatures to values within the specified 20 deg.-30 deg. during the 
workday.
    (c) ADEC's quality assurance program verified that monitors were 
operating properly during periods of standard exceedances. The strip 
chart data used to identify any suspect behavior of the analyzers was 
investigated. No ``drift'' or ``cycling'' of readings were found on the 
strip charts. The strip charts showed that the instruments were 
operating properly at all times during periods of standard exceedances.
    (d) ADEC configured their CO monitors to show that both precision 
and accuracy checks exceeded required frequencies for all sites in 
Fairbanks for the entire time period of 1994-1996.
    (e) At least eight exceedances were recorded in Fairbanks during 8 
hour periods when the buildings in which the monitors were located were 
being heated to employee ``comfort'' temperatures (usually at the low 
end of the 20 deg.-30 deg. range).
    (f) No exceedances of the 8 hour NAAQS occurred on weekends during 
this time period.
    For these reasons, EPA has concluded that it is very unlikely that 
enclosure temperature has caused CO levels in Fairbanks to be ``over 
measured'' to the extent that a violation of the 8 hour NAAQS could not 
be confidently demonstrated. EPA's view is that ADEC's data is of high 
quality and clearly shows repeated exceedances of the CO NAAQS. EPA has 
no reason to question any of the CO exceedances measured during the 
1994 through 1996 time period. Questions have arisen that monitor 
readings could have been influenced by temperature fluctuations in the 
buildings where the instruments were operated. Although no daily 
temperatures were measured in the rooms where monitors were housed, 
information from the building managers shows that temperatures were 
maintained at a comfort level for workers in all of the buildings where 
monitors were housed. The indoor temperatures were well within the 
range of temperatures that the instrument manufacturers recommend for 
operation of CO monitors. Also, outside temperatures in Fairbanks were 
considerably above normal during times of standard exceedances which 
would minimize a lowering of temperatures indoors even if thermostats 
were lowered. In addition, no CO exceedances occurred on weekends when 
thermostats in some buildings could be lowered slightly. For these 
reasons it is unlikely that CO exceedances were influenced by 
fluctuations in building temperatures.

Unique Weather Conditions

    Several commenters felt that Fairbanks should be given an allowance 
or exemption from the serious status because of the severity and 
consistency of its cold weather, as well as the intensity and 
regularity of its temperature inversions.
    Response: EPA prepared a report, dated August 27, 1997, and which 
is part of the docket, showing CO violations and outside temperature 
data by monitor location for all the dates exceedances were recorded 
during 1995. Fairbanks outside temperatures in 1995 were considerably 
above normal during times of CO air quality standard exceedances (i.e., 
highs recorded at +44, +34, +32, +30, +29, etc.). Thus, CO exceedances 
occur in Fairbanks at varying degrees of winter temperatures, not just 
very low winter temperatures.
    Stagnation and inversions are frequent climatological occurrences 
that must be considered in evaluating whether a control program is 
adequate to attain and maintain the NAAQS. Meteorological events such 
as these are

[[Page 9947]]

almost never accepted as justification for waiving the NAAQS. 
Inversions occur very frequently, are usually short-lived, and disperse 
shortly after sunrise. Because inversions are expected to occur 
frequently and are part of normal weather patterns, they are not 
considered special events warranting exemptions from reclassification.
    In some parts of the United States, stagnation episodes usually 
persist for an extended period of time, and they can affect an entire 
air basin. While stagnations may not occur frequently, they are not 
uncommon; therefore, they are not considered sufficiently exceptional 
to waive application of the NAAQS.

Number of Violations Declining--Why Reclassify?

    Commenters asked why Fairbanks is being reclassified when air 
quality has improved over the last 10-15 years; is reclassification 
necessary?
    Response: Reclassification does not mean that the air quality in 
Fairbanks has deteriorated. Congress established the attainment dates 
of reclassification requirements to allow additional planning time to 
meet the CO NAAQS. The attainment date under the CAA of 1990 for a 
serious CO nonattainment area is December 31, 2000, and authorizes more 
time for Fairbanks North Star Borough, together with ADEC, to devise an 
air pollution control plan to meet the CO air quality standard. EPA 
recognizes the progress Fairbanks has achieved thus far toward 
improving air quality and decreasing the ambient levels of CO. However, 
Congress mandated reclassification under section 186(b) of the CAA in 
specific circumstances, and the Administrator does not have flexibility 
to decide otherwise once EPA determines the area has failed to meet the 
CO NAAQS. Fairbanks currently has an inspection and maintenance program 
as its base control measure. The general public will have the 
opportunity to comment on additional control measures that would be 
most effective towards improving air quality in Fairbanks.

Timeliness of Reclassification Notice

    A commenter stated concern that it is unrealistic to expect a 
community like Fairbanks to complete the planning and implementation of 
control measures necessary to achieve the NAAQS by a December 31, 2000 
deadline. If this determination and notice requirement were published 
by June 30, 1996 as envisioned in the Clean Air Act, Fairbanks would 
have had four years to plan and implement a revised CO strategy and 
achieve attainment.
    Response: Language in the 1996 budget legislation, section 308, 
H.R. 1099, restricted EPA from taking reclassification action for 
Fairbanks within six months after the applicable attainment date of 
December 31, 1995: ``Sec. 308. None of the funds appropriated under 
this Act may be used to implement the requirements of section 
186(b)(2), section 187(b) or section 211(m) of the Clean Air Act * * * 
with respect to any moderate nonattainment area in which the average 
daily temperature is below 0 degrees Fahrenheit. The preceding sentence 
shall not be interpreted to preclude assistance from the EPA to the 
State of Alaska to make progress toward meeting the CO standard in such 
areas and to resolve remaining issues regarding the use of oxygenated 
fuels in such areas.'' In the meantime, Fairbanks had no violations of 
the CO standard in 1996. However, in 1997, while EPA began the 
reclassification process, CO violations were once again repeated.
    When a nonattainment CO area such as Fairbanks is reclassified, the 
timetable given for planning requirements allows the state 18 months 
from the date of final reclassification to submit its new SIP revisions 
to EPA. In the meantime, the adopted CO contingency measure is 
implemented immediately to strengthen the air quality control measures 
already in place. The CAA defines specific timetables by which 
nonattainment areas must meet the requirements for moderate and serious 
CO classified areas. These requirements include attainment deadlines, 
area classifications, and the required provisions of the SIP's for 
these nonattainment areas. The revised general requirements for all 
SIPs appear early in Title I of the CAA. It is unlikely that 
significant regulatory changes would occur affecting stationary sources 
in that section 187(c)(1) of the Act only requires redefining ``major 
stationary source'' if stationary sources ``contribute significantly'' 
to CO levels, i.e., if a facility by itself would cause a violation of 
the national CO standard. No existing facility in the nonattainment 
area meets this criterion and it seems unlikely that a new facility, 
which would emit a large amount of CO, would meet such a standard 
unless it were sited in an area already identified as prone to CO 
buildup in the nonattainment area.
    EPA feels that by working closely with the Borough and ADEC, an 
approvable plan meeting reclassification requirements can be developed 
and taken through the public hearing process in a timely way.

III. Today's Action

    EPA is today taking final action to find that the Fairbanks North 
Star Borough CO nonattainment area did not attain the CO NAAQS by 
December 31, 1995, the CAA attainment date for moderate CO 
nonattainment areas. As a result of this finding, the Fairbanks North 
Star Borough CO nonattainment area is reclassified by operation of law 
as a serious CO nonattainment area as of the effective date of this 
document. This finding is based upon air quality data showing 
exceedances of the CO NAAQS during 1995. The Fairbanks North Star 
Borough CO nonattainment area was not eligible for an extension from 
the mandated attainment date of December 31, 1995.

IV. Executive Order (E.O.) 12866

    Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to 
determine whether regulatory actions are significant and therefore 
should be subject to OMB review, economic analysis, and the 
requirements of the Executive Order. The Executive Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may meet at least one of the four criteria identified in 
section 3(f), including, under paragraph (1), that the rule may ``have 
an annual effect on the economy of $100 million or more or adversely 
affect, in a material way, the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities''.
    The Agency has determined that the finding of failure to attain 
finalized today would result in none of the effects identified in 
section 3(f). Under section 186(b)(2) of the CAA, findings of failure 
to attain and reclassification of nonattainment areas are based upon 
air quality considerations and must occur by operation of law in light 
of certain air quality conditions. They do not, in and of themselves, 
impose any new requirements on any sectors of the economy. In addition, 
because the statutory requirements are clearly defined with respect to 
the differently classified areas, and because those requirements are 
automatically triggered by classifications that, in turn, are triggered 
by air quality values, findings of failure to attain and 
reclassification cannot be said to impose a materially adverse impact 
on State, local, or tribal governments or communities.

[[Page 9948]]

V. 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. As discussed in section IV of this document, findings of 
failure to attain and reclassification of nonattainment areas under 
section 186(b)(2) of the CAA do not in-and-of-themselves create any new 
requirements. Therefore, I certify that today's action does not have a 
significant impact on small entities.

VI. Unfunded Mandates Act

    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 
the 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 believes, as discussed above, that the finding of failure to 
attain and reclassification of the Fairbanks nonattainment area are 
factual determinations based upon air quality considerations and must 
occur by operation of law and, hence, do not impose any Federal 
intergovernmental mandate, as defined in section 101 of the Unfunded 
Mandates Act.

VII. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations.

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

    Dated: February 20, 1998.
Chuck Findley,
Acting Regional Administrator, Region 10.

    For the reasons set out in the preamble, Chapter I of Title 40 of 
the Code of Federal Regulations is amended as follows:

PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

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

    2. In section 81.302, the table for ``Alaska-Carbon Monoxide'' is 
amended for the Fairbanks area by replacing ``moderate'' with 
``serious'' under the classification column to read as follows:


Sec. 81.302  Alaska.

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                                                                 Alaska--Carbon Monoxide                                                                
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                                                              Designation                                               Classification                  
         Designated area          ----------------------------------------------------------------------------------------------------------------------
                                               Date \1\                           Type                           Date \1\                    Type       
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                   *                  *                  *                  *                  *                  *                  *                  
Fairbanks Area, Fairbanks          ...............................  Nonattainment..................  Mar. 30, 1998..................  Serious.          
 Election District (part),                                                                                                                              
 Fairbanks nonattainment area                                                                                                                           
 boundary.                                                                                                                                              
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
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[FR Doc. 98-5090 Filed 2-26-98; 8:45 am]
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