[Federal Register Volume 65, Number 183 (Wednesday, September 20, 2000)]
[Rules and Regulations]
[Pages 56794-56797]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-24042]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-233-1-20021a; FRL-6872-2]


Approval and Promulgation of the Implementation Plan for the 
Shelby County, Tennessee Lead Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the lead state implementation plan (SIP) for 
the Shelby County, Tennessee, lead nonattainment area. The State of 
Tennessee submitted the lead SIP on March 17, 2000, pursuant to 
sections 110(a)(2) and 172(c) of the Clean Air Act (CAA). This SIP 
submittal meets all EPA and CAA requirements for lead SIPs.

DATES: This direct final rule is effective November 20, 2000 without 
further notice, unless EPA receives adverse comment by October 20, 
2000. If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Comments on this action should be addressed to Kimberly 
Bingham, EPA Region 4, Air Planning Branch, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104.
    Copies of all materials considered in this rulemaking may be 
examined during normal business hours at the following locations: EPA 
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW, 
Atlanta, Georgia 30303-3104, Tennessee Air Pollution Control Board, 9th 
Floor, L & C Annex, 401 Church Street, Nashville, Tennessee 37243-1531.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Air, Pesticides and 
Toxics Management Division, Region 4, Environmental Protection Agency 
at (404) 562-9038 or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background--Lead SIP

    Section 107(d)(5) of the CAA provides for areas to be designated as 
attainment, nonattainment, or unclassifiable with respect to the lead 
national ambient air quality standard (NAAQS). Governors are required 
to submit recommended designations for areas within their states. When 
an area is designated nonattainment, the state must prepare and submit 
a SIP that meets the requirements of sections 110(a)(2) and 172(c) of 
the CAA demonstrating how the area will be brought into attainment. The 
EPA designated the portion of Memphis in Shelby County, Tennessee, 
around the Refined Metals Corporation secondary lead smelter as a lead 
nonattainment area on January 6, 1992. This nonattainment designation 
was based on lead NAAQS violations recorded by monitors near the 
Refined Metals Corporation facility in 1990 and 1991.
    On December 1, 1994, the Memphis and Shelby County Health 
Department (MSCHD) through the Tennessee Department of Environment and 
Conservation submitted a SIP to bring the Shelby County lead 
nonattainment area into attainment with the lead NAAQS. EPA found the 
December 1, 1994, SIP to be inadequate because it did not meet all of 
the requirements of section 172(c) of the CAA. EPA requested that MSCHD 
make the necessary corrections and submit supplemental information to 
address the deficiencies. Due to several violations of the lead NAAQS 
in 1996, Region 4 requested that MSCHD also submit an analysis of the 
control measures in place at the facility to ensure that they were 
adequate to prevent future violations. The SIP also contained language 
in the lead chapter that granted Director's discretion to change 
emission limits at any given time. Because a requirement of the CAA is 
that the submittal includes specific enforceable emission limits, the 
Region could not approve the submittal with the Director's discretion 
clause. The EPA conducted an inspection of the Refined Metals facility 
and found that the violations were not a result of an inadequate SIP. 
Instead, they were due to compliance issues (i.e., poor housekeeping 
methods). The MSCHD submitted additional information to demonstrate 
that the controls in place would prevent future violations and met CAA 
requirements. The Region decided to conditionally approve this 
submittal contingent on the State removing the Director's discretion 
language from their lead rule.
    During the second quarter of 1998, a violation of the lead NAAQS 
occurred in the Shelby County nonattainment area. Subsequently, the 
MSCHD issued a Notice of Violation giving Refined Metals, Inc. options 
to surrender all of its permits or pay a fine and conduct extensive 
remodeling of the facility. Refined Metals, Inc. chose to surrender all 
of its permits and shutdown permanently on December 22, 1998. As a 
result, the 1994 submittal was no longer applicable and MSCHD withdrew 
and replaced it with a new submittal dated March 17, 2000.

II. Analysis of the State Submittal

    The lead SIP for Shelby County, Tennessee was reviewed using the 
criteria established by the CAA in sections 110(a)(2) and 172(c). 
Section 110(a)(2) contains general requirements for all SIPs, and 
section 172(c) of the CAA contains specific provisions applicable to 
areas designated as nonattainment for any of the NAAQS. EPA also issued 
a General Preamble describing how we will review SIPs and SIP revisions 
submitted under Title I of the CAA, including those state submittals 
containing lead nonattainment area SIP requirements (see generally 57 
FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because 
the EPA is describing its interpretations here only in broad terms, the 
reader should refer to the General Preamble for a more detailed 
discussion of the interpretations of Title I advanced in today's 
approval and the supporting rationale (57 FR 13549, April 16, 1992).

A. Attainment Demonstration

    Section 192(a) of the CAA requires that SIPs must provide for 
attainment of the lead NAAQS as expeditiously as practicable but not 
later than five years from the date of an area's nonattainment 
designation. The lead nonattainment designation for the Shelby County 
area was effective on January 6, 1992; therefore, the latest attainment 
date permissible by the statute was January 6, 1997. The Shelby County 
area did not meet this date because of violations in 1996 and 1998. 
Enforcement actions were taken against Refined Metals Corporation that 
led to the owners of the facility surrendering the operating permits 
and permanently closing the facility. Since this action, the air 
quality monitor in the Shelby County area has recorded seven 
consecutive quarters of air quality data that meet the lead NAAQS for 
the years 1998, 1999, and to date for 2000. MSCHD can request 
redesignation to attainment after the area has recorded eight 
consecutive quarters of air quality data that meet the lead NAAQS.

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    The Refined Metals Corporation is the sole source of the lead 
emissions in the Shelby County nonattainment area. Since the facility 
ceased operation, the improvement in air quality resulting in seven 
consecutive quarters of clean air quality data indicates that the area 
will likely continue to meet the lead NAAQS, and therefore, the SIP is 
adequate for attainment of the lead NAAQS.

B. Emissions Inventory

    Section 172(c)(3) of the CAA requires that nonattainment plan 
provisions include a comprehensive, accurate, current inventory of 
actual emissions from all sources of relevant pollutants in the 
nonattainment area. Because it is necessary to support an area's 
attainment demonstration, the emission inventory must be included with 
the SIP submission. Since the Refined Metals Corporation, the sole 
source of lead emissions in the Shelby County area, ceased operation, 
there are no permitted process emissions from the facility or in the 
nonattainment area. Therefore, this requirement is no longer 
applicable.

C. Reasonably Available Control Measures (RACM) (Including Reasonably 
Available Control Technology (RACT))

    States with lead nonattainment areas must submit provisions to 
assure that RACM (including RACT) is implemented (see section 
172(c)(1)). The owner of the Refined Metals facility is currently 
decontaminating and demolishing all of the buildings at that location. 
To ensure that there are no violations of the lead NAAQS during the 
decontamination and demolition of the facility, control measures were 
included in the Building Decontamination and Demolition Plan (BDDP) 
dated October 1, 1999. BDDPs are required by the Resource Conservation 
and Recovery Act (RCRA), and must ensure that human health and the 
environment are protected during the cleanup of any facility. This 
includes making sure that there are no violations of the lead NAAQS. 
EPA has determined that all of the control measures included in the 
BDDP satisfy RCRA and CAA requirements.

D. Other Measures Including Emission Limitations and Timetables

    Pursuant to 172(c)(6) of the CAA, all nonattainment SIPs must 
contain enforceable emission limitations, other control measures, and 
schedules and timetables for compliance. Since the Refined Metals 
Corporation, the sole source of lead emissions in the Shelby County 
area, ceased operation, there are no permitted process emissions from 
the facility or any other source. Also, requiring other control 
measures or a schedule for compliance is not necessary because the 
Shelby County area has been meeting the lead NAAQS since the facility 
ceased operation. Therefore, these requirements are no longer 
applicable.

E. Enforceability

    All measures and other elements in the SIP must be enforceable by 
the State and EPA (see sections 172(c)(6), 110(a)(2)(A) and 57 FR 
13556). The EPA criteria addressing the enforceability of SIPs and SIP 
revisions are stated in a September 23, 1987, memorandum (with 
attachments) from J. Craig Potter, Assistant Administrator for Air and 
Radiation, et al. (see 57 FR 13541). Nonattainment area plan provisions 
must also contain a program that provides for enforcement of the 
control measures and other elements in the SIP (see section 
110(a)(2)(C)). The MSCHD has the enforcement authority to implement and 
enforce this control strategy for lead under the federally approved 
provisions of the Memphis and Shelby County code, section 1200-3-
22-.03(1).

F. Computer Modeling

    Section 110(a)(2)(K) of the CAA requires the use of air quality 
modeling to predict the effect of the control strategy on ambient air 
quality from any emissions of an air pollutant for which a NAAQS has 
been established. Since the Refined Metals Corporation, the sole source 
of lead emissions in the Shelby County area, ceased operation, there 
are no permitted process emissions coming from the facility. Therefore, 
this requirement is no longer applicable.

G. Reasonable Further Progress (RFP)

    The SIP must provide for RFP, defined in section 171(1) of the CAA 
as such additional reductions in emissions of the relevant air 
pollutant as are required by section 172(c)(2), or may reasonably be 
required by the Administrator to ensure attainment of the applicable 
NAAQS by the applicable date.
    The improvement in air quality since the facility shutdown, 
resulting in seven consecutive quarters of clean air quality data, 
demonstrates that progress has been made in the Shelby County area. 
Moreover, additional incremental reductions in emissions cannot be 
obtained because there are not any process emissions coming from the 
Refined Metals facility.

H. New Source Review (NSR)

    Section 172(c)(5)of the CAA requires that the submittal include a 
permit program for the construction and operation of new and modified 
major stationary sources. The federally approved Rule 16-77 of the 
Memphis and Shelby County Air Pollution Control Regulations identifies 
the current specific permitting requirements for nonattainment areas in 
the Memphis and Shelby County area. This rule meets the requirements of 
the CAA.

I. Contingency Measures

    As provided in section 172(c)(9) of the CAA, all nonattainment area 
SIPs that demonstrate attainment must include contingency measures. 
Contingency measures should consist of other available measures that 
are not part of the area's control strategy. These measures must take 
effect without further action by the state or EPA, upon a determination 
that the area has failed to meet RFP or attain the lead NAAQS by the 
applicable attainment date.
    If a violation of the lead NAAQS occurs in the Shelby County area, 
MSCHD will proceed immediately to take an appropriate enforcement 
action for that violation. EPA has determined this requirement in the 
MSCHD SIP satisfies the contingency measure provisions of the CAA.
    The EPA is approving the lead SIP for Shelby County, Tennessee 
because it meets the requirements set forth in section 110(a)(2) and 
172(c) of the CAA.

III. Final Action

    EPA is approving the lead SIP for the Shelby County, Tennessee lead 
nonattainment area because the submittal meets the requirements of the 
CAA as discussed in this document. The EPA is publishing this rule 
without a prior proposal because the Agency views this as a 
noncontroversial submittal and anticipates no adverse comments. 
However, in the proposed rules section of this Federal Register 
publication, EPA is publishing a separate document that will serve as 
the proposal to approve the SIP revision should adverse comments are 
filed. This rule will be effective November 20, 2000 without further 
notice unless the Agency receives adverse comments by October 20, 2000.
    If the EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not

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institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on November 20, 2000 and no 
further action will be taken on the proposed rule.

IV. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    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 rule 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).
    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 November 20, 2000. 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 will 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 
relation, Lead, Reporting and recordkeeping requirements.

    Dated: September 5, 2000.
Mike V. Peyton,
Acting Regional Administrator, Region 4.

    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 et seq.

Subpart RR--Tennessee

    2. Section 52.2220(d) is amended by adding at the end of the table 
a new entry for the Refined Metals, Inc. facility to read as follows:


Sec. 52.2220  Identification of plan.

* * * * *
    (d) EPA-approved State Source specific requirements.

                               EPA-Approved Tennessee Source-Specific Requirements
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                                                        State effective
         Name of source               Permit No.             date          EPA approval date      Explanation
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*                  *                  *                  *                  *                  *
                                                        *
Refined Metals, Inc.............  n/a...............  ..................  September 20,
                                                                           2000.
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[FR Doc. 00-24042 Filed 9-19-00; 8:45 am]
BILLING CODE 6560-50-P