7404 Federal Register / Vol. 87, No. 27 / Wednesday, February 9, 2022 / Proposed Rules 

eligible individuals who are interred in 

national cemeteries. 

• Estimated number of respondents: 

1,777 in FY2019. 

• Estimated frequency of responses: 

One time per application as needed by 

families. 

• Estimated average burden per 

response: 10 minutes for respondents. 

• Estimated total annual reporting 

and recordkeeping burden: VA 

estimates the total annual reporting and 

recordkeeping burden to be 296 hours. 

• Estimated cost to respondents per 

year: VA estimates the annual cost to 

respondents to be $8,012 (296 burden 

hours for respondents × (multiplied by) 

$27.07 per hour). 

Assistance Listing 

The Assistance Listing number and 

title for the programs affected by this 

document are 64.201, National 

Cemeteries. 

List of Subjects in 38 CFR part 38 

Administrative practice and 

procedure, Cemeteries, Claims, Crime, 

Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved this 

document on February 1, 2022, and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Luvenia Potts, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

For the reasons set forth in the 

preamble, 38 CFR part 38 is proposed to 

be amended as follows: 

PART 38—NATIONAL CEMETERIES 

OF THE DEPARTMENT OF VETERANS 

AFFAIRS 

■ 1. The authority citation for part 38 

continues to read as follows: 

Authority: 38 U.S.C. 107, 501, 512, 2306, 

2400, 2402, 2403, 2404, 2407, 2408, 2411, 

7105. 

■ 2. Revise § 38.621 to read as follows: 

§ 38.621 Disinterments. 

(a) Interments of eligible decedents in 

national cemeteries are considered 

permanent and final. Disinterment will 

be permitted only for cogent reasons 

and with the prior written authorization 

of the National Cemetery District 

Executive Director or Cemetery Director 

responsible for the cemetery involved. 

Disinterment from a national cemetery 

will be approved only when: 

(1) A court order or State 

instrumentality of competent 

jurisdiction directs the disinterment; or 

(2) All living immediate family 

members of the decedent, and the 

individual who initiated the interment 

(whether or not the individual is a 

member of the immediate family), give 

their written consent. 

(i) If the individual who initiated the 

interment does not consent, or is not 

alive to provide consent, or all living 

immediate family members are not in 

agreement, anyone seeking disinterment 

of an eligible decedent must provide VA 

with an order from a court or State 

instrumentality of competent 

jurisdiction to direct the disinterment as 

provided in paragraph (a)(1) of this 

section. 

(ii) For purposes of this section, 

‘‘immediate family members’’ are 

defined as surviving spouse, whether or 

not he or she is or was remarried; all 

adult children of the decedent; the 

appointed guardian(s) of minor 

children; and the appointed guardian(s) 

of the surviving spouse or of the adult 

child(ren) of the decedent. If the 

surviving spouse and all of the children 

of the decedent are deceased, the 

decedent’s parents will be considered 

‘‘immediate family members.’’ 

(b)(1) All requests to disinter remains 

as described in paragraph (a)(2) of this 

section must be submitted on VA Form 

40–4970, Request for Disinterment, and 

must include the following information: 

(i) A full statement of reasons for the 

proposed disinterment. 

(ii) Notarized statement(s) by all 

living immediate family members of the 

decedent, and by the person who 

initiated the interment (whether or not 

the individual is a member of the 

immediate family), that all parties 

consent to the proposed disinterment. 

(iii) A notarized statement by the 

person requesting the disinterment that 

those who supplied affidavits comprise 

all the living immediate family members 

of the deceased and the individual who 

initiated the interment. 

(2) If the person provides a false 

certification on VA Form 40–4970, he or 

she may be subject to penalties, to 

include fine or imprisonment or both. 

(c) Any VA-approved disinterment in 

this section must be accomplished 

without expense to the Government. 

(The reporting and recordkeeping 

requirements contained in paragraph (b) 

of this section have been approved by 

the Office of Management and Budget 

under OMB control number 2900–0365) 

(Authority: 38 U.S.C. 2404) 

[FR Doc. 2022–02682 Filed 2–8–22; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2021–0010; FRL–9539–01– 

R4] 

Air Plan Approval; Alabama; 

Birmingham Limited Maintenance Plan 

for the 1997 8-Hour Ozone NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 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 proposing to approve 

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. The effect of this 

action would be to make 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: Comments must be received on 

or before March 11, 2022. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2021–0010 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 


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1See ‘‘Fact Sheet, Proposal to Revise the National 

Ambient Air Quality Standards for Ozone,’’ January 

6, 2010, and 27 FR 2938 (January 19, 2010). 

2 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). 

3Section 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. 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/ 

commenting-epa-dockets. 

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 larocca.sarah@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Summary of EPA’s Proposed Action 

II. Background 

III. Alabama’s SIP Submittal 

IV. EPA’s Evaluation of Alabama’s SIP 

Submittal 

A. Attainment Emissions Inventory 

B. Maintenance Demonstration 

C. Monitoring Network and Verification of 

Continued Attainment 

D. Contingency Plan 

E. Conclusion 

V. Transportation Conformity and General 

Conformity 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. Summary of EPA’s Proposed Action 

In accordance with the Clean Air Act 

(CAA or Act), EPA is proposing to 

approve the Birmingham Area LMP for 

the 1997 8-hour ozone NAAQS, adopted 

by ADEM on September 16, 2020, and 

submitted by ADEM as a revision to the 

Alabama SIP on September 17, 2020. In 

2004, the Birmingham Area was 

designated as nonattainment for the 

1997 8-hour ozone NAAQS. 

Subsequently, in 2006, after having 

clean data and EPA’s approval of a 

maintenance plan, the Area was 

redesignated to attainment for the 1997 

8-hour ozone NAAQS. See 71 FR 27631 

(May 12, 2006). 

The Birmingham Area LMP is 

designed to maintain the 1997 8-hour 

ozone NAAQS within the Birmingham 

Area through the end of the second 10- 

year portion of the maintenance period 

beyond redesignation. EPA is proposing 

to approve the plan because it meets all 

applicable requirements under CAA 

sections 110 and 175A. As a general 

matter, the Birmingham Area LMP relies 

on the same control measures and 

contingency provisions to maintain the 

1997 8-hour ozone NAAQS during the 

second 10-year portion of the 

maintenance period as the maintenance 

plan submitted by ADEM for the first 

10-year period. 

II. Background 

Ground-level ozone is formed when 

oxides of nitrogen (NOX) and volatile 

organic compounds (VOC) react in the 

presence of sunlight. These two 

pollutants, referred to as ozone 

precursors, are emitted by many types of 

pollution sources, including on- and offroad motor vehicles and engines, power 

plants and industrial facilities, and 

smaller area sources such as lawn and 

garden equipment and paints. Scientific 

evidence indicates that adverse public 

health effects occur following exposure 

to ozone, particularly in children and in 

adults with lung disease. Breathing air 

containing ozone can reduce lung 

function and inflame airways, which 

can increase respiratory symptoms and 

aggravate asthma and other lung 

diseases. 

Ozone exposure also has been 

associated with increased susceptibility 

to respiratory infections, medication 

use, doctor visits, and emergency 

department visits and hospital 

admissions for individuals with lung 

disease. Children are at increased risk 

from exposure to ozone because their 

lungs are still developing and they are 

more likely to be active outdoors, which 

increases their exposure.1

In 1979, under section 109 of the 

CAA, 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).2 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 preexisting respiratory disease, such as 

asthma. 

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.3 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). 

EPA has published long-standing 

guidance for states on developing 


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4 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). 

5The 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. 

6See ‘‘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. 

7The 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 (CO) NAAQS. 

8See, e.g., 79 FR 41900 (July 18, 2014) (approval 

of the second ten-year LMP for the Grant County 

1971 Sulfur Dioxide maintenance area). 

9After redesignation to attainment, the 

Birmingham area violated the NAAQS with 2004– 

2006 monitoring data. On February 6, 2008, 

Alabama submitted a SIP revision to EPA to fulfill 

ADEM’s commitment to adopt, within 18 months of 

a violation of the 1997 8-hour ozone NAAQS, one 

or more contingency measures to help the area reattain the standard. See 74 FR 37945. 

maintenance plans.4 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 

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 5 being well below the 

standard and the area having a 

historically stable design value.6 EPA 

refers to a maintenance plan containing 

this streamlined demonstration as an 

LMP. 

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,7

EPA has extended the LMP 

interpretation of section 175A to other 

NAAQS and pollutants not specifically 

covered by the previous guidance 

memos.8

In this case, EPA is proposing to 

approve Alabama’s LMP because the 

State has 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 has met the other maintenance 

plan requirements. ADEM submitted 

this LMP for the Birmingham Area to 

fulfill the second maintenance plan 

requirement in the Act. EPA’s 

evaluation of the Birmingham Area LMP 

is presented below. 

In January of 2006, ADEM submitted 

to EPA a request to redesignate the 

Birmingham Area to attainment for the 

1997 8-hour ozone NAAQS. This 

submittal included a plan to provide for 

maintenance of the 1997 8-hour ozone 

NAAQS in Birmingham through 2017 as 

a revision to the Alabama SIP. EPA 

approved the Birmingham Area’s 

maintenance plan and the State’s 

request to redesignate the Birmingham 

Area to attainment for the 1997 8-hour 

ozone NAAQS effective June 12, 2006. 

See 71 FR 27631 (May 12, 2006).9

Under CAA section 175A(b), states 

must submit a revision to the first 

maintenance plan eight years after 

redesignation to provide for 

maintenance of the NAAQS for ten 

additional years following the end of the 

first 10-year period. EPA’s final 

implementation rule for the 2008 8-hour 

ozone NAAQS revoked the 1997 8-hour 

ozone NAAQS and stated that one 

consequence of revocation was that 

areas that had been redesignated to 

attainment (i.e., maintenance areas) for 

the 1997 NAAQS no longer needed to 

submit second 10-year maintenance 

plans under CAA section 175A(b). See 

80 FR 12264, 12315 (March 6, 2015). 

In South Coast Air Quality 

Management District v. EPA, the United 

States Court of Appeals for the District 

of Columbia Circuit (D.C. Circuit) 

vacated the EPA’s interpretation that, 

because of the revocation of the 1997 8- 

hour ozone NAAQS, second 

maintenance plans were not required for 

‘‘orphan maintenance areas,’’ i.e., areas 

that had been redesignated to 

attainment for the 1997 8-hour ozone 

NAAQS maintenance areas and were 

designated attainment for the 2008 

ozone NAAQS. South Coast, 882 F.3d 

1138 (DC Cir. 2018). Thus, states with 

these ‘‘orphan maintenance areas’’ 

under the 1997 8-hour ozone NAAQS 

must submit maintenance plans for the 

second maintenance period. 

Accordingly, on September 17, 2020, 

Alabama submitted a second 

maintenance plan for the Birmingham 

Area that shows that the Area is 

expected to remain in attainment of the 

1997 8-hour ozone NAAQS through 

2026. 

In recognition of the continuing 

record of air quality monitoring data 

showing ambient 8-hour ozone 

concentrations in the Birmingham Area 

well below the 1997 8-hour ozone 

NAAQS, ADEM chose the LMP option 

for the development of a second 1997 8- 

hour ozone NAAQS maintenance plan. 

On September 16, 2020, ADEM adopted 

the second 10-year 1997 8-hour ozone 

maintenance plan, and on September 

17, 2020, ADEM submitted the 

Birmingham Area LMP to EPA as a 

revision to the Alabama SIP. 

III. Alabama’s SIP Submittal 

As mentioned above, on September 

17, 2020, ADEM submitted the 

Birmingham Area 1997 8-hour ozone 

NAAQS LMP to EPA as a revision to the 

Alabama SIP. The submittal includes 

the LMP, air quality data, emissions 

inventory information, and appendices 

as well as certification of adoption of 

the plan by ADEM. Appendices to the 

plan include EPA’s Guidance 

Memorandum for Ozone Limited 

Maintenance Plans and documentation 

of notice, hearing, and public 

participation prior to adoption of the 

plan by ADEM on September 16, 2020. 

The Birmingham Area LMP does not 

include any additional emissions 

reduction measures but relies on the 

same emission reduction strategy as 

their first 10-year maintenance plan that 

provides for the maintenance of the 

1997 8-hour ozone NAAQS through 

2017. Specifically, the measures upon 

which the second 10-year LMP for the 

Birmingham Area relies include, among 

other things, continued implementation 

of federal measures (e.g., Tier 3 Motor 


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10See 79 FR 23414 (April 28, 2014). 11See 63 FR 57355 (October 27, 1998). 12See 76 FR 48208 (August 8, 2011). 

13See 81 FR 74504 (October 26, 2016). 

14See Calcagni memo. 

15 Documentation and data for the 2014 NEIv2 

can be accessed via the following website: http:// 

www.epa.gov/air-emissions-inventories/2014- 

national-emissions-inventory-nei-data. 

16EPA developed emissions for these sectors 

based on AP–42 emissions factor, and information 

supplied by the Eastern Regional Technical 

Advisory Committee for locomotives and Federal 

Aviation Administration’s Emissions and 

Dispersion Modeling System (since replaced by the 

Aviation Environmental Design Tool). 

17The 2014 summer emissions data for the 

Birmingham Area are from the EPA 2014 version 

7.0 modeling platform, which is based on the 

National Emissions Inventory (2014 NEI version 2), 

and are available at https://www.epa.gov/sites/ 

default/files/2018-11/ozone_1997_naaqs_emiss_

inv_data_nov_19_2018_0.xlsx. The 2017 NEI is the 

most recent NEI, but it was unavailable to Alabama 

when the State developed its SIP revision. 

18See footnote 6. 

Vehicle Emission and Fuel Standards,10

NOX SIP Call,11 and interstate transport 

rules such as the Cross-State Air 

Pollution Rule (CSAPR) 12 and CSAPR 

Update 13). 

IV. EPA’s Evaluation of Alabama’s SIP 

Submittal 

EPA has reviewed the Birmingham 

Area’s LMP which is designed to 

maintain the 1997 8-hour ozone NAAQS 

within Birmingham through the end of 

the 20-year period beyond 

redesignation, as required under CAA 

section 175A(b). The following is a 

summary of EPA’s interpretation of the 

section 175A requirements 14 and EPA’s 

evaluation of how each requirement is 

met. 

A. Attainment Emissions Inventory 

For maintenance plans, a state should 

develop a comprehensive, accurate 

inventory of actual emissions for an 

attainment year to identify the level of 

emissions which is sufficient to 

maintain the NAAQS. A state should 

develop this inventory consistent with 

EPA’s most recent guidance on 

emissions inventory development. For 

ozone, the inventory should be based on 

typical summer day emissions of VOC 

and NOX, as these pollutants are 

precursors to ozone formation. The 

Birmingham LMP instead includes an 

ozone attainment inventory for the 

Birmingham area that reflects annual 

emissions of VOC and NOX in 2014. 

Table 1 presents a summary of the 

inventory for 2014 contained in the 

LMP. 

TABLE 1—2014 VOC AND NOX EMISSIONS FOR THE BIRMINGHAM AREA

[Tons/year] 

Point source Area source Onroad 

mobile source 

Nonroad 

mobile source Total 

VOC ....................................................... 3,899.07 78,794.64 9,587.72 4,046.32 96,327.75 

NOX ........................................................ 31,365.76 7,679.80 17,394.50 3,470.60 59,910.66 

The Attainment Emissions Inventory 

section of the Birmingham Area LMP 

describes the methods, models, and 

assumptions used to develop the 

attainment inventory and notes that 

ADEM relied on version 2 of the 2014 

NEI.15 Point source emissions were 

calculated from data collected annually 

from the sources and reported to the 

State or local air agencies. Area source 

emissions were estimated by 

multiplying an emission factor by some 

known indicator of collective activity, 

such as fuel usage, and were estimated 

on the county level. Nonroad mobile 

source emissions in the 2014NEIv2, in 

part, were estimated using the latest 

version of the EPA’s motor vehicles 

emission model, MOVES (which 

includes estimates nonroad emissions 

like agriculture, commercial and 

mining, industrial and recreational 

equipment, and commercial and 

residential lawn and garden equipment). 

Locomotives, aircraft, and marine 

nonroad sources are not included in 

MOVES, and ADEM relied on EPAgenerated emissions for these sectors.16

Onroad mobile sources in the 

2014NEIv2 were estimated using 

MOVES and the latest planning 

assumptions regarding vehicle type, 

vehicle activity, and vehicle speeds to 

estimate vehicular emissions for 2014. 

ADEM’s estimates for vehicles reflect 

emissions inventories and ancillary data 

files used for emissions modeling, as 

well as the meteorological, initial 

condition, and boundary condition files 

need to run the air quality model. 

Although an ozone LMP would 

typically include an inventory of typical 

summer day emissions rather than 

annual emissions, EPA proposes to find 

that Alabama’s annual inventory is 

sufficient here because the 2014 annual 

inventory data are consistent with 2014 

summer emissions inventory data for 

the Birmingham Area.17 Based on our 

review of the methods, models, and 

assumptions used by Alabama to 

develop the inventory, as well as our 

review of the 2014 summer emissions 

data, EPA proposes to find that the 

Alabama 1997 ozone NAAQS LMP 

includes a comprehensive, reasonably 

accurate inventory of actual ozone 

precursor emissions in attainment year 

2014, and proposes to conclude that this 

is acceptable for the purposes of a 

subsequent maintenance plan under 

CAA section 175A(b). 

B. Maintenance Demonstration 

The maintenance demonstration 

requirement is considered to be satisfied 

in an LMP if the state can provide 

sufficient weight of evidence indicating 

that air quality in the area is well below 

the level of the standard, that past air 

quality trends have been shown to be 

stable, and that the probability of the 

area experiencing a violation over the 

second 10-year maintenance period is 

low.18 These criteria are evaluated 

below with regard to the Birmingham 

Area. 

1. Evaluation of Ozone Air Quality 

Levels 

To attain the 1997 8-hour ozone 

NAAQS, the three-year average of the 

fourth-highest daily maximum 8-hour 

average ozone concentrations (design 

value) at each monitor within an area 

must not exceed 0.08 ppm. Based on the 

rounding convention described in 40 

CFR part 50, Appendix I, the NAAQS is 

attained if the design value is 0.084 ppm 

or below. At the time of submission, 

EPA evaluated quality assured and 

certified 2016–2018 monitoring data 

and determined that the design value for 

the Birmingham Area was 0.067 ppm, or 

79 percent of the level of the 1997 8- 

hour ozone NAAQS. Based on quality 

assured and certified monitoring data 

for 2018–2020, the current design value 

for the Birmingham Area is 0.066 ppm, 

or 79 percent of the level of the 1997 8- 

hour ozone NAAQS. Consistent with 

prior guidance, EPA believes that if the 

most recent air quality design value for 

the area is at a level that is well below 

the NAAQS (e.g., below 85% of the 


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19On April 30, 2021, EPA published the final 

Revised Cross-State Air Pollution (CSAPR) Update 

(RCU) using updated modeling that focused on 

analytic years 2023 and 2028 and an 

‘‘interpolation’’ analysis of these modeling results 

to generate air quality and contribution values for 

the 2021 analytic year. See 86 FR 23054. https://

www.govinfo.gov/content/pkg/FR-2021-04-30/pdf/ 

2021-05705.pdf. This modeling included projected 

ozone design values for ozone monitors in the 

Birmingham maintenance area. See the spreadsheet 

titled ‘‘Data File with Ozone Design Values and 

Ozone Contributions (xlsx)’’ at https://

www.epa.gov/csapr/revised-cross-state-airpollution-rule-update. 

20The letters approving the network plan are in 

the docket for this proposed rulemaking. 

standard, or in this case below 0.071 

ppm), then EPA considers the state to 

have met the section 175A requirement 

for a demonstration that the area will 

maintain the NAAQS for the requisite 

period. Such a demonstration assumes 

continued applicability of prevention of 

significant deterioration requirements 

and any control measures already in the 

SIP and that Federal measures will 

remain in place through the end of the 

second 10-year maintenance period, 

absent a showing consistent with 

section 110(l) that such measures are 

not necessary to assure maintenance. 

Table 2 presents the 2014–2020 

design values for each monitor in the 

Birmingham Area. As shown in Table 2, 

all sites have been well below the level 

of the 1997 8-hour ozone NAAQS 

during that time period, and the most 

current design value is below the level 

of 85 percent of the NAAQS, consistent 

with prior LMP guidance. 

TABLE 2—1997 8-HOUR OZONE NAAQS 2014–2020 DESIGN VALUES (ppm) AT MONITORING SITES IN THE BIRMINGHAM

AREA +

Location AQS site ID 2012–2014 

DV 

2013–2015 

DV 

2014–2016 

DV 

2015–2017 

DV 

2016–2018 

DV 

2017–2019 

DV 

2018–2020 

DV 

Helena ............................................................. 01–117–0004 0.068 0.065 0.067 0.066 0.067 0.066 0.065 

Fairfield ............................................................ 01–073–1003 0.068 0.065 0.066 0.066 ∧ 0.064 0.067 0.066 

McAdory .......................................................... 01–073–1005 0.068 0.064 0.066 0.065 0.065 0.066 0.066 

Hoover ............................................................. 01–073–2006 0.067 0.065 0.066 0.066 (-) (-) (-) 

Tarrant ............................................................. 01–073–6002 ∧ 0.070 0.067 0.068 0.068 (*) (*) (*) 

Corner ............................................................. 01–073–5003 0.065 0.063 0.064 0.064 0.063 0.062 0.061 

North Birmingham ........................................... 01–073–0023 0.067 0.064 0.068 0.066 0.065 (*) 0.066 

Leeds ............................................................... 01–073–1010 0.069 0.063 0.064 0.063 0.066 0.064 0.063 

+The Metropolitan Statistical Area (MSA) is required to have a minimum of two ozone monitoring sites. The MSA still maintains seven regulatory ozone monitoring 

sites offering adequate coverage of the MSA. 

* These design values are invalid due to data completeness issues. 

- The Hoover monitor (Site ID 01–073–2006) was approved to be shut down at the end of October 31, 2017, through the annual network plan review process. 

∧ The data handling methodology associated with the 1997 8-hour ozone NAAQS was used to calculate these 2014–2020 DVs. Using this appropriate methodology, two DVs were calculated as being slightly lower (0.001 ppm lower) than what was included in ADEMS’s submittal. 

Therefore, the Birmingham Area is 

eligible for the LMP option, and EPA 

proposes to find that the long record of 

monitored ozone concentrations that 

attain the NAAQS, together with the 

continuation of existing VOC and NOX

emissions control programs, adequately 

provide for the maintenance of the 1997 

8-hour ozone NAAQS in the Area 

through the second 10-year maintenance 

period and beyond. 

Additional supporting information 

that the Area is expected to continue to 

maintain the NAAQS can be found in 

projections of future year design values 

that EPA recently completed for the 

Revised CSAPR Update for the 2008 

Ozone NAAQS that EPA finalized on 

April 30, 2021.19 Those projections, 

made for the year 2023, show that the 

highest design value of any monitor in 

the Area is expected to be 0.056 ppm. 

EPA is not proposing to make any 

finding in this rulemaking regarding 

interstate transport obligations for any 

state. 

2. Stability of Ozone Levels 

As discussed above, the Birmingham 

Area has maintained air quality well 

below the 1997 8-hour ozone NAAQS 

over the past seven years. Additionally, 

the design value data shown within 

Table 2 illustrates that ozone levels have 

been relatively stable over this 

timeframe, with a modest downward 

trend. For example, the data within 

Table 2 indicates that the largest year 

over year change in design value at any 

one monitor during these seven years 

was six parts per billion which occurred 

between the 2014 and 2015 design 

values, representing a nine percent 

decrease at monitor 01–073–1010 

(Leeds). Furthermore, the overall trend 

for the Birmingham Area shows a 

decrease of three percent between the 

2014 and 2017 design values at the 

highest monitor, Tarrant monitor 01– 

073–6002, and shows a decrease of nine 

percent between the 2014 and 2020 

design values at the second-highest 

monitor, Leeds monitor 01–073–1010. 

This downward trend in ozone levels, 

coupled with the relatively small, yearover-year variation in ozone design 

values, makes it reasonable to conclude 

that the Birmingham Area will not 

exceed the 1997 8-hour ozone NAAQS 

during the second 10-year maintenance 

period. 

C. Monitoring Network and Verification 

of Continued Attainment 

EPA periodically reviews the ozone 

monitoring network that ADEM and 

Jefferson County Department of Health 

(JCDH) operates and maintains in 

accordance with 40 CFR part 58. This 

network plan, which is submitted 

annually to EPA, is consistent with the 

most recent ambient air quality 

monitoring network assessment. The 

annual network plan developed by 

ADEM follows a public notification and 

review process. EPA has reviewed and 

approved the 2020 Ambient Air 

Monitoring Network Plan (‘‘2020 

Annual Network Plan’’).20

To verify the attainment status of the 

area over the maintenance period, the 

maintenance plan should contain 

provisions for continued operation of an 

appropriate, EPA-approved monitoring 

network in accordance with 40 CFR part 

58. As noted above, ADEM and JCDH’s 

monitoring network in Birmingham has 

been approved by EPA in accordance 

with 40 CFR part 58, and the State and 

JCDH have committed to continue to 

maintain a network in accordance with 

EPA requirements. EPA proposes to find 

that ADEM and JCDH’s monitoring 

network is adequate to verify continued 

attainment of the 1997 8-hour ozone 

NAAQS in Birmingham. 

D. Contingency Plan 

Section 175A(d) of the CAA requires 

that a maintenance plan include 

contingency provisions. The purpose of 

such contingency provisions is to 

prevent future violations of the NAAQS 

or to promptly remedy any NAAQS 

violations that might occur during the 


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21 If QA/QC data indicates a violating design 

value for the 8-hour ozone NAAQS, then the 

triggering event will be the date of the design value 

violation, and not the final QA/QC date. However, 

if initial monitoring data indicates a possible design 

value violation but later QA/QC indicates that a 

NAAQS violation did not occur, then a triggering 

event will not have occurred, and contingency 

measures will not need to be implemented. 

22See the Contingency Plan section of the LMP 

for further information regarding the contingency 

plan, including measures that Alabama will 

consider for adoption if a monitored violation 

occurs. 

23A conformity determination that meets other 

applicable criteria in Table 1 of paragraph (b) of this 

section (93.109(e)) is still required, including the 

hot-spot requirements for projects in CO, PM10, and 

PM2.5 areas. 

maintenance period. These contingency 

measures are required to be 

implemented expeditiously once they 

are triggered by a future violation of the 

NAAQS or some other trigger. The state 

should identify specific triggers which 

will be used to determine when the 

contingency measures need to be 

implemented. 

The LMP states that the initial trigger 

of Alabama’s contingency plan is when 

any individual monitor in the 

Birmingham Area records an annual 

fourth high reading of 85 ppb or higher. 

If this trigger is activated and ambient 

monitoring data indicates that a 

violation of the 3-year design value may 

be imminent, the maintenance plan 

requires Alabama to evaluate existing 

control measures to determine whether 

any further emission reduction 

measures should be implemented at that 

time. The second contingency plan 

trigger will be a quality assured/quality 

controlled (QA/QC) violating design 

value of the 1997 8-hour ozone NAAQS 

at any monitor in the Birmingham 

Area.21 As expeditiously as possible and 

within 18 to 24 months after a 

monitored violation, Alabama will 

adopt and implement appropriate 

contingency measures needed to assure 

future attainment.22 In addition to at 

least one contingency measure being 

implemented upon a monitored 

violation, pursuant to CAA section 

175A(d), all control measures in place 

prior to redesignation to attainment will 

remain in place. 

EPA proposes to find that the 

contingency provisions in Alabama’s 

second maintenance plan for the 1997 8- 

hour ozone NAAQS meet the 

requirements of the CAA section 

175A(d). 

E. Conclusion 

EPA proposes to find that the 

Birmingham LMP for the 1997 8-hour 

ozone NAAQS includes an approvable 

update of the various elements 

(including attainment inventory, 

assurance of adequate monitoring and 

verification of continued attainment, 

and contingency provisions) of the 

initial EPA-approved maintenance plan 

for the 1997 8-hour ozone NAAQS. EPA 

also proposes to find that the 

Birmingham Area, a former subpart 1 

marginal 1997 8-hour ozone NAAQS 

nonattainment area, qualifies for the 

LMP option, and adequately 

demonstrates maintenance of the 1997 

8-hour ozone NAAQS through the 

documentation of monitoring data 

showing maximum 1997 8-hour ozone 

levels below the NAAQS and 

historically stable design values. EPA 

believes the Birmingham Area’s LMP, 

which retains all existing control 

measures in the SIP, is sufficient to 

provide for maintenance of the 1997 8- 

hour ozone NAAQS in the Area over the 

second maintenance period (i.e., 

through 2026) and thereby satisfies the 

requirements for such a plan under CAA 

section 175A(b). EPA is therefore 

proposing to approve Alabama’s 

September 17, 2020, submission of the 

Birmingham Area 1997 8-hour ozone 

NAAQS LMP as a revision to the 

Alabama SIP. 

V. Transportation Conformity and 

General Conformity 

Transportation conformity is required 

by section 176(c) of the CAA. 

Conformity to a SIP means that 

transportation activities will not 

produce new air quality violations, 

worsen existing violations, or delay 

timely attainment of the NAAQS. See 

CAA 176(c)(1)(A) and (B). EPA’s 

transportation conformity rule at 40 CFR 

part 93 subpart A requires that 

transportation plans, programs, and 

projects conform to SIPs and establishes 

the criteria and procedures for 

determining whether they conform. The 

conformity rule generally requires a 

demonstration that emissions from the 

Regional Transportation Plan (RTP) and 

the Transportation Improvement 

Program (TIP) are consistent with the 

motor vehicles emissions budget 

(MVEB) contained in the control 

strategy SIP revision or maintenance 

plan. See 40 CFR 93.101, 93.118, and 

93.124. A MVEB is defined as ‘‘the 

portion of the total allowable emissions 

defined in the submitted or approved 

control strategy implementation plan 

revision or maintenance plan for a 

certain date for the purpose of meeting 

reasonable further progress milestones 

or demonstrating attainment or 

maintenance of the NAAQS, for any 

criteria pollutant or its precursors, 

allocated to highway and transit vehicle 

use and emissions.’’ See 40 CFR 93.101. 

Under the conformity rule, LMP areas 

may demonstrate conformity without a 

regional emissions analysis. See 40 CFR 

93.109(e). On February 23, 2006, EPA 

made a finding that the MVEBs in the 

first 10 years of the 1997 8-hour ozone 

maintenance plan for the Birmingham 

Area were adequate for transportation 

conformity purposes. See 71 FR 9332 

(February 23, 2006). This adequacy 

determination became effective on 

March 10, 2006. After approval of this 

LMP or an adequacy finding for this 

LMP, there is no requirement to meet 

the budget test pursuant to the 

transportation conformity rule for the 

maintenance area. All actions that 

would require a transportation 

conformity determination for the 

Birmingham Area ozone maintenance 

area under EPA’s transportation 

conformity rule provisions are 

considered to have already satisfied the 

regional emissions analysis and ‘‘budget 

test’’ requirements in 40 CFR 93.118 as 

a result of EPA’s adequacy finding for 

this LMP. See 69 FR 40004 (July 1, 

2004). 

However, because LMP areas are still 

maintenance areas, certain aspects of 

transportation conformity 

determinations still will be required for 

transportation plans, programs, and 

projects. Specifically, for such 

determinations, RTPs, TIPs and 

transportation projects still will have to 

demonstrate that they are fiscally 

constrained (40 CFR 93.108) and meet 

the criteria for consultation (40 CFR 

93.105) and Transportation Control 

Measure implementation in the 

conformity rule provisions (40 CFR 

93.113) as well as meet the hot-spot 

requirements for projects (40 CFR 

93.116).23 Additionally, conformity 

determinations for RTPs and TIPs must 

be determined no less frequently than 

every four years, and conformity of plan 

and TIP amendments and transportation 

projects is demonstrated in accordance 

with the timing requirements specified 

in 40 CFR 93.104. In addition, in order 

for projects to be approved they must 

come from a currently conforming RTP 

and TIP. See 40 CFR 93.114 and 40 CFR 

93.115. 

VI. Proposed Action 

Under sections 110(k) and 175A of the 

CAA and for the reasons set forth above, 

EPA is proposing 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. EPA is 

proposing to approve the Birmingham 

Area LMP because it includes an 

acceptable update of the various 

elements of the 1997 8-hour ozone 


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7410 Federal Register / Vol. 87, No. 27 / Wednesday, February 9, 2022 / Proposed Rules 

NAAQS maintenance plan approved by 

EPA for the first 10-year period and 

retains the relevant provisions of the 

SIP. 

EPA also finds that the Birmingham 

Area qualifies for the LMP option and 

that, therefore, the Birmingham Area 

LMP adequately demonstrates 

maintenance of the 1997 8-hour ozone 

NAAQS through documentation of 

monitoring data showing maximum 

1997 8-hour ozone levels well below the 

NAAQS and continuation of existing 

control measures. EPA believes the 

Birmingham Area’s 1997 8-hour ozone 

LMP to be sufficient to provide for 

maintenance of the 1997 8-hour ozone 

NAAQS in the Birmingham Area over 

the second 10-year maintenance period, 

through 2026, and thereby satisfy the 

requirements for such a plan under CAA 

section 175A(b). 

VII. 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 proposes to 

approve state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed 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. 

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. 

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

Dated: February 3, 2022. 

Daniel Blackman, 

Regional Administrator, Region 4. 

[FR Doc. 2022–02683 Filed 2–8–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2022–0089; FRL–9546–01– 

R1] 

Air Plan Approval; Connecticut; 

Negative Declaration for the Oil and 

Gas Industry 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

State Implementation Plan (SIP) 

revision submitted by the State of 

Connecticut. The revision provides the 

State’s determination, via a negative 

declaration, that there are no facilities 

within its borders subject to EPA’s 2016 

Control Technique Guideline (CTG) for 

the oil and gas industry. The intended 

effect of this action is to approve this 

item into the Connecticut SIP. This 

action is being taken under the Clean 

Air Act. 

DATES: Written comments must be 

received on or before March 11, 2022. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

OAR–2022–0089 at https://

www.regulations.gov, or via email 

rackauskas.eric@epa.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. For either manner of 

submission, the EPA may publish any 

comment received to its public docket. 

Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the ‘‘For 

Further Information Contact’’ section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. Publicly 

available docket materials are available 

at https://www.regulations.gov or at the 

U.S. Environmental Protection Agency, 

EPA Region 1 Regional Office, Air and 

Radiation Division, 5 Post Office 

Square—Suite 100, Boston, MA. EPA 

requests that if at all possible, you 

contact the contact 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 legal holidays and 

facility closures due to COVID–19. 

FOR FURTHER INFORMATION CONTACT: Eric 

Rackauskas, Air Quality Branch, U.S. 

Environmental Protection Agency, EPA 

Region 1, 5 Post Office Square—Suite 

100, (Mail code 05–2), Boston, MA 

02109–3912, tel. (617) 918–1628, email 

rackauskas.eric@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. 


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