[Federal Register Volume 75, Number 1 (Monday, January 4, 2010)]
[Rules and Regulations]
[Pages 56-60]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31103]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2009-0164-200916; FRL-9099-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a request submitted on 
February 26, 2009, from the State of Tennessee, through the Tennessee 
Department of Environment and Conservation (TDEC), Air Pollution 
Control Division, to redesignate the Tennessee portion of the bi-state 
Memphis, Tennessee-Arkansas 8-hour ozone nonattainment area (hereafter 
referred to as the ``bi-state Memphis Area'') to attainment for the 
1997 8-hour ozone national ambient air quality standards (NAAQS). The 
bi-state Memphis 1997 8-hour ozone NAAQS nonattainment area is composed 
of Shelby County, Tennessee and Crittenden County, Arkansas. EPA's 
approval of the redesignation request is based on the determination 
that the bi-state Memphis Area has met the criteria for redesignation 
to attainment set forth in the Clean Air Act (CAA), including the 
determination that the bi-state Memphis Area has attained the 1997 8-
hour ozone standard. Additionally, EPA is approving a revision to the 
Tennessee State Implementation Plan (SIP) including the 1997 8-hour 
ozone maintenance plan for Shelby County, Tennessee that contains the 
new 2006, 2009, 2017, and 2021 motor vehicle emission budgets (MVEBs) 
for nitrogen oxides (NOX ) and volatile organic compounds 
(VOC) for Shelby County, Tennessee. This action also approves the 
emissions inventory submitted with the maintenance plan (under the CAA 
section 182(a)(1)). The State of Arkansas has submitted a similar 
redesignation request and maintenance plan for the Arkansas portion of 
this 1997 8-hour ozone area. EPA is taking action on Arkansas' 
redesignation request, emissions inventory and maintenance plan through 
a separate rulemaking action. On March 12, 2008, EPA issued a revised 
8-hour ozone standard. EPA later announced on September 16, 2009, that 
it may reconsider this revised ozone standard. The current action, 
however, is being taken to address requirements under the 1997 8-hour 
ozone NAAQS. Requirements for the bi-state Memphis Area under the 2008 
standard will be addressed in the future.

DATES: Effective Date: This rule will be effective February 3, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0164. All documents in the docket 
are listed on thehttp://www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, i.e., 
Confidential Business Information 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 through 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: Jane Spann or Twunjala Bradley, 
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. 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 at [email protected].

SUPPLEMENTARY INFORMATION:

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Table of Contents

I. What Is the Background for the Actions?
II. What Actions Is EPA Taking?
III. Why Is EPA Taking These Actions?
IV. What Are the Effects of These Actions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What Is the Background for the Actions?

    On February 26, 2009, the State of Tennessee, through TDEC, 
submitted a request to redesignate Shelby County, Tennessee (as part of 
the bi-state Memphis Area) to attainment for the 1997 8-hour ozone 
standard, and for EPA approval of the Tennessee SIP revision containing 
a maintenance plan for Shelby County, Tennessee. In an action published 
on November 19, 2009 (74 FR 59943), EPA proposed to approve the 
redesignation of Shelby County, Tennessee (as part of the bi-state 
Memphis Area) to attainment. EPA also proposed approval of Tennessee's 
plan for maintaining the 1997 8-hour NAAQS as a SIP revision, including 
the emissions inventory submitted pursuant to CAA section 182(a)(1); 
and proposed to approve the NOx and VOC MVEBs for Shelby County that 
were contained in the maintenance plan. In the November 19, 2009, 
proposed action, EPA also provided information on the status of its 
transportation conformity adequacy determination for the Shelby County 
NOX and VOC MVEBs. EPA received no comments on the November 
19, 2009, proposal. Additionally, in a separate notice, EPA has already 
found the NOX and VOC MVEBs, as contained in Tennessee's 
maintenance plan for Shelby County, adequate for the purposes of 
transportation conformity. The MVEBs included in the maintenance plan 
area as follows:

                Table 1--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
------------------------------------------------------------------------

    EPA's adequacy public comment period on these MVEBs (as contained 
in Tennessee's submittal) began on March 12, 2009, and closed on April 
13, 2009. No comments were received during EPA's adequacy public 
comment period. In a letter dated September 18, 2009, EPA informed the 
State of Tennessee of its intent to make an affirmative adequacy 
determination for the MVEBs contained in this maintenance plan for 
Shelby County, Tennessee. On November 12, 2009 (74 FR 58277), EPA 
published a Federal Register notice deeming the MVEBs for Shelby 
County, Tennessee adequate for transportation conformity purposes. EPA 
provided a separate adequacy posting for the MVEBs in association with 
Crittenden County, Arkansas. The Crittenden County, Arkansas MVEBs (in 
association with the bi-state Memphis Area) were found adequate through 
a separate action published May 7, 2009 (74 FR 21356). As was discussed 
in greater detail in the November 19, 2009, proposal, this 
redesignation is for the 1997 8-hour ozone designations finalized in 
April 30, 2004 (69 FR 23857). Various aspects of EPA's Phase 1 8-hour 
ozone implementation rule were challenged in court and on December 22, 
2006, the U.S. Court of Appeals for the District of Columbia Circuit 
(DC Circuit Court) vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air 
Quality Management Dist. (SCAQMD) v. EPA, 472 F.3d 882 (DC Cir. 2006). 
On June 8, 2007, in response to several petitions for rehearing, the DC 
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 8-hour nonattainment areas, the 8-hour 
attainment dates and the timing for emissions reductions needed for 
attainment of the 8-hour ozone NAAQS, remain effective. The June 8th 
decision left intact the Court's rejection of EPA's reasons for 
implementing the 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 affirmed 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 
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 MVEBs 
until 8-hour budgets were available for 8-hour conformity 
determinations, which is already required under EPA's conformity 
regulations. The Court thus clarified that 1-hour conformity 
determinations are not required for anti-backsliding purposes.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that 
for those areas with 1-hour MVEBs in their 1-hour maintenance plans, 
anti-backsliding requires only that those 1-hour budgets must be used 
for 8-hour conformity determinations until replaced by 8-hour budgets. 
To meet this requirement, conformity determinations in such areas must 
continue to comply with the applicable requirements of EPA's conformity 
regulations at 40 CFR Part 93. Shelby County, Tennessee has 1-hour 
budgets and is currently using these budgets to demonstrate 
transportation conformity until 1997 8-hour budgets are in place.
    For the above reasons, and those set forth in the November 19, 
2009, proposal for the redesignation of Shelby County, Tennessee, EPA 
does not believe that the Court's rulings alter any requirements 
relevant to this redesignation action so as to preclude redesignation, 
and do not prevent EPA from 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 Shelby County, 
Tennessee to attainment. Even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the

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CAA and longstanding policies regarding redesignation requests.

II. What Actions Is EPA Taking?

    EPA is taking final action to approve Tennessee's redesignation 
request and to change the legal designation of Shelby County, Tennessee 
from nonattainment to attainment for the 1997 8-hour ozone NAAQS. The 
bi-state Memphis 1997 8-hour ozone NAAQS nonattainment area is composed 
of Shelby County, Tennessee and Crittenden County, Arkansas. The 
redesignation request, maintenance plan and emission inventory in 
association with the Arkansas portion of this Area will be addressed 
through a separate, but coordinated action. In this action, EPA is also 
approving Tennessee's 1997 8-hour ozone maintenance plan for Shelby 
County, Tennessee (such approval being one of the CAA criteria for 
redesignation to attainment status), including the emissions inventory 
which was submitted pursuant to CAA section 182(a)(1). The maintenance 
plan is designed to help keep Shelby County, Tennessee (as part of the 
bi-state Memphis Area) in attainment for the 1997 8-hour ozone NAAQS 
through 2021. These approval actions are based on EPA's determination 
that Tennessee has demonstrated that Shelby County, Tennessee has met 
the criteria for redesignation to attainment specified in the CAA, 
including a demonstration that the bi-state Memphis Area has attained 
the 1997 8-hour ozone standard. EPA's analyses of Tennessee's 1997 8-
hour ozone redesignation request and maintenance plan are described in 
detail in the proposed rule published November 19, 2009 (74 FR 59943).
    Consistent with the CAA, the maintenance plan that EPA is approving 
also includes 2006, 2009, 2017, and 2021 MVEBs for NOX and 
VOC for Shelby County, Tennessee. In this action, EPA is approving 
these NOX and VOC MVEBs for the purposes of transportation 
conformity. For regional emission analysis years that involve years 
prior to 2017, the new 2009 MVEB are the applicable budgets (for the 
purpose of conducting transportation conformity analyses). For regional 
emission analysis years that involve years prior to 2021, the new 2017 
MVEB are the applicable budgets (for the purpose of conducting 
transportation conformity analyses). For regional emission analysis 
years that involve the year 2021 and beyond, the applicable budgets, 
for the purpose of conducting transportation conformity analyses, are 
the new 2021 MVEB. In practical terms, the 2006 MVEBs will not be used 
in Shelby County, Tennessee because this action is being taken in 2009, 
and there are MVEBs being established for the year 2009 which are 
required to be used.

III. Why Is EPA Taking These Actions?

    EPA has determined that the bi-state Memphis Area has attained the 
1997 8-hour ozone standard and has also determined that Tennessee has 
demonstrated that all other criteria for the redesignation of Shelby 
County, Tennessee (as part of the bi-state Memphis Area) from 
nonattainment to attainment of the 1997 8-hour ozone NAAQS have been 
met. See, section 107(d)(3)(E) of the CAA. EPA is also taking final 
action to approve the maintenance plan for Shelby County, Tennessee as 
meeting the requirements of sections 175A and 107(d) of the CAA, and 
the emissions inventory as meeting the requirements of section 
182(a)(1) of the CAA. Furthermore, EPA is approving the new 
NOX and VOC MVEBs for the years 2006, 2009, 2017, and 2021 
contained in Tennessee's maintenance plan for Shelby County because 
these MVEBs are consistent with maintenance for the bi-state Memphis 
Area. In the November 19, 2009, proposal to redesignate Shelby County, 
Tennessee (as part of the bi-state Memphis Area), EPA described the 
applicable criteria for redesignation to attainment and its analysis of 
how those criteria have been met. The rationale for EPA's findings and 
actions is set forth in the proposed rulemaking and summarized in this 
final rulemaking.

IV. What Are the Effects of These Actions?

    Approval of the redesignation request changes the legal designation 
of Shelby County, Tennessee (as part of the bi-state Memphis Area) from 
nonattainment to attainment for the 1997 8-hour ozone NAAQS, found at 
40 CFR part 81. The approval also incorporates into the Tennessee SIP a 
plan for maintaining the 1997 8-hour ozone NAAQS in the bi-state 
Memphis Area through 2021. The maintenance plan includes contingency 
measures to remedy future violations of the 1997 8-hour ozone NAAQS, 
and establishes NOX and VOC MVEBs for the years 2006, 2009, 
2017, and 2021 for Shelby County, Tennessee. Additionally, this action 
approves the emissions inventory for this area pursuant to section 
182(a)(1) of the CAA. The other portion of the bi-state Memphis Area is 
Crittenden County, Arkansas. EPA is taking action on Arkansas' 
redesignation request for Crittenden County Arkansas (as part of the 
bi-state Memphis area) and the associated emissions inventory and 
maintenance plan through a separate rulemaking action.

V. Final Action

    After evaluating Tennessee's redesignation request, EPA is taking 
final action to approve the redesignation and change the legal 
designation of Shelby County, Tennessee (as part of the bi-state 
Memphis Area) from nonattainment to attainment for the 1997 8-hour 
ozone NAAQS. EPA is addressing 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. Through this action, EPA is also approving into the Tennessee 
SIP, the 1997 8-hour ozone maintenance plan for the Shelby County, 
Tennessee, which includes the new NOX MVEBs of 55.878 tons 
per day (tpd) for 2006, 55.620 tpd for 2009, 55.173 tpd for 2017, and 
54.445 tpd for 2021; and new VOC MVEBs of 25.216 tpd for 2006, 27.240 
tpd for 2009, 18.323 tpd for 2017, and 13.817 tpd for 2021. These new 
MVEBs were found adequate through a previous action (74 FR 58277). 
Within 24 months from the effective date of EPA's adequacy finding for 
the MVEBs, the transportation partners will need to demonstrate 
conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 
93.104(e). Additionally, EPA is approving the emissions inventory for 
the Shelby County pursuant to section 182(a)(1) of the CAA.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this 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 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

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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 Clean Air Act; 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by March 5, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

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

40 CFR Part 81

    Environmental protection and Air pollution control.

    Dated: December 22, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

0
Accordingly, 40 CFR part 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart RR--Tennessee

0
2. Section 52.2220(e) is amended by adding a new entry at the end of 
the table for ``8-Hour Ozone Maintenance Plan for Shelby County, 
Tennessee'' to read as follows:


Sec.  52.2220  Identification of plan.

* * * * *
    (e) * * *

                                EPA-Approved Tennessee Non-Regulatory Provisions
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                                      Applicable
   Name of non-regulatory SIP        geographic or      State effective    EPA approval date      Explanation
            provision             nonattainment area         date
----------------------------------------------------------------------------------------------------------------
                                                 * * * * * * *
8-Hour Ozone Maintenance plan     Memphis, Shelby     February 26, 2009.  January 4, 2010
 for the Shelby County,            County.                                 [Insert citation
 Tennessee Area.                                                           of publication].
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PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

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


0
2. In Sec.  81.343, the table entitled ``Tennessee-Ozone (8-Hour 
Standard)'' is amended by revising the entry for ``Memphis, TN-AR: 
Shelby County,'' to read as follows:


Sec.  81.343  Tennessee.

* * * * *

                                                 Tennessee-Ozone
                                                [8-hour standard]
----------------------------------------------------------------------------------------------------------------
                                             Designation a                       Category/classification
        Designated area        ---------------------------------------------------------------------------------
                                     Date \1\              Type               Date\1\                Type
----------------------------------------------------------------------------------------------------------------
                                                 * * * * * * *
Memphis, TN-AR: Shelby County.  January 4, 2010..  Attainment.........
                                                 * * * * * * *
----------------------------------------------------------------------------------------------------------------
a Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Effective April 15, 2008.


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[FR Doc. E9-31103 Filed 12-31-09; 8:45 am]
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