Clean Air Act Approval and Promulgation of Redesignation of the Leeds Area of Jefferson County, Alabama, to Attainment for Lead

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL 38-1-6571a; FRL-5123-8]

Clean Air Act Approval and Promulgation of Redesignation of the

Leeds Area of Jefferson County, Alabama, to Attainment for Lead

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the State Implementation Plan (SIP) submitted

by the State of Alabama through the Alabama Department of Environmental

Management (ADEM) for the purpose of redesignating the Leeds area of

Jefferson County from nonattainment to attainment status for the

National Ambient Air Quality Standard (NAAQS) for lead. The maintenance

plan was submitted by the State to satisfy the federal requirements

necessary to redesignate an area from nonattainment to attainment.

DATES: This final rule is effective on March 7, 1995 unless adverse or

critical comments are received by February 6, 1995. If the effective

date is delayed, timely notice will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to Kimberly Bingham at the EPA Region

4 address listed. Copies of the material submitted by ADEM may be

examined during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460.

Environmental Protection Agency, Region 4 Air Programs Branch, 345

Courtland Street, Atlanta, Georgia 30365.

Alabama Department of Environmental Management, Office of General

Counsel, 1751 Cong. W. L. Dickinson Drive, Montgomery, Alabama 36130.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning

and Development Section, Air Programs Branch, Air Pesticides and Toxics

Management Division, Region 4 Environmental Protection Agency, 345

Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is

(404) 347-3555 extension 4195.

SUPPLEMENTARY INFORMATION: On January 6, 1992, the Leeds area of

Jefferson County was designated nonattainment for lead. Since then the

major source of lead emissions in the area, a facility operated by

International Lead Company (ILCO) has permanently closed, and

monitoring data from the area demonstrates that the area has attained

the NAAQS for lead. Section 107(d)(3)(E) of the Clean Air Act (CAA)

permits nonattainment areas that have attained the lead NAAQS to be

redesignated attainment provided certain criteria are met.

Consequently, the State of Alabama submitted a request to redesignate

the Leeds area to attainment on July 16, 1993.

Section 107(d)(3)(E) of the CAA, as amended in 1990, sets forth the

requirements that must be met for a nonattainment area to be

redesignated to attainment. It states that an area can be

[[Page 2027]] redesignated to attainment if the following conditions

are met.

1. The EPA has determined that the NAAQS for lead has been

attained.

2. The applicable implementation plan has been fully approved by

EPA under section 110(k).

3. The EPA has determined that the improvement in air quality is

due to permanent and enforceable reductions in emissions.

4. The State has met all applicable requirements for the area under

section 110 and part D.

5. The EPA has fully approved a maintenance plan, including a

contingency plan, for the area under section 175A.

On March 3, 1992, ILCO, the source of emissions that led to the

lead nonattainment designation for the Leeds area, was permanently shut

down and dismantled. On May 3, 1993, the State of Alabama through ADEM

submitted a request to redesignate the Leeds area of Jefferson County

from nonattainment to attainment status for lead. Because the May 3,

1993, submittal was not complete and it did not adequately address all

of the requirements, EPA recommended that the request be withdrawn and

a complete SIP package be submitted. On December 8, 1993, in a letter

from Mr. James W. Warr to Mr. Patrick Tobin, ADEM withdrew the May 3,

1993, package. A second submittal dated July 16, 1993, was received by

EPA, along with a request for parallel processing. The request for

parallel processing was based upon the fact that the maintenance plan

did not become state effective until after the public hearing, August

18, 1993. The State did not receive any adverse comments during the

public hearing or the 30 day comment period.

On September 28, 1993, the effective SIP revisions were submitted

by ADEM revising the request to redesignate the Leeds area of Jefferson

County from nonattainment to attainment for lead. A letter of

completeness was mailed on October 7, 1993, to Mr. Richard E. Grusnick

from Mr. Winston A. Smith for the revised submittal. The State of

Alabama redesignation request for the Leeds area of Jefferson County

meets the requirements of Section 107(d)(3)(E). The following is a

description of how each requirement has been achieved.

1. Attainment of the Lead NAAQS

To demonstrate that the Leeds area is in attainment with the NAAQS

for lead, ADEM included air quality data for the years 1991-1993 in the

submittal. No exceedances of the lead standard have occurred since the

ILCO shutdown on March 6, 1992. This amount of monitoring data (more

than 11 consecutive quarters at the present time) without an exceedance

of the lead standard is adequate to demonstrate attainment of the

standard. Modeling is also required to redesignate an area to

attainment. The EPA believes that the EPA approved 1988 SIP, which

included a modeling analysis which satisfies this requirement. The

State of Alabama will continue to monitor the air quality of the Leeds

area to verify attainment status and continued maintenance.

2. The Area Has Met All Applicable Requirements Under Section 110

and Part D of the CAA

To be redesignated to attainment, section 107(d)(3)(E) requires

that an area must have met all applicable requirements of section 110

of part D of title I of the CAA. EPA interprets section 107(d)(3)(E)(v)

to mean that for a redesignation request to be approved, the State must

have met all requirements that applied to the subject area prior to or

at the time of a complete redesignation request. Requirements of the

CAA that come due subsequently continue to be applicable to the area at

those later dates (see section 175A(c)) and, if the redesignation is

disapproved, the State remains obligated to fulfill those requirements.

Therefore, for purposes of redesignation, to meet the requirement that

the SIP meet all applicable requirements under the CAA, EPA has

reviewed the Leeds SIP to ensure that it satisfies all requirements due

under the CAA prior to or at the time the State of Alabama submitted

its redesignation request (i.e., July 16, 1993).

A. Section 110 Requirements

On October 28, 1988, EPA fully approved Alabama's SIP for the Leeds

area of Jefferson County as meeting the requirements of section 110 of

the 1977 CAA (see 52 FR 47686). Although section 110 was amended by the

Clean Air Act Amendments (CAAA) of 1990, EPA has reviewed the Leeds SIP

and believes that it meets the requirements of the section 110(a)(2).

B. Part D Requirements

Before a lead nonattainment area may be redesignated to attainment,

the State must have fulfilled the applicable requirements of part D.

Subpart 1 of part D establishes the general requirements applicable to

all nonattainment areas and subpart 5 of part D establishes certain

requirements applicable to lead nonattainment areas. Section 191(a)

required the submission of nonattainment SIPs meeting the requirements

of part D for areas designated nonattainment for lead after the 1990

CAAA, such as Leeds, within 18 months of the designation. As Leeds was

designated nonattainment on January 6, 1992, its part D SIP was due on

July 6, 1993, a date preceding the submission of the complete

redesignation request for the area. Thus, to be redesignated, the Leeds

area SIP must satisfy the requirements of part D applicable to lead

nonattainment areas. These requirements include section 192(a)'s

requirement that the SIP provide for attainment as expeditiously as

practicable but no later than 5 years from the date of the

nonattainment designation and the requirements of section 172(c). The

EPA has reviewed the SIP submission from the State of Alabama and

determined that it meets all of the relevant requirements.

The requirements of sections 172(c) and 192(a) for providing for

attainment of the lead NAAQS, and the requirements of section 172(c)

for requiring reasonable further progress (RFP), and the imposition of

reasonably available control measures (RACM) have been satisfied

through the permanent closure of the ILCO facility and the

demonstration that the area is now attaining the standard. The EPA

notes that the ILCO facility has been dismantled and its permit

revoked. Moreover, section 172(c)(9) contingency measures are not

required as the area is attaining the standard. See General Preamble

for the Implementation of Title I, 57 FR 13498, 13564 (April 16, 1992).

The State of Alabama has submitted an emissions inventory for 1992

that fulfills the emissions inventory requirements of section

172(c)(3). Consequently, that requirement has been satisfied.

With respect to the requirement that an area seeking redesignation

must have submitted and received full approval of a part D New Source

Review (NSR) program required by section 172(c)(5), EPA has determined

that, if an area seeking redesignation demonstrates maintenance of the

standard without a part D NSR program, such a program need not be

adopted and approved in order for the area to be redesignated. (See the

memorandum from Mary Nichols, Assistant Administrator for Air and

Radiation to Air Division Directors, October 14, 1994). As the State of

Alabama has demonstrated that the Leeds area will maintain the lead

standard with a part C PSD program, rather than a part D NSR program,

in place, the requirement for having a fully approved part D NSR

program need not [[Page 2028]] be fulfilled for the Leeds area to be

redesignated to attainment.

3. Permanent and Enforceable Improvement in Air Quality

ADEM provided a copy of the revoked air permit dated March 4, 1992,

from the Jefferson County Department of Health, Air Pollution Program,

proving that ILCO, the major source of lead emissions had ceased

operation and was dismantled. Based on 1992 data, ILCO was responsible

for almost 80 percent of the lead emissions for the Leeds nonattainment

area. The total lead emissions identified in the 1992 inventory from

the Leeds area that remained after the ILCO shutdown are 2.63 tons per

year emitted from ACME Packaging. Since the ILCO facility has ceased

operation and has been dismantled, the improvement in air quality

resulting in attainment of the standard is permanent and enforceable.

Monitoring will continue in the Leeds area ensuring that the lead NAAQS

continues to be maintained.

4. Maintenance Plan

Section 175(A) of the CAA requires states that submit a

redesignation request for a nonattainment area under section 107(d) to

include a maintenance plan to ensure that the attainment of NAAQS for

any pollutant is maintained. The plan must demonstrate continued

attainment of the applicable NAAQS for at least ten years after the

approval of a redesignation to attainment. Eight years after the

redesignation, the State must submit a revised maintenance plan

demonstrating attainment for the ten years following the initial ten

year period. To provide for the possibility of future NAAQS violations,

the maintenance plan must contain such contingency measures as the

Administrator deems necessary to assure that the State will promptly

correct any violation of the standard that occurs after redesignation.

The contingency provisions are to include a requirement that the State

will implement all measures for controlling the air pollutant concerned

that were contained in the SIP prior to redesignation.

The State of Alabama through ADEM has submitted a maintenance plan

to ensure that the lead NAAQS is protected. The maintenance plan for

the Leeds area of Jefferson County, Alabama is comprised of a base year

emissions inventory, a maintenance demonstration and the part C PSD

program. The EPA believes that this submittal is adequate for the Leeds

area.

The State has demonstrated that the lead standard will be

maintained. The ILCO facility, the only major lead source that existed

in Leeds, has been permanently closed and dismantled. The only

remaining lead emissions source is ACME Packaging, which has emissions

well below the 5 ton per year threshold for being classified as a lead

point source (40 CFR 51.100(k)). Since ACME Packaging is not considered

a point source under EPA's regulations it is not even required to meet

RACM requirements. As previously discussed, the Leeds area has been in

continuous attainment of the lead standard since the closure of the

ILCO facility, and EPA believes, based on the low monitored levels of

lead emissions, which are well below the NAAQS, that the Leeds area

will continue to remain in attainment notwithstanding the existence of

continued emissions from ACME Packaging's facility. The applicability

of the State's fully approved part C PSD program, which establishes

permitting requirements for any new sources with the potential to emit

0.6 tons per year of lead, provides adequate assurance that the NAAQS

will continue to be attained during the maintenance period.

The EPA does not believe any additional contingency measures are

needed. The lead emissions from the ACME Packaging facility are so low

that EPA does not believe it reasonable to expect that they could cause

a violation of the NAAQS. Nevertheless, monitoring of the Leeds area

will continue and appropriate actions could be taken in the event of a

violation of the standard.

With respect to the requirement of section 175A that the

contingency provisions of a maintenance plan include all control

measures previously contained in the SIP, EPA believes that the

requirement is satisfied in this instance even though the State is not

carrying forward as contingency measures the source-specific control

requirements previously applicable to the ILCO facility. Carrying

forward those requirements as contingency measures would serve no

useful purpose in light of the permanent closure of that facility and

the revocation of its permit. Moreover, any attempt to reopen a

facility on the same site would be subject to the permitting

requirements of the State's preconstruction review program.

Final Action

In this action, EPA is approving the redesignation of the Leeds

area to attainment for lead and the accompanying SIP revision submitted

by the State of Alabama, because EPA believes that Alabama has

addressed all of the requirements of the CAA and the culpable lead

source has been permanently shut down. This action is being taken

without prior proposal because the changes are noncontroversial and EPA

anticipates no significant comments on them. The public should be

advised that this action will be effective March 7, 1995. However, if

adverse or critical comments are received by February 6, 1995, this

action will be withdrawn and two subsequent documents will be published

before the effective date. One document will withdraw the final action.

The second document will be the final rulemaking notice which will

address the comments received.

Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),

petitions for judicial review of this action must be filed in the

United States Court of Appeals for the appropriate circuit by March 7,

1995. Filing a petition for reconsideration by the Administrator of

this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2)].

This action has been classified as a Table 2 action by the Regional

Administrator under the procedures published in the Federal Register on

January 19, 1989, (54 FR 2214-2225), as revised by an October 4, 1993,

memorandum from Michael Shapiro, Acting Assistant Administrator for Air

and Radiation. A future document will inform the general public of

these tables. On January 6, 1989, the Office of Management and Budget

(OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the

requirements of Section 3 of Executive Order 12291 for two years. The

USEPA has submitted a request for a permanent waiver for Table 2 and

Table 3 SIP revisions. The OMB has agreed to continue the temporary

waiver until such time as it rules on EPA's request. This request

continues in effect under Executive Order 12866 which superseded

Executive Order 12291 on September 30, 1993.

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

[[Page 2029]] enterprises, and government entities with jurisdiction

over populations of less than 50,000.

SIP approvals under section 110 and subchapter I, part D of the CAA

do not create any new requirements, but simply approve requirements

that the state is already imposing. Therefore, because the federal SIP-

approval does not impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the federal-state relationship under the CAA,

preparation of a regulatory flexibility analysis would constitute

federal inquiry into the economic reasonableness of state action. The

CAA forbids EPA to base its actions concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);

42 U.S.C. 7410(a)(2).

Redesignation of an area to attainment under section 107(d)(3)(e)

of the CAA does not impose any new requirements on small entities.

Redesignation is an action that affects the status of a geographical

area and does not impose any regulatory requirements on sources. The

Administrator certifies that the approval of the redesignation request

will not affect a substantial number of small entities.

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by

reference, Intergovernmental relations, Lead.

40 CFR Part 81

Air pollution control.

Dated: December 7, 1994.

Patrick M. Tobin,

Acting Regional Administrator.

Chapter I, title 40 of the 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 52.50 is amended by adding paragraph (c)(66) to read as

follows:

Sec. 52.50 Identification of plan.

* * * * *

(c) * * *

(66) The Alabama Department of Environmental Management has

submitted revisions to Alabama SIP on September 28, 1993. These

revisions address the requirements necessary to change the Leeds area

of Jefferson County, Alabama, from nonattainment to attainment for

lead. The submittal includes the maintenance plan for the Leeds Area.

(i) Incorporation by reference.

(A) Plan for Maintenance of the NAAQS for Lead in the Jefferson

County (Leeds) Area after Redesignation to Attainment Status effective

on September 28, 1993.

(ii) Additional information. None.

PART 81--[AMENDED]

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

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

2. Section 81.301 is amended by revising the table for Lead to read

as follows:

Sec. 81.301 Alabama.

* * * * *

Alabama-Lead

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Designation Classification

Designated area -------------------------------------------------------

Date Type Date Type

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Statewide....... March 7, 1995.. Attainment.....

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[FR Doc. 95-284 Filed 1-5-95; 8:45 am]

BILLING CODE 6560-50-P