[Federal Register Volume 67, Number 162 (Wednesday, August 21, 2002)]
[Proposed Rules]
[Pages 54159-54161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21286]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[AL-200234; FRL-7264-4]


Proposed Determination of Attainment of 1-hour Ozone Standard as 
of November 15, 1993, for the Birmingham, AL, Marginal Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to determine that the Birmingham marginal ozone 
nonattainment area (hereinafter referred to as the Birmingham area) 
attained the 1-hour ozone National Ambient Air Quality Standard (NAAQS) 
by November 15, 1993, the date required by the Clean Air Act (CAA). The 
Birmingham area is comprised of Jefferson and Shelby Counties. On July, 
10, 2002, the United States District Court for the District of Columbia 
concluded that EPA failed to exercise its non-discretionary duty to 
make a final attainment determination for the Birmingham area by May 
15, 1994. The Court required that EPA make a formal attainment 
determination within 120 days from date of opinion. Sierra Club v. 
Whitman, No. 00-2206 (D.D.C. July 10, 2002). Therefore, in response to 
the Court's order, EPA proposes to determine that the Birmingham area 
attained the 1-hour ozone standard by its statutory attainment date of 
November 15, 1993.

DATES: Written comments must be received on or before September 20, 
2002.

ADDRESSES: All comments should be addressed to: 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.
    Copies of documents relative to this action are available at the 
following address for inspection during normal business hours: 
Environmental Protection Agency, Region 4, Air Planning Branch, 61 
Forsyth Street, SW, Atlanta, Georgia 30303-8960.
    The interested persons wanting to examine these documents should 
make an appointment at least 24 hours before the visiting day and 
reference file AL-200234.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 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 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Proposing To Take?
II. What Is the Background for This Action?
III. Why Is EPA Taking This Action?

[[Page 54160]]

IV. Proposed Action
V. Administrative Requirements.

I. What Action Is EPA Proposing To Take?

    Pursuant to section 181(b)(2)(A) of the CAA, EPA is proposing to 
determine that the Birmingham area has attained the 1-hour NAAQS for 
ozone by November 15, 1993, the date required by section 181(a)(1) of 
the CAA. This determination is based upon three years of complete, 
quality-assured, ambient air monitoring data for the years 1991-1993 
which indicate that Birmingham area attained the 1-hour ozone NAAQS.

II. What Is the Background for This Action?

    The Clean Air Act (CAA) requires EPA to establish NAAQS for certain 
pollutants that cause or contribute to air pollution that is reasonably 
anticipated to endanger public health or welfare (CAA sections 108 and 
109). In 1979, EPA promulgated the 1-hour 0.12 parts per million (ppm) 
ground-level ozone NAAQS (44 FR 8202 (February 8, 1979)). Ground-level 
ozone is not emitted directly by sources. Rather, emissions of nitrogen 
oxides (NOX) and volatile organic compounds (VOC) react in 
the presence of sunlight to form ground-level ozone. NOX and 
VOC are referred to as precursors of ozone.
    An area exceeds the 1-hour ozone NAAQS each time an ambient air 
quality monitor records a 1-hour average ozone concentration above 
0.124 ppm. An area is violating the NAAQS when the average of expected 
exceedances during a consecutive three-year period is greater than 1 at 
any one monitor (40 CFR part 50, appendix H). The CAA required EPA to 
designate as nonattainment any area that was violating the 1-hour ozone 
NAAQS, generally based on air quality monitoring data from the three-
year period from 1987-1989, or any area contributing to a violation 
(CAA section 107(d)(4); 56 FR 56694 (November 6, 1991)). The CAA 
further classified these areas, based on the area's design value (i.e., 
the 4th highest ozone value during the relevant three year period at 
the violating monitor with the highest ozone levels), as marginal, 
moderate, serious, severe or extreme (CAA section 181(a)). Marginal 
areas were suffering the least significant air pollution problems.
    The control requirements and dates by which attainment needs to be 
achieved vary with the area's classification. Marginal areas were 
subject to the fewest mandated control requirements and had the 
earliest attainment date. Marginal areas were required to attain the 1-
hour NAAQS by November 15, 1993. Section 181(a) of the CAA.
    The Birmingham area was originally designated as a 1-hour ozone 
nonattainment area by EPA on March 3, 1978 (43 FR 8962). The Birmingham 
nonattainment area at that time was geographically defined as Jefferson 
County, Alabama. On November 6, 1991, by operation of law under section 
181(a) of the CAA, EPA classified the Birmingham nonattainment area as 
a marginal nonattainment area for ozone and added Shelby County to the 
nonattainment area (56 FR 56693). The nonattainment classification for 
the Birmingham marginal ozone area was based on ambient air sampling 
measurements for ozone made during 1987-1989. The area was required to 
attain the 1-hour ozone NAAQS by November 15, 1993, (i.e., three years 
from the enactment of the CAA) which is the date set forth in section 
181(a)(1).
    For further background, see the Court's opinion in Sierra Club v. 
Whitman, No. 00-2206 (D.D.C. July 10, 2002).
    Section 181(b)(2)(A) of the Clean Air Act states that:
    Within 6 months following the applicable attainment date (including 
any extension thereof) for an ozone nonattainment area, the 
Administrator shall determine, based on the area's design value (as of 
the attainment date), whether the area attained the standard by that 
date. Except for any Severe or Extreme area, any area that the 
Administrator finds has not attained the standard by that date shall be 
reclassified by operation of law in accordance with table 1 of 
subsection (a) to the higher of--
    (i) the next higher classification for the area, or
    (ii) the classification applicable to the area's design value as 
determined at the time of the notice required under subparagraph (B).
    No area shall be reclassified as extreme under clause (ii).
    After the end of the 1993 ozone season, the Birmingham area had 
three years of quality assured air monitoring data (1991, 1992 and 
1993) which demonstrated that the 1-hour ozone NAAQS was attained. 
Table 1 shows the number of exceedances at each of the monitoring sites 
in Jefferson and Shelby Counties. No individual monitor recorded more 
than two exceedances during the three year period. The national 1-hour 
primary and secondary ambient air quality standard for ozone is 
attained when the expected number of days per calendar year with 
maximum hourly average concentrations above 0.12 ppm is equal to or 
less than 1, averaged over a three year period (40 CFR part 50, 
appendix H). The design value for the Birmingham area is 0.124 ppm, 
based on the fourth highest 1-hour value recorded at the Bearden Farm 
monitor. The recorded values for that monitor were 0.144, 0.125, 0.124, 
and 0.124 ppm.

                   Table 1.--Birmingham Area 1-hour Ozone NAAQS Exceedances From 1991 to 1993
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                                                            Jefferson County                            Shelby
                                   -----------------------------------------------------------------    County
               Year                                                                                 ------------
                                     Fairfield     Route 8    Tamassee LA  Pinson High    Tarrant      Bearden
                                                   McAdory                     Sch        Elem Sch       Farm
----------------------------------------------------------------------------------------------------------------
1991..............................            0            0            0            0            0            0
1992..............................            0            0            0            1            1            0
1993..............................            0            0            1            0            0            2
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    Therefore, in accordance with section 181(b)(2) of the CAA, EPA 
proposes to determine that the Birmingham area attained the standard by 
the area's November 15, 1993, attainment date.

III. Why Is EPA Taking This Action?

    In 2000, the Sierra Club brought suit in district court, seeking, 
among other claims, an order requiring EPA to issue a determination 
pursuant to section 181(b) as to whether the Birmingham area had 
attained the NAAQS.
    On July, 10, 2002, the United States District Court for the 
District of Columbia concluded that EPA failed to perform its non-
discretionary duty to

[[Page 54161]]

make a final attainment determination for the Birmingham area (CAA 
section 181(6)) by May 15, 1994. The Court required EPA to make a 
formal determination within 120 days from the date of its opinion. 
Sierra Club v. Whitman, No. 00-2206 (D.D.C. July 10, 2002). In 
compliance with the Court's order, EPA proposes to determine that the 
Birmingham area had attained the 1-hour ozone standard by November 15, 
1993.

IV. Proposed Action

    Pursuant to section 181(b)(2)(A) of the CAA, EPA is proposing to 
determine that the Birmingham area attained the 1-hour NAAQS for ozone 
by November 15, 1993. This determination is based upon the area's 
design value as of its attainment date, and upon three years of 
complete, quality-assured, ambient air monitoring data for the years 
1991-1993 which indicate that Birmingham area attained the 1-hour ozone 
NAAQS.

V. Administrative Requirements

    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. 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 (Public Law 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 proposes to approve a state rule implementing a Federal 
standard, 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.
    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. 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 
determination of attainment does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

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

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

    Dated: August 9, 2002.
J. I. Palmer, Jr.,
Regional Administrator, Region 4.
[FR Doc. 02-21286 Filed 8-20-02; 8:45 am]
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