# Clean Air Act Reclassification; Fairbanks, Alaska, Carbon Monoxide Nonattainment Area > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A97-20969 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 8, 1997 - **Citation:** 62 FR 42717 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [AK 17-1705; FRL-5872-4] Clean Air Act Reclassification; Fairbanks, Alaska, Carbon Monoxide Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This action proposes to find that the Fairbanks North Star Borough, Alaska, carbon monoxide (CO) nonattainment area has not attained the CO national ambient air quality standards (NAAQS) by December 31, 1995, the Clean Air Act (CAA) mandated attainment date for moderate nonattainment areas. This proposed [[Page 42718]] finding is based on EPA's review of monitored air quality data for compliance with the CO NAAQS. If EPA takes final action on this proposed finding, the Fairbanks CO nonattainment area will be reclassified by operation of law as a serious nonattainment area. The intended effect of such a reclassification would be to allow the State additional time to submit a new State implementation plan (SIP) providing for attainment of the CO NAAQS by no later than December 31, 2000, the CAA attainment deadline for serious CO areas. DATES: Written comments on this proposal must be received by September 8, 1997. ADDRESSES: Written comments should be addressed to M. Livingston, Environmental Protection Agency, Office of Air Quality (OAQ 107), Docket AK 17-1705, 1200 6th Avenue, Seattle, WA 98101. Information supporting this action is available for inspection during normal business hours at the following locations: EPA, Office of Air Quality, 1200 Sixth Avenue, Seattle, Washington 98101, and the Alaska Department of Environmental Conservation (ADEC), 410 Willoughby, Suite 105, Juneau, Alaska 99801-1795. FOR FURTHER INFORMATION CONTACT: Montel Livingstone, (206) 553-0180. Comment Line: A special CO Fairbanks Air Quality comment line will be available during normal business hours. The number may be accessed directly by dialing (206) 553-1388, or it may be accessed through a toll free telephone number 1-800-424-4372, extension 1388. SUPPLEMENTARY INFORMATION: I. Background A. CAA Requirements and EPA Actions Concerning Designation and Classification. The CAA Amendments of 1990 were enacted on November 15, 1990. Under section 107(d)(1)(C) of the CAA, each CO area designated nonattainment prior to enactment of the 1990 Amendments, such as the Fairbanks area, was designated nonattainment by operation of law upon enactment of the 1990 Amendments. Under section 186(a) of the CAA, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either ``moderate'' or ``serious'' depending on the severity of the area's air quality problem. CO nonattainment areas with a design value between 9.1-16.4 parts per million (ppm), such as the Fairbanks area, were classified as moderate. These nonattainment designations and classifications were codified in 40 CFR part 81. See 56 FR 56694 (November 6, 1991). States containing CO moderate nonattainment areas that were classified as moderate nonattainment by operation of law under section 107(d) were required to submit State implementation plans (SIPs) designed to attain the CO NAAQS as expeditiously as practicable but no later than December 31, 1995. 1 --------------------------------------------------------------------------- \1\ The moderate area SIP requirements are set forth in section 187(a) of the CAA Amendments of 1990 and differ depending on whether the area's design value is below or above 12.7ppm. The Fairbanks area has a design value below 12.7ppm. 40 CFR part 81.302. --------------------------------------------------------------------------- B. Reclassification to a Serious Nonattainment Area 1. EPA has the responsibility, pursuant to sections 179(c) and 186(b)(2) of the CAA, of determining, within six months of the applicable attainment date whether the Fairbanks area has attained the CO NAAQS. Under section 186(b)(2)(A), if EPA finds that the area has not attained the CO NAAQS, it is reclassified as serious by operation of law. Pursuant to section 186(b)(2)(B) of the Act, EPA must publish a notice in the Federal Register identifying areas which it determines failed to attain the standard and therefore must be reclassified as serious by operation of law. 2 EPA makes attainment determinations for CO nonattainment areas based upon whether an area has two years (or eight consecutive quarters) of clean air quality data. 3 Section 179(c)(1) of the CAA states that the attainment determination must be based upon an area's ``air quality as of the attainment date.'' Consequently, EPA will determine whether an area's air quality has met the CO NAAQS by December 31, 1995, based upon the most recent two years of air quality data entered into the Aerometric Information Retrieval System (AIRS) data base. --------------------------------------------------------------------------- \2\ Language in the 1996 budget legislation, section 308, H.R. 1099, U.S. House of Representatives, dated April 15, 1996, restricted EPA from taking the action for Fairbanks, AK proposed here. ``Sec. 308. None of the funds appropriated under this Act may be used to implement the requirements of section 186(b)(2), section 187(b) or section 211(m) of the Clean Air Act . . . with respect to any moderate nonattainment area in which the average daily temperature is below 0 degrees Fahrenheit. The preceding sentence shall not be interpreted to preclude assistance from the Environmental Protection Agency to the State of Alaska to make progress toward meeting the CO standard in such areas and to resolve remaining issues regarding the use of oxygenated fuels in such areas.'' \3\ See generally memorandum from Sally L. Shaver, Director, Air Quality Strategies and Standards Division, EPA, to Regional Air Office Directors, entitled ``Criteria for Granting Attainment Date Extensions, Making Attainment Determinations, and Determinations of Failure to Attain the NAAQS for Moderate CO Nonattainment Areas,'' October 23, 1995 (Shaver memorandum). --------------------------------------------------------------------------- EPA determines a CO nonattainment area's air quality status in accordance with 40 CFR part 50.8 and EPA policy. 4 EPA has promulgated two NAAQS for CO: an 8-hour average concentration and a 1- hour average concentration. Because there were no violations of the 1- hour standard recorded in the Fairbanks area in 1994 and 1995, this document addresses only the air quality status of the Fairbanks area with respect to the 8-hour standard. The 8-hour CO NAAQS requires that not more than one non-overlapping 8-hour average per year per monitoring site can exceed 9.0ppm (values below 9.5 are rounded down to 9.0 and they are not considered exceedances). The second exceedance of the 8-hour CO NAAQS at a given monitoring site within the same year constitutes a violation of the CO NAAQS. --------------------------------------------------------------------------- \4\ See memorandum from William G. Laxton, Director Technical Support Division, entitled ``Ozone and Carbon Monoxide Design Value Calculations,'' June 18, 1990. See also Shaver memorandum. --------------------------------------------------------------------------- 2. SIP Requirements for Serious CO Areas: CO nonattainment areas reclassified as serious under section 186(b)(2) of the CAA are required to submit, within 18 months of the area's reclassification, SIP revisions demonstrating attainment of the CO NAAQS as expeditiously as practicable but no later than December 31, 2000. The serious CO area planning requirements are set forth in section 187(b) of the CAA. EPA has issued two general guidance documents related to the planning requirements for CO SIPs. The first is the ``General Preamble for the Implementation of Title I of the CAA Amendments of 1990'' that sets forth EPA's preliminary views on how the Agency intends to act on SIPs submitted under Title I of the CAA. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). The second general guidance document for CO SIPs issued by EPA is the ``Technical Support Document to Aid the States with the Development of Carbon Monoxide State Implementation Plans,'' July 1992. If the Fairbanks' area is reclassified to serious, the State would have to submit a SIP revision to EPA that, in addition to the attainment demonstration, includes: (1) A forecast of vehicle miles travelled (VMT) for each year before the attainment year and provisions for annual updates of these forecasts; (2) adopted contingency measures; and (3) adopted transportation control measures and strategies to offset any growth in CO emissions from growth in VMT or [[Page 42719]] number of vehicle trips. See CAA sections 187(a)(7), 187(a)(2)(A), 187(a)(3), 187(b)(2), and 187(b)(1). Upon reclassification, contingency measures in the moderate area plan for the Fairbanks area must be implemented. C. Attainment Date Extensions If the State does not have the two consecutive clean years of data necessary to show attainment of the NAAQS, it may apply, under section 186(a)(4) of the CAA, for a one year attainment date extension. EPA may, in its discretion, grant such an extension if the State has: (1) Complied with the requirements and commitments pertaining to the applicable implementation plan for the area, and (2) the area has measured no more than one exceedance of CO NAAQS at any monitoring site in the nonattainment area in the year preceding 1996, the extension year. Because the Fairbanks nonattainment area had three exceedances in 1995, the area did not qualify for an extension. II. This Action By today's action, EPA is proposing to find that the Fairbanks CO nonattainment area failed to demonstrate attainment of the CO NAAQS by December 31, 1995. This proposed finding is based upon air quality data showing violations of the CO NAAQS during 1995. Ambient Air Monitoring Data: The following table lists the monitoring sites in the Fairbanks CO nonattainment area where the 8- hour CO NAAQS was exceeded during 1995, based on data validated by the Alaska Department of Environmental Conservation and entered into the AIRS data base. 1995 Carbon Monoxide Summary Table ------------------------------------------------------------------------ 2nd Number of maximum 8- readings Address of Monitoring Site hour Date exceeding average 8-hour value standard ------------------------------------------------------------------------ 675 7th Ave............................ 10.6 1/03/95 3 2nd and Cushman........................ 11.8 1/04/95 9 17th and Gilliam Way................... 11.6 12/29/95 7 ------------------------------------------------------------------------ Fairbanks had no violations of the CO NAAQS in 1996. Although one exceedance occurred in 1996 (9.8 ppm at the 2nd and Cushman site), it did not constitute as a CO violation in Fairbanks because a violation of the CO NAAQS means two exceedances of the 8-hour CO NAAQS at a given monitoring site within the same year. However, two CO NAAQS violations have been recorded in Fairbanks to-date in 1997, respectively on January 11, 1997, at the monitoring site located at 2nd and Cushman and on January 16, 1997, at the monitoring site located at 17th and Gilliam Way. This data has been validated by ADEC and entered into the AIRS data base. In a letter to EPA dated February 11, 1997, the State of Alaska questioned whether or not Fairbanks should be reclassified to serious nonattainment status given that (1) there were no CO violations of the NAAQS in 1996, and (2) a Memorandum of Understanding had been signed, dated January 23, 1997, between ADEC and the Municipality of Fairbanks which deals directly with the CO nonattainment problem. In a letter to the State of Alaska dated March 24, 1997, EPA Region 10 pointed out that while further delay of reclassification is not possible, the progress achieved thus far in Fairbanks to improve air quality and decrease the ambient levels of CO can form the base on which to build and continue movement towards attaining the CO NAAQS. As noted above, even though 1996 was a clean year for Fairbanks, two violations were recorded in January 1997. It is important to continue developing control strategies to further reduce CO concentrations in order to attain the CO standard. EPA explained that reclassification is mandated under section 186(b) of the CAA and the Administrator does not have authority to decide otherwise once EPA determines the area has failed to meet the CO NAAQS. Because the 1995 exceedances are valid for use in determining the attainment status of the Fairbanks area, EPA is proposing to find, based on the 1995 CO violations discussed above, that the area did not attain the CO NAAQS by December 31, 1995. III. Executive Order (EO) 12866 Under E.O. 12866, 58 FR 51735 (October 4, 1993), EPA is required to determine whether regulatory actions are significant and therefore should be subject to OMB review, economic analysis, and the requirements of the Executive Order. The Executive Order defines a ``significant regulatory action'' as one that is likely to result in a rule that may meet at least one of the four criteria identified in section 3(f), including, under paragraph (1), that the rule may ``have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.'' The Agency has determined that the finding of failure to attain proposed today would result in none of the effects identified in section 3(f). Under section 186(b)(2) of the CAA, findings of failure to attain and reclassification of nonattainment areas are based upon air quality considerations and must occur by operation of law in light of certain air quality conditions. They do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by classifications that, in turn, are triggered by air quality values, findings of failure to attain and reclassification cannot be said to impose a materially adverse impact on State, local or tribal governments or communities. IV. Regulatory Flexibility Under the Regulatory Flexibility Act, 5 U.S.C. 601 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 economic 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. As discussed in section III of this document, findings of failure to attain and reclassification of nonattainment areas under section 186(b)(2) of the CAA do not in and of themselves create any new requirements. Therefore, I certify that today's proposed action does not have a significant impact on small entities. V. Unfunded Mandates Under sections 202, 203, and 205 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, EPA must assess whether various actions undertaken in association with proposed or final regulations include a Federal mandate that may result in estimated costs of $100 million or more to the private sector, or to State, local or tribal governments in the aggregate. EPA believes, as discussed above, that the proposed finding of failure to attain and reclassification of the Fairbanks nonattainment area are factual determinations based upon air quality considerations and must occur by [[Page 42720]] operation of law and, hence, do not impose any Federal intergovernmental mandate, as defined in section 101 of the Unfunded Mandates Act. List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control, Intergovernmental relations, Carbon monoxide. Authority: 42 U.S.C. 7401-7671q. Dated: August 1, 1997. Chuck Findley, Acting Regional Administrator. [FR Doc. 97-20969 Filed 8-7-97; 8:45 am] BILLING CODE 6560-50-P --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A97-20969. Public record. Not legal advice.