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Federal Register Notice
FEDERAL REGISTER
VOL. 59, No. 142
Rules and Regulations
ENVIRONMENTAL PROTECTION AGENCY (EPA)
40 CFR Parts 52 and 81
[TN123-1-6349a; FRL-5009-1]
Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; State of Tennessee
59 FR 37939
DATE: Tuesday, July 26, 1994
ACTION: Final rule.
SUMMARY: On October 30, 1992, the Memphis and Shelby County Health Department (MSCHD), submitted a maintenance plan and a request to redesignate the Memphis/Shelby County area from nonattainment to attainment for carbon monoxide (CO). The public hearing was held on December 30, 1992, and the Tennessee Air Pollution Control Board gave approval on October 13, 1993. The CO nonattainment area consists only of Memphis/Shelby County. Under the Clean Air Act (CAA), designations can be revised if sufficient data are available to warrant such revisions. In this action, EPA is approving the Tennessee request because it meets the maintenance plan and redesignation requirements set forth in the Act. The approved maintenance plan will become a federally enforceable part of the State Implementation Plan (SIP) for the Memphis/Shelby County nonattainment 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 CO nonattainment area. EPA's redesignation of the Memphis/Shelby County area to attainment abrogates those requirements for this area. Therefore, the sanctions and federal implementation plan clocks begun by those findings are stopped at the time of the redesignation.
EFFECTIVE DATE: This action will be effective September 26, 1994, unless critical or adverse comments are received by August 25, 1994. If the effective date is delayed, timely notice will be published in the Federal Register.
ADDRESSES: Written comments should be sent to Ben Franco, EPA Region IV, Air Programs Branch, 345 Courtland Street NE, Atlanta, Georgia, 30365. Copies of the redesignation request and the State of Tennessee's submittal are available for public review during normal business hours at the addresses listed below. 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 IV, Air Programs Branch, 345 Courtland Street NE., Atlanta, Georgia, 30365.
Memphis and Shelby County Health Department, 814 Jefferson Avenue, Memphis, Tennessee 38105.
FOR FURTHER INFORMATION CONTACT: Ben Franco of the EPA Region IV Air Programs Branch at (404) 347-2864 and at the above address.
SUPPLEMENTARY INFORMATION:
I. Background
The Clean Air Act, as amended in 1977 (1977 Act) required areas that were designated nonattainment based on a failure to meet the CO national ambient air quality standard (NAAQS) to develop SIPs with sufficient control measures to expeditiously attain and maintain the standard. Memphis/Shelby County was designated under section 107 of the 1977 Act as nonattainment with respect to the CO NAAQS on March 3, 1978. (40 CFR 81.343) In accordance with section 110 of the 1977 Act, the State submitted a Part D CO SIP on February 13 and April 12 and 27, 1979, which EPA conditionally approved on February 6, 1980. On March 20 and December 17, 1980, Tennessee submitted revisions addressing the conditions stated in the February 6, 1980, notice. EPA, on September 2, 1981, gave final approval and published Tennessee as meeting the requirements of section 110 and Part D of the 1977 Act.
On November 15, 1990, the CAA Amendments of 1990 were enacted (1990 Amendments). (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q) The nonattainment designation of Memphis/Shelby County was continued by operation of law pursuant to section 107(d)(1)(C)(i) of the 1990 Amendments. Furthermore, it was classified by operation of law as moderate for CO according to section 186(a)(1). (See 56 FR 56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40 CFR part 81 | 81.343.)
Memphis/Shelby County has ambient monitoring data showing attainment of the CO NAAQS, during the period from 1990 through 1991. Therefore, in an effort to comply with the CAA and to ensure continued attainment of the NAAQS, on October 30, 1992, the State of Tennessee submitted a CO redesignation request for the Memphis and Shelby County area. The request for redesignation submittal was approved by the Tennessee Air Pollution Control Board on March 9, 1994. On May 14, 1993, Tennessee submitted evidence that a public hearing was held on the requests to redesignate Memphis/Shelby County from nonattainment of the NAAQS for CO to attainment for the CO NAAQS.
Additionally, there were no violations during the 1992 and 1993 CO season.
II. Evaluation Criteria
The 1990 Amendments revised section 107(d)(1)(E) to provide five specific requirements that an area must meet in order to be redesignated from nonattainment to attainment.
1. The area must have attained the applicable NAAQS;
2. The area must meet all applicable requirements under section 110 and Part D of the CAA;
3. The area must have a fully approved SIP under section 110(k) of CAA;
4. The air quality improvement must be permanent and enforceable; and,
5. The area must have a fully approved maintenance plan pursuant to section 175A of the CAA.
III. Review of State Submittal
On May 19, 1993, Region IV determined that the information received from the MSCHD constituted a complete redesignation request under the general completeness criteria of 40 CFR part 51, appendix V, sections 2.1 and 2.2. However, for purposes of determining what requirements are applicable for redesignation purposes, EPA believes it is necessary to identify when the MSCHD first submitted a redesignation request that meets the completeness criteria. EPA noted in a previous policy memorandum that parallel processing requests for submittals under the CAA, including redesignation submittals, would not be determined complete. See the memorandum entitled "State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (Act) Deadlines" from John Calcagni to Air Programs Division Directors, Regions I-X, dated October 28, 1992 (Memorandum). The rationale for this conclusion was that the parallel processing exception to the completeness criteria (40 CFR part 51, appendix V, section 2.3) was not intended to extend statutory due dates for mandatory submittals. (See Memorandum at 3-4). However, since requests for redesignation are not mandatory submittals under the CAA, EPA believed it appropriate to change its policy with respect to redesignation submittals to conform to the existing completeness criteria. (See 58 FR 38108 (July 15, 1993.)) Therefore, EPA believes, the parallel processing exception to the completeness criteria may be applied to redesignation request submittals, at least until such time as the EPA decides to revise that exception. MSCHD submitted a redesignation request on October 30, 1992. In the October 30 submittal, MSCHD submitted the maintenance plan, thereby including the final element to make the October 30, 1992, request for parallel processing complete under the parallel processing exception to the completeness criteria. When the maintenance plan became state effective on October 13, 1993, the State of Tennessee no longer needed parallel processing for the redesignation request and maintenance plan.
The Tennessee redesignation request for the Memphis/Shelby County area meets the five requirements of section 107(d)(3)(E), noted above. The following is a brief description of how the State has fulfilled each of these requirements. Because the maintenance plan is a critical element of the redesignation request, EPA will discuss its evaluation of the maintenance plan under its analysis of the redesignation request.
1. Attainment of the CO NAAQS
The Tennessee request is based on an analysis of quality assured CO air quality data which is relevant to the maintenance plan and to the redesignation request. The ambient air CO monitoring data for calendar year 1990 through calendar year 1991 shows no violations of the CO NAAQS in the Memphis/Shelby County area. The most recent ambient CO data for the calendar year 1992 and 1993 continued to show no violations in the Memphis/Shelby County area. Because the Memphis/Shelby County area has complete quality- assured data showing no more than one exceedance of the standard per year over two consecutive years, the Memphis/Shelby County area has met the first statutory criterion of attainment of the CO NAAQS (40 CFR 50.9 and appendix C). Tennessee has committed to continue monitoring in this area in accordance with 40 CFR part 58.
2. Meeting Applicable Requirements of Section 110 and Part D
On September 2, 1981, EPA fully approved Tennessee's SIP for the Memphis/Shelby County area as meeting the requirements of section 110(a)(2) and Part D of the 1977 CAA (46 FR 26640). The 1990 CAA Amendments, however, modified section 110(a)(2) and, under Part D, revised section 172 and added new requirements for all nonattainment areas. Therefore, for purposes of redesignation, to meet the requirement that the SIP contain all applicable requirements under the CAA, EPA has reviewed the SIP to ensure that it contains all measures that were due under the 1990 Amendments prior to or at the time the State submitted its redesignation request.
A. Section 110 Requirements
Although section 110 was amended by the 1990 Amendments, the Memphis/Shelby County SIP meets the requirements of amended section 110(a)(2). A number of the requirements did not change in substance and, therefore, EPA believes that the pre-amendment SIP met these requirements.
As to those requirements that were amended, (see 57 FR 27936 and 23939, June 23, 1993), many are duplicative of other requirements of the CAA. EPA has analyzed the SIP and determined that it is consistent with the requirements of amended section 110(a)(2).
B. Part D Requirements
Before Memphis/Shelby County may be redesignated to attainment, it also must have fulfilled the applicable requirements of Part D. Under Part D, an area's classification indicates the requirements to which it will be subject. Subpart 1 of Part D sets forth the basic nonattainment requirements applicable to all nonattainment areas, classified as well as nonclassifiable. Subpart 3 of Part D establishes additional requirements for nonattainment areas classified under section 186(a). The Memphis/Shelby County area was classified as moderate (See 40 CFR 81.343). Therefore, in order to be redesignated to attainment, the State must meet the applicable requirements of Subpart 1 of Part D, specifically sections 172(c) and 176, and the requirements of Subpart 3 of Part D, which became due on or before October 30, 1992, the date the State submitted a complete redesignation request. EPA interprets section 107(d)(3)(v) to mean that, for a redesignation request to be approved, the State must have met all requirements that become applicable to the subject area prior to or at time of the submission of the redesignation request. Requirements of the CAA that come due subsequent to the submission of the redesignation request continue to be applicable to the area (See section 175A(c)) and if the redesignation is disapproved, the State remains obligated to fulfill those requirements.
B1. Subpart 1 of Part D-Section 172(c) sets forth general requirements applicable to all nonattainment areas. Under section 172(b), the section 172(c) requirements are applicable as determined by the Administrator but no later than three years after an area is designated as nonattainment. EPA had not determined that these requirements were applicable to classified CO nonattainment areas on or before October 30, 1992, the date that the State of Tennessee submitted a complete redesignation request for the Memphis/ Shelby County area. Therefore, the State of Tennessee was not required to meet these requirements for purposes of redesignation.
Upon redesignation of this area to attainment, the Prevention of Significant Deterioration (PSD) provisions contained in part C of title I are applicable. On June 24, 1982, the EPA approved the State of Tennessee's PSD program (47 FR 27269).
B2. Subpart 1 of Part D-Section 176(c) of the CAA requires States to revise their SOPs to establish criteria and procedures to ensure that Federal actions, before they are taken, 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 U.S.C. or the Federal Transit Act ("transportation conformity"). Section 176 further provides that the conformity revisions to be submitted by but must be consistent with Federal conformity regulations that the CAA required EPA to promulgate. Congress provided for the State revisions to be submitted one year after the date for promulgation of final EPA conformity regulations. When that date passed without such promulgation, EPA's General Preamble for the Implementation of Title I informed States that its conformity regulations would establish a submittal date (see 57 FR 13498, 13557 (April 16, 1992)).
EPA promulgated final conformity regulations on November 24, 1993 (58 FR 62188)) and November 30, 1993 (58 FR 63214). These conformity rules require that States adopt both transportation and general conformity provisions in the SIP for areas designated nonattainment or subject to a maintenance plan approved under CAA section 175A. Pursuant to | 51.396 of the transportation conformity rule and | 51.851 of the general conformity rule, the State of Tennessee is required to submit a SIP revision containing general conformity criteria and procedures consistent with those established in the Federal rule by November 25, 1994. Similarly, Tennessee is required to submit a SIP revision containing general conformity criteria and procedures consistent with those established in the Federal rule by December 1, 1994. Because the deadline for these submittals have not yet come due, 107(d)(3)(E)(v) and, thus, do not affect approval of this redesignation request.
B3. Subpart 3 of Part D-Under section 187(a) areas that retained a designation of nonattainment for CO under the amended CAA and that are classified as moderate were required to meet several requirements by November 15, 1992. These requirements included an Emission Inventory, which Tennessee submitted as part of the maintenance plan. EPA has reviewed their emission inventory and has determined it acceptable. Section 211(m) further required that Tennessee submit an oxygenated fuels regulation for the Memphis area. Tennessee failed to submit this measure for the Memphis area. On January 15, 1993, EPA made a finding of failure to submit the oxygenated fuels regulation by letter from Patrick M. Tobin, Acting Regional Administrator, to Ned McWherter, Governor of Tennessee. However, this requirement is not applicable for purposes of considering the State's redesignation request. For purposes of redesignation, EPA must consider whether the State has met all requirements that were applicable prior to the time the state submitted the redesignation request. In case the redesignation is not approved by EPA, the State will be required to implement a program. Since Tennessee submitted the redesignation request for Memphis/Shelby County on October 30, 1992, this measure is not relevant for purposes of redesignation. Therefore, all Subpart 3 requirements that were applicable at the time the State submitted its redesignation request have been met.
3. Fully Approved SIP Under Section 110(k) of the CAA
Based on the approval of provisions under the pre-amended CAA and EPA's prior approval of SIP revisions under the 1990 Amendments, EPA has determined that the Memphis/Shelby County area has a fully approved SIP under section 110(k), which also meets the applicable requirements of section 110 and Part D as discussed above.
4.Improvement in Air Quality Due to Permanent and Enforceable Measures
Under the pre-amended CAA, EPA approved the Tennessee SIP control strategy for the Memphis/Shelby County nonattainment area, satisfied that the rules and the emission reductions achieved as a result of those rules were enforceable. The control measures to which the emission reductions are attributed are Federal Motor Vehicle Control Program (FMVCP), the Inspection and Maintenance Program (I/M), and transportation control measures (TCMs). The FMVCP reduced CO emissions from motor vehicles by approximately 127.67 tons per day from mobile sources since 1985 as a result of the above programs and measures.
In association with its emission inventory discussed below, the State of Tennessee has demonstrated that actual enforceable emission reductions are responsible for the air quality improvement and that the CO emissions in the base year are not artificially low due to local economic downturn. EPA finds that the combination of existing EPA-approved SIP and federal measures contribute to the permanence and enforceability of reduction in ambient CO levels that have allowed the area to attain the NAAQS.
5. Fully Approved Maintenance Plan Under Section 175A
Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan which demonstrates attainment for the ten years following the initial ten-year period. To provide for the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for implementation, adequate to assure prompt correction of any air quality problems. In this notice, EPA is approving the State of Tennessee's maintenance plan for the Memphis/Shelby County area because EPA finds that Tennessee's submittal meets the requirements of section 175A.
A. Emissions Inventory-Base Year Inventory
On November 16, 1992, the State of Tennessee submitted a comprehensive inventory of CO emissions from the Memphis/Shelby County area. The inventories include area, stationary, and mobile sources using 1990 as the base year for calculations to demonstrate maintenance. The 1990 inventory is considered representative of attainment conditions because the NAAQS was not violated during 1990.
The State submittal contains the detailed inventory data and summaries by county and source category. The comprehensive base year emissions inventory was submitted in the NEDS format. Finally, this inventory was prepared in accordance with EPA guidance. It also contains summary tables of the base year and projected maintenance year inventories. EPA's TSD contains more in-depth details regarding the base year inventory for the Memphis/Shelby County area.
CO Emissions Inventory Summary [Tons per day] Year Area Non-Road Mobile Point Total 1990 48.44 83.31 455.05 22.78 609.58 1993 49.32 84.82 420.09 23.70 577.93 1996 50.21 86.35 418.50 24.62 579.68 1999 51.12 87.92 420.29 25.51 584.84 2002 52.05 89.51 419.53 26.33 587.42 2004 52.68 90.59 417.61 26.95 587.83
B. Demonstration of Maintenance-Projected Inventories
Total CO emissions were projected from 1990 base year out to 2004. These projected inventories were prepared in accordance with EPA guidance. The projections show that CO emissions are not expected to exceed the level of the base year inventory during this time period.
C. Verification of Continued Attainment
Continued attainment of the CO NAAQS in the Memphis/Shelby County area depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. The State has also committed to submitting periodic inventories of CO emissions every three years. Memphis/Shelby County's contingency plan will be triggered by two indicators, a violation of the CO NAAQS or should the triennial emission inventory for CO exceed the 1990 CO emission levels.
D. Contingency Plan
The level of CO emissions in the Memphis/Shelby County area will largely determine its ability to stay in compliance with the CO NAAQS in the future. Despite the State's best efforts to demonstrate continued compliance with the NAAQS, the ambient air pollutant concentrations may exceed or violate the NAAQS. Therefore, Tennessee has provided contingency measures with a schedule for implementation in the event of a future CO air quality problem. In the case of a violation of the CO NAAQS or should the triennial emission inventory for carbon monoxide (winter season-tons per day) exceed the 1990 carbon monoxide emission inventory, the plan contains a contingency to implement additional control measures such as the county wide expansion of the I/M program and the implementation of a three point inspection of the automobile at the vent, gas cap, and the catalytic converter. The implementation of this inspection improvement will begin within one year of the above mentioned triggers. EPA finds that the contingency measures provided in the State submittal meet the requirements of section 175A(d) of the CAA.
E. Subsequent Maintenance Plan Revisions
In accordance with section 175A(b) of the CAA, the State has agreed to submit a revised maintenance SIP eight years after the area is redesignated to attainment. Such revised SIP will provide for maintenance for an additional ten years.
Final Action
EPA is approving the Memphis/Shelby County CO maintenance plan because it meets the requirements of section 175A. In addition, the Agency is approving the request and redesignating the Memphis/Shelby County CO area to attainment, because the State 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 EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in a separate document in this Federal Register publication, the EPA is proposing to approve the SIP revision should adverse or critical comments be filed. This action will be effective September 26, 1994 unless, within 30 days of its publication, adverse or critical comments are received.
If the EPA receives such comments, this action will be withdrawn before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on this action serving as a proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. If no such comments are received, the public is advised that this action will be effective September 26, 1994.
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 CO SIP is designed to satisfy the requirements of Part D of the CAA and to provide for attainment and maintenance of the CO NAAQS. This final redesignation should not be interpreted as authorizing the State to delete, alter, or rescind any of the CO emission limitations and restrictions contained in the approved CO SIP. Changes to CO SIP 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 both a finding of non-implementation (section 179(a) of the CAA) and in a SIP deficiency call made pursuant to sections 110(a)(2)(H) and 110(k)(2) 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.
SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements, but simply approve requirements that the State is already imposing. Therefore, because the federal SIP approval does not impose any new requirements, it does not have any economic impact on any small entities. 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. Accordingly, I certify that the approval of the redesignation request will not have an impact on any small entities.
List of Subjects
40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation by reference, Intergovernmental relations, and Ozone.
40 CFR Part 81
Air pollution control, National parks, and Wilderness areas.
Dated: June 28, 1994.
John H. Hankinson, Jr., Regional Administrator.
Parts 52 and 81 of chapter I, title 40, Code of Federal Regulations, are amended as follows:
PART 52-[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7642.
Subpart RR-Tennessee
2. Section 52.2220 is amended by adding paragraph (c)(121) to read as follows:
| 52.2220 -- Identification of plan.
* * * * *
(c) * * *
(121) The redesignation and maintenance plan for Memphis/Shelby County submitted by the Memphis/Shelby County Health Department on October 30, 1992, as part of the Tennessee SIP. On October 15, 1993, and May 6, 1994, Tennessee Department of Environment and Conservation submitted a supplement to the above maintenance plan.
(i) Incorporation by reference.
(A) Memphis/Shelby County Carbon Monoxide Ten Year Maintenance Plan effective on October 13, 1993.
(B) Emissions Inventory Projections for Memphis/Shelby County effective on October 13, 1993.
(ii) Other material. None.
PART 81-[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart C-Section 107 Attainment Status Designations
2. In | 81.343, the attainment status table for "Tennessee-Carbon Monoxide" is amended by removing the entire first entry in the table, "Memphis Area / Shelby County"; by revising the subheading "Rest of State" in the first column to read "Statewide"; and by adding in alphabetical order a new entry for Shelby County to read as follows:
Tennessee-Carbon Monoxide
Designated Designation Classification
area
Date (1) Type Date (1) Type
Statewide Unclassifiable/
Attainment
* * * * * * *
Shelby [Insert
County date sixty
days after
publication]
* * * * * * *
fn (1) This date is November 15, 1990, unless otherwise noted.
[FR Doc. 94-18070 Filed 7-25-94; 8:45 am]
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