[Federal Register Volume 87, Number 66 (Wednesday, April 6, 2022)]
[Rules and Regulations]
[Pages 19806-19808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07132]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0010; FRL-9539-02-R4]


Air Plan Approval; Alabama; Birmingham Limited Maintenance Plan 
for the 1997 8-Hour Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the State of Alabama, 
through the Alabama Department of Environmental Management (ADEM), via 
a letter dated September 15, 2020. The SIP revision includes the 1997 
8-hour ozone national ambient air quality standards (NAAQS) Limited 
Maintenance Plan (LMP) for the Birmingham, Alabama Area (hereinafter 
referred to as the ``Birmingham Area'' or ``Area''). The Birmingham 
Area is comprised of Jefferson and Shelby Counties. EPA is approving 
the Birmingham Area LMP because it provides for the maintenance of the 
1997 8-hour ozone NAAQS within the Birmingham Area through the end of 
the second 10-year portion of the maintenance period. This action makes 
certain commitments related to maintenance of the 1997 8-hour ozone 
NAAQS in the Birmingham Area federally enforceable as part of the 
Alabama SIP.

DATES: This rule is effective May 6, 2022.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OAR-2021-0010. All documents in the docket are listed on 
the www.regulations.gov website. Although listed in the index, some 
information may not be publicly available, i.e., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the internet and will be publicly available only in hard copy 
form. Publicly available docket materials can either be retrieved 
electronically via www.regulations.gov or in hard copy at the Air 
Regulatory Management Section, Air Planning and Implementation Branch, 
Air and Radiation Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA 
requests that if at all possible, you contact the person listed in the 
FOR FURTHER INFORMATION CONTACT section to schedule your inspection. 
The Regional Office's official hours of business are Monday through 
Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-8994. Ms. LaRocca can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In 1979, under section 109 of the Clean Air Act (CAA or Act), EPA 
established primary and secondary NAAQS for ozone at 0.12 parts per 
million (ppm), averaged over a 1-hour period. See 44 FR 8202 (February 
8, 1979). On July 18, 1997, EPA revised the primary and secondary NAAQS 
for ozone to set the acceptable level of ozone in the ambient air at 
0.08 ppm, averaged over an 8-hour period. See 62 FR 38856 (July 18, 
1997).\1\ EPA set the 8-hour ozone NAAQS based on scientific evidence 
demonstrating that ozone causes adverse health effects at lower 
concentrations and over longer periods of time than was understood when 
the pre-existing 1-hour ozone NAAQS was set. EPA determined that the 8-
hour NAAQS would be more protective of human health, especially for 
children and adults who are active outdoors, and individuals with a 
pre-existing respiratory disease, such as asthma.
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    \1\ In March 2008, EPA completed another review of the primary 
and secondary ozone NAAQS and tightened them further by lowering the 
level for both to 0.075 ppm. See 73 FR 16436 (March 27, 2008). 
Additionally, in October 2015, EPA completed a review of the primary 
and secondary ozone NAAQS and tightened them by lowering the level 
for both to 0.070 ppm. See 80 FR 65292 (October 26, 2015).
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    Following promulgation of a new or revised NAAQS, EPA is required 
by the CAA to designate areas throughout the nation as attaining or not 
attaining the NAAQS. On April 15, 2004, EPA designated the Birmingham 
Area, which includes Jefferson and Shelby Counties, as nonattainment 
for the 1997 8-hour ozone NAAQS, and the designation became effective 
on June 15, 2004. See 69 FR 23858 (April 30, 2004). Similarly, on May 
21, 2012, EPA designated areas as unclassifiable/attainment or 
nonattainment for the 2008 8-hour ozone NAAQS. EPA designated the 
Birmingham Area as unclassifiable/attainment for the 2008 8-hour ozone 
NAAQS. This designation became effective on July 20, 2012. See 77 FR 
30088. On November 16, 2017, areas were designated for the 2015 8-hour 
ozone NAAQS. The Birmingham Area was again designated attainment/
unclassifiable for the 2015 8-hour ozone NAAQS, with an effective date 
of January 16, 2018. See 82 FR 54232 (November 16, 2017).
    A state may submit a request that EPA redesignate a nonattainment 
area that is attaining the NAAQS to attainment, and if the area has met 
other required criteria described in section 107(d)(3)(E) of the CAA, 
EPA may approve the redesignation request.\2\ One of the criteria for 
redesignation is to have an approved maintenance plan under CAA section 
175A. The maintenance plan must demonstrate that the area will continue 
to maintain the NAAQS for the period extending ten years after 
redesignation, and it must contain such additional measures as 
necessary to ensure maintenance and such contingency provisions as 
necessary to assure that violations of the NAAQS will be promptly 
corrected. Eight years after the effective date of redesignation, the 
state must also submit a second maintenance plan to ensure ongoing 
maintenance of the NAAQS for an additional ten years pursuant to CAA 
section 175A(b) (i.e., ensuring maintenance for 20 years after 
redesignation).
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    \2\ Section 107(d)(3)(E) of the CAA sets out the requirements 
for redesignating a nonattainment area to attainment. They include 
attainment of the NAAQS, full approval of the applicable SIP 
pursuant to CAA section 110(k), determination that improvement in 
air quality is a result of permanent and enforceable reductions in 
emissions, demonstration that the state has met all applicable 
section 110 and part D requirements, and a fully approved 
maintenance plan under CAA section 175A.
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    EPA has published long-standing guidance for states on developing 
maintenance plans.\3\ The Calcagni memo provides that states may 
generally demonstrate maintenance by either performing air quality 
modeling to show that the future mix of sources and emission rates will 
not cause a violation of the NAAQS or by showing that projected future 
emissions of a pollutant and its precursors will not exceed the level 
of emissions during a year when the area was attaining the NAAQS (i.e., 
attainment year inventory). See Calcagni memo at page 9. EPA clarified 
in three subsequent

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guidance memos that certain areas could meet the CAA section 175A 
requirement to provide for maintenance by showing that the area was 
unlikely to violate the NAAQS in the future, using information such as 
the area's design value \4\ being well below the standard and the area 
having a historically stable design value.\5\ EPA refers to a 
maintenance plan containing this streamlined demonstration as an LMP.
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    \3\ John Calcagni, Director, Air Quality Management Division, 
EPA Office of Air Quality Planning and Standards, ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' September 
4, 1992 (Calcagni memo).
    \4\ The ozone design value for a monitoring site is the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentrations. The design value for an ozone area is the 
highest design value of any monitoring site in the area.
    \5\ See ``Limited Maintenance Plan Option for Nonclassifiable 
Ozone Nonattainment Areas,'' from Sally L. Shaver, Office of Air 
Quality Planning and Standards (OAQPS), dated November 16, 1994; 
``Limited Maintenance Plan Option for Nonclassifiable CO 
Nonattainment Areas,'' from Joseph Paisie, OAQPS, dated October 6, 
1995; and ``Limited Maintenance Plan Option for Moderate 
PM10 Nonattainment Areas,'' from Lydia Wegman, OAQPS, 
dated August 9, 2001. Copies of these guidance memoranda can be 
found in the docket for this proposed rulemaking.
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    EPA has interpreted CAA section 175A as permitting the LMP option 
because section 175A of the Act does not define how areas may 
demonstrate maintenance, and in EPA's experience implementing the 
various NAAQS, areas that qualify for an LMP and have approved LMPs 
have rarely, if ever, experienced subsequent violations of the NAAQS. 
As noted in the LMP guidance memoranda, states seeking an LMP must 
still submit the other maintenance plan elements outlined in the 
Calcagni memo, including: An attainment emissions inventory, provisions 
for the continued operation of the ambient air quality monitoring 
network, verification of continued attainment, and a contingency plan 
in the event of a future violation of the NAAQS. Moreover, a state 
seeking an LMP must still submit its section 175A maintenance plan as a 
revision to its SIP, with all attendant notice and comment procedures. 
While the LMP guidance memoranda were originally written with respect 
to certain NAAQS,\6\ EPA has extended the LMP interpretation of section 
175A to other NAAQS and pollutants not specifically covered by the 
previous guidance memos.\7\
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    \6\ The prior memos addressed: Unclassifiable areas under the 1-
hour ozone NAAQS, nonattainment areas for the PM10 
(particulate matter with an aerodynamic diameter less than 10 
microns) NAAQS, and nonattainment for the carbon monoxide NAAQS.
    \7\ See, e.g., 79 FR 41900 (July 18, 2014) (approval of the 
second ten-year LMP for the Grant County 1971 SO2 
maintenance area).
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    In a notice of proposed rulemaking (NPRM), published on February 9, 
2022, see 87 FR 7404, EPA proposed to approve Birmingham's LMP because 
the State made a showing that the Area's ozone concentrations are well 
below the 1997 8-hour ozone NAAQS and have been historically stable and 
that it met the other maintenance plan requirements. The details of 
Alabama's submission and the rationale for EPA's action are explained 
in the NPRM. Comments on the February 9, 2022, NPRM were due on or 
before March 11, 2022. EPA received only one comment, which was in 
support of the February 9, 2022, NPRM.

II. Final Action

    EPA is taking final action to approve the Birmingham Area LMP for 
the 1997 8-hour ozone NAAQS, submitted by ADEM on September 17, 2020, 
as a revision to the Alabama SIP.\8\ EPA is approving the Birmingham 
Area LMP because it includes a sufficient update of the various 
elements of the 1997 8-hour ozone NAAQS Maintenance Plan approved by 
EPA for the first 10-year portion of the maintenance period (including 
emissions inventory, assurance of adequate monitoring and verification 
of continued attainment, and contingency provisions) and retains the 
relevant provisions of the SIP under sections 110(k) and 175A of the 
CAA. EPA also finds that the Birmingham Area qualifies for the LMP 
option and that the Birmingham Area LMP is sufficient to provide for 
maintenance of the 1997 8-hour ozone NAAQS in the Birmingham Area over 
the second 10-year maintenance period (i.e., through 2026).
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    \8\ The SIP revision was adopted by ADEM on September 16, 2020, 
and submitted by ADEM as a revision to the Alabama SIP on September 
17, 2020, via a letter dated September 15, 2020.
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III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
approves state law as meeting Federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

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    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 June 6, 2022. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: March 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
2. In Sec.  52.50(e), amend the table by adding an entry for ``1997 8-
Hour Ozone Second 10-Year Limited Maintenance Plan for the Birmingham 
Area'' at the end of the table to read as follows:


Sec.  52.50   Identification of plan.

* * * * *
    (e) * * *

                                 EPA Approved Alabama Non-Regulatory Provisions
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                                       Applicable       State submittal
    Name of nonregulatory SIP        geographic or      date/effective    EPA approval date       Explanation
            provision              nonattainment area        date
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                                                  * * * * * * *
1997 8-Hour Ozone Second 10-Year  Jefferson County            9/16/2020  4/6/2022, [Insert
 Limited Maintenance Plan for      and Shelby County.                     citation of
 the Birmingham Area.                                                     publication].
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[FR Doc. 2022-07132 Filed 4-5-22; 8:45 am]
BILLING CODE 6560-50-P


