[Federal Register Volume 62, Number 182 (Friday, September 19, 1997)]
[Rules and Regulations]
[Pages 49154-49158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24942]
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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.
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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]
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