Approval and Promulgation of Implementation Plans for the State of Alabama-Proposed Disapproval of the Request to Redesignate the Birmingham, Alabama (Jefferson and Shelby Counties) Marginal Ozone Nonattainment Area to Attainment and the Associated Maintenance Plan

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL-40-7142; FRL-5818-4]

Approval and Promulgation of Implementation Plans for the State

of Alabama-Proposed Disapproval of the Request to Redesignate the

Birmingham, Alabama (Jefferson and Shelby Counties) Marginal Ozone

Nonattainment Area to Attainment and the Associated Maintenance Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove the State of Alabama's request

submitted through the Alabama Department of Environmental Management

(ADEM) to redesignate the Birmingham marginal ozone nonattainment area

(Jefferson and Shelby Counties) to attainment and the associated

maintenance plan as a revision to the State Implementation Plan (SIP).

Prior to the end of the close of the administrative record, EPA

determined that the area registered a violation of the ozone national

ambient air quality standard (NAAQS). As a result, the Birmingham area

no longer meets the statutory criteria for redesignation to attainment

of the ozone NAAQS.

DATES: Comments on this proposed action must be received in writing by

May 30, 1997.

ADDRESSES: Written comments on this action should be addressed to

Kimberly Bingham at the Environmental Protection Agency, Region 4, Air

Planning Branch, 61 Forsyth Street, SW, Atlanta, Georgia 30303.

Copies of documents relative to this action are available for

public inspection during normal business hours at the following

locations. The interested persons wanting to examine these documents

should make an appointment with the appropriate office at least 24

hours before the visiting day. Reference file AL-40-7142. The Region 4

office may have additional background documents not available at the

other locations.

Environmental Protection Agency, Region 4, Air Planning Branch, 61

Forsyth Street, SW, Atlanta, Georgia 30303. Kimberly Bingham, (404)

562-9038.

Alabama Department of Environmental Management, 1751 Congressman, W. L.

Dickinson Drive, Montgomery, Alabama 36109.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham at (404) 562-9038.

SUPPLEMENTARY INFORMATION: On March 16, 1995, ADEM submitted a request

to EPA to redesignate the Birmingham, Alabama, marginal ozone

nonattainment area to attainment. On that date, they also submitted a

maintenance plan for the area as a revision to the Alabama SIP.

According to section 107(d)(3)(E) of the Clean Air Act (CAA), 42

U.S.C. 7407(d)(3)(E), redesignation requests must meet five specific

criteria in order for EPA to redesignate an area from nonattainment to

attainment:

1. The Administrator determines that the area has attained the

ozone NAAQS;

2. The Administrator has fully approved the applicable

implementation plan for the area under section 110(k);

3. The Administrator determines that the improvement in air quality

is due to permanent and enforceable reductions in emissions resulting

from implementation of the applicable implementation plan and

applicable Federal air pollution control regulations and other

permanent and enforceable reductions;

4. The Administrator has fully approved a maintenance plan for the

area as meeting the requirements of section 175A; and

5. The State containing such area has met all requirements

applicable to the area under section 110 and part D.

The EPA provided guidance on redesignation in the General Preamble

for the Implementation of the CAAA of 1990, 57 FR 13498 (April 16,

1992), supplemented at 57 FR 18070 (April 28, 1992). The primary

memorandum providing further guidance with respect to section

107(d)(3)(E) of the amended Act is dated September 4, 1992, and issued

by the Director, Air Quality Management Division, Subject: Procedures

for Processing Requests to Redesignate Areas to Attainment (Calcagni

Memorandum).

The State submitted its request for redesignation on March 16,

1995. The request included information showing that the Birmingham area

had three years of air quality attainment data from 1990-1993. The area

continued to maintain the ozone NAAQS through 1994. The submittal was

rendered administratively complete on April 11, 1995. Supplemental

information needed for the submittal to be approvable which was

initially requested from ADEM in a February 15, 1995, letter addressing

the prehearing submittal was submitted on July 21, 1995. A direct final

rule approving the redesignation request was signed by the Regional

Administrator and forwarded to the EPA Federal Register Office on

August 15, 1995. The direct final rule as drafted contained a thirty

day period for public comment on the redesignation request.

Prior to publication of the document and therefore prior to close

of the administrative record, EPA determined that the area registered a

violation of the ozone NAAQS on August 18, 1995. The EPA directed the

Office of Federal Register to recall the document from being published.

The ambient data has been quality assured according to established

procedures for validating such monitoring data. The State of Alabama

does not contest that the area violated the NAAQS for ozone during

[[Page 23422]]

the 1995 ozone season. As a result, the Birmingham area no longer meets

the statutory criteria for redesignation to attainment of the ozone

NAAQS found in section 107(d)(3)(E)(i) of the CAA. The maintenance plan

SIP revision is also not approvable because its demonstration is based

on a level of ozone precursor emissions in the ambient air thought to

represent an inventory of emissions that would provide for attainment

and maintenance. That underlying basis of the maintenance plan's

demonstration is no longer valid due to the violation of the NAAQS that

occurred during the 1995 ozone season.

Even though the Regional Administrator signed the direct final rule

prior to the violation, the document was not published. Since the

Agency's decision was neither published nor subject to notice or

comment, EPA neither proposed nor took final action with respect to the

redesignation.

The Administrator is prohibited under section 107(d)(3)(E)(i) from

redesignating an area to attainment when it has not attained the NAAQS.

Furthermore, section 107(d)(1)(A) defines a nonattainment area as ``any

area that does not meet'' the NAAQS. Consequently, if a violation

occurs prior to EPA's final action on redesignation, the area is no

longer in attainment and does not meet the definition of an attainment

are under section 107. The EPA has consistently followed these

principles in disapproving redesignations for areas that violate the

NAAQS while their requests are pending. In the September 4, 1992,

policy memorandum of John Calcagni, EPA stated: ``Regions should advise

States of the practical planning consequences if EPA disapproves the

redesignation request or if the request is invalidated because of

violations recorded during EPA's review.'' See for example, 59 FR 22757

dated May 3, 1994, disapproving the redesignation of Richmond, Virginia

due to violations occurring after the proposed approval; 61 FR 50718

dated September 27, 1996, disapproving the redesignation request for

the Kentucky portion of the Cincinnati-Hamilton nonattainment area; and

61 FR 19193 dated May 1, 1996, disapproving of the redesignation

request for Pittsburgh, Pennsylvania.

Proposed Action

EPA is proposing to disapprove the State of Alabama's March 16,

1995, redesignation request and maintenance plan SIP revision.

EPA is soliciting public comments on this document and on issues

relevant to EPA's proposed action. Comments will be considered before

taking final action. Interested parties may participate in the Federal

rulemaking procedure by submitting written comments to the person

listed in the ADDRESSES section.

The Agency has reviewed this request for revision of the Federally-

approved SIP for conformance with the provisions of the CAA. The Agency

has determined that this action does not conform with the statute as

amended and should be disapproved. The Agency has examined the issue of

whether this action should be reviewed only under the provisions of the

law as it existed on the date of submittal to the Agency (i.e., prior

to November 15, 1990) and has determined that the Agency must apply the

new law to this revision.

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any state implementation plan. Each request for revision to the state

implementation plan shall be considered separately in light of specific

technical, economic, and environmental factors and in relation to

relevant statutory and regulatory requirements.

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.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this

action is not a ``significant regulatory action'' and, is therefore not

subject to review by the Office of Management and Budget. In addition,

this action does not impose any enforceable duty or contain any

unfunded mandate as described in the Unfunded Mandates Reform Act of

1995 (Pub. L. 104-4), or require prior consultation with State

officials as specified by Executive Order 12875 (58 FR 58093, October

28, 1993), or involve special consideration of environmental justice

related issues as required by Executive Order 12898 (59 FR 7629,

February 16, 1994).

Because this action is not subject to notice-and-comment

requirements under the Administrative Procedure Act or any other

statute, it is not subject to the provisions of the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

Redesignation--State-Submitted Requests

EPA's denial of the State's redesignation request under section

107(d)(3)(E) does not affect any existing requirements applicable to

small entities nor does it impose new requirements. The area retains

its current designation status and will continue to be subject to the

same statutory requirements. To the extent that the area must adopt

regulations, based on its nonattainment status, EPA will review the

effect of those actions on small entities at the time the state submits

those regulations. Therefore, I certify (for Table 2 and 3

redesignations, use: ``The Administrator certifies * * *'') that denial

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, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

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

Dated: April 15, 1997.

A. Stanley Meiburg,

Acting Regional Administrator.

[FR Doc. 97-11076 Filed 4-29-97; 8:45 am]

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