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ENVIRONMENTAL PROTECTION AGENCY
Clean Air Act Approval and Promulgation of Redesignation of the Leeds Area of Jefferson County, Alabama, to Attainment for Lead
AGENCY: Environmental Protection Agency (EPA).
SUMMARY: EPA is approving the State Implementation Plan (SIP) submitted by the State of Alabama through the Alabama Department of Environmental Management (ADEM) for the purpose of redesignating the Leeds area of Jefferson County from nonattainment to attainment status for the National Ambient Air Quality Standard (NAAQS) for lead. The maintenance plan was submitted by the State to satisfy the federal requirements necessary to redesignate an area from nonattainment to attainment. DATES: This final rule is effective on March 7, 1995 unless adverse or critical comments are received by February 6, 1995. If the effective date is delayed, timely notice will be published in the Federal Register. ADDRESSES: Comments may be mailed to Kimberly Bingham at the EPA Region 4 address listed. Copies of the material submitted by ADEM may be examined during normal business hours at the following locations: Air and Radiation Docket and Information Center (Air Docket 6102), U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460. Environmental Protection Agency, Region 4 Air Programs Branch, 345 Courtland Street, Atlanta, Georgia 30365. Alabama Department of Environmental Management, Office of General Counsel, 1751 Cong. W. L. Dickinson Drive, Montgomery, Alabama 36130. FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning and Development Section, Air Programs Branch, Air Pesticides and Toxics Management Division, Region 4 Environmental Protection Agency, 345 Courtland Street, NE., Atlanta, Georgia 30365. The telephone number is (404) 347-3555 extension 4195. SUPPLEMENTARY INFORMATION: On January 6, 1992, the Leeds area of Jefferson County was designated nonattainment for lead. Since then the major source of lead emissions in the area, a facility operated by International Lead Company (ILCO) has permanently closed, and monitoring data from the area demonstrates that the area has attained the NAAQS for lead. Section 107(d)(3)(E) of the Clean Air Act (CAA) permits nonattainment areas that have attained the lead NAAQS to be redesignated attainment provided certain criteria are met. Consequently, the State of Alabama submitted a request to redesignate the Leeds area to attainment on July 16, 1993. Section 107(d)(3)(E) of the CAA, as amended in 1990, sets forth the requirements that must be met for a nonattainment area to be redesignated to attainment. It states that an area can be redesignated to attainment if the following conditions are met. The EPA has determined that the NAAQS for lead has been attained. The applicable implementation plan has been fully approved by EPA under section 110(k). The EPA has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions. The State has met all applicable requirements for the area under section 110 and part D. The EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A. On March 3, 1992, ILCO, the source of emissions that led to the lead nonattainment designation for the Leeds area, was permanently shut down and dismantled. On May 3, 1993, the State of Alabama through ADEM submitted a request to redesignate the Leeds area of Jefferson County from nonattainment to attainment status for lead. Because the May 3, 1993, submittal was not complete and it did not adequately address all of the requirements, EPA recommended that the request be withdrawn and a complete SIP package be submitted. On December 8, 1993, in a letter from Mr. James W. Warr to Mr. Patrick Tobin, ADEM withdrew the May 3, 1993, package. A second submittal dated July 16, 1993, was received by EPA, along with a request for parallel processing. The request for parallel processing was based upon the fact that the maintenance plan did not become state effective until after the public hearing, August 18, 1993. The State did not receive any adverse comments during the public hearing or the 30 day comment period. On September 28, 1993, the effective SIP revisions were submitted by ADEM revising the request to redesignate the Leeds area of Jefferson County from nonattainment to attainment for lead. A letter of completeness was mailed on October 7, 1993, to Mr. Richard E. Grusnick from Mr. Winston A. Smith for the revised submittal. The State of Alabama redesignation request for the Leeds area of Jefferson County meets the requirements of Section 107(d)(3)(E). The following is a description of how each requirement has been achieved. Attainment of the Lead NAAQS To demonstrate that the Leeds area is in attainment with the NAAQS for lead, ADEM included air quality data for the years 1991-1993 in the submittal. No exceedances of the lead standard have occurred since the ILCO shutdown on March 6, 1992. This amount of monitoring data (more than 11 consecutive quarters at the present time) without an exceedance of the lead standard is adequate to demonstrate attainment of the standard. Modeling is also required to redesignate an area to attainment. The EPA believes that the EPA approved 1988 SIP, which included a modeling analysis which satisfies this requirement. The State of Alabama will continue to monitor the air quality of the Leeds area to verify attainment status and continued maintenance. 2. The Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA To be redesignated to attainment, section 107(d)(3)(E) requires that an area must have met all applicable requirements of section 110 of part D of title I of the CAA. EPA interprets section 107(d)(3)(E)(v) to mean that for a redesignation request to be approved, the State must have met all requirements that applied to the subject area prior to or at the time of a complete redesignation request. Requirements of the CAA that come due subsequently continue to be applicable to the area at those later dates (see section 175A(c)) and, if the redesignation is disapproved, the State remains obligated to fulfill those requirements. Therefore, for purposes of redesignation, to meet the requirement that the SIP meet all applicable requirements under the CAA, EPA has reviewed the Leeds SIP to ensure that it satisfies all requirements due under the CAA prior to or at the time the State of Alabama submitted its redesignation request (i.e., July 16, 1993). A. Section 110 Requirements On October 28, 1988, EPA fully approved Alabama's SIP for the Leeds area of Jefferson County as meeting the requirements of section 110 of the 1977 CAA (see 52 FR 47686). Although section 110 was amended by the Clean Air Act Amendments (CAAA) of 1990, EPA has reviewed the Leeds SIP and believes that it meets the requirements of the section 110(a)(2). B. Part D Requirements Before a lead nonattainment area may be redesignated to attainment, the State must have fulfilled the applicable requirements of part D. Subpart 1 of part D establishes the general requirements applicable to all nonattainment areas and subpart 5 of part D establishes certain requirements applicable to lead nonattainment areas. Section 191(a) required the submission of nonattainment SIPs meeting the requirements of part D for areas designated nonattainment for lead after the 1990 CAAA, such as Leeds, within 18 months of the designation. As Leeds was designated nonattainment on January 6, 1992, its part D SIP was due on July 6, 1993, a date preceding the submission of the complete redesignation request for the area. Thus, to be redesignated, the Leeds area SIP must satisfy the requirements of part D applicable to lead nonattainment areas. These requirements include section 192(a)'s requirement that the SIP provide for attainment as expeditiously as practicable but no later than 5 years from the date of the nonattainment designation and the requirements of section 172(c). The EPA has reviewed the SIP submission from the State of Alabama and determined that it meets all of the relevant requirements. The requirements of sections 172(c) and 192(a) for providing for attainment of the lead NAAQS, and the requirements of section 172(c) for requiring reasonable further progress (RFP), and the imposition of reasonably available control measures (RACM) have been satisfied through the permanent closure of the ILCO facility and the demonstration that the area is now attaining the standard. The EPA notes that the ILCO facility has been dismantled and its permit revoked. Moreover, section 172(c)(9) contingency measures are not required as the area is attaining the standard. See General Preamble for the Implementation of Title I, 57 FR 13498, 13564 (April 16, 1992). The State of Alabama has submitted an emissions inventory for 1992 that fulfills the emissions inventory requirements of section 172(c)(3). Consequently, that requirement has been satisfied. With respect to the requirement that an area seeking redesignation must have submitted and received full approval of a part D New Source Review (NSR) program required by section 172(c)(5), EPA has determined that, if an area seeking redesignation demonstrates maintenance of the standard without a part D NSR program, such a program need not be adopted and approved in order for the area to be redesignated. (See the memorandum from Mary Nichols, Assistant Administrator for Air and Radiation to Air Division Directors, October 14, 1994). As the State of Alabama has demonstrated that the Leeds area will maintain the lead standard with a part C PSD program, rather than a part D NSR program, in place, the requirement for having a fully approved part D NSR program need not be fulfilled for the Leeds area to be redesignated to attainment. 3. Permanent and Enforceable Improvement in Air Quality ADEM provided a copy of the revoked air permit dated March 4, 1992, from the Jefferson County Department of Health, Air Pollution Program, proving that ILCO, the major source of lead emissions had ceased operation and was dismantled. Based on 1992 data, ILCO was responsible for almost 80 percent of the lead emissions for the Leeds nonattainment area. The total lead emissions identified in the 1992 inventory from the Leeds area that remained after the ILCO shutdown are 2.63 tons per year emitted from ACME Packaging. Since the ILCO facility has ceased operation and has been dismantled, the improvement in air quality resulting in attainment of the standard is permanent and enforceable. Monitoring will continue in the Leeds area ensuring that the lead NAAQS continues to be maintained. 4. Maintenance Plan Section 175(A) of the CAA requires states that submit a redesignation request for a nonattainment area under section 107(d) to include a maintenance plan to ensure that the attainment of NAAQS for any pollutant is maintained. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the approval of a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan demonstrating attainment for the ten years following the initial ten year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures as the Administrator deems necessary to assure that the State will promptly correct any violation of the standard that occurs after redesignation. The contingency provisions are to include a requirement that the State will implement all measures for controlling the air pollutant concerned that were contained in the SIP prior to redesignation. The State of Alabama through ADEM has submitted a maintenance plan to ensure that the lead NAAQS is protected. The maintenance plan for the Leeds area of Jefferson County, Alabama is comprised of a base year emissions inventory, a maintenance demonstration and the part C PSD program. The EPA believes that this submittal is adequate for the Leeds area. The State has demonstrated that the lead standard will be maintained. The ILCO facility, the only major lead source that existed in Leeds, has been permanently closed and dismantled. The only remaining lead emissions source is ACME Packaging, which has emissions well below the 5 ton per year threshold for being classified as a lead point source (40 CFR 51.100(k)). Since ACME Packaging is not considered a point source under EPA's regulations it is not even required to meet RACM requirements. As previously discussed, the Leeds area has been in continuous attainment of the lead standard since the closure of the ILCO facility, and EPA believes, based on the low monitored levels of lead emissions, which are well below the NAAQS, that the Leeds area will continue to remain in attainment notwithstanding the existence of continued emissions from ACME Packaging's facility. The applicability of the State's fully approved part C PSD program, which establishes permitting requirements for any new sources with the potential to emit 0.6 tons per year of lead, provides adequate assurance that the NAAQS will continue to be attained during the maintenance period. The EPA does not believe any additional contingency measures are needed. The lead emissions from the ACME Packaging facility are so low that EPA does not believe it reasonable to expect that they could cause a violation of the NAAQS. Nevertheless, monitoring of the Leeds area will continue and appropriate actions could be taken in the event of a violation of the standard. With respect to the requirement of section 175A that the contingency provisions of a maintenance plan include all control measures previously contained in the SIP, EPA believes that the requirement is satisfied in this instance even though the State is not carrying forward as contingency measures the source-specific control requirements previously applicable to the ILCO facility. Carrying forward those requirements as contingency measures would serve no useful purpose in light of the permanent closure of that facility and the revocation of its permit. Moreover, any attempt to reopen a facility on the same site would be subject to the permitting requirements of the State's preconstruction review program. Final Action In this action, EPA is approving the redesignation of the Leeds area to attainment for lead and the accompanying SIP revision submitted by the State of Alabama, because EPA believes that Alabama has addressed all of the requirements of the CAA and the culpable lead source has been permanently shut down. This action is being taken without prior proposal because the changes are noncontroversial and EPA anticipates no significant comments on them. The public should be advised that this action will be effective March 7, 1995. However, if adverse or critical comments are received by February 6, 1995, this action will be withdrawn and two subsequent documents will be published before the effective date. One document will withdraw the final action. The second document will be the final rulemaking notice which will address the comments received. Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 7, 1995. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2)]. This action has been classified as a Table 2 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by an October 4, 1993, memorandum from Michael Shapiro, Acting Assistant Administrator for Air and Radiation. A future document will inform the general public of these tables. On January 6, 1989, the Office of Management and Budget (OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the requirements of Section 3 of Executive Order 12291 for two years. The USEPA has submitted a request for a permanent waiver for Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the temporary waiver until such time as it rules on EPA's request. This request continues in effect under Executive Order 12866 which superseded Executive Order 12291 on September 30, 1993. 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. SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements, but simply approve requirements that the state is already imposing. Therefore, because the federal SIP approval does not impose any new requirements, I certify that it does not have a significant impact on any small entities affected. Moreover, due to the nature of the federal-state relationship under the CAA, preparation of a regulatory flexibility analysis would constitute federal inquiry into the economic reasonableness of state action. The CAA forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. 7410(a)(2). Redesignation of an area to attainment under section 107(d)(3)(e) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. The Administrator certifies that the approval 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, Incorporation by reference, Intergovernmental relations, Lead. 40 CFR Part 81 Air pollution control. Dated: December 7, 1994. Patrick M. Tobin, Acting Regional Administrator. Chapter I, title 40 of the Code of Federal Regulations, is amended as follows: PART 52--[AMENDED] The authority citation for part 52 continues to read as follows: Authority: 42.U.S.C. 7401-7671q. Subpart--B Alabama 2. Section 52.50 is amended by adding paragraph (c)(66) to read as follows: Sec. 52.50 Identification of plan. * * * * (c) * * * (66) The Alabama Department of Environmental Management has submitted revisions to Alabama SIP on September 28, 1993. These revisions address the requirements necessary to change the Leeds area of Jefferson County, Alabama, from nonattainment to attainment for lead. The submittal includes the maintenance plan for the Leeds Area. (i) Incorporation by reference. (A) Plan for Maintenance of the NAAQS for Lead in the Jefferson County (Leeds) Area after Redesignation to Attainment Status effective on September 28, 1993. (ii) Additional information. None. PART 81--[AMENDED] The authority citation for part 81 continues to read as follows: Authority: 42.U.S.C. 7401-7671q. 2. Section 81.301 is amended by revising the table for Lead to read as follows:
Sec. 81.301 Alabama.
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Alabama-Lead
Designation Classification
Designated area -------------------------------------------------------
Date Type Date Type
Statewide....... March 7, 1995.. Attainment.....
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[FR Doc. 95-284 Filed 1-5-95; 8:45 am]
BILLING CODE 6560-50-P
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