[Federal Register Volume 61, Number 206 (Wednesday, October 23, 1996)]
[Rules and Regulations]
[Pages 54943-54946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26875]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[TN-167-1-9702; FRL-5637-1]


Control Strategy: Ozone; Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving an exemption request from the oxides of 
nitrogen (NOX) reasonably available control technology (RACT) and 
conformity requirements of the Clean Air Act as amended in 1990 (CAA) 
for the five county Middle Tennessee (Nashville) moderate ozone 
(O3) nonattainment area. The request for a NOX RACT and 
conformity exemption was submitted on March 21, 1995, by the State of 
Tennessee through the Tennessee Department of Environment and 
Conservation (TDEC). The exemption request is based upon the most 
recent monitoring data, which demonstrate that additional reductions of 
NOX would not contribute to attainment of the National Ambient Air 
Quality Standards (NAAQS). EPA initially published a direct-final rule 
on July 11, 1996, approving this request. Due to the receipt of adverse 
comments, EPA withdrew the direct-final rule on September 6, 1996. This 
document addresses those comments received and grants final approval to 
the exemption request.

EFFECTIVE DATE: This final rule is effective October 23, 1996.

ADDRESSES: A copy of the exemption request is available for inspection 
at the following locations (it is recommended that you contact William 
Denman at (404) 562-9030 before visiting the Region 4 office).

United States Environmental Protection Agency; Air, Pesticides, and 
Toxics Management Division; Air Planning Branch; Regulatory Planning 
Section; 100 Alabama Street SW., Atlanta, Georgia 30303.
Tennessee Department of Environment and Conservation, Division of Air 
Pollution Control, L & C Annex, 9th Floor, 401 Church Street, 
Nashville, Tennessee 37243-1531, 615/532-0554.


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FOR FURTHER INFORMATION CONTACT: William Denman; Regulatory Planning 
Section; Air Planning Branch; Air Pesticides and Toxics Management 
Division; U.S. Environmental Protection Agency; 100 Alabama Street SW., 
Atlanta, Georgia 30303; (404) 562-9030. Reference file TN-167-9702.

SUPPLEMENTARY INFORMATION: The original direct-final rule approving 
Tennessee's NOX RACT exemption request was published on July 11, 
1996, (61 FR 36502) and provided for a thirty day public comment period 
which expired on August 12, 1996. Also, on July 11, 1996, a notice of 
proposed rulemaking for the NOX RACT exemption was published (61 
FR 36534). On August 12, 1996, the New York State Department of 
Environmental Conservation, the Citizens Commission for Clean Air in 
the Lake Michigan Basin, and the American Lung Association of Tennessee 
submitted adverse comments. As a result, a Federal Register document 
was published on September 6, 1996, withdrawing the direct-final 
action. In this document, EPA is taking final action on the exemption 
request and is addressing public comments received on the original 
direct-final action. The comments received and EPA's responses are 
given below.
    1. The commenter disagrees with EPA viewing the NOX exemption 
as non-controversial and taking the direct-final approach to approve 
the exemption. This view results from the perception that EPA is not 
granting NOX exemptions until the New York State's petition for 
review is decided by the 7th Circuit or settled by the parties.

EPA Response

    The approval of this NOX exemption was published as a direct-
final notice because Region 4 felt that all major comments regarding 
NOX exemptions had been made on previous actions. These major 
comments along with the EPA responses were restated in the direct-final 
rule. The public was in no way impeded from comments under the direct-
final format. The other option for approval was to issue only a 
proposal notice, and then publish a final notice addressing comments. 
The only difference in the direct-final approach is that, due to the 
possibility of receiving adverse comments, EPA had simultaneously 
published a notice of proposed rulemaking, and after withdrawing the 
direct-final rule now publishes this document as the final rule. EPA 
has not decided to withhold action on NOX exemptions until the 
results of the New York State petition for review before the 7th 
Circuit are decided.
    2. The commenter believes EPA's approval of the Middle Tennessee 
NOX exemption request conflicts with section 110(a)(2)(D) of the 
Clean Air Act because it fails to consider the effects that such action 
will have on downwind areas. The commenter also believes this action is 
inconsistent with efforts being taken on state, regional, and national 
levels to address the problem of transport of NOX and ozone and 
that EPA's ``clean data'' policy fails in that it does not address 
problems of long range transport of ozone.

EPA Response

    The requirements for redesignation to attainment of the ozone 
standard do not currently require areas to address long-range 
transport. Therefore, since Tennessee's SIP has been determined to 
contain adequate regulations for continued attainment of the ozone 
standard and their redesignation request has been determined to meet 
all the redesignation requirements, Tennessee has met the necessary 
criteria to be redesignated to attainment. With respect to the 
requirements under Section 110(a)(2)(D) of the Act, EPA does not 
believe, nor has the commenter provided any evidence, that granting a 
NOX exemption to the Middle Tennessee area will contribute 
significantly to nonattainment of the ozone standard in another state, 
or interfere with maintenance of the ozone standard. The matter of long 
range transport of ozone, NOX and volatile organic compounds is 
still under study by EPA.
    3. The commenter does not believe the NOX and VOC programs 
currently in place in Middle Tennessee are adequate to maintain the 
``clean data'' trend for the nonattainment area.

EPA Response

    The Nashville ozone nonattainment area has ambient monitoring data 
that show no violations of the ozone standard during the period of 1992 
through 1995 and to date in 1996. EPA has determined that the 
maintenance plan and contingency measures for the Nashville area are 
adequate to ensure the attainment of the national ambient air quality 
standard for ozone. In a separate notice published on July 29, 1996, 
(61 FR 39326) EPA approved regulations providing for NOX controls 
which Tennessee either imposed on major sources prior to attaining the 
ozone standard or controls which Tennessee used to demonstrate future 
maintenance of the ozone standard. It should be noted that all major 
NOX sources in the area are regulated by the Tennessee regulation 
for the control of NOX. This NOX RACT exemption merely 
exempts the sources from meeting federal NOX RACT requirements.
    4. The commenter believes that instead of decreasing the focus on 
nitrogen oxides, recent comprehensive studies indicate we should be 
increasing efforts to control NOX as a more effective strategy for 
controlling ozone in the urban and rural areas of the South. The 
commenter believes the control of ozone may not be possible without a 
stronger focus on nitrogen oxides.

EPA Response

    As stated previously, the Middle Tennessee ozone nonattainment area 
attained the national ambient air quality standard for ozone for the 
three year period 1992 through 1994, including 1995, and has continued 
to maintain the standard to date. Therefore, not only is the control of 
ozone in this area possible without a stronger focus on nitrogen 
oxides, it has been demonstrated since the 1992-1994 attainment period.
    5. The commenter believes that the Middle Tennessee Ozone Study 
Network does not accurately indicate actual ozone and ozone precursor 
emissions concentrations in the Middle Tennessee moderate ozone 
nonattainment area.

EPA Response

    The Ozone Study Network was not developed for the purpose of 
determining attainment or nonattainment of the ozone standard. The 
monitoring network developed and used for the purpose of monitoring 
attainment or nonattainment ozone levels in the Middle Tennessee ozone 
nonattainment area meets the requirements of 40 CFR Part 58 and 
therefore meets the ozone redesignation requirements.
    6. The commenter suggests that EPA should reconsider the Middle 
Tennessee NOX exemption request, relying upon ambient ozone 
monitoring data collected in 1992, 1993, and 1994, and review the 
Southern Oxidant Study 1995 Nashville Intensive Ozone Field Study, and 
Ozone Transport Assessment Group (OTAG) efforts to characterize, 
examine, and make regional control recommendations addressing the 
transport of ozone and ozone precursor emissions. Additionally, the 
USEPA should await the successful implementation of a ``super-
regional'' NOX strategy prior to approval of the NOX 
exemption and must review the

[[Page 54945]]

Southern Oxidant Study 1995 Nashville Intensive study and reconcile its 
results with this NOX exemption request.

EPA Response

    Section 182(f) of the Clean Air Act does not require States to take 
into account future findings of studies nor future efforts of 
workgroups when applying for a NOX exemption. EPA believes 
Tennessee has met the necessary requirements and has demonstrated 
through attaining and continued maintenance of the ozone standard for 
the years 1992 to 1996 that additional NOX controls are not 
necessary to meet the national ambient air quality standard for ozone.
    7. The ambient monitoring data is suspect due to a sparse ozone 
monitoring network that consistently fails to accurately monitor 
elevated ozone concentrations in the Middle Tennessee ozone 
nonattainment area.

EPA Response

    States with areas required to have monitoring networks must meet 
the requirements of 40 CFR Part 58. EPA has determined that Tennessee's 
monitoring network meets these requirements. The commenter mentions 
that on July 12, 1995, during the 1995 Nashville Intensive Ozone Field 
Study, a Southern Oxidant Study monitor recorded higher levels than the 
official ozone monitors in the area. The monitoring networks are 
designed to provide data representative of an entire area's ozone 
concentration. However, ozone is not distributed evenly throughout the 
atmosphere and therefore, an infinite number of monitors would be 
required to determine the exact concentration of ozone at all points.
    8. Under 182(f), the Administrator is authorized to waive NOX 
RACT and NOX conformity requirements if the Administrator 
determines that ``net air quality benefits are greater in the absence 
of reductions of oxides of nitrogen from the sources concerned,'' or if 
``additional reductions of oxides of nitrogen would not contribute to 
attainment of the national ambient air quality standards for ozone in 
the area''. The EPA submitted The Role of Ozone Precursors in 
Tropospheric Ozone Formation and Control in July 1993, to meet the 185B 
requirement of the Clean Air Act. The Administrator must consider the 
185B report in evaluating 182(f) NOX exemption requests.

EPA Response

    The middle Tennessee area has three years of attainment data for 
1992, 1993, and 1994, and has continued to attain the standard to date 
in 1996. Therefore, it is obvious that ``additional reductions of 
oxides of nitrogen would not contribute to attainment of the national 
ambient air quality standards for ozone in the area'', since the area 
continues to attain the ozone standard. Therefore, it meets the 182(f) 
requirement. Under section 185B, the Administrator is not required to 
consider the report in evaluating the 182(f) NOX exemption.
    9. Approval of the 182(f) NOX exemption request will have an 
adverse impact on visibility in the Great Smoky Mountains National Park 
and the Shenandoah National Park, adversely affect the health of 
wildlife and fauna in these Class I areas, and should be reevaluated.

EPA Response

     Tennessee has adopted and submitted to EPA regulations intended to 
meet the visibility protection requirements of the CAA. EPA will act on 
this submittal in a separate notice. EPA does not have the authority 
under the CAA to regulate NOX for the purpose of visibility using 
the requirements intended for meeting the ozone standard. The CAA 
provides separate regulations to protect visibility in Class I areas.

Final Action

    The EPA is today approving Tennessee's request to exempt the Middle 
Tennessee moderate O3 nonattainment area from the section 182(f) 
NOX RACT and NOX conformity requirements. Due to the receipt 
of adverse public comments, the original approval of this request was 
withdrawn on September 6, 1996. The original proposal notice published 
on July 11, 1996, proposed the rule for approval and provided for a 
thirty-day public comment period. Therefore, an additional comment 
period is not required. This approval is based upon the evidence 
provided by Tennessee showing compliance with the requirements outlined 
in the CAA and in applicable EPA guidance. EPA feels all comments 
received have been adequately addressed and is therefore proceeding 
with approval of this action.
    This action is not a SIP revision and is not subject to the 
requirements of section 110 of the CAA. The authority to approve or 
disapprove exemptions from NOX requirements under section 182 of 
the CAA was delegated to the Regional Administrator from the 
Administrator in a memo dated July 6, 1994, from Jonathan Cannon, 
Assistant Administrator, to the Administrator, titled, ``Proposed 
Delegation of
    Authority: `Exemptions from Nitrogen Oxide Requirements Under Clean 
Air Act section 182(f) and Related Provisions of the Transportation and 
General Conformity Rules' Decision Memorandum.'' This action will be 
effective on October 23, 1996.
    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.

Administrative Requirements

A. Executive Order 12866

    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for 
Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.

B. 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. section 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.
    Granting the NOX RACT exemption makes less burdensome the 
requirements on those small entities in middle Tennessee that are 
regulated under the State's ozone control plan. Accordingly, the 
Administrator hereby certifies that this action will not have a 
significant economic impact on a substantial number of small entities.

C. 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

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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 approval action 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 approves pre-existing 
requirements under State or local law, and imposes no new Federal 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) 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 5 U.S.C. 
section 804(2).

E. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 23, 1996. 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, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping 
requirements.

    Dated: October 7, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.

    Part 52 of 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 RR--Tennessee

    2. Section 52.2237 is added to read as follows:


Sec. 52.2237  NOX RACT and NOX Conformity Exemption.

    Approval. EPA is approving the section 182(f) oxides of nitrogen 
(NOX) reasonably available control technology (RACT) and NOX 
conformity exemption request submitted by the Tennessee Department of 
Environment and Conservation on March 21, 1995, for the five county 
middle Tennessee (Nashville) ozone moderate nonattainment area. This 
approval exempts the area from implementing federal NOX RACT on 
major sources of NOX and exempts Tennessee from NOX 
conformity. This approval does not exempt sources from any State 
required or State Implementation Plan (SIP) approved NOX controls. 
If a violation of the ozone NAAQS occurs in the area, the exemption 
from the requirement of section 182(f) of the CAA in the applicable 
area shall not apply.

[FR Doc. 96-26875 Filed 10-22-96; 8:45 am]
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