Approval and Promulgation of Implementation Plans for the State of Alabama

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[AL-40-7142; FRL-5895-5]

Approval and Promulgation of Implementation Plans for the State

of Alabama

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: Final rule.

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

SUMMARY: EPA is disapproving the State of Alabama's request submitted

through the Alabama Department of Environmental Management's (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

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

[[Page 49155]]

statutory criteria for redesignation to attainment of the ozone NAAQS.

EFFECTIVE DATE: September 19, 1997.

ADDRESSES: 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. Copies of documents relative to this action are

available for public inspection during normal business hours at the

following locations:

Environmental Protection Agency, Region 4, Air Planning Branch, 1

Forsyth, 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 Clean Air Act Amendment 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 was submitted on July 21, 1995. A direct final rule

proposing approval of the redesignation request was signed by the

Regional Administrator and forwarded to the EPA Federal Register Office

on August 15, 1995 for publication. The direct final rule as drafted

contained a thirty day period for public comment on the proposed

approval of the redesignation request.

Prior to publication of the document, EPA determined that the area

registered a violation of the ozone NAAQS on August 18, 1995. EPA

therefore directed the Office of the Federal Register to recall the

proposed direct final rule from publication. The ambient data which

formed the basis of the registered violation was 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 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. After the violations had been quality-

assured, EPA issued a notice of proposed rulemaking proposing to

disapprove the redesignation request, 62 FR 23421 (April 30, 1997). 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.

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 an attainment area as ``any

area that meets'' 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 area under

section 107. 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.

Request for Comments

EPA published a document on April 30, 1997, (62 FR 23421),

proposing disapproval of the maintenance plan and redesignation request

and soliciting comments on the disapproval and relevant issues. EPA

received comments on the proposal. Those comments and the response

thereto are summarized below.

Comment #1--``EPA inappropriately considered monitored exceedances

which occurred after the redesignation request was submitted. If the

Agency had considered only the monitor data which preceded the

redesignation request, then EPA should have allowed the direct final

rule granting redesignation which had been signed by the regional

administrator to be published in the Federal Register. If EPA had taken

this action, then the Birmingham area could possibly be enjoying

attainment status at this time.''

Response--Section 107(d)(1)(A)(ii) of the Act provides that an

attainment area is one that ``meets'' the NAAQS. Section

107(d)(3)(E)(I) of the Act prohibits EPA from redesignating an area to

attainment unless EPA determines that the area ``has attained'' the

NAAQS. By use of the words ``has attained'' (in the present perfect

tense), Congress expressed its intent that EPA may not redesignate an

area unless it determines that the area is attaining the standard at

the time EPA takes its final action. It is not sufficient that at some

previous time the area ``had'' attained the NAAQS. EPA must find that

the area, in the words of the statute, ``has'' attained the NAAQS.

Congress expressed the same intent in the definition of an attainment

area in CAA section 107(d)(1)(A)(ii) as an area

[[Page 49156]]

that meets the NAAQS. Therefore, contrary to the commenters'

contention, it was not ``inappropriate'' for EPA to consider

``exceedances which occurred after the redesignation request was

submitted.'' Indeed, EPA was obligated to consider such data.

EPA's redesignation policy (Calcagni Memo) provides that if

monitoring data indicates a violation of the NAAQS before a

redesignation action is effective, the redesignation should not be

approved. EPA may not lawfully redesignate a nonattainment area to

attainment unless it is attaining the air quality standard at the time

EPA takes its final action. Thus, it is not sufficient that an area

show that it had attained the standard prior to submission of its

redesignation request. If, during the pendency of EPA's review of the

redesignation request, exceedances occur that EPA determines constitute

a violation, EPA is obligated to consider those in determining whether

the area is attaining the standard. Thus, EPA was obligated to

disapprove the request to redesignate the Birmingham nonattainment

area, since it could not determine that the area had attained the

standard at the time of the final rulemaking.

EPA recently reaffirmed its adherence to the principle that an area

may not be redesignated to attainment if it violates the standard while

its request for redesignation is pending in a notice of proposed

correction to the designation of LaFourche Parish, Louisiana (62 FR

38237, July 17, 1997). After publication of a direct final notice

approving the area's redesignation request, but prior to its effective

date, a violation of the NAAQS for ozone was recorded at an area

monitor. The direct final notice restated EPA's interpretation of the

statute: ``If the monitoring data records a violation of the NAAQS

before the direct final action is effective, approval of the

redesignation will be withdrawn and a proposed disapproval substituted

for the direct final approval (60 FR 43021-43022, August 18, 1995).

Nonetheless, EPA did not withdraw its approval of the redesignation

action, and the area was redesignated to attainment. EPA's proposed

correction notice states that allowing the redesignation to become

effective was in conflict with the statute, EPA policy, and with the

statement in the direct final notice itself.

The LaFourche redesignation was also at odds with other actions

regarding areas that EPA determined had violated the NAAQS while their

redesignation requests were pending: Richmond, Virginia, (59 FR 22757,

May 3, 1994) (final notice of disapproval); the Pittsburgh-Beaver

Valley nonattainment area, (61 FR 19193, May 1, 1996) (final notice of

disapproval); the Kentucky portion of the Cincinnati-Hamilton

nonattainment area, (61 FR 50718, September 27, 1996) (final notice of

disapproval); and the Ohio portion of the Cincinnati-Hamilton

nonattainment area, (62 FR 7194, February 18, 1997) (notice of proposed

disapproval).

Based on the statute, policy, and history of EPA rulemakings, it is

clear that redesignating Birmingham to attainment in the face of

monitored violations would be an error. EPA was obliged to disapprove

the request to redesignate.

The United States Court of Appeals for the Third Circuit recently

upheld EPA's interpretation of its statutory obligation to consider

exceedances occurring after submission of redesignation requests.

Southwestern Pennsylvania Growth Alliance v. Browner, No. 96-3364 (July

28, 1997). The Court affirmed the application of this interpretation

even as to exceedances that occurred more than eighteen months after

the submission of a redesignation request.

Comment #2--``In our opinion, EPA failed to consider appropriately

the local extreme weather conditions which occurred during the summer

of 1995 and the associated ozone exceedances. ADEM pointed out to EPA

that July 1995 had more days above 95 degrees Fahrenheit than any July

in over 60 years and that August 1995 was the hottest August on record.

The nine day period between August 10 and August 18 is the third

highest such event in over 60 years. Seven of the eleven exceedances

measured in Birmingham in 1995 occurred during this nine day period.''

Comment #3--``It is EPA's own policy to consider exceptional

weather events regarding achievement of ozone air quality standards.

Yet, EPA stated in a January 11, 1996, letter to ADEM that the summer

of 1995 was not the hottest summer in the last ten years nationally,

and that the conditions during 1995 cannot be considered an exceptional

weather event.''

Responses--The commenters contended that even if EPA were correct

in considering violations that occurred after the redesignation request

was submitted, EPA should have found such exceedances ``attributable to

extreme weather.'' But even if 1995 were determined to have been an

exceptionally hot year for Birmingham (and 1990, only five years

earlier, was even hotter), this provides no grounds for excluding

quality-assured monitored exceedances of the ozone standard. EPA's

applicable regulations governing ozone attainment provide no basis for

excluding data due to exceptionally hot weather (See 40 CFR 50.9

Appendix D and H and part 58). By contrast, the regulations regarding

particulate matter expressly authorize adjustments to take into account

exceptional events (See 40 CFR 50.6 and Appendix K, section 2.4

``Adjustments for Exceptional Events and Trends''). The methods used by

EPA to determine whether an area is attaining the ozone standard were

decided upon through notice and comment rulemaking and EPA is bound by

those methods until they are changed through further rulemaking on that

subject.

EPA's ``Guideline on the Identification and Use of Air Quality Data

Affected by Exceptional Events'' sets forth guidance regarding

exceptional events that may sufficiently influence the data for various

criteria pollutants so as to provide a basis for possible exclusion of

data for various regulatory purposes. ``The guideline has no regulatory

or legal significance regarding use of any air quality data. Use or

non-use of air quality data, whether flagged or not, must be subject to

full public disclosure and rulemaking procedures.'' Guideline at 5.

Thus, use or non-use of the data is determined by the appropriate

statutory or regulatory authority, which does not provide for exclusion

of ozone data based on hot weather. Moreover, only one of the l8

exceptional events defined in the Guideline applies to ozone data--

stratospheric ozone intrusion. A stratospheric ozone intrusion occurs

when a parcel of air originating in the stratosphere falls directly to

the surface of the earth (such as occasionally happens during severe

thunderstorms). Such events are infrequent, very localized, and of

short duration. No allegation that a stratospheric ozone intrusion

occurred has been made with respect to Birmingham. Other climatological

occurrences, including stagnations and inversions, were considered and

rejected as possible exceptional events for data flagging purposes.

Thus, neither EPA's regulations nor guidance furnish a justification

for excluding quality assured ozone exceedances from consideration

based upon a finding that they are an ``extreme weather event'' due to

hot weather. It is undisputed that Birmingham experienced eleven

exceedances during the summer of 1995.

Hot weather does not provide a basis for excluding documented

exceedances from consideration. While EPA recognizes that high

temperatures can

[[Page 49157]]

play a role in ozone formation, quality assured data reflect the

quality of the air people are breathing. Exceedances of the standard

have been determined to cause measurable health effects in healthy

individuals. Compliance with the ozone NAAQS is determined using three

consecutive years of data to account for year-to-year variations in

emissions and meteorological conditions. These determinations were made

pursuant to long-standing EPA regulations, and this rulemaking is not

the appropriate forum for comments regarding the ozone standard or the

methodology for determining attainment of the standard. Even if

temperatures were unusually high in 1995 (and they were not as high as

in 1990), in light of the methodology used to determine attainment of

the ozone NAAQS, there is no basis for ignoring the violations

monitored during the time period. Because the area has not adequately

reduced its VOC and NOX emissions, it is subject to ozone

exceedances whenever meteorological conditions are conducive to ozone

formation. The nine exceedances that occurred in the Birmingham area in

1996 proves that temperature is not the only precursor for ozone

formation. One of the goals of the CAA is to minimize the health risks

that people encounter. Since meteorological conditions cannot be

controlled, the way to reduce health risks due to ozone in the

Birmingham area is to reduce the anthropogenic emissions of VOC and

NOX. (See 61 FR 19193, 191195-19197, May 1, 1996)

(disapproval of Pittsburgh-Beaver Valley request for redesignation to

attainment for ozone).

Moreover, in a study entitled ``Clean Air Act Ozone Design Value

Study, Final Report, dated December, 1994 EPA considered the impact of

meteorology in ozone formation and found that ``high temperature by

itself is not sufficient to produce high ozone concentrations'' (pages

7-18). It also determined ozone design values should not be adjusted

for meteorology, since ``compliance with the ozone standard is judged

on the basis of the actual ambient air quality measurements. It is the

actual ambient air quality, not a hypothetical adjusted value, which is

of concern with respect to the potential for adverse health impacts.''

It concluded that a meteorologically adjusted design value may not be

the best indicator of the air people actually breathe, and is a major

departure from current EPA policy.

In Southwestern Pennsylvania Growth Alliance v. Browner, No.

96.3364 (July 28, 1997), the United States Court of Appeals for the

Third Circuit recently rejected petitioners' argument that an

allegation that exceedances were caused by transport should result in

excluding data from consideration in redesignation actions.

``Accordingly, we accept the EPA's position that the origin of the

ozone that caused exceedances at issue is legally irrelevant.''

Similarly, here, the allegation that hot weather may have contributed

to exceedances is legally irrelevant.

Final Action

EPA is disapproving the State of Alabama's March 16, 1995,

redesignation request and maintenance plan SIP revision. The Agency has

reviewed this request for redesignation and approval of the maintenance

plan as a 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.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

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.

Executive Order 12866

The Office of Management and Budget (OMB) has reviewed this

regulatory action pursuant to E.O. 12866.

Regulatory Flexibility Act

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.

EPA's disapproval of the State request under section 110 and

subchapter I, part D of the CAA does not affect any existing

requirements applicable to small entities. Any pre-existing federal

requirements remain in place after this disapproval. Federal

disapproval of the state submittal does not affect its state-

enforceability. Moreover, EPA's disapproval of the submittal does not

impose any new Federal requirements. Therefore, EPA certifies that this

disapproval action does not have a significant impact on a substantial

number of small entities because it does not remove existing

requirements and impose any new Federal requirements.

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

107(d)(3)(E) of the CAA 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. Therefore, the Regional

Administrator certifies that the disapproval of the redesignation

request will not affect a substantial number of small entities.

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the disapproval action promulgated does not

include a Federal mandate that may result in estimated costs of $100

million or more to either State, local, or tribal governments in the

aggregate, or to the private sector. This Federal action disapproves

pre-existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by

section 804(2).

[[Page 49158]]

Petitions for Judicial Review

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 November 18, 1997. 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 in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by reference, Intergovernmental relations,

Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

List of Subjects in 40 CFR Part 81

Environmental protection, Air pollution control, National parks,

Wilderness areas.

Dated: September 5, 1997.

A. Stan Meiburg,

Acting Regional Administrator.

Chapter I, title 40, 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 52.66 is added to read as follows:

Sec. 52.66 Control Strategy: Ozone.

The redesignation request submitted by the State of Alabama, on

March 16, 1995 for the Birmingham marginal ozone nonattainment area

from nonattainment to attainment was disapproved on September 19, 1997.

[FR Doc. 97-24942 Filed 9-18-97; 8:45 am]

BILLING CODE 6560-50-P