[Federal Register Volume 74, Number 222 (Thursday, November 19, 2009)]
[Proposed Rules]
[Pages 59943-59956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-27815]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2009-0164; FRL-8982-9]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Tennessee; Redesignation of 
the Shelby County, TN Portion of the Memphis, Tennessee-Arkansas 1997 
8-Hour Ozone Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On February 26, 2009, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation (TDEC), Air 
Pollution Control Division, submitted a request to redesignate the 
Tennessee portion of the bi-State Memphis, Tennessee-Arkansas 8-hour 
ozone nonattainment area (the ``bi-State Memphis Area'') to attainment 
for the 1997 8-hour ozone National Ambient Air Quality Standard 
(NAAQS); and to approve the State Implementation Plan (SIP) revision 
containing a maintenance plan for the Tennessee portion of the bi-State 
Memphis Area. The bi-State Memphis 1997 8-hour ozone NAAQS 
nonattainment area is composed of Shelby County, Tennessee and 
Crittenden County, Arkansas. In this action, EPA is proposing to 
approve the February 26, 2009 redesignation request for Shelby County, 
Tennessee as part of the Memphis Area. Additionally, EPA is proposing 
to approve the 1997 8-hour ozone NAAQS maintenance plan for Shelby 
County, including the emissions inventory and the State motor vehicle 
emission budgets (MVEBs) for nitrogen oxides (NOX) and 
volatile organic compounds (VOC) for the years 2006, 2009, 2017, and 
2021. This proposed approval of Tennessee's redesignation request is 
based on EPA's determination that Tennessee has demonstrated that 
Shelby County has met the criteria for redesignation to attainment 
specified in the Clean Air Act (CAA), including the determination that 
the entire bi-State Memphis ozone nonattainment area has attained the 
1997 8-hour ozone standard. The State of Arkansas has submitted a 
similar redesignation request and maintenance plan for the Arkansas 
portion of this 8-hour ozone area. EPA is taking action on Arkansas' 
redesignation request and maintenance plan through a separate 
rulemaking action. In this action, EPA is also describing the status 
and proposing approval of its transportation conformity adequacy 
determination for the new 2006, 2009, 2017 and 2021 MVEBs that are 
contained in the 1997 8-hour ozone NAAQS maintenance plan for Shelby 
County, Tennessee. MVEBs for Crittenden County, Arkansas are included 
in the Arkansas submittal, and will be addressed through EPA's separate 
action for that submittal.

DATES: Comments must be received on or before December 21, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2009-0164, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (404) 562-9019.
     Mail: EPA-R04-OAR-2009-0164, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency,

[[Page 59944]]

Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
     Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2009-0164. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person 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 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Jane Spann or Ms. Twunjala Bradley 
of the Regulatory Development Section, in the Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. Jane Spann may be reached by phone at (404) 562-9029, or 
via electronic mail at [email protected]. The telephone number for Ms. 
Bradley is (404) 562-9352, and the electronic mail is 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What Proposed Actions Is EPA Taking?
II. What Is the Background for EPA's Proposed Actions?
III. What Are the Criteria for Redesignation?
IV. Why Is EPA Proposing These Actions?
V. What Is the Effect of EPA's Proposed Actions?
VI. What Is EPA's Analysis of the Request?
VII. What Is EPA's Analysis of Tennessee's Proposed State 
NOX and VOC MVEBs for Shelby County, Tennessee?
VIII. What Is the Status of EPA's Adequacy Determination for the 
Proposed State NOX and VOC MVEBs for the Years 2006, 
2009, 2017 and 2021 for Shelby County, Tennessee?
IX. Proposed Action on the Redesignation Request and Maintenance 
Plan SIP Revision Including Proposed Approval of the 2006, 2009, 
2017 and 2021 State NOX and VOC MVEBs for Shelby County, 
Tennessee
X. Statutory and Executive Order Reviews

I. What Proposed Actions Is EPA Taking?

    EPA is proposing several related actions, which are summarized 
below and described in greater detail throughout this notice of 
rulemaking: (1) To redesignate Shelby County, Tennessee to attainment 
for the 1997 8-hour ozone NAAQS; (2) to approve under section 182(a)(1) 
the emissions inventory submitted with the maintenance plan; and (3) to 
approve under section 175A Tennessee's 1997 8-hour ozone NAAQS 
maintenance plan into the Tennessee SIP, including the associated 
MVEBs. In addition, and related to today's actions, EPA is also 
notifying the public of the status of EPA's adequacy determination for 
the Shelby County MVEBs.
    First, EPA is proposing to determine that the bi-State Memphis Area 
has attained the 1997 8-hour ozone standard. EPA further proposes to 
determine that, if EPA's proposed approval of the emissions inventory 
for the Shelby County, Tennessee portion of this area is finalized, the 
area has met the requirements for redesignation under section 
107(d)(3)(E) of the CAA. The bi-State Memphis 1997 8-hour ozone area is 
composed of Shelby County in Tennessee and Crittenden County in 
Arkansas. Today's proposal addresses only the Tennessee portion of the 
bi-State Memphis Area. In a separate action, EPA will address the 
redesignation request and maintenance plan for the Crittenden County, 
Arkansas portion of the bi-State Memphis Area. In this action, EPA is 
now proposing to approve a request to change the legal designation of 
Shelby County, Tennessee from nonattainment to attainment for the 1997 
8-hour ozone NAAQS.
    Second, EPA is proposing to approve under section 182(a)(1) 
Tennessee's 2006 inventory for Shelby County, Tennessee. In 
coordination with Arkansas, Tennessee selected 2006 as ``the attainment 
year'' for the bi-State Memphis Area for the purpose of demonstrating 
attainment of the 1997 8-hour ozone NAAQS. This attainment inventory 
identifies the level of emissions in the Area, which is sufficient to 
attain the 1997 8-hour ozone standard.
    Third, EPA is proposing to approve Tennessee's 1997 8-hour ozone 
NAAQS maintenance plan for Shelby County (such approval being one of 
the CAA criteria for redesignation to attainment status). The 
maintenance plan is designed to help keep the bi-State Memphis Area (of 
which Shelby County is a part) in attainment of the 1997 8-hour ozone 
NAAQS through 2021. Consistent with the CAA, the maintenance plan that 
EPA is proposing to approve today also includes 2006, 2009, 2017 and 
2021 NOX and VOC MVEBs. EPA is proposing to approve (into 
the Tennessee SIP) the 2006, 2009, 2017 and 2021 State MVEBs that are 
included as part of Tennessee's maintenance plan for the 1997 8-hour 
ozone NAAQS. These MVEBs apply only to Shelby County, Tennessee.

[[Page 59945]]

MVEBs contained in the Arkansas submittal for Crittenden County will be 
addressed in a separate action.
    EPA is also notifying the public of the status of EPA's adequacy 
process for the newly-established 2006, 2009, 2017, and 2021 
NOX and VOC State MVEBs for Shelby County, Tennessee. The 
MVEBs for the Arkansas portion of this 8-hour ozone area will be 
addressed in a separate action. The Adequacy comment period for the 
Shelby County, Tennessee 2006, 2009, 2017, and 2021 State MVEBs began 
on March 12, 2009, with EPA's posting of the availability of this 
submittal on EPA's Adequacy Web site. (http://www.epa.gov/otaq/stateresources/transconf/currsips.htm). The adequacy comment period for 
these MVEBs closed on April 13, 2009. No adverse comments were received 
during the adequacy public comment period. Please see section VIII of 
this proposed rulemaking for further explanation of this process, and 
for more details on the MVEBs determination.
    Today's notice of proposed rulemaking is in response to Tennessee's 
February 26, 2009, SIP submittal requesting the redesignation of Shelby 
County, Tennessee as part of the bi-State Memphis 1997 8-hour ozone 
area, and includes a SIP revision addressing the specific issues 
summarized above and the necessary elements for redesignation described 
in section 107(d)(3)(E) of the CAA.

II. What Is the Background for EPA's Proposed Actions?

    Ground-level ozone is not emitted directly by sources. Rather, 
emissions of NOX and VOC react in the presence of sunlight 
to form ground-level ozone. NOX and VOC are referred to as 
precursors of ozone. The CAA establishes a process for air quality 
management through the NAAQS.
    On July 18, 1997, EPA promulgated a revised 8-hour ozone standard 
of 0.08 parts per million (ppm). This standard is more stringent than 
the previous 1-hour ozone standard. Under EPA regulations at 40 CFR 
part 50, the 8-hour ozone standard is attained when the 3-year average 
of the annual fourth-highest daily maximum 8-hour average ambient air 
quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 
0.084 ppm when rounding is considered). (See 69 FR 23857 (April 30, 
2004) for further information.) Ambient air quality monitoring data for 
the 3-year period must meet a data completeness requirement. The 
ambient air quality monitoring data completeness requirement is met 
when the average percent of days with valid ambient monitoring data is 
greater than 90 percent, and no single year has less than 75 percent 
data completeness as determined in Appendix I of part 50. Specifically, 
section 2.3 of 40 CFR part 50, Appendix I, Comparisons with the Primary 
and Secondary Ozone Standards states:

    ``The primary and secondary ozone ambient air quality standards 
are met at an ambient air quality monitoring site when the 3-year 
average of the annual fourth-highest daily maximum 8-hour average 
ozone concentration is less than or equal to 0.08 ppm. The number of 
significant figures in the level of the standard dictates the 
rounding convention for comparing the computed 3-year average annual 
fourth-highest daily maximum 8-hour average ozone concentration with 
the level of the standard. The third decimal place of the computed 
value is rounded, with values equal to or greater than 5 rounding 
up. Thus, a computed 3-year average ozone concentration of 0.085 ppm 
is the smallest value that is greater than 0.08 ppm.''

    The CAA required EPA to designate as nonattainment any area that 
was violating the 1997 8-hour ozone NAAQS based on the three most 
recent years of ambient air quality data. The bi-State Memphis 1997 8-
hour ozone nonattainment area was initially designated nonattainment 
for the 1997 8-hour ozone standard using 2001-2003 ambient air quality 
data. The Federal Register document making these designations was 
signed on April 15, 2004, and published on April 30, 2004 (69 FR 
23857).
    The CAA contains two sets of provisions--subpart 1 and subpart 2--
that address planning and control requirements for ozone nonattainment 
areas. (Both are found in title I, part D.) Subpart 1 (which EPA refers 
to as ``basic'' nonattainment) contains general, less prescriptive, 
requirements for nonattainment areas for any pollutant--including 
ozone--governed by a NAAQS. Subpart 2 (which EPA refers to as 
``classified'' nonattainment) provides more specific requirements for 
certain ozone nonattainment areas. Some 1997 8-hour ozone areas are 
also subject to the provisions of Subpart 2. Under EPA's Phase 1 1997 
8-hour ozone implementation rule (69 FR 23857) (Phase 1 Rule), signed 
on April 15, 2004, and published April 30, 2004, an area was classified 
under subpart 2 based on its 1997 8-hour ozone design value (i.e., the 
3-year average of the annual fourth-highest daily maximum 8-hour 
average ozone concentrations), if it had a 1-hour design value at or 
above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 
2). All other areas were covered under subpart 1, based upon their 8-
hour ambient air quality design values.
    Shelby County, Tennessee was originally designated as a marginal 
nonattainment area for the 1-hour ozone standard on November 6, 1991 
(56 FR 56694). Crittenden County, Arkansas was designated attainment at 
that time. On February 16, 1995 (60 FR 3352) Shelby County, Tennessee 
was redesignated as attainment for the 1-hour ozone standard, and was 
considered to be a maintenance area subject to a CAA section 175A 
maintenance plan for the 1-hour standard.
    On April 30, 2004, EPA designated the bi-State Memphis Area (which 
then included Crittenden County, Arkansas) under subpart 2 as a 
``moderate'' 1997 8-hour ozone NAAQS nonattainment area (69 FR 23857, 
April 30, 2004). On July 15, 2004, pursuant to section 181(a)(4) of the 
CAA, the States of Tennessee and Arkansas submitted a petition to EPA, 
requesting that the classification of the bi-State Memphis Area be 
adjusted downward from ``moderate'' to ``marginal'' for the 1997 8-hour 
ozone standard. The petition was based on the fact that the area's 
``moderate'' design value of 0.092 ppm was within five percent of the 
maximum ``marginal'' design value of 0.091 ppm. Pursuant to Section 
181(a)(4), areas with design values within five percent of the standard 
may request a reclassification under specific circumstances. EPA 
approved the petition for reclassification, which became effective on 
November 22, 2004 (69 FR 56697, September 22, 2004). As a result of the 
downward classification, the new attainment date for the bi-State 
Memphis ``marginal'' nonattainment area was set at June 15, 2007, 
consistent with the CAA, with attainment to be determined based on 
2004-2006 air quality data.
    However, from 2004-2006, the bi-State Memphis Area measured 8-hour 
average ozone concentrations that precluded the bi-State Memphis Area 
from attaining the 1997 8-hour ozone NAAQS by the June 15, 2007, the 
deadline for marginal areas. Section 181(b)(2) of the CAA provides 
that, when EPA finds that an area failed to attain by the applicable 
date, the area is reclassified by operation of law to the higher of: 
the next higher classification or the classification applicable to the 
area's ozone design value at the time of the required notice under 
Section 181(b)(2)(B). On March 28, 2008, EPA issued a notice that the 
bi-State Memphis Area was reclassified by operation of law to 
``moderate,'' for failing to attain the standard by the

[[Page 59946]]

marginal area applicable attainment date (73 FR 16547). EPA set a 
deadline of March 1, 2009, for Tennessee and Arkansas to submit the 
moderate area SIP provisions required under the area's new 
classification (73 FR 16550).
    As part of the 2004 designations, EPA also promulgated an 
implementation rule--the Phase 1 Rule. Various aspects of EPA's Phase 1 
Rule were challenged in court. On December 22, 2006, the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit Court) 
vacated EPA's Phase 1 Rule (69 FR 23951, April 30, 2004). South Coast 
Air Quality Management Dist. (SCAQMD) v. EPA, 472 F.3d 882 (D.C. Cir. 
2006). On June 8, 2007, in response to several petitions for rehearing, 
the D.C. Circuit Court clarified that the Phase 1 Rule was vacated only 
with regard to those parts of the Rule that had been successfully 
challenged. Therefore, the Phase 1 Rule provisions related to 
classifications for areas currently classified under subpart 2 of title 
I, part D of the CAA as 1997 8-hour ozone NAAQS nonattainment areas, 
the 1997 8-hour ozone NAAQS attainment dates and the timing for 
emissions reductions needed for attainment of the 1997 8-hour ozone 
NAAQS remain effective. The June 8th decision left intact the Court's 
rejection of EPA's reasons for implementing the 1997 8-hour standard in 
certain nonattainment areas under subpart 1 in lieu of subpart 2. By 
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule 
that had not been successfully challenged. The June 8th decision 
reaffirmed the December 22, 2006, decision that EPA had improperly 
failed to retain measures required for 1-hour nonattainment areas under 
the anti-backsliding provisions of the regulations: (1) Nonattainment 
area New Source Review (NSR) requirements based on an area's 1-hour 
nonattainment classification; (2) Section 185 penalty fees for 1-hour 
severe or extreme nonattainment areas; and (3) measures to be 
implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on 
the contingency of an area not making reasonable further progress 
toward attainment of the 1-hour NAAQS, or for failure to attain that 
NAAQS. The June 8th decision clarified that the Court's reference to 
conformity requirements for anti-backsliding purposes was limited to 
requiring the continued use of 1-hour motor vehicle emissions budgets 
until 1997 8-hour ozone NAAQS budgets were available for 8-hour ozone 
conformity determinations, which is already required under EPA's 
conformity regulations. The Court thus clarified that 1-hour ozone 
conformity determinations are not required for anti-backsliding 
purposes.
    This section sets forth EPA's views on the potential effect of the 
Court's rulings on this proposed redesignation action. For the reasons 
set forth below, EPA does not believe that the Court's rulings alter 
any requirements relevant to this redesignation action so as to 
preclude redesignation, nor does EPA believe the Court's ruling 
prevents EPA from proposing or ultimately finalizing this 
redesignation. EPA believes that the Court's December 22, 2006, and 
June 8, 2007, decisions impose no impediment to moving forward with 
redesignation of the Shelby County, Tennessee portion of the bi-State 
Memphis Area to attainment, because (1) this area is already classified 
as a subpart 2 area and is obligated to meet subpart 2 requirements; 
and (2) redesignation is appropriate under the relevant redesignation 
provisions of the CAA and longstanding policies regarding redesignation 
requests.
    At the time the redesignation request was submitted, the bi-State 
Memphis Area was classified as subpart 2 moderate, but the requirements 
under its moderate area classification had not yet become due. Under 
EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, 
to qualify for redesignation, States requesting redesignation to 
attainment must meet only the relevant SIP requirements that came due 
prior to the submittal of a complete redesignation request. September 
4, 1992, Calcagni Memorandum (``Procedures for Processing Requests to 
Redesignate Areas to Attainment,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division). See also Michael Shapiro 
Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 
1995) (Redesignation of Detroit-Ann Arbor, Michigan); Sierra Club v. 
EPA, 375 F.3d 537 (7th Cir. 2004) (upholding this interpretation); 68 
FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis, 
Missouri).
    Moreover, it would be inequitable to retroactively apply any new 
SIP requirements that were not applicable at the time the request was 
submitted. The D.C. Circuit Court has recognized the inequity in such 
retroactive rulemaking (see Sierra Club v. Whitman 285 F. 3d 63 (D.C. 
Cir. 2002)), in which the Court upheld a district court's ruling 
refusing to make retroactive an EPA determination of nonattainment that 
was past the statutory due date. Such a determination would have 
resulted in the imposition of additional requirements on the area. The 
Court stated, ``[a]lthough EPA failed to make the nonattainment 
determination within the statutory frame, Sierra Club's proposed 
solution only makes the situation worse. Retroactive relief would 
likely impose large costs on the States, which would face fines and 
suits for not implementing air pollution prevention plans in 1997, even 
though they were not on notice at the time.'' Id. at 68. Similarly 
here, it would be unfair to penalize the area by applying to it for 
purpose of redesignation, additional SIP requirements under subpart 2 
that were not in effect or yet due at the time it submitted its 
redesignation request, or the time that the Area attained the standard.
    With respect to the requirements under the 1-hour ozone standard, 
Shelby County had been redesignated attainment subject to a maintenance 
plan under section 175A. The D.C. Circuit Court's decisions do not 
impact redesignation requests for these types of areas, except to the 
extent that the Court, in its June 8th decision, clarified that for 
those areas with 1-hour MVEBs in their maintenance plans, anti-
backsliding requires that those 1-hour budgets must be used for 8-hour 
conformity determinations until they are replaced by 1997 8-hour 
budgets. To meet this requirement, conformity determinations in such 
areas must comply with the applicable requirements of EPA's conformity 
regulations at 40 CFR part 93.
    First, there are no conformity requirements relevant for evaluating 
the bi-State Memphis Area redesignation request, such as a 
transportation conformity SIP.\1\ It is EPA's longstanding policy that 
it is reasonable to interpret the conformity SIP requirements as not 
applying for purposes of evaluating a redesignation request under 
section 107(d) because State conformity rules are still required after 
redesignation and Federal conformity rules apply where State rules have 
not been approved. See 40 CFR 51.390; see also Wall v. EPA, 265 F.3d 
426 (6th Cir. 2001) (upholding EPA's interpretation); 60 FR 62748 (Dec. 
7, 1995) (redesignation of Tampa, Florida). Tennessee currently has a 
fully approved 1-hour ozone transportation

[[Page 59947]]

conformity SIP, which was approved on May 16, 2003 (68 FR 26492).
---------------------------------------------------------------------------

    \1\ CAA Section 176(c)(4)(E) requires States to submit revisions 
to their SIPs to reflect certain Federal criteria and procedures for 
determining transportation conformity. Transportation conformity 
SIPs are different from the motor vehicle emission budgets that are 
established in control strategy SIPs and maintenance plans.
---------------------------------------------------------------------------

    Second, with regard to the three other anti-backsliding provisions 
for the 1-hour standard that the D.C. Circuit Court found were not 
properly retained, Shelby County, Tennessee is an attainment area 
subject to a maintenance plan for the 1-hour standard, and the NSR 
requirement no longer applies to this area because it was redesignated 
to attainment of the 1-hour standard. (Because Shelby County was a 
marginal 1-hour nonattainment area, the contingency measure (pursuant 
to section 172(c)(9) or 182(c)(9)), and fee provision requirements 
never applied to it). As a result, the decisions in SCAQMD should not 
alter any requirements that would preclude EPA from finalizing the 
redesignation of the bi-State Memphis Area to attainment for the 1997 
8-hour ozone standard.
    As was noted earlier, in 2008, the ambient ozone data for the bi-
State Memphis Area indicated no further violations of the 1997 8-hour 
ozone NAAQS, using data from the 3-year period of 2006-2008 to 
demonstrate attainment. As a result, on February 26, 2009, Tennessee 
requested redesignation of Shelby County, Tennessee to attainment for 
the 1997 8-hour ozone NAAQS. The redesignation request included three 
years of complete, quality-assured ambient air quality data for the 
ozone seasons (March 1st through October 31st) of 2006-2008, indicating 
that the 1997 8-hour ozone NAAQS has been achieved for the entire bi-
State Memphis Area. Under the CAA, nonattainment areas may be 
redesignated to attainment if sufficient, complete, quality-assured 
data is available for the Administrator to determine that the area has 
attained the standard and the area meets the other CAA redesignation 
requirements in section 107(d)(3)(E).

III. What Are the Criteria for Redesignation?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) of the CAA 
allows for redesignation providing that: (1) The Administrator 
determines that the area has attained the applicable NAAQS; (2) the 
Administrator has fully approved the applicable implementation plan for 
the area under section 110(k); (3) the Administrator determines that 
the improvement in air quality is due to permanent and enforceable 
reductions in emissions resulting from implementation of the applicable 
SIP and applicable Federal air pollutant control regulations and other 
permanent and enforceable reductions; (4) the Administrator has fully 
approved a maintenance plan for the area as meeting the requirements of 
section 175A; and, (5) the State containing such area has met all 
requirements applicable to the area for purposes of redesignation under 
section 110 and part D of the CAA.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of title I of the CAA Amendments of 1990, on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

    1. ``Ozone and Carbon Monoxide Design Value Calculations,'' 
Memorandum from Bill Laxton, Director, Technical Support Division, June 
18, 1990;
    2. ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
    3. ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
    4. ``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992 (hereafter referred to as the 
``Calcagni Memorandum'');
    5. ``State Implementation Plan (SIP) Actions Submitted in Response 
to Clean Air Act (CAA) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
    6. ``Technical Support Documents (TSDs) for Redesignation of Ozone 
and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;
    7. ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On 
or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
    8. ``Use of Actual Emissions in Maintenance Demonstrations for 
Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993;
    9. ``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
    10. ``Reasonable Further Progress, Attainment Demonstration, and 
Related Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, May 10, 1995.

IV. Why Is EPA Proposing These Actions?

    On February 26, 2009, Tennessee requested redesignation of the 
Tennessee portion (Shelby County) of the bi-State Memphis 1997 8-hour 
ozone nonattainment area to attainment for the 1997 8-hour ozone 
standard. EPA's evaluation indicates that the bi-State Memphis Area has 
attained the standard and that Shelby County has met the requirements 
for redesignation set forth in section 107(d)(3)(E), including the 
maintenance plan requirements under section 175A of the CAA. EPA is 
also proposing to approve the 2006 baseline emission inventory under 
section 182(a)(1). EPA is also announcing the status of its adequacy 
determination and proposing approval of the 2006, 2017, 2009 and 2021 
NOX and VOC MVEBs which are relevant to the requested 
redesignation.

V. What Is the Effect of EPA's Proposed Actions?

    EPA's proposed actions establish the basis upon which EPA may take 
final action on the issues being proposed for approval today. Approval 
of Tennessee's redesignation request would change the legal designation 
of Shelby County for the 1997 8-hour ozone NAAQS found at 40 CFR part 
81 from nonattainment to attainment. Approval of Tennessee's request 
would also incorporate into the Tennessee SIP, a plan for Shelby County 
for maintaining the 1997 8-hour ozone NAAQS in the area through 2021. 
This maintenance plan includes contingency measures to remedy future 
violations of the 1997 8-hour ozone NAAQS. The maintenance plan also 
establishes NOX and VOC State MVEBs for Shelby County. Table 
1 identifies the State NOX and VOC MVEBs for the years 2006, 
2009, 2017 and 2021 for Shelby County. Final action would also approve 
the

[[Page 59948]]

Area's emissions inventory under section 182(a)(1).

                                    Table 1--Shelby County NOX and VOC MVEBs
                                          [Summer season tons per day]
----------------------------------------------------------------------------------------------------------------
                                                2006              2009              2017              2021
----------------------------------------------------------------------------------------------------------------
NOX.....................................            55.878            55.620            55.173            54.445
VOC.....................................            25.216            27.240            18.323            13.817
----------------------------------------------------------------------------------------------------------------

    Approval of Tennessee's maintenance plan would also result in 
approval of the NOX and VOC State MVEBs. Additionally, EPA 
is notifying the public of the status of its adequacy determination for 
the 2006, 2009, 2017 and 2021 NOX and VOC State MVEBs 
pursuant to 40 CFR 93.118(f)(1).

VI. What Is EPA's Analysis of the Request?

    EPA is proposing to make the determination that the bi-State 
Memphis 1997 8-hour ozone nonattainment area has attained the 1997 8-
hour ozone standard, and that all other redesignation criteria have 
been met for the Tennessee portion of the bi-State Memphis Area. The 
basis for EPA's determination for the area is discussed in greater 
detail below.

Criteria (1)--Shelby County, Tennessee Has Attained the 1997 8-Hour 
Ozone NAAQS

    EPA is proposing to determine that the bi-State Memphis Area has 
attained the 1997 8-hour ozone NAAQS. For ozone, an area may be 
considered to be attaining the 1997 8-hour ozone NAAQS if it meets the 
1997 8-hour ozone standard, as determined in accordance with 40 CFR 
50.10 and Appendix I of part 50, based on three complete, consecutive 
calendar years of quality-assured air quality monitoring data. To 
attain this standard, the 3-year average of the fourth-highest daily 
maximum 8-hour average ozone concentrations measured at each monitor 
within an area over each year must not exceed 0.08 ppm. Based on the 
data handling and reporting convention described in 40 CFR part 50, 
Appendix I, the standard is attained if the design value is 0.084 ppm 
or below. The data must be collected and quality-assured in accordance 
with 40 CFR part 58, and recorded in the EPA Air Quality System (AQS). 
The monitors generally should have remained at the same location for 
the duration of the monitoring period required for demonstrating 
attainment.
    EPA reviewed ozone monitoring data from ambient ozone monitoring 
stations in the bi-State Memphis Area for the ozone season from 2006-
2008. These data have been quality-assured and are recorded in AQS. The 
fourth-highest 8-hour ozone average for 2006, 2007 and 2008, and the 3-
year average of these values (i.e., design values), are summarized in 
the following Table:

 Table 2--Annual 4th Max High and Design Value Concentration for 8-Hour Ozone for the Memphis, TN-Arkansas Area
                                               [Parts per million]
----------------------------------------------------------------------------------------------------------------
                 County                              Shelby County, Tennessee               Crittenden County,
-----------------------------------------------------------------------------------------        Arkansas
                                             Memphis- Frayser                            -----------------------
            Monitor (AIRS ID)             Boulevard (47-   Edmond Orgill Park     Marion (05-
                                                 157-0021)        (47-157-1004)         035-0005)
----------------------------------------------------------------------------------------------------------------
2006....................................                 0.083                   0.084                   0.089
2007....................................                 0.081                   0.080                   0.084
2008....................................                 0.084                   0.077                   0.074
Design Value............................                 0.082                   0.080                   0.082
----------------------------------------------------------------------------------------------------------------

    As discussed above, the design value for an area is the highest 3-
year average of the annual fourth-highest 8-hour ozone value recorded 
at any monitor in the area. Therefore, the most recent 3-year design 
value (2006-2008) for the bi-State Memphis Area is 0.082 ppm, which 
meets the standard as described above. Currently available data show 
that the Area continues to attain the standard. If the area does not 
continue to attain until EPA finalizes the redesignation, EPA will not 
go forward with the redesignation. As discussed in more detail below, 
Tennessee has committed to continue monitoring in this Area in 
accordance with 40 CFR part 58. EPA proposes to find that the bi-State 
Memphis Area has attained the 1997 8-hour ozone NAAQS.

Criteria (2)--Tennessee Has a Fully Approved SIP Under Section 110(k) 
for Shelby County and Criteria (5)--Tennessee Has Met All Applicable 
Requirements Under Section 110 and Part D of the CAA

    Below is a summary of how these two criteria were met.
    EPA proposes to find that Tennessee has met all applicable SIP 
requirements for Shelby County under section 110 of the CAA (general 
SIP requirements) for purposes of redesignation. EPA also proposes to 
find that the Tennessee SIP satisfies the criterion that it meet 
applicable SIP requirements for purposes of redesignation under part D 
of title I of the CAA (requirements specific to subpart 2 moderate 1997 
8-hour ozone nonattainment areas) in accordance with section 
107(d)(3)(E)(v). In addition, EPA proposes to determine that the SIP is 
fully approved with respect to all requirements applicable for purposes 
of redesignation in accordance with section 107(d)(3)(E)(ii). In making 
these determinations, EPA ascertained which requirements are applicable 
to the area and that if applicable, they are fully approved under 
section 110(k). SIPs must be fully approved only with respect to 
applicable requirements.

[[Page 59949]]

a. Shelby County, Tennessee Has Met All Applicable Requirements Under 
Section 110 and Part D of the CAA
    The September 4, 1992, Calcagni Memorandum describes EPA's 
interpretation of section 107(d)(3)(E). Under this interpretation, to 
qualify for redesignation, States requesting redesignation to 
attainment must meet only the relevant CAA requirements that come due 
prior to the submittal of a complete redesignation request. See also 
Michael Shapiro Memorandum, (``SIP Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide NAAQS On or After November 15, 1992,'' September 17, 1993); 60 
FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, 
Michigan). Applicable requirements of the CAA that come due subsequent 
to the area's submittal of a complete redesignation request remain 
applicable until a redesignation is approved, but are not required as a 
prerequisite to redesignation. See section 175A(c) of the CAA; Sierra 
Club, 375 F.3d 537; see also 68 FR 25424, 25427 (May 12, 2003) 
(redesignation of St. Louis, Missouri).
    General SIP requirements. Section 110(a)(2) of title I of the CAA 
delineates the general requirements for a SIP, which include 
enforceable emissions limitations and other control measures, means, or 
techniques, provisions for the establishment and operation of 
appropriate devices necessary to collect data on ambient air quality, 
and programs to enforce the limitations. General SIP elements and 
requirements are delineated in section 110(a)(2) of title I, part A of 
the CAA. These requirements include, but are not limited to, the 
following: submittal of a SIP that has been adopted by the State after 
reasonable public notice and hearing; provisions for establishment and 
operation of appropriate procedures needed to monitor ambient air 
quality; implementation of a source permit program; provisions for the 
implementation of part C requirements (Prevention of Significant 
Deterioration (PSD)) and provisions for the implementation of part D 
requirements (New Source Review (NSR) permit programs); provisions for 
air pollution modeling; and provisions for public and local agency 
participation in planning and emission control rule development.
    Section 110(a)(2)(D) requires that SIPs contain certain measures to 
prevent sources in a State from significantly contributing to air 
quality problems in another State. To implement this provision, EPA has 
required certain States to establish programs to address the transport 
of air pollutants (NOX SIP Call and Clean Air Interstate 
Rule (CAIR)). The section 110(a)(2)(D) requirements for a State are not 
linked with a particular nonattainment area's designation and 
classification in that State. EPA believes that the requirements linked 
with a particular nonattainment area's designation and classifications 
are the relevant measures to evaluate in reviewing a redesignation 
request. The transport SIP submittal requirements, where applicable, 
continue to apply to a State regardless of the designation of any one 
particular area in the State. Thus, we do not believe that the CAA's 
interstate transport requirements should be construed to be applicable 
requirements for purposes of redesignation.
    In addition, EPA believes that the other section 110 elements not 
connected with nonattainment plan submissions and not linked with an 
area's attainment status are not applicable requirements for purposes 
of redesignation. The area will still be subject to these requirements 
after the area is redesignated. The section 110 and part D 
requirements, which are linked with a particular area's designation and 
classification, are the relevant measures to evaluate in reviewing a 
redesignation request. This approach is consistent with EPA's existing 
policy on applicability (i.e., for redesignations) of conformity and 
oxygenated fuels requirements, as well as with section 184 ozone 
transport requirements. See Reading, Pennsylvania, proposed and final 
rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 
1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, 
May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, 
December 7, 1995). See also the discussion on this issue in the 
Cincinnati, Ohio redesignation (65 FR 37890, June 19, 2000), and in the 
Pittsburgh, Pennsylvania redesignation (66 FR 50399, October 19, 2001).
    EPA believes that section 110 elements not linked to the area's 
nonattainment status are not applicable for purposes of redesignation. 
Therefore, as was discussed above, for purposes of redesignation, they 
are not considered applicable requirements. Nonetheless, EPA notes it 
has previously approved provisions in the Tennessee SIP addressing 
section 110 elements under the 1-hour ozone NAAQS (45 FR 53809, August 
13, 1980). The State believes that the section 110 SIP approved for the 
1-hour ozone NAAQS are sufficient to meet the requirements under the 
1997 8-hour ozone NAAQS. The State has submitted a letter dated 
December 14, 2007, setting forth its belief that the section 110 SIP 
approved for the 1-hour ozone NAAQS is also sufficient to meet the 
requirements under the 1997 8-hour ozone NAAQS. EPA has not yet 
approved this submission, but such approval is not necessary for 
purposes of redesignation.
    Part D requirements. EPA proposes that if EPA approves the State's 
base year emissions inventory, which is part of the maintenance plan 
submittal, the Tennessee SIP will meet applicable SIP requirements 
under part D of the CAA. We believe the emission inventory is 
approvable because the 2006 VOC and NOX emissions, as well 
as the emissions for other years, for the bi-State Memphis Area were 
developed consistent with EPA guidance for emission inventories and the 
choice of the 2006 base year is appropriate because it represents the 
2006-2008 period when the 8 hour ozone NAAQS was not violated. EPA also 
proposes to determine that the Tennessee SIP meets applicable SIP 
requirements under part D of the CAA since no subpart 2 moderate 
requirements became due prior to the submission of the Area's 
redesignation request, and the area has met all the requirements under 
its previous marginal classification. Sections 172-176 of the CAA, 
found in subpart 1 of part D, set forth the basic nonattainment 
requirements applicable to all nonattainment areas. Section 182 of the 
CAA, found in subpart 2 of part D, establishes additional specific 
requirements depending on the area's nonattainment classification.
    Part D, subpart 2 applicable SIP requirements. For purposes of 
evaluating this redesignation request, the applicable part D, subpart 2 
SIP requirements for all moderate nonattainment areas are contained in 
sections 182(b)(1)-(5). A thorough discussion of the requirements 
contained in section 182 can be found in the General Preamble for 
Implementation of Title I (57 FR 13498). No moderate area requirements 
applicable for purposes of redesignation under part D became due prior 
to the submission of the redesignation request, and therefore none are 
applicable to the Area for purposes of redesignation. For example, the 
requirements for an attainment demonstration that meets the 
requirements of reasonable further progress (RFP) (section 182(b)(1), 
Reasonably Achievable Control Technology (RACT) (section 182(b)(2)), 
Gasoline Vapor Recovery section 182(b)(3), and Motor Vehicle Inspection 
and Maintenance section 182(b)(4). If

[[Page 59950]]

EPA finalizes its proposed approval of the Area's emissions inventory 
under section 182(a)(1), the Area will have met all the requirements 
applicable under its prior marginal classification for purposes of 
redesignation.
    In addition to the fact that no moderate area part D requirements 
applicable for purposes of redesignation became due prior to submission 
of the redesignation request and therefore are not applicable, EPA 
believes it is reasonable to interpret the conformity and NSR 
requirements as not requiring approval prior to redesignation.
    Section 176 Conformity Requirements. Section 176(c) of the CAA 
requires States to establish criteria and procedures to ensure that 
Federally supported or funded projects conform to the air quality 
planning goals in the applicable SIP. The requirement to determine 
conformity applies to transportation plans, programs and projects 
developed, funded or approved under title 23 of the United States Code 
(U.S.C.) and the Federal Transit Act (transportation conformity) as 
well as to all other Federally supported or funded projects (general 
conformity). State transportation conformity SIP revisions must be 
consistent with Federal conformity regulations relating to 
consultation, enforcement and enforceability that EPA promulgated 
pursuant to its authority under the CAA.
    EPA believes it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) because State conformity 
rules are still required after redesignation and Federal conformity 
rules apply where State rules have not been approved. See Wall, 265 
F.3d 426 (upholding this interpretation); See also 60 FR 62748 
(December 7, 1995, Tampa, Florida).
    NSR Requirements. EPA has also determined that areas being 
redesignated need not comply with the requirement that a NSR program be 
approved prior to redesignation, provided that the area demonstrates 
maintenance of the standard without a part D NSR program in effect 
since PSD requirements will apply after redesignation. The rationale 
for this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, entitled 
``Part D New Source Review (Part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment.'' Memphis, Tennessee maintained 
in their submittal that sources locating to the Memphis area will 
continue to undergo NSR requirements and existing source control will 
continue. Tennessee has demonstrated that Shelby County will be able to 
maintain the standard without a part D NSR program in effect, and 
therefore, Tennessee need not have a fully approved part D NSR program 
prior to approval of the redesignation request. Tennessee's PSD program 
will become effective in Shelby County upon redesignation to 
attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorraine, Ohio (61 FR 20458, 20469-70, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and 
Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996). Thus, Shelby 
County, Tennessee has satisfied all applicable requirements for 
purposes of redesignation under section 110 and part D of the CAA.
b. Shelby County, Tennessee Has a Fully Approved Applicable SIP Under 
Section 110(k) of the CAA
    EPA has fully approved the applicable Tennessee SIP for the Shelby 
County portion of the Memphis 8-hour ozone nonattainment area, under 
section 110(k) of the CAA for all requirements applicable for purposes 
of redesignation. EPA may rely on prior SIP approvals in approving a 
redesignation request, see Calcagni Memorandum at p. 3; Southwestern 
Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 
1998); Wall, 265 F.3d 426, plus any additional measures it may approve 
in conjunction with a redesignation action. See 68 FR 25426 (May 12, 
2003) and citations therein. Following passage of the CAA of 1970, 
Tennessee has adopted and submitted, and EPA has fully approved at 
various times, provisions addressing the various 1-hour ozone standard 
SIP elements applicable in the bi-State Memphis Area (45 FR 53809, 
August 13, 1980).
    As indicated above, EPA believes that the section 110 elements not 
connected with nonattainment plan submissions and not linked to the 
area's nonattainment status are not applicable requirements for 
purposes of redesignation. EPA also believes that since the moderate 
area part D requirements applicable for purposes of redesignation did 
not become due prior to submission of the redesignation request, they 
also are therefore not applicable requirements for purposes of 
redesignation. As set forth above, the Area has met all other 
applicable requirements for purposes of redesignation under its prior 
marginal classification.

Criteria (3)--The Air Quality Improvement in the Shelby County Portion 
of the Memphis, TN-AR 1997 8-Hour Ozone NAAQS Nonattainment Area Is Due 
to Permanent and Enforceable Reductions in Emissions Resulting From 
Implementation of the SIP and Applicable Federal Air Pollution Control 
Regulations and Other Permanent and Enforceable Reductions

    EPA believes that Tennessee has demonstrated that the observed air 
quality improvement in Shelby County (as part of the bi-State Memphis 
Area) is due to permanent and enforceable reductions in emissions 
resulting from implementation of the SIP, Federal measures, and other 
State adopted measures. Additionally, new emissions control programs 
for fuels and motor vehicles will help ensure a continued decrease in 
emissions throughout the region.
    Measured reductions in ozone concentrations in and around Shelby 
County are largely attributable to reductions from emission sources of 
VOC and NOX, which are precursors in the formation of ozone. 
Table 3 summarizes several of the measures adopted that resulted in 
emission reductions. The majority of these reductions have been 
realized from Federal measures related to mobile sources and electrical 
power generation.

           Table 3--Shelby County Emission Reductions Programs
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Mobile Sources:
  [cir] Tier 2 Fuel and Vehicle Emission Standards
  [cir] Onboard Refueling Vapor Recovery (ORVR) for light-duty vehicles
  [cir] NOX SIP Call
State and Local Measures:
  [cir] Inspection and Maintenance (I/M) Program
  [cir] Expressway speed limit Reductions
  [cir] ``No Burn'' Days for increase ozone levels
  [cir] Memphis Area Transit Authority Ozone Action Day Fare Reduction
  [cir] Retrofit of refuse trucks with diesel oxidation catalyst
  [cir] Motor Vehicle Tampering Rule
------------------------------------------------------------------------

    Emission reductions in Shelby County as a result of Federal motor 
vehicle controls from 2002 to 2006 are estimated to be 7 tons per day 
of VOC and 28 tons per day of NOX.
    Regarding point source emissions, the Tennessee Valley Authority's 
(TVA's) Allen Steam Plant located in Shelby County operates three coal-
fired boilers. As a result of EPA's ``Finding of Significant 
Contribution and Rulemaking for Certain States in the Ozone Transport 
Assessment Group

[[Page 59951]]

Region for Purposes of Reducing Region Transport of Ozone'' 
(NOX SIP Call), TVA began operation of two selective 
catalytic reduction (SCR) systems during the 2002 ozone control season, 
May 1st through September 30th. The third SCR began operating in 2003. 
Ozone season daily NOX reductions in the Area as a result of 
these controls equal approximately 45 tons per day.
    These are substantial reductions when compared to the remaining 
total NOX inventory from all sources in Shelby and 
Crittenden counties in 2006 of 116.81 tons per day (99.09 tons per day 
in Shelby county and 17.72 tons per day in Crittenden County) and a VOC 
inventory of 128.67 tons per day (99.11 tons per day in Shelby County 
and 29.56 tons per day in Crittenden county).
    Because of the uncertainty introduced by the recent court actions 
affecting the CAIR Rule and NOX SIP Call, EPA undertook an 
analysis of the changes in NOX expected across a broader 
region. In particular, EPA reviewed available projections of 
NOX emissions from nearby States from 2002 to 2018.

                                              Table 4--2002 Base Annual Emission Inventory Summary for NOX*
                                                                     [Tons per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 States                      EGU point     Non-EGU point     Non-road          Area           Mobile           Fires           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
AR......................................          24,722          47,698          62,472          21,700         141,894           5,492         303,978
KY......................................         201,928          38,434         104,571          39,507         156,417             534         541,391
LA......................................         111,703         199,218         114,711          93,069         180,664           6,942         706,307
MS......................................          40,433          61,533          88,787           4,200         111,914             308         307,175
MO......................................         145,438          36,144          99,306          32,435         189,852           2,442         505,617
TN......................................         152,137          64,344          96,827          17,844         238,577             217         569,946
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................         676,361         447,371         566,674         208,755       1,019,318          15,935       2,934,414
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                              Table 5--2018 Base Annual Emission Inventory Summary for NOX*
                                                                     [tons per year]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                 States                      EGU point     Non-EGU point     Non-road          Area           Mobile           Fires           Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
AR......................................          34,938          36,169          34,305          25,672          33,640           5,600         170,324
KY......................................          64,378          41,034          79,392          44,346          52,263             714         282,127
LA......................................          44,485         225,748         106,685         114,374          44,806           6,969         543,067
MS......................................          21,535          61,252          68,252           4,483          30,619           1,073         187,214
MO......................................          83,181          51,489          59,625          35,213          50,861           2,442         282,811
TN......................................          31,715          62,519          70,226          19,597          69,385             405         253,847
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................         280,232         478,211         418,485         243,685         281,574          17,203       1,708,390
--------------------------------------------------------------------------------------------------------------------------------------------------------
* From Tennessee Regional Haze SIP, Appendix D, page D.3-5 and support table for Technical Support Document for CENRAP Emissions and Air Quality
  Modeling to Support Regional Haze State Implementation Plans, page 2-40, figure 2-4.

    From 2002 to 2018 NOX emissions are projected to 
decrease in the region by 1,215,024 tpy or 41.4 percent in all. Energy 
Generating Unit (EGU) NOX anticipated decreases due to CAIR 
and the NOX SIP Call are projected to be 198,150 tpy. 
However the largest source in this region remains the motor vehicle 
sector, which is projected to decrease 737,744 tpy. Hence, even without 
EGU controls on NOX emissions, total NOX 
emissions are projected to continually decrease throughout the 
maintenance period.
    The NOX SIP Call requires States to make significant, 
specific emissions reductions. It also provided a mechanism, the 
NOX Budget Trading Program, which States could use to 
achieve those reductions. When EPA promulgated CAIR, it discontinued 
(starting in 2009) the NOX Budget Trading Program, 40 CFR 
51.121(r), but created another mechanism--the CAIR ozone season trading 
program--which States could use to meet their SIP Call obligations, 70 
FR 25289-90. EPA notes that a number of States, when submitting SIP 
revisions to require sources to participate in the CAIR ozone season 
trading program removed the SIP provisions that required sources to 
participate in the NOX Budget Trading Program. In addition, 
because the provisions of CAIR including the ozone season 
NOX trading program remain in place during the remand (North 
Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008)), EPA is not 
currently administering the NOX Budget Trading Program. 
Nonetheless, all States, regardless of the current status of their 
regulations that previously required participation in the 
NOX Budget Trading Program, will remain subject to all of 
the requirements in the NOX SIP Call even if the existing 
CAIR ozone season trading program is withdrawn or altered. In addition, 
the anti-backsliding provisions of 40 CFR 51.905(f) specifically 
provide that the provisions of the NOX SIP Call, including 
the statewide NOX emission budgets, continue to apply after 
revocation of the 1-hour standard.
    All NOX SIP Call States have SIPs that currently satisfy 
their obligations under the SIP Call, the SIP Call reduction 
requirements are being met, and EPA will continue to enforce the 
requirements of the NOX SIP Call even after any response to 
the CAIR remand. For these reasons, EPA believes that regardless of the 
status of the CAIR program, the NOX SIP call requirements 
can be relied upon in demonstrating maintenance. Here, the State has 
demonstrated maintenance based in part on those requirements.
    These regional projections of emissions data have been prepared 
through 2018. However, since motor vehicle and non-road emissions 
continue to decrease long after a rule is adopted as the engine 
population is gradually replaced by newer engines, it is reasonable to 
expect that this projected decrease in regional NOX

[[Page 59952]]

emissions from mobile and non-road sources should continue through 2020 
and assure that ozone in the Memphis region will continue to decline 
throughout the 10-year maintenance period. Hence, we believe the 
projected regional NOX reductions are adequate to assure 
that the Memphis region will continue demonstrating maintenance 
throughout the 10-year maintenance period.

Criteria (4)--The Area Has a Fully Approved Maintenance Plan Pursuant 
to Section 175A of the CAA

    In conjunction with its request to redesignate Shelby County, 
Tennessee (as part of the bi-State Memphis 1997 8-hour ozone 
nonattainment area) to attainment, Tennessee submitted a SIP revision 
to provide for the maintenance of the 1997 8-hour ozone NAAQS for at 
least 10 years after the effective date of redesignation to attainment.
a. What Is Required in a Maintenance Plan?
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least 10 years after the Administrator 
approves a redesignation to attainment. Eight years after the 
redesignation, the State of Tennessee must submit a revised maintenance 
plan, which demonstrates that attainment will continue to be maintained 
for the 10 years following the initial 10-year period. To address the 
possibility of future NAAQS violations, the maintenance plan must 
contain such contingency measures, with a schedule for implementation 
as EPA deems necessary to assure prompt correction of any future 1997 
8-hour ozone violations. Section 175A of the CAA sets forth the 
elements of a maintenance plan for areas seeking redesignation from 
nonattainment to attainment. The Calcagni Memorandum provides 
additional guidance on the content of a maintenance plan. The Calcagni 
Memorandum explains that an ozone maintenance plan should address five 
requirements: the attainment emissions inventory, maintenance 
demonstration, monitoring, verification of continued attainment, and a 
contingency plan. As is discussed more fully below, Tennessee's 
maintenance plan includes all the necessary components and is 
approvable as part of the redesignation request.
b. Attainment Emissions Inventory
    In coordination with Arkansas, Shelby County, Tennessee selected 
2006 as ``the attainment year'' for the purposes of demonstrating 
attainment of the 1997 8-hour ozone NAAQS. The attainment inventory 
identifies the level of emissions in the area, which is sufficient to 
attain the 1997 8-hour ozone standard. Shelby County began development 
of the attainment inventory by first developing a baseline emissions 
inventory for the bi-State Memphis Area. The year 2006 was chosen as 
the base year for developing a comprehensive ozone precursor emissions 
inventory for which projected emissions could be developed for 2009, 
2017 and 2021. The projected inventory estimates emissions forward to 
2021, which is beyond the 10-year interval required in Section 175(A) 
of the CAA. Non-road mobile emissions estimates were based on EPA's 
NONROAD2005 model. On-road mobile source emissions were calculated 
using EPA's MOBILE6.2 emission factors model. The 2006 VOC and 
NOX emissions, as well as the emissions for other years, for 
Shelby County were developed consistent with EPA guidance, and are 
summarized in Tables 4 and 5 in the following subsection.
c. Maintenance Demonstration
    The February 26, 2009, final submittal includes a maintenance plan 
for Shelby County. This demonstration:
    (i) Shows compliance and maintenance of the 1997 8-hour ozone 
standard by providing information to support the demonstration that 
current and future emissions of VOC and NOX remain at or 
below attainment year 2006 emissions levels. The year 2006 was chosen 
as the attainment year because it is one of the most recent three years 
(i.e., 2006, 2007, and 2008) for which Shelby County has clean air 
quality data for the 1997 8-hour ozone standard.
    (ii) Uses 2006 as the attainment year and includes future emission 
inventory projections for 2009, 2017, and 2021.
    (iii) Identifies an ``out year,'' at least 10 years (and beyond) 
after the time necessary for EPA to review and approve the maintenance 
plan. Per 40 CFR part 93, State NOX and VOC MVEBs were 
established for the last year (2021) of the maintenance plan. 
Additionally, Tennessee chose, through interagency consultation, to 
establish MVEBs for the years 2006, 2009 and 2017 for NOX 
and VOC. See section VII below.
    (iv) Provides the following actual and projected emissions 
inventories, in tons per day (tpd) for Shelby County, Tennessee. See 
Tables 6 and 7.

                                      Table 6--Shelby County VOC Emissions
                                          [Summer season tons per day]
----------------------------------------------------------------------------------------------------------------
                       Source category                            2006         2009         2017         2021
----------------------------------------------------------------------------------------------------------------
Point.......................................................       13.665       14.335       16.985       18.391
Area........................................................       37.531       36.880       44.185       47.039
Mobile *....................................................       25.216       21.019       12.811       11.362
Non-road **.................................................       22.698       20.328       19.327       19.734
                                                             ---------------------------------------------------
    Total...................................................       99.110       92.562       93.308       96.526
                                                             ===================================================
Safety Margin...............................................          N/A        6.221        5.512        2.455
----------------------------------------------------------------------------------------------------------------
* Calculated using MOBILE6.2.
** Calculated using NONROAD2005c.


                                    Table 7--Shelby County Area NOX Emissions
                                          [Summer season tons per day]
----------------------------------------------------------------------------------------------------------------
                       Source category                            2006         2009         2017         2021
----------------------------------------------------------------------------------------------------------------
Point *.....................................................       14.458       15.353       17.254       18.376
Area........................................................        2.101        2.271        2.595        2.695

[[Page 59953]]

 
Mobile **...................................................       55.878       44.477       20.925       16.999
Non-road ***................................................       26.657       25.264       22.270       21.607
                                                             ---------------------------------------------------
    Total...................................................       99.094       87.365       63.044       59.677
                                                             ===================================================
Safety Margin...............................................          N/A       11.142       32.247       37.447
----------------------------------------------------------------------------------------------------------------
* TVA Allen Plant addressed in 2002-2003 by NOX SIP call.
** Calculated using MOBILE6.2.
*** Calculated using NONROAD2005c.

    A safety margin is the difference between the attainment level of 
emissions (from all sources) and the projected level of emissions (from 
all sources) in the maintenance plan. The attainment level of emissions 
is the level of emissions during one of the years in which the area met 
the NAAQS. Tennessee has decided to allocate a portion of the available 
safety margin to the Area's VOC and NOX MVEBs for the years 
2006, 2009, 2017, and 2021 for Shelby County and has calculated the 
safety margin in its submittal. See Tables 6 and 7, above. This 
allocation and the resulting available safety margin for Shelby County 
are discussed further in section VII of this proposed rulemaking.
d. Monitoring Network
    There are currently three monitors measuring ozone in the bi-State 
Memphis Area (two in Shelby County, Tennessee and one in Crittenden 
County, Arkansas). TDEC has committed, in the maintenance plan, to 
continue operation of the two monitors in Shelby County, Tennessee in 
compliance with 40 CFR part 58, and has addressed the requirement for 
monitoring. Arkansas has made a similar commitment in their 
redesignation and maintenance plan submission to EPA for this area.
e. Verification of Continued Attainment
    The State of Tennessee and the Memphis-Shelby County Health 
Department (MSCHD) have the legal authority to enforce and implement 
the requirements of the ozone maintenance plan. This includes the 
authority to adopt, implement and enforce any subsequent emissions 
control contingency measures determined to be necessary to correct 
future ozone attainment problems.
    Both agencies will track the progress of the maintenance plan by 
performing future reviews of triennial emissions inventory for Shelby 
County using the latest emissions factors, models and methodologies. 
For these periodic inventories, Shelby County will review the 
assumptions made for the purpose of the maintenance demonstration 
concerning projected growth of activity levels. If any of these 
assumptions appear to have changed substantially, Shelby County will 
re-project emissions.
f. Contingency Plan
    The contingency plan provisions are designed to promptly correct a 
violation of the NAAQS that occurs after redesignation. Section 175A of 
the CAA requires that a maintenance plan include such contingency 
measures as EPA deems necessary to assure that the State will promptly 
correct a violation of the NAAQS that occurs after redesignation. The 
maintenance plan should identify the contingency measures to be 
adopted, a schedule and procedure for adoption and implementation, and 
a time limit for action by the State. A State should also identify 
specific indicators to be used to determine when the contingency 
measures need to be implemented. The maintenance plan must include a 
requirement that a State will implement all measures with respect to 
control of the pollutant that were contained in the SIP before 
redesignation of the area to attainment in accordance with section 
175A(d).
    In the February 26, 2009, submittal, Shelby County affirms that all 
programs instituted by the State and EPA will remain enforceable, and 
that sources are prohibited from reducing emissions controls following 
the redesignation of the area. The contingency plan included in the 
submittal provides a three-phase approach to tracking and triggering 
mechanisms to determine when contingency measures are needed and a 
process of developing and adopting appropriate control measures.

Phase I

    Designed to respond immediately in the event MSCHD forecasts ozone 
levels above the 2008 NAAQS. An air quality alert will be issued to the 
local media and other parties. In the event such an alert is given, 
Shelby County will take the following actions:
     Suspend all open burning permits until the ozone forecasts 
exhibits improvements; during ozone season, entities with permits are 
required to contact MSCHD daily to determine if burning will be 
allowed.
     Reduce fares for public transportation (conducted by the 
Memphis Area Transit Authority).
     Beginning in 2009, air quality alerts will be posted on 
the Intelligent Transportation System boards located on the expressway 
system in Shelby County encouraging motorists to take actions to reduce 
emissions.
     TVA Allen Steam Plant as agreed to postpone any scheduled 
operation of combustion turbines during an alert of peak energy 
generation.
    In addition to these contingency measures, MSCHD will continue to 
work with State and local agencies to encourage adoption of measures to 
reduce ozone formation at all times especially during air quality 
alerts.

Phase II

    Potential increases in local emissions specifically, when the 
certified triennial emissions inventory for VOC or NOX exceed the 2006 
base year attainment inventory by ten percent or more and at least one 
documentation of an exceedance of the 1997 ozone NAAQS from any 
nonattainment monitor in the area based on certified data during the 
most recent monitoring season.
    In the event this occurs, MSCHD will conduct an investigation into 
the cause to determine if they are due to reporting errors or a non-
recurring variance in the local emission profile. The investigation 
will last approximately three months from the time the inventory data 
is certified after which results will be reported to EPA and the State 
of Tennessee. If the investigation reveals the data are valid, MSCHD 
will expand voluntary programs and develop regulations to address the 
concerns. All

[[Page 59954]]

regulatory programs will be implemented within 18-24 months and include 
the following measures:
     Programs or incentives to decrease motor vehicle use;
     Programs to require additional emissions reduction on 
stationary sources;
     Employer-based transportation incentive plans;
     Restrictions of certain roads or lanes for, or 
construction of such roads or lanes for use by, passenger buses or 
high-occupancy vehicles.

Phase III

    Addresses a monitored violation of the 1997 ozone NAAQS in the 
nonattainment area according to certified data during the most recent 
monitoring season.
    In the event this occurs, MSCHD will conduct an investigation to 
determine if the cause of the violation can be attributed to errors or 
clearly identifiable exceptional events outside of local control. MSCHD 
will solicit the involvement of all State agencies having jurisdiction 
in the surrounding area. The investigation will last no longer than 
three months after which results will be submitted to EPA and the State 
of Tennessee. If the investigation reveals the data are valid, further 
action will be taken. In addition to provisions described in Phase II, 
the following provisions will be adopted and implemented according to 
EPA guidance.
     Expand Basic I/M in Shelby County that meets requirements 
of Section 182(a)(2)(B) of the CAA;
     Develop RACT regulation for remaining major sources of 
NOX emissions in Shelby County;
     Adopt all industrial and commercial VOC controls as 
provided in final EPA-approved Control Technology Guidelines through 
the date of the monitored violations.
     Develop regulations for submission to the Shelby County 
Commission or Tennessee State Air Board to adopt necessary control 
measures (within six months after the investigation)
    All regulatory programs will be implemented within 18-24 months by 
the appropriate entity within Tennessee.
    EPA has concluded that the maintenance plan adequately addresses 
the five basic components of a maintenance plan: attainment inventory, 
maintenance demonstration, monitoring network, verification of 
continued attainment, and a contingency plan. The maintenance plan SIP 
revision submitted by the State of Tennessee for Shelby County meets 
the requirements of section 175A of the CAA and is approvable.

VII. What Is EPA's Analysis of Tennessee's Proposed State 
NOX and VOC MVEBs for Shelby County, Tennessee?

    Under the CAA, States are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (reasonable further progress and attainment 
demonstration) and maintenance plans create MVEBs for criteria 
pollutants and/or their precursors to address pollution from cars and 
trucks. Per 40 CFR part 93, an MVEB is established for the last year of 
the maintenance plan. A State may adopt MVEBs for other years as well. 
The MVEB is the portion of the total allowable emissions in the 
maintenance demonstration that is allocated to highway and transit 
vehicle use and emissions. See 40 CFR 93.101. The MVEB serves as a 
ceiling on emissions from an area's planned transportation system. The 
MVEB concept is further explained in the preamble to the November 24, 
1993, transportation conformity rule (58 FR 62188). The preamble also 
describes how to establish the MVEB in the SIP and how to revise the 
MVEB.
    After interagency consultation with the transportation partners for 
Shelby County, Tennessee has elected to develop State MVEBs for VOC and 
NOX. Shelby County is developing these MVEBs, as required, 
for the last year of its maintenance plan, 2021, an interim year, 2017 
and the first year, 2009 and a base year of 2006. The MVEBs for 2006 
reflect mobile emissions for that year. The remaining MVEBs reflect the 
total on-road emissions for 2009, 2017 and 2021, plus an allocation 
from the available NOX and VOC safety margin for each year. 
Under 40 CFR 93.101, the term safety margin is the difference between 
the attainment level (from all sources) and the projected level of 
emissions (from all sources) in the maintenance plan. The safety margin 
can be allocated to the transportation sector; however, the total 
emissions must remain below the attainment level. These MVEBs and 
allocation from the safety margin were developed in consultation with 
the transportation partners and were added to account for uncertainties 
in population growth, changes in model VMT and new emission factor 
models. The NOX and VOC State MVEBs for Shelby County are 
defined in Table 8 below.

                                    Table 8--Shelby County VOC and NoX MVEBs
                                          [Summer season tons per day]
----------------------------------------------------------------------------------------------------------------
                            Year                                  2006        2009 *       2017 *       2021 *
----------------------------------------------------------------------------------------------------------------
NOX.........................................................       55.878       55.620       55.173       54.445
VOC.........................................................       25.216       27.240       18.323       13.817
----------------------------------------------------------------------------------------------------------------
* Includes an allocation from the available NOX and VOC safety margins (see Table 7).

    As mentioned above, Shelby County has chosen to allocate a portion 
of the available safety margin to the 2009, 2017 and 2021 
NOX and VOC State MVEBs. No safety margin was available to 
apply to the 2006 MVEBs. The following table identifies the amount of 
the NOX and VOC safety margin that was allotted to the State 
MVEBs for applicable years.

                                  Table 9--NOX and VOC Safety Margin Allocation
                                          [Summer season tons per day]
----------------------------------------------------------------------------------------------------------------
                             Year                                   2009         2017         2021
-----------------------------------------------------------------------------------------------------
NOX...........................................................       11.142       32.247       37.447
VOC...........................................................        6.221        5.512        2.455
----------------------------------------------------------------------------------------------------------------


[[Page 59955]]

    Ninety-five percent of the safety margin emissions is allocated to 
the MVEBs. Specifically, 6.221 tpd of the available VOC safety margin 
and 11.142 tpd of the available NOX safety margin are 
allocated to the 2009 MVEB, 5.512 tpd of the available VOC safety 
margin and 34.247 tpd of the available NOX safety margin are 
allocated to the 2017 MVEB, and, 2.455 tpd of the available VOC safety 
margin and 37.447 tpd of the available NOX safety margin are 
allocated to the 2021 MVEB. The remaining NOX safety margin 
after allocation of some of the safety margin to the MVEBs for Shelby 
County is 0.586 tpd in 2009, 1.802 tpd in 2017 and 1.971 tpd in 2021. 
The remaining VOC safety margin after allocation of some of the safety 
margin to the MVEBs for Shelby County is 0.327 tpd in 2009, 0.290 tpd 
in 2017 and 0.129 tpd in 2021.
    Through this rulemaking, EPA is proposing to approve the 2006, 
2009, 2017 and 2021 MVEBs for VOC and NOX for Shelby County 
because EPA has determined that the area maintains the 1997 8-hour 
ozone standard with the emissions at the levels of the budgets. Once 
the MVEBs for Shelby County (the subject of this rulemaking) are 
approved or found adequate (whichever is done first), they must be used 
for future conformity determinations.

VIII. What Is the Status of EPA's Adequacy Determination for the 
Proposed State NOX and VOC MVEBs for the years 2006, 2009, 
2017 and 2021 for Shelby County, Tennessee?

    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the State's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the NAAQS. If a transportation plan does not ``conform,'' most new 
projects that would expand the capacity of roadways cannot go forward. 
Regulations at 40 CFR part 93 set forth EPA policy, criteria, and 
procedures for demonstrating and assuring conformity of such 
transportation activities to a SIP. The regional emissions analysis is 
one, but not the only, requirement for implementing transportation 
conformity. Transportation conformity is a requirement for 
nonattainment and maintenance areas. Maintenance areas are areas that 
were previously nonattainment for a particular NAAQS but have since 
been redesignated to attainment with a maintenance plan for that NAAQS.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA may affirmatively find the MVEB contained 
therein ``adequate'' for use in determining transportation conformity. 
Once EPA affirmatively finds the submitted MVEB is adequate for 
transportation conformity purposes, that MVEB must be used by State and 
Federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
CAA.
    EPA's substantive criteria for determining ``adequacy'' of an MVEB 
are set out in 40 CFR 93.118(e)(4). The process for determining 
``adequacy'' consists of three basic steps: public notification of a 
SIP submission, a public comment period, and EPA's adequacy finding. 
This process for determining the adequacy of submitted SIP MVEBs was 
initially outlined in EPA's May 14, 1999, guidance, ``Conformity 
Guidance on Implementation of March 2, 1999, Conformity Court 
Decision.'' This guidance was finalized in the Transportation 
Conformity Rule Amendments for the ``New 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards and Miscellaneous Revisions for 
Existing Areas; transportation conformity rule amendments--Response to 
Court Decision and Additional Rule Change,'' on July 1, 2004 (69 FR 
40004). Additional information on the adequacy process for MVEBs is 
available in the proposed rule entitled, ``Transportation Conformity 
Rule Amendments: Response to Court Decision and Additional Rule 
Changes,'' 68 FR 38974, 38984 (June 30, 2003).
    As discussed earlier, Tennessee's maintenance plan submission 
includes VOC and NOX State MVEBs for Shelby County for the 
years 2006, 2009, 2017 and 2021. EPA reviewed both the VOCs and 
NOX State MVEBs through the adequacy process. The Tennessee 
SIP submission, including the Shelby County VOC and NOX 
MVEBs was open for public comment on EPA's adequacy Web site on March 
12, 2009, found at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on adequacy of the 2006, 
2009, 2017 and 2021 VOC and NOX State MVEBs for Shelby 
County, Tennessee closed on April 13, 2009. EPA did not receive any 
comments on the adequacy of the MVEBs, nor did EPA receive any requests 
for the SIP submittal. EPA provided a separate adequacy posting for the 
MVEBs in association with Crittenden County, Arkansas. The status of 
the adequacy process for the Crittenden County MVEBs will be discussed 
in EPA's separate action related to Crittenden County.
    EPA intends to make its determination on the adequacy of the 2006, 
2009, 2017 and 2021 MVEBs for Shelby County for transportation 
conformity purposes in the near future by completing the adequacy 
process that was started on March 12, 2009. After EPA finds the 2006, 
2009, 2017 and 2021 MVEBs, adequate or approves them, the new MVEBs for 
VOC and NOX must be used, for future transportation 
conformity determinations. For required regional emissions analysis 
years that involve the years 2009 through 2016, the applicable budgets 
for the purposes of conducting transportation conformity will be the 
new 2009 MVEBs; for years that involve the years 2017 through 2020, the 
applicable budget will be the new 2017 MVEBs for Shelby County. For 
required regional emissions analysis years that involve 2021 or beyond, 
the applicable budgets will be the new 2021 MVEBs. The 2006, 2009, 2017 
and 2021 MVEBs are defined in section VII of this proposed rulemaking.

IX. Proposed Action on the Redesignation Request and Maintenance Plan 
SIP Revision Including Approval of the 2006, 2009, 2017 and 2021 State 
NOX and VOC MVEBs for Shelby County, Tennessee

    EPA is proposing to make the determination that Shelby County, 
Tennessee has met the criteria for redesignation from nonattainment to 
attainment for the 1997 8-hour ozone NAAQS. Further, EPA is proposing 
to approve Tennessee's February 26, 2009, SIP submittal including the 
redesignation request for Shelby County, Tennessee (as part of the bi-
State Memphis Area). Additionally, EPA is proposing to approve the 
emissions inventory for Shelby County in association with the bi-State 
Memphis Area. EPA will address the redesignation request, emission 
inventory and maintenance plan for Crittenden County, Arkansas (as a 
portion of the bi-State Memphis Area) in a separate but coordinated 
action. EPA believes that the redesignation request and monitoring data 
demonstrate that the bi-State Memphis Area has attained the 1997 8-hour 
ozone standard.
    EPA is also proposing to approve the maintenance plan for Shelby 
County included as part of the February 26, 2009, SIP revision as 
meeting the requirements of section 175A of the CAA. The maintenance 
plan includes

[[Page 59956]]

State NOX and VOC State MVEBs for 2006, 2009, 2017 and 2021. 
EPA is proposing to approve the 2006, 2009, 2017 and 2021 
NOX and VOC State MVEBs for Shelby County because the 
maintenance plan demonstrates that in light of expected emissions for 
all source categories, the area will continue to maintain the 1997 8-
hour ozone standard.
    Further as part of today's action, EPA is describing the status of 
its adequacy determination for the 2006, 2009, 2017 and 2021 State 
NOX and VOC State MVEBs, in accordance with 40 CFR 
93.118(f)(1). Within 24 months from the effective date of EPA's 
adequacy finding for the MVEBs, or the effective date for the final 
rule for this action, whichever is earlier, the transportation partners 
will need to demonstrate conformity to the new NOX and VOC 
MVEBs pursuant to 40 CFR 93.104(e).

X. 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. 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. Accordingly, this 
proposed action merely approves 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Incorporation by reference, Nitrogen oxides, Ozone, 
Reporting and recordkeeping requirements, and Volatile organic 
compounds.

40 CFR Part 81

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

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

    Dated: November 6, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. E9-27815 Filed 11-18-09; 8:45 am]
BILLING CODE 6560-50-P