[Federal Register Volume 74, Number 145 (Thursday, July 30, 2009)]
[Rules and Regulations]
[Pages 37945-37948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18026]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2008-0592(a); FRL-8937-2]


Approval and Promulgation of Air Quality Implementation Plans--
Alabama: Birmingham 1997 8-Hour Ozone Contingency Measures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the 
Alabama State Implementation Plan (SIP), submitted by the Alabama 
Department of Environmental Management (ADEM), on February 6, 2008, to 
adopt contingency measures in the form of permit conditions for two 
cement kilns. These contingency measures are for the maintenance of the 
1997 8-hour ozone National Ambient Air Quality Standards (NAAQS) in 
Jefferson and Shelby Counties (``Birmingham Area''). On May 12, 2006, 
EPA approved the 8-hour ozone redesignation of the Birmingham Area from 
nonattainment to attainment for the 1997 8-hour ozone NAAQS (see, 71 FR 
27631). Additional measures may be necessary in the future; however, 
these revisions qualify as contingency measures as required under 
Section 175A(d) of the Clean Air Act (CAA).
    When the Birmingham Area was redesignated to attainment, Alabama 
was also required to submit a maintenance plan which included 
provisions for contingency measures should the Area violate the 
standard after being redesignated to attainment. The May 12, 2006, 
maintenance plan was designed to keep the Birmingham Area in attainment 
through 2017, initially, with a later extension of the maintenance plan 
to include a time period of no less than 20 years after the Area was 
redesignated originally. After attaining the 1997 8-hour ozone standard 
based on 2003-2005 ambient air monitoring data, the Birmingham Area 
violated the standard with 2004-2006 ambient air monitoring data. The 
February 6, 2008, SIP revision, provided by Alabama for EPA approval, 
was submitted to fulfill ADEM's commitment to adopt within 18 months of 
a violation of the 1997 8-hour ozone standard, one or more contingency 
measures to help the Area re-attain the standard. EPA is approving 
these revisions pursuant to section 110 of the CAA. On March 27, 2008, 
EPA issued a revised ozone standard (see, 73 FR 16436). This action, 
however, is being taken to address requirements under the 1997 8-hour 
ozone standard. EPA will address the Birmingham compliance with the 
2008 8-hour ozone standard in the future.

DATES: This rule is effective on September 28, 2009 without further 
notice, unless EPA receives adverse comment by August 31, 2009. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2008-0592 by one of the following methods:
    1. http://www.regulations.gov: Follow the online instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2008-0592,'' 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.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
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. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2008-0592.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the 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. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 a.m. to 4:30 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Stacy Harder, 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. Ms. Harder may be 
reached by phone at (404) 562-9042, or by electronic mail at 
[email protected]. For information relating to the Alabama SIP, 
contact Mr. Zuri Farngalo by phone at (404) 562-9152, or by electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 37946]]

Table of Contents

I. Background
II. Analysis of State's Submission
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On April 15, 2004, EPA designated the Birmingham Area as 
nonattainment for the 1997 8-hour ozone standard under title 1, part D, 
subpart 1 of the CAA. For the 1997 8-hour ozone standard the Birmingham 
Area is comprised of Jefferson and Shelby Counties in Alabama. EPA's 
designations for the 1997 8-hour ozone standard were published in the 
Federal Register on April, 30 2004, (69 FR 23858) and became effective 
on June 15, 2004. As an area designated as nonattainment for the 1997 
8-hour ozone standard under Subpart 1 of the CAA, the Birmingham Area 
had a required attainment date of ``as expeditiously as practicable'' 
but no later than June 15, 2009.
    On November 16, 2005, after air quality data indicated 
improvements, ADEM submitted a request for EPA to redesignate the 
Birmingham Area to attainment for the 1997 8-hour ozone standard. Also, 
as required, ADEM submitted for EPA approval, the initial maintenance 
plan to show continued maintenance for the first 11 years of the 20 
year maintenance period. ADEM's redesignation request was based on 
three years, 2003 to 2005, of ambient monitoring data for the 
Birmingham Area, which indicated the Birmingham Area had a design value 
of 0.072 parts per million (ppm). The design value for the Birmingham 
Area based on 2004-2006 was 0.078 ppm. Both the 2003-2005 and the 2004-
2006 design values met the requirement of 0.080 ppm for attainment for 
the 1997 8-hour ozone standard.
    In an action published on January 25, 2006, (71 FR 4077), EPA 
proposed to approve the redesignation of the Birmingham Area to 
attainment. EPA also proposed approval of the State's plan for 
maintaining the 1997 8-hour ozone NAAQS through the initial period of 
2006-2017 as a SIP revision. ADEM submitted a final, adopted SIP 
revision and redesignation request to EPA on January 27, 2006. On May 
12, 2006, EPA published a final rule in the Federal Register (71 FR 
27631), effective June 12, 2006, which approved the redesignation 
request and changed the legal designation of Jefferson and Shelby 
Counties in Alabama from nonattainment to attainment for the 1997 8-
hour ozone standard. This rule also approved ADEM's 8-hour ozone 
maintenance plan for the 1997 standard for the Birmingham Area pursuant 
to section 175A of the CAA.
    Section 175A of the CAA, requires a maintenance plan to become part 
of the SIP for areas redesignated to attainment and provide for 
maintenance of the air quality in the affected area for at least 20 
years after the redesignation. Specifically, the CAA requirement is 
that an initial maintenance plan that is at least 10 years in length 
(i.e., after EPA's expected approval) be submitted with the 
redesignation request. Subsequently, eight years after redesignation 
and submittal of the initial maintenance plan, the State is required to 
submit an additional maintenance plan that shows continued maintenance 
for the remainder for a 20-year period. Alabama chose 2017 as the end 
year for the initial maintenance plan for the Birmingham Area. Also 
included in Alabama's initial maintenance plan were contingency 
provisions as required by section 175(d) of the CAA. The purpose of the 
contingency provisions is to provide for prompt corrections for any 
violation of the standard that occurred in an area that was 
redesignated from nonattainment to attainment.
    In its May 12, 2006, maintenance plan, Alabama committed to adopt 
within 18 months of a violation of the 1997 8-hour ozone standard, one 
or more control measures to help the area reattain the standard. The 
plan stated that the State of Alabama would use actual ambient 
monitoring as the indicator or trigger to determine when these 
contingency measures would be implemented. In accordance with 40 CFR 
58, ambient ozone monitoring data that indicates a future violation of 
the ozone NAAQS will begin the process to implement contingency 
measures. In the event that an individual monitor in the nonattainment 
area recorded an annual fourth high reading of 0.085 ppm or higher, or 
if periodic emissions inventory updates revealed excessive or 
unanticipated growth greater than 10 percent in emission of either 
ozone precursor, ADEM agreed in the May 12, 2006, maintenance plan that 
the State would evaluate existing control measures to determine whether 
any further emission reduction measures should be implemented. Under 
Section 175A(d), the minimum requirements for these contingency 
measures required the implementation of all measures that were 
contained in the SIP before the redesignation.
    The Helena monitor, located in Shelby County and typically the 
controlling monitor for the Birmingham Area, violated the 1997 8-hour 
ozone NAAQS during 2004-2006 data with a reading of 0.085 ppm, although 
the overall design value for the Birmingham Area for that same period 
was 0.078 ppm. Under Section 175A(d), the minimum requirements for 
these contingency measures require the implementation of all measures 
that were contained in the SIP prior to the redesignation. Alabama has 
maintained all measures that were contained in the SIP prior to the 
redesignation. Also, in accordance with requirements of the CAA, 
Alabama committed to adopt one or more contingency measures within 18 
months of a violation of the 1997 8-hour ozone standard, in order to 
reattain the standard. To help correct the violation, Alabama evaluated 
and subsequently identified nitrogen oxide (NOX) controls 
for installation at two facilities in the Birmingham Area. More 
information on Alabama's analysis is provided below. Additional 
measures may be necessary in the future; however, these revisions 
qualify as contingency measures under the requirements of Section 
175A(d) of the CAA.

II. Analysis of State Submission

    On February 6, 2008, Alabama submitted a SIP revision to EPA for 
approval to incorporate into the SIP specific contingency measures to 
help the Birmingham Area attain the 1997 8-hour ozone standard. 
Specially, the February 6, 2008, submittal provided for controls at 
Lehigh Cement in Jefferson County and Lafarge Building Materials in 
Shelby County. After an extensive study in the early 1990s, for ozone 
formation in the Birmingham Area, Alabama concluded the best focus was 
on a reduction on NOX emissions as opposed to Volatile 
Organic Compounds.
    Both the Lehigh Cement facility in Jefferson County and the Lafarge 
Building Materials facility in Shelby County operate cement kilns that 
combust coal and utilize low NOX burners to minimize 
emissions. The Lehigh kiln is a preheater type kiln while the Lafarge 
kiln is a preheater/precalciner kiln. NOX is generated in 
the kilns during combustion through the oxidation of fuel-bound 
nitrogen (fuel NOX) and by the oxidation of atmospheric 
nitrogen (thermal NOX). NOX control can be 
achieved by minimizing the creation of NOX in the combustion 
device (i.e., low NOX burners) and by the addition of add-on 
controls. Selective Noncatalytic Reduction (SNCR) is a post-combustion 
(add-on) technology that was installed, and is based on the chemical 
reduction of NOX into molecular nitrogen (N2) and 
water vapor (H20). A nitrogen based

[[Page 37947]]

reducing agent (reagent), such as ammonia or urea, is injected into the 
post-combustion flue gas. The reduction reactions that occur due to the 
operation of the SNCR reduce the amount of NOX emitted into 
the atmosphere.
    Alabama's February 6, 2008, SIP revision requests to include 
specific provisos into the SIP related to the permits for the Lafarge 
and Leigh cement kilns. Specifically, Alabama is including the 
following for incorporation into the SIP, which can be found in 
Appendix A of the submittal:
    Lafarge: Fuel Processing & Handling Cement Kiln & Clinker Cooler 
Area 300:
    Emissions Standards: 15 & 16.
    Compliance and Performance Test Methods and Procedures: 10.
    Emissions Monitoring: 8, 9, & 10.
    Recordkeeping and Reporting Requirements: 8.
    Lehigh: Emissions Unit No. 005 = Rotary Kiln
    Permit Conditions: 45-48.

The permit conditions for the cement kiln (Emissions Unit No. 5) at 
Lehigh Cement and the cement kiln at Lafarge were adopted in early 2008 
after a public comment period for these revisions. Specifically, the 
public comment period for the Lafarge permit revisions was September 19 
through October 19, 2007. The public comment period for the Lehigh 
permit revisions was July 23 through August 21, 2007. The revised 
permits can be found in Appendix A of Alabama's February 6, 2008, SIP 
revision.
    According to ADEM's February 6, 2009 submittal, it is projected 
that an overall NOX reduction of 20-25 percent is expected 
from the two plants as a result of the installation of the SNCR. 
Specifically, 2009 ozone season NOX emissions were projected 
to be approximately 1,149 and 651 tons from Lehigh and Lafarge, 
respectively. Therefore, it is expected that the installation of the 
SNCRs should result in an approximate ozone season NOX 
reduction of 360-450 tons.

III. Final Action

    EPA is taking direct final action to approve specific permit 
conditions for two cement kilns in the Birmingham Area as implemented 
contingency measures. The specific conditions were provided to fulfill 
ADEM's requirement to address a violation of the 1997 8-hour ozone 
standard for the Birmingham Area. After careful evaluation, EPA has 
determined that ADEM's submittal meets the applicable requirements of 
the CAA and EPA regulations, and is consistent with EPA policy.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a non-controversial revision and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comment be filed. This rule will be effective on September 28, 
2009 without further notice unless the Agency receives adverse comment 
by August 31, 2009. If EPA receives such comments, then EPA will 
publish a document withdrawing the final rule and informing the public 
that the rule will not take effect. All public comments received will 
then be addressed in a subsequent final rule based on the proposed 
rule. EPA will not institute a second comment period on this action. 
Any parties interested in commenting must do so at this time. If no 
such comments are received, the public is advised this rule will be 
effective on September 28, 2009 and no further action will be taken on 
the proposed rule.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves Alabama law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, 
this rule does not have tribal implications as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not 
approved to apply in Indian country located in the state, and EPA notes 
that it will not impose substantial direct costs on tribal governments 
or preempt tribal law.
    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 action 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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 28, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the

[[Page 37948]]

proposed rulemaking. 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, Intergovernmental 
relations, Incorporation by reference, Ozone, Nitrogen dioxides, 
Reporting and recordkeeping requirements, Volatile organic compounds.

     Dated: July 16, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is 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(d), is amended by adding new entries to the table for 
``Lafarge Cement Kiln'' and ``Lehigh Cement Kiln'' to read as follows:


Sec.  52.50   Identification of plan.

* * * * *
    (d) * * *

                                                    EPA-Approved Alabama Source Specific Requirements
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                                                                    State
           Name of source                    Permit No.        submittal date/    EPA approval date                       Explanations
                                                               effective date
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Lafarge Cement Kiln.................  AB70004--1--01.........        2/6/2008  7/30/2009 [Insert        Certain provisions of the permit.
                                                                                citation of
                                                                                publication].
Lehigh Cement Kiln..................  4-07-0290-03...........        2/6/2008  7/30/2009 [Insert        Certain provisions of the permit.
                                                                                citation of
                                                                                publication].
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[FR Doc. E9-18026 Filed 7-29-09; 8:45 am]
BILLING CODE 6560-50-P