VOL. 58, No. 64
Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Part 81
Redesignating a Portion of Fayette County, Tennessee to Nonattainment for Lead
58 FR 17783
DATE: Tuesday, April 6, 1993
ACTION: Final rule.
SUMMARY: Pursuant to section 107(d)(3) of the Clean Air Act, as amended by the Clean Air Act Amendments of 1990 (the Act), EPA is authorized to require states to redesignate areas (or portions thereof) in the affected State as nonattainment, attainment, or unclassifiable with respect to the National Ambient Air Quality Standard (NAAQS) for lead. In this action, EPA is revising the lead designation for Fayette County, Tennessee, from unclassifiable to nonattainment. Previously, consistent with section 107(d)(3)(A) of the Act, EPA provided notification to the Governor of Tennessee that EPA believes a portion of Fayette County should be redesignated from unclassifiable to nonattainment. The redesignation is based upon a monitored violation of the lead NAAQS.
DATES: This action will be effective June 7, 1993, unless notice is received within 30 days that someone wishes to submit adverse or critical comments. If the effective date is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Information supporting this action is available for public inspection and copying (a reasonable fee may be charged for copying) during normal business hours at the following AGENCY:
Public Information Reference Unit, Attn: Jerry Kurtzweg, ANR 443, U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460.
Region IV Air Programs Branch, U.S. Environmental Protection Agency, 345 Courtland Street, Atlanta, Georgia 30365.
Division of Air Pollution Control, Tennessee Department of Conservation and Environment, L & C Annex, 9th Floor, 401 Church Street, Nashville, Tennessee 37243-1531.
FOR FURTHER INFORMATION CONTACT: Leslie Cox, of the EPA Region IV Air Programs Branch at (404) 347-2864 and at the above address.
The EPA is authorized to initiate redesignation of areas (or portions thereof) as nonattainment for lead pursuant to section 107(d)(3) of the Act, 42 U.S.C. 7407(d)(3), on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate. As provided in section 107(d)(3), the EPA may, at any time, notify the Governor of an affected State that available information indicates that the designation of an area should be revised.
Following the process outlined in section 107(d)(3), on March 13, 1992, EPA Region IV notified the Governor of Tennessee that, based on a monitored violation of the lead NAAQS, EPA believes that a portion of Fayette County should be redesignated as nonattainment for lead. The EPA identified the area in a Federal Register notice published on May 1, 1992, 57 FR 18874. The Governor of Tennessee was required to submit to EPA the designation he considered appropriate for the pertinent portion of Fayette County within 120 days after notification. (See section 107(d)(3)(B).) The EPA must promulgate the redesignation that EPA deems necessary and appropriate, consistent with section 107(d)(3)(c) of the Act.
Section 107(d)(1)(A), 42 U.S.C. 7407(d)(1)(A), sets out definitions of nonattainment, attainment, and unclassifiable areas. These definitions provide the controlling legal standard for any designations or redesignations to the relevant attainment status. The EPA has proposed that a portion of Fayette County, Tennessee, addressed in today's notice, be redesignated nonattainment. A nonattainment area is defined as any area that does not meet, or that significantly contributes to, ambient air quality in a nearby area that does not meet the national primary or secondary ambient air quality standard for the relevant pollutant n1 (see section 107(d)(1)(A)(i))
n1 The EPA has construed the definition of nonattainment area to require some material or significant contribution of a pollutant to a violation of the NAAQS for that pollutant in a nearby area. The Agency believes it is reasonable to conclude that something greater than a molecular impact is required.
Thus, in determining the appropriate boundaries for the nonattainment area proposed today, EPA has considered not only the area where the violation of the lead NAAQS is occurring, but also nearby areas which significantly contribute to such violations.
II. Background for Lead
In 1978, when EPA promulgated the lead NAAQS, EPA believed that implementation and maintenance of the lead NAAQS should be in accordance with the SIP requirements set forth in section 110, rather than Part D. The EPA believed that section 107 and Part D requirements were intended by Congress to apply only to NAAQS which were in effect when the Act was revised in 1977. In these cases, SIP's had already been adopted, the attainment dates had already passed, and the SIP's had proven to be inadequate. The designation process was intended as a mechanism to initiate new SIP revisions for those existing NAAQS. Since the attainment date for the lead NAAQS at that time had not yet arrived, no lead SIP's had yet been proven inadequate. Consequently, lead did not meet the circumstances which initially resulted in a need for nonattainment designations and plan revisions under Part D. Therefore, EPA did not designate areas for lead upon promulgation of the lead NAAQS in 1978.
The Act, as amended in 1990, clearly defines EPA's authority to designate areas for lead. Initial designations for lead are governed by section 107(d)(5) of the Act, 42 U.S.C. 7407(d)(5). Consistent with that provision, after passage of the 1990 amendments, EPA designated many areas of the country as nonattainment and unclassifiable for lead. See 56 FR 56694 (November 6, 1991). The portion of Fayette County, Tennessee, addressed in today's action was among those designated unclassifiable for lead. See, e.g., 56 FR 56707-56708, 56829 (codified at 40 CFR 81.343).
As described above, EPA is also authorized by the Act, as amended, to initiate the redesignation of any areas (or portions thereof) as nonattainment for lead, pursuant to section 107(d)(3) of the Act, on the basis of air quality data, and, planning and control considerations the Administrator deems appropriate. The EPA believes that monitoring and/or modeling information should be used in establishing lead nonattainment boundaries that are consistent with section 107(d)(1)(A)(i) of the Act. As indicated previously, nonattainment areas consist of any area that does not meet the relevant NAAQS or that significantly contributes to a violation of the relevant NAAQS in a nearby area. On March 13, 1992, EPA Region IV notified the Governor of Tennessee that EPA believed that the portion of Fayette County designated as unclassifiable for lead should be redesignated as nonattainment for lead. In a Federal Register notice published on May 1, 1992, 57 FR 18874, EPA identified Fayette County as a lead area for which EPA had notified the Governor of Tennessee that the area's lead designation should be revised to nonattainment. After notification, the Governor of Tennessee was required to submit to EPA the redesignation he considered appropriate for the area in question within 120 days. (See section 107(d)(3)(B).) The Governor responded on July 14, 1992. The EPA must now promulgate the redesignation EPA deems necessary and appropriate consistent with section 107(d)(3)(C).
III. Today's Action for Fayette County, Tennessee
In today's action, EPA is redesignating a portion of Fayette County, Tennessee, for lead in accordance with the section 107(d)(3) redesignation process described above. The EPA announced in a notice published on May 11, 1992, (57 FR 18874) that it believed that the portion of Fayette County listed in that notice, should be redesignated as nonattainment for lead based on a monitored violation of the lead NAAQS. The primary and secondary lead NAAQS are 1.5 ug/m 3 maximum arithmetic mean averaged over a calendar quarter. (See 40 CFR 50.12.) A monitor near Ross Metals recorded a quarterly value of 4.14 ug/m 3 in 1991. On July 14, 1992, Tennessee Department of Environment and Conservation Commissioner, J.W. Luna, responded that the State of Tennessee agreed with EPA that the size of the nonattainment area should be that area encompassed by a circle with a radius of one kilometer. He noted that the circle should be centered on Universal Transverse Mercator Coordinate 267.59 East 3881.30 North (zone 16) instead of the coordinates specified in the March 13, 1992, letter to the Governor -- 267.59 East 3881.60 North (zone 16). The State's recommended coordinates center on a point located approximately at the midpoint of the lead source complex. The earlier proposal by EPA centers on a point where the monitoring station that recorded the exceedance of the lead NAAQS is located. EPA concurs with this revision. Technical information supporting the redesignation of Fayette County may be found in the docket associated with this notice. This information is available at the address indicated in the ADDRESSES section of this notice.
IV. Significance of Today's Action for Fayette County
Tennessee must submit an implementation plan to EPA within 18 months after promulgation of the nonattainment redesignation, meeting the requirements of Part D, Title I of the Act (see section 191(a) of the Act, 42 U.S.C. 7514(a)) for Fayette County. The implementation plan must provide for attainment of the lead NAAQS as expeditiously as practicable, but no later than 5 years from the date of the final nonattainment designation (see section 192(a) of the Act, 42 U.S.C. 7514a(a)).
EPA is today designating a portion of Fayette County, Tennessee, around the Ross Metals facility as nonattainment based on a monitored violation of the lead NAAQS. This action is being taken without prior proposal because the changes are noncontroversial and EPA anticipates no significant comments on them. The public should be advised that this action will be effective June 7, 1993. However, if notice is received within 30 days that someone wishes to submit adverse or critical comments, this action will be withdrawn and three subsequent notices will be published before the effective date. One notice will withdraw the final action and another will begin a new rulemaking by announcing a proposal of the action and establishing a comment period. A third notice will finalize the action EPA deems appropriate after considering any comments submitted during the public comment period.
Under section 307(b)(1) of the Act, 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 June 7, 1993. 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 Act, 42 U.S.C. 7607(b)(2).)
This action has been classified as a Table 2 action by the Regional Administrator under the procedures published in the Federal Register on January 19, 1989 (54 FR 2214-2225). On January 6, 1989, the Office of Management and Budget (OMB) waived Table 2 and Table 3 SIP revisions (54 FR 2222) from the requirements of section 3 of Executive Order 12291 for two years. EPA has submitted a request for a permanent waiver for Table 2 and Table 3 SIP revisions. OMB has agreed to continue the temporary waiver until such time as it rules on EPA's request.
Nothing in this action shall be construed as permitting or allowing or establishing a precedent for any future request for a revision to any state implementation plan. Each request for revision to the state implementation plan shall be considered separately in light of specific technical, economic, and environmental factors, and in relation to relevant statutory and regulatory requirements.
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 nonattainment under section 107(d)(3) of the Act 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. To the extent that the area must adopt new regulations, based on its nonattainment status, EPA will review the effect of those actions on small entities at the time the State submits these regulations. The Administrator certifies that the approval of the redesignation request will not affect a substantial number of small entities.
List of Subjects in 40 CFR Part 81
Air pollution control, Lead.
Dated: March 8, 1993.
Patrick M. Tobin, Acting Regional Administrator.
40 CFR part 81, subpart C, is amended as follows:
PART 81 -- DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7407, 7501-7515, 7601.
2. Section 81.343 is amended by revising the entry for "Fayette County" in the Lead table to read as follows:
@ 81.343 -- Tennessee.
* * * * *
Tennessee - Lead Designated area Designation Classification Date Type Date Type * * * * * * * Fayette County (part) Area encompassed by a circle centered on Universal Transverse Mercator coordinate 267.59 E 3881.30 N(Zone 16) with a radius of 1.0 kilometers June 7, 1993 Nonattainment * * * * * * * * * * * *
[FR Doc. 93-7910 Filed 4-5-93; 8:45 am]
BILLING CODE 6560-50-P