ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Parts 52 and 81
Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Tennessee
60 FR 3352
DATE: Tuesday, January 17, 1995
SUMMARY: On November 12, 1992, the State of Tennessee through the Memphis and Shelby County Health Department (MSCHD), submitted a maintenance plan and a request to redesignate the Memphis and Shelby County area (classified as a marginal nonattainment area) from nonattainment to attainment for ozone. The ozone nonattainment area specifically consists of Shelby County. Under the Clean Air Act as amended in 1990 (CAA), designations can be changed if sufficient data are available to warrant such changes and the redesignation request satisfies the criteria set forth in the CAA for redesignations. In this action, EPA is approving the State of Tennessee's submittal because it meets the maintenance plan and redesignation requirements. The approved maintenance plan will become a federally enforceable part of the SIP for the Memphis and Shelby County area.
On January 15, 1993, in a letter from Patrick M. Tobin to Governor Ned McWherter, the EPA notified the State of Tennessee that the EPA had made a finding of failure to submit required programs for the nonattainment area. EPA's redesignation of the Memphis and Shelby County area to attainment abrogates those requirements for this area.
EFFECTIVE DATE: This final rule is effective February 16, 1995.
ADDRESSES: Copies of the redesignation request and the State of Tennessee's submittal are available for public review during normal business hours at the following locations. EPA's technical support document (TSD) is available for public review during normal business hours at the EPA addresses listed below.
Air and Radiation Docket and Information Center (Air Docket 6102), U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 20460.
Environmental Protection Agency, Region 4, Air Programs Branch, 345 Courtland Street NE, Atlanta, GA 30365.
Memphis and Shelby County Health Department, 814 Jefferson Avenue, Memphis, Tennessee 38105.
FOR FURTHER INFORMATION CONTACT: Karen Borel of the EPA Region 4 Air Programs Branch at (404) 347-3555, ext. 4197 and at the Region 4 address.
SUPPLEMENTARY INFORMATION: On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted. (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1), in conjunction with the Governor of Tennessee, EPA designated the Memphis and Shelby County area as nonattainment because the area violated the ozone standard during the period from 1987 through 1989. Furthermore, upon designation, the Memphis and Shelby County area was classified as marginal under section 181(a)(1). (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR 81.343.)
The Memphis and Shelby County area more recently has ambient monitoring data that show no violations of the ozone National Ambient Air Quality Standards (NAAQS), during the period from 1990 through 1992. Therefore, in an effort to comply with the CAA and to ensure continued attainment of the NAAQS, on November 12, 1992, the State of Tennessee submitted for parallel processing an ozone maintenance SIP for the Memphis and Shelby County area and requested redesignation of the area to attainment with respect to the ozone NAAQS. On May 14, 1993, the MSCHD submitted evidence that a public hearing was held on the requests to redesignate Memphis and Shelby County from nonattainment of the NAAQS for ozone to attainment of the NAAQS for this pollutant. In addition, there have been no violations reported for the 1993 ozone season. The revised request for redesignation submittal was approved by the TN Air Pollution Control Board on March 9, 1994. The EPA reviewed this request for revision of the federally approved SIP and found it to be in conformance with the requirements of the 1990 CAA. EPA therefore published a notice to approve the revisions without prior proposal (59 FR 39692, August 4, 1994).
In that final rulemaking, EPA advised the public that the effective date of the action was deferred for 60 days (until October 3, 1994), to provide an opportunity to submit comments. EPA announced that if such comments were received within 30 days (by September 6, 1994), the action would be withdrawn by publishing a subsequent document that would withdraw the final action. All public comments received would then be addressed in a subsequent final rule based on the 59 FR 39692 notice (August 4, 1994) serving as the proposed rule. The EPA also announced that it would not institute a second comment period on this action. Adverse comments were received on the 59 FR 39692 notice (August 4, 1994), prior to the September 6, 1994, deadline. Accordingly, EPA withdrew the direct final notice on October 26, 1994, (59 FR 53741) and is hereby addressing those adverse comments in this final rule.
The commenter, representing the Utah Chapter of the Sierra Club, contends that EPA should not approve the Memphis/Shelby County maintenance plan or the redesignation of the area to attainment for ozone. The commenter had two specific comments.
Comment 1: In the first comment, the commenter states that "EPA is acting contrary to their own guidelines by accepting the acknowledged increase in NOx emissions from the baseline 1990 inventory for this area." [Nitrogen Oxides (NOx)] The commenter also believes that "EPA must at the very least firmly adhere to their guidelines for redesignation of areas to attainment and to not allow future emission inventories to exceed the attainment inventory."
Response to Comment 1: The Agency recognizes the legitimacy of the commenter's first concern. Prior to the publication of the August 4, 1994, Federal Register notice, the Agency considered this particular issue in depth. In the August 4, 1994, notice, in column one, page 39696, it is recognized that the data submitted for 1993 showed a higher level of NOx emissions than the base year. However, as also stated in that notice, the Memphis/Shelby County nonattainment area was still in attainment during 1993. All future years' NOx emissions data are below the 1993 level, therefore, continued attainment is expected. The projected 1993 emissions closely approximated actual 1993 data. The NOx levels projected for 1996 and 1999, although higher than the base year levels, are significantly lower than the 1993 levels, which, as noted previously, did not cause a violation of the standard. The projected levels for 2002 and 2004 are less than the attainment year. The Agency believes that the emissions projections demonstrate that the area will continue to maintain the ozone NAAQS because this area achieved attainment primarily through Volatile Organic Compounds (VOC) controls and reductions. Further VOC projections continue to show a decrease and NOx projections show a decrease beyond 1993, a year in which the standard was attained.
Comment 2: In the second comment, the commenter expressed concern that "NOx emissions in particular are treated as an insignificant issue" and that, in the assessment of how well the Tennessee proposal meets criteria four (The Air Quality Improvement must be Permanent and Enforceable), "there is no mention of NOx" and the "discussion is only of VOC emissions."
Response to Comment 2: EPA has not treated NOx emissions as insignificant. EPA has considered NOx emissions and their impact fully in reviewing this redesignation request. EPA believes, however, that the emissions projections for NOx and VOCs provide an adequate demonstration of maintenance in light of the fact that the Memphis/Shelby County Area continued to attain the ozone standard in 1993 notwithstanding the projected increase of NOx emissions in that year. As explained above NOx emissions are not projected to increase above 1993 levels; they are projected to decline after 1993 to levels below the 1990 baseline year.
Furthermore, although EPA did not refer to them in the earlier Federal Register notice, NOx reductions have occurred as a result of the implementation of the federal motor vehicle control program and I/M program in the Memphis/Shelby County Area. Fleet turnover in future years to cleaner vehicles will result in further NOx reductions. Most of the reductions that have occurred in the Memphis/Shelby County area, however, have been VOC reductions and it has been reliance primarily on VOC reductions that is responsible for attainment of the standard in this area.
In addition, EPA notes that, as described in the earlier notice regarding the Memphis redesignation, one of the contingency measures in the contingency plan is the development and implementation of NOx requirements for stationary fuel burning sources. Thus, in the event that NOx emissions presented a problem during the maintenance period that caused a violation to occur, a NOx-specific measure has already been incorporated in the contingency plan. However, it should be noted that the Memphis/Shelby County area is classified as marginal for ozone attainment. The CAA does not mandate reductions of NOx in marginal nonattainment areas, only in areas classified as moderate and above. Therefore, the Agency cannot require reductions in NOx emissions as a requirement for redesignation to attainment for ozone in marginal areas such as Memphis/Shelby County.
Finally, EPA notes that this action does not result in the continued postponement of reductions of NOx emissions in this country. This action concerns only the Memphis/Shelby County area and, in any event, further NOx reductions are projected to occur even in this area.
After additional review of this proposed redesignation in light of the commenter's concerns, the Agency concludes that this area should be redesignated to attainment for ozone.
In this final action, EPA is approving the Memphis and Shelby County ozone maintenance plan, including the 1990 base year emission inventory, because it meets the requirements of section 175A. In addition, the EPA is redesignating the Memphis and Shelby County area to attainment for ozone because the State of Tennessee has demonstrated compliance with the requirements of section 107(d)(3)(E) for redesignation. This action stops the sanctions and federal implementation plan clocks that were triggered for the Memphis and Shelby County area by the January 15, 1993, findings letter.
The OMB has exempted these actions from review under Executive Order 12866.
Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any SIP. Each request for revision to the SIP shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.
The ozone SIP is designed to satisfy the requirements of part D of the CAA and to provide for attainment and maintenance of the ozone NAAQS. This final redesignation should not be interpreted as authorizing the State of Tennessee to delete, alter, or rescind any of the VOC or NOx emission limitations and restrictions contained in the approved ozone SIP. Changes to ozone SIP VOC regulations rendering them less stringent than those contained in the EPA approved plan cannot be made unless a revised plan for attainment and maintenance is submitted to and approved by EPA. Unauthorized relaxations, deletions, and changes could result in a finding of nonimplementation [section 179(a) of the CAA] or in a SIP deficiency call made pursuant to sections 110(a)(2)(H) and 110(k) of the CAA.
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA must prepare a regulatory flexibility analysis assessing the impact of any proposed or final rule on small entities. 5 U.S.C. 603 and 604. Alternatively, EPA may certify that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and government entities with jurisdiction over populations of less than 50,000. Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any regulatory requirements on sources. The Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities.
Under section 307(b)(1) of the CAA, 42 U.S.C. 7607(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 20, 1995. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2).)
List of Subjects
40 CFR Part 52
Air pollution control, Hydrocarbons, Incorporation by reference, Intergovernmental relations, Ozone.
40 CFR Part 81
Air pollution control, National parks, Wilderness areas.
Dated: December 23, 1994.
Patrick M. Tobin, Acting Regional Administrator.
Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
2. Section 52.2220 is amended by adding paragraph (c)(122) to read as follows:
@ 52.2220 -- Identification of plan.
* * * * *
(c) * * *
(122) The maintenance plan and emission inventory for the Memphis and Shelby County Area which includes Shelby County and the City of Memphis submitted by the Tennessee Department of Environment and Conservation on November 12, 1992, and March 31, 1994, as part of the Tennessee SIP.
(i) Incorporation by reference.
(A) Amendment to the Original Submittal of Nonregulatory Amendment to State Implementation Plan for Shelby County Redesignation from Nonattainment to Attainment Classification for Ozone submitted March 31, 1994, and prepared by the Memphis and Shelby County Health Department, Pollution Control Section for the Tennessee Department of Conservation. The effective date is March 9, 1994, for the following provisions:
Section I-Requirement One-Air Quality Data Shows Area Meets NAAQS
Section IV-Requirement Four-Maintenance Plan
Shelby County Emission Projections Volatile Organic Compounds (Summer Season)
Shelby County Emission Projections 1990-2004 Nitrogen Oxides (Summer Season)
(ii) Other material. None.
1. The authority citation for part 81 continues to read as follows:
Authority: 42.U.S.C. 7401-7671q.
2. Section 81.343, is amended by revising the attainment status designation table for ozone to read as follows:
@ 81.343 -- Tennessee. * * * * * Tennessee--Ozone Designation Classification Designated area Date fn 1 Type Date fn 1 Type Nashville Area: Davidson County Nonattainment Moderate. Rutherford County Nonattainment Moderate Sumner County Nonattainment Moderate. Williamson County Nonattainment Moderate. Wilson County Nonattainment Moderate. Rest of State Unclassifiable/Attainment Anderson County Bedford County Benton County Bledsoe County Blount County Bradley County Campbell County Cannon County Carroll County Carter County Cheatham County Chester County Claiborne County Clay County Cocke County Coffee County Crockett County Cumberland County DeKalb County Decatur County Dickson County Dyer County Fayette County Fentress County Franklin County Gibson County Giles County Grainger County Greene County Grundy County Hamblen County Hamilton County Hancock County Hardeman County Hardin County Hawkins County Haywood County Henderson County Henry County Hickman County Houston County Humphreys County Jackson County Jefferson County Johnson County Knox County 10/27/93 Lake County Lauderdale County Lawrence County Lewis County Lincoln County Loudon County Macon County Madison County Marion County Marshall County Maury County McMinn County McNairy County Meigs County Monroe County Montgomery County Moore County Morgan County Obion County Overton County Perry County Pickett County Polk County Putnam County Rhea County Roane County Robertson County Scott County Sequatchie County Sevier County Shelby County Feb. 16, 1995 Smith County Stewart County Sullivan County Tipton County Trousdale County Unicoi County Union County Van Buren County Warren County Washington County Wayne County Weakley County White County fn 1 This date is November 15, 1990, unless otherwise noted. * * * * * [FR Doc. 95-1007 Filed 1:13-95; 8:45 am] BILLING CODE 6560-50-P