[Federal Register Volume 66, Number 86 (Thursday, May 3, 2001)]
[Rules and Regulations]
[Pages 22125-22128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[TN 240-1-200103a; FRL-6974-6]


Clean Air Act Approval and Promulgation of the Redesignation of 
Shelby County, Tennessee, to Attainment for Lead

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving the request to redesignate Shelby County, 
Tennessee, from nonattainment to attainment for the lead primary 
national ambient air quality standard (NAAQS). The request was 
submitted on February 15, 2001, by the Memphis and Shelby County Health 
Department (MSCHD) through the Tennessee Department of Environment and 
Conservation (TDEC).

DATES: This direct final rule is effective July 2, 2001 without further 
notice, unless EPA receives adverse comment by June 4, 2001. If adverse 
comment is 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: All comments should be addressed to: Kimberly Bingham at the 
EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, 
Georgia 30303.
    Copies of documents relative to this action are available at the 
following addresses for inspection during normal business hours:
     Environmental Protection Agency, Region 4, Air Planning 
Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
     Tennessee Air Pollution Control Board, 9th Floor, L & C 
Annex, 401 Church Street, Nashville, Tennessee 37243-1531.
     Memphis and Shelby County Health Department, 814 Jefferson 
Avenue, Memphis, Tennessee 38105.

FOR FURTHER INFORMATION CONTACT: Kimberly Bingham, Regulatory Planning 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, Environmental Protection Agency, Atlanta Federal 
Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303. The telephone 
number is (404)562-9038. Ms. Bingham can also be reached via electronic 
mail at [email protected].

SUPPLEMENTARY INFORMATION:   

I. Background

    Section 107(d)(5) of the Clean Air Act (CAA) provides for areas to 
be designated as attainment, nonattainment, or unclassifiable with 
respect to the lead 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, Inc., 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.
    During the second quarter of 1998, another 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. Since the facility permanently closed, there has not been any 
violation of the lead NAAQS. On February 15, 2001, MSCHD through the 
State of Tennessee submitted a request to redesignate the Shelby County 
area to attainment for lead.

II. Analysis of the Redesignation Request

    Section 107(d)(3)(E) of the CAA, as amended in 1990, sets forth the 
requirements that must be met for a nonattainment area to be 
redesignated to attainment. It states that an area can be redesignated 
to attainment if the following conditions are met.
    1. The EPA has determined that the lead NAAQS has been attained.
    2. The State has met all applicable requirements for the area under 
section 110 and part D, and the implementation plan has been fully 
approved by EPA under section 110(k).
    3. The EPA has determined that the improvement in air quality is 
due to permanent and enforceable reductions in emissions.
    4. The EPA has fully approved a maintenance plan, including a 
contingency plan, for the area under section 175A.
    The following is a description of how each requirement has been 
achieved.

1. Attainment of the Lead NAAQS

    To demonstrate that the Shelby County area is in attainment with 
the lead NAAQS, MSCHD submitted air quality data from the third quarter 
of 1998 through 2000. There has not been any violation of the lead 
standard since Refined Metals, Inc. shutdown on December 22, 1998. This 
amount of monitoring data (more than eight consecutive quarters at the 
present time) without a violation of the lead standard is adequate to 
demonstrate attainment of the lead NAAQS. Modeling may also be required 
to redesignate an area to attainment. The EPA believes that because 
there are no lead sources in the area since Refined Metals, Inc., shut 
down, a modeling analysis is not needed.

2. The State Has Met All Applicable Requirements for the Area Under 
Section 110 and Part D, and the Implementation Plan Has Been Fully 
Approved by EPA Under Section 110(k).

    To be redesignated to attainment, section 107(d)(3)(E) requires 
that an area must have met all applicable requirements of sections 
110(k), 110(a)(2), and part D of the CAA. The EPA has determined that 
the lead SIP for the Shelby County area that was approved on September 
20, 2000, meets

[[Page 22126]]

the requirements of sections 110(k), 110(a)(2), and part D of the CAA. 
For a more detailed description of how these requirements were met see 
the document published on September 20, 2000, in the Federal Register, 
(65 FR 56794).

3. Permanent and Enforceable Improvement in Air Quality

    Since the Refined Metals facility, the sole source of lead 
emissions in the Shelby County nonattainment area surrendered its 
permits and ceased operations, there are no permitted process emissions 
from the facility or in the nonattainment area. The Refined Metals 
facility has been completely decontaminated and demolished. Any future 
request to operate a secondary lead smelter on this site or in Shelby 
County will have to be approved by MSCHD and will be subject to 
prevention of significant deterioration (PSD) permit requirements. The 
PSD requirements ensure that a new facility will not cause any adverse 
effects to the air quality in an attainment area. Consequently, EPA has 
determined that the emission reductions in the Shelby County area are 
permanent and enforceable.

4. Maintenance Plan

    Section 175(A) of the CAA requires states that submit a 
redesignation request for a nonattainment area under section 107(d) to 
include a maintenance plan to ensure that the attainment of NAAQS for 
any pollutant is maintained. The plan must demonstrate continued 
attainment of the applicable NAAQS for at least ten years after the 
approval of a redesignation to attainment. Eight years after the 
redesignation, the State must submit a revised maintenance plan 
demonstrating attainment for the ten years following the initial ten 
year period. To provide for the possibility of future NAAQS violations, 
the maintenance plan must contain such contingency measures as the 
Administrator deems necessary to assure that the State will promptly 
correct any violation of the standard that occurs after redesignation. 
The contingency provisions are to include a requirement that the state 
will implement all measures for controlling the air pollutant of 
concern that were contained in the SIP prior to redesignation.
    The MSCHD submitted a maintenance plan to ensure that the lead 
NAAQS is maintained. The maintenance plan for the Shelby County area, 
contains the part C PSD program, a monitoring network to verify 
continued attainment, and a contingency plan.
A. Part C PSD Program
    As previously mentioned earlier in this document, the MSCHD has a 
fully approved PSD program. Owners of all new major sources seeking to 
relocate in the Shelby County area must demonstrate that the proposed 
new emissions from those sources will be in compliance with the lead 
NAAQS.
B. Monitoring Network
    To ensure that the lead NAAQS is maintained, the MSCHD will 
continue to operate two lead monitors located in the Shelby County 
area. If future review of the monitoring site operation results in a 
recommendation to alter the current monitoring network, MSCHD must 
obtain EPA approval of the recommendation.
C. Contingency Plan
    With respect to the requirement of section 175(A) that the 
contingency provisions of a maintenance plan include all control 
measures previously contained in the SIP, EPA believes that the 
requirement is satisfied in that the State is carrying forward 
contingency measures previously approved in the lead SIP for Shelby 
County. In addition, the EPA does not believe any additional 
contingency measures are needed. Contingency measures would serve no 
useful purpose in light of the permanent closure and dismantling of the 
Refined Metals facility and the revocation of its permit. Moreover, any 
attempt to reopen a facility on the same site would trigger MSCHD's PSD 
permitting requirements.
    The EPA is approving the redesignation request and maintenance plan 
because it satisfies the requirements of section 175(A) of the CAA 
requirements.

III. Final Action

    EPA is approving the request to redesignate Shelby County to a lead 
attainment area and the maintenance plan submitted on February 15, 
2001, by the MSCHD through the State of Tennessee. 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 the Agency 
receive adverse comments. This rule will be effective July 2, 2001 
without further notice unless the Agency receives adverse comments by 
June 4, 2001.
    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 
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 July 2, 2001 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). This rule also does not 
have a substantial direct effect on the relationship between the 
Federal Government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
nor will it 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 CAA. 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

[[Page 22127]]

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 18, 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 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 July 2, 2001. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Lead, 
Intergovernmental relation, Reporting and recordkeeping requirements.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: April 18, 2001.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

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(c) is amended by revising the entries for 
Section 1200-3-22-.03 to read as follows:


Sec. 52.52220  Identification of plan.

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    (c) EPA approved regulations.

                                                           EPA Approved Tennessee Regulations
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                                                                                                                                     Federal Register
        State citation                                Title/subject                        Adoption date     EPA approval date            Notice
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Section 1200-3-22-.03.........             Maintenance Plan for Shelby County, Tennessee        02/14/01  July 2, 2001..........  66 FR 22127
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PART 81--[AMENDED]

    1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart C--Section 107 Attainment Status Designations

    2. In Sec. 81.343, the attainment status table for lead is amended 
by revising the designation type and date entry for Shelby County 
(part).


Sec. 81.343  Tennessee.

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[[Page 22128]]



                                                 Tennessee-Lead
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                                            Designation                            Classification
        Designated area        ---------------------------------------------------------------------------------
                                      Date              Type                 Date                   Type
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Shelby County (part): Area      July 2, 2001....  Attainment......  .....................  .....................
 encompassed by a circle with
 a \3/4\ mile radius with
 center being the intersection
 of Castex and Mallory Avenue,
 Memphis, TN.
 
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[FR Doc. 01-11090 Filed 5-2-01; 8:45 am]
BILLING CODE 6560-50-P