[Federal Register Volume 69, Number 49 (Friday, March 12, 2004)]
[Rules and Regulations]
[Pages 11798-11801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5508]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL-63-200412; FRL-7634-9]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Alabama; Redesignation of 
Birmingham Ozone Nonattainment Area to Attainment for Ozone

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is finalizing approval of the redesignation of the 1-hour 
ozone National Ambient Air Quality Standard (NAAQS) nonattainment area 
of Birmingham, Alabama, to attainment, and finalizing approval of 
Alabama's State Implementation Plan (SIP) revision containing a 10-year 
maintenance plan for the 1-hour ozone NAAQS for the Birmingham area. 
Additionally, through this action, EPA is providing notification of its 
determination that the motor vehicle emission budgets (MVEBs) for the 
year 2015 contained in the 10-year maintenance plan SIP revision for 
the 1-hour ozone standard for the Birmingham area (submitted on January 
30, 2004, by the Alabama Department of Environmental Management 
(ADEM)), are adequate for transportation conformity purposes. Because 
EPA is approving these 2015 MVEBs as part of its approval of Alabama's 
10-year maintenance plan SIP revision for the Birmingham area, the 2015 
MVEBs contained in the Birmingham area's 10-year maintenance plan for 
the 1-hour ozone standard, can be used for future conformity 
determinations on the date of publication of this Final rule.

DATES: This final rule is effective on April 12, 2004.

ADDRESSES: 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.

FOR FURTHER INFORMATION CONTACT: Kelly Sheckler, Air Quality Modeling 
and Transportation 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. Sheckler can also be reached 
via electronic mail at [email protected].
    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. The telephone number is (404) 562-9043. Mr. Lakeman can 
also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 19, 2003, the State of Alabama, through ADEM, submitted 
(1) a request to redesignate the 1-hour ozone NAAQS nonattainment area 
of Birmingham, Alabama, to attainment, and (2) a request for parallel 
processing of a draft Alabama SIP revision containing a 10-year 
maintenance plan for the 1-hour ozone standard for the Birmingham area. 
ADEM held a public meeting on January 9, 2004, to receive comments on 
these requested actions. Alabama's comment period for these actions 
closed January 13, 2004. With the exception of a positive comment 
concerning the redesignation ADEM did not receive any adverse comments. 
On January 30, 2004, ADEM submitted to EPA the final Maintenance Plan 
SIP revision request for final review and approval. The final 
Maintenance Plan submittal did not contain any changes from the Draft 
Maintenance Plan submitted to EPA on November 19, 2003.
    On January 6, 2004, (69 FR 558) EPA published a notice of proposed 
rulemaking (NPR) proposing to approve the redesignation of the 1-hour 
ozone NAAQS nonattainment area of Birmingham, Alabama, to attainment, 
and proposing to approve the SIP revision containing a 10-year 
maintenance plan for the 1-hour ozone standard for the Birmingham area. 
In the January 6, 2004 NPR, EPA also provided the public with an 
opportunity to review and comment on the adequacy of new volatile 
organic compounds (VOC) and nitrogen oxides (NOX) MVEBs for 
the year 2015 for purposes of determining transportation conformity. 
The January 6, 2004 NPR provides a detailed description of each of 
these matters and the rationale for each of EPA's proposed actions, 
together with a discussion of the opportunity to comment on the 
adequacy of the 2015 MVEBs. The public comment period for

[[Page 11799]]

these actions ended on February 5, 2004. No comments, adverse or 
otherwise, were received on EPA's proposed actions or on the adequacy 
of the 2015 MVEBs for transportation conformity purposes.

II. Today's Action

    Section 107(d)(3)(D) allows a Governor to initiate the 
redesignation process for an area to apply for attainment status. On 
January 30, 2004, Alabama requested redesignation of the 1-hour ozone 
attainment status for the Birmingham area. Today, EPA is approving the 
1-hour ozone redesignation request and the 10-year maintenance plan SIP 
revision. EPA's approval of the 1-hour ozone redesignation request is 
based on its determination that the Birmingham, Alabama, area has met 
the five criteria for redesignation to attainment specified in the 
Clean Air Act, including a demonstration that the area has attained the 
1-hour ozone NAAQS. The 1990 Amendments revised section 107(d)(3)(E) to 
provide five specific requirements that an area must meet in order to 
be redesignated from nonattainment to attainment: (1) The area has 
attained the applicable NAAQS; (2) the area has met all applicable 
requirements under section 110 and part D of the CAA; (3) the area has 
a fully approved SIP under section 110(k) of the CAA; (4) the air 
quality improvement is due to permanent and enforceable reductions in 
emissions resulting from implementation of the SIP and applicable 
Federal air pollution control regulations and other permanent and 
enforceable reductions, and (5) the area has a fully approved 
maintenance plan pursuant to section 175A of the CAA. EPA's analysis of 
the five criteria as applied to Alabama's redesignation request are 
discussed in detail in the January 6, 2004 NPR.
    The State of Alabama's request is based on an analysis of quality-
assured ozone air quality data which is relevant to the redesignation 
request and reflects attainment of the 1-hour ozone standard. The data 
used to support the redesignation request come from the State and Local 
Air Monitoring Station network. The request is based on ambient air 
ozone monitoring data collected for 3 consecutive years from 2001 
through 2003.
    In a letter dated December 3, 2003, ADEM certified that the Shelby 
County 2003 data is accurate and in a letter dated December 3, 2003, 
Jefferson County Department of Health certified that the Jefferson 
County 2003 data is accurate. The ozone monitoring data for the April 
through October ozone season from 2001 to 2003 has been quality assured 
and is recorded in AIRS. During the 2001 to 2003 time period, the 
design value is 0.113 ppm. The average annual number of expected 
exceedances is 1.0 for that same time period.
    The data satisfies the CAA requirements of no more than one 
exceedance per annual monitoring period. Under the CAA, nonattainment 
areas may be redesignated to attainment if sufficient data is available 
to warrant the redesignation and the area meets the other four CAA 
redesignation requirements. As noted above, and as discussed in detail 
in the January 6, 2004 NPR, EPA has determined that sufficient data is 
available to warrant redesignation and that the other four 
redesignation criteria have been met in the Birmingham area for the 1-
hour ozone national ambient air quality standard.
    Today, EPA is also approving Alabama's SIP revision to provide for 
the maintenance of the 1-hour ozone NAAQS in the Birmingham area for at 
least 10 years after redesignation. The underlying strategy of the 
maintenance plan is to show compliance and maintenance of the 1-hour 
ozone standard by assuring that current and future emissions of VOC and 
NOX remain at or below attainment year (2003) emissions 
levels. Under section 175A of the CAA, the plan must demonstrate 
continued attainment of the applicable NAAQS for at least 10 years 
after the Administrator approves a redesignation to attainment. Eight 
years after the redesignation, the State must submit a revised 
maintenance plan which demonstrates that attainment will continue to be 
maintained for the ten years following the initial ten-year period. To 
provide for the possibility of future NAAQS violations, the maintenance 
plan must contain contingency measures, with a schedule for 
implementation, adequate to assure prompt correction of any future 1-
hour ozone violations.
    As discussed in detail in the January 6, 2004 NPR, EPA has 
determined that the 10-year maintenance plan meets the elements for 
maintenance plans set out in section 175A of the Clean Air Act. Because 
the 1-hour ozone 10-year maintenance plan for the Birmingham area meets 
the requirements of section 175A of the CAA, EPA is approving the 
maintenance plan and the 2015 MVEBs for VOC and NOX that are 
contained within the 10-year maintenance plan. Because EPA is approving 
the 2015 MVEBs for VOC and NOX as part of its approval of 
Alabama's 10-year maintenance plan for the 1-hour ozone standard, the 
2015 MVEBs for VOC and NOX can be used for future conformity 
determinations on the date of publication of this Final rule. The 
specific 2015 MVEBs to be used on the date of publication of this Final 
rule are: 23 tons per day of VOCs and 41 tons per day of 
NOX.
    Finally, through this rulemaking, EPA is providing notice that it 
has determined that the 2015 MVEBs for VOC and NOX, as 
contained in the 10-year maintenance plan discussed above, meet the 
substantive criteria for ``adequacy'' as set out in 40 CFR 
93.118(e)(4), and are adequate for purposes of transportation 
conformity. EPA Region 4 sent a letter to ADEM on March 3, 2004, 
stating that the MVEB in the Birmingham 1-Hour Ozone Maintenance SIP 
revision submitted on January 30, 2004, are adequate. These 2015 MVEBs, 
as they relate to adequacy determinations for transportation conformity 
purposes, are discussed in detail in the January 6, 2004 NPR, which 
provided public notice and requested comment on the adequacy of the 
2015 MVEBs. EPA received no comments on the ``adequacy'' determination 
for the 2015 MVEBs.
    EPA's adequacy determination for the 2015 MVEBs contained in the 1-
hour ozone 10-year maintenance plan has also been announced on EPA's 
conformity Web site: BM--1--http:// www.epa.gov/otaq/transp.htm, (once 
there, click on the ``Transportation Conformity'' text icon, then look 
for ``Adequacy Review of State Implementation Plan (SIP) Submissions 
for Conformity''). As noted above, because EPA is approving the 2015 
MVEBs for VOC and NOX as part of its approval of Alabama's 
10-year maintenance plan for the 1-hour ozone standard for the 
Birmingham area, the 2015 MVEBs can be used for future conformity 
determinations on the date of publication of this Final rule. The 
specific 2015 MVEBs to be used on the date of publication of this Final 
rule are: 23 tons per day of VOCs and 41 tons per day of 
NOX.

III. Final Action

    EPA is approving the redesignation of the 1-hour ozone NAAQS 
nonattainment area of Birmingham, Alabama, to attainment, and approving 
Alabama's SIP revision containing a 10-year maintenance plan for the 1-
hour ozone standard for the Birmingham area because the redesignation 
and the maintenance plan meet the requirements of sections 107(d) and 
175A of the Clean Air Act, respectively. EPA is also providing notice 
that it has determined the 2015 VOC and NOX MVEBs, as 
contained in the 10-year

[[Page 11800]]

maintenance plan for the 1-hour ozone standard for the Birmingham area, 
to be adequate under the requirements of 40 CFR 93.118(e)(4).

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
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 action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this 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 approves 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 (Pub. L. 104-4).
    This 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 approves 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 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 rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 11, 2004. 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

40 CFR Part 52

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

40 CFR Part 81

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

    Dated: March 1, 2004.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

0
Parts 52 and 81, chapter I, title 40, Code of Federal Regulations, are 
amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart B--Alabama

0
2. Section 52.50(e) is amended by adding a new entry for ``Maintenance 
plan for the Birmingham area''.


Sec.  52.50  Identification of plan.

* * * * *
    (e) * * *

                                 EPA Approved Alabama Non-regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                                                       State
  Name of nonregulatory SIP provision   Applicable geographic or  submittal date/  EPA approval     Explanation
                                           nonattainment area     effective date       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Maintenance plan for the Birmingham     Jefferson County and          01/30/2004      03/12/2004  ..............
 area.                                   Shelby County.
----------------------------------------------------------------------------------------------------------------


[[Page 11801]]

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. In Sec.  81.301, the table entitled ``Alabama-Ozone (1-Hour 
Standard)'' is amended by revising the entries for ``Jefferson County'' 
and ``Shelby County'' to read as follows:


Sec.  81.301  Alabama.

* * * * *

                                                             Alabama-Ozone (1-Hour Standard)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Designation                                           Classification
             Designated area             ---------------------------------------------------------------------------------------------------------------
                                             Date 1                       Type                       Date 1                       Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birmingham Area:
    Jefferson County....................      4/12/04  Attainment...............................
    Shelby County.......................      4/12/04  Attainment...............................
 
                                                                     * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 This date is October 18, 2000, unless otherwise noted.

* * * * *
[FR Doc. 04-5508 Filed 3-11-04; 8:45 am]
BILLING CODE 6560-50-P