### ENVIRONMENTAL PROTECTION AGENCY 40 CFRParts 52 and 81**[EPA-R06-0AR-2009~202;** 

### FRL- --' Approval and Promulgation ofImplementation Plans and Designation of Areas for Air Quality Planning Purposes; Arkansas; Redesignation of the Crittenden County, Arkansas Portion ofthe Memphis, Tennessee-Arkansas 1997 8-Hour Ozone Nonattainment Area to Attainment

AGENCY: Environmental ProtectionAgency (EPA). 

### ACTION: Final rule. 

### SUMMARY: EPA is taking final actionto approve arequest submitted on February 24,2009, from the State ofArkansas to redesignate the Arkansas portion ofthe bi-state Memphis, Tennessee-Arkansas 8-hour ozone nonattainment area (hereafterreferred 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 ofCrittenden County, Arkansas and Shelby County, Tennessee. EPA's approval ofthe 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 attainedthe 1997 8-hour ozone standard. Additionally, EPA is approving a revision to the Arkansas State Implementation Plan (SIP) including the 1997 8-hour ozone maintenance plan for Crittenden County, Arkansas that contains the new 2006 and 2021 motor vehicle emission budgets (MVEBs) for nitrogen oxides (NOx) and volatile organic compounds (VOC) for Crittenden County, Arkansas. The State ofTennessee has submitted a similarredesignation request and maintenance plan for the Tennessee portion ofthis 1997 8-hour ozone area. EPA has taken action on Tennessee's redesignation request, emissions inventory and maintenance plan through a separate rulemaking action (75 FR 56). On March 12, 2008, EPA issued a revised 8-hour ozone standard. EPA later announced on September 16, 2009, that it may reconsiderthis 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.

EFFECTIVE DATE: This rule will be effective [insert 30 days after date ofpublication in the Federal Register].

ADDRESSES: EPA has established a docket for this action under DocketIdentificationNo. EPA-R06-0AR-2009-Q202. All documents in the docket are listed on the 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 notplaced on the Internet and will be publicly available only in hard copy form, Publicly available docket materials are available eitherelectronically through www.regulations.gov or in hard copy at the Air Planning Section, AirPlanning Branch, Multimedia Planning and Permitting Division, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. EPA requests that ifat all possible, you contactthe person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours ofbusiness are Monday through Friday, 8:30 to 4:30, excluding federal holidays. 2

### FOR FURTHERINFORMATION CONTACT: Jeffrey Riley, Air Planning Section, Air Planning Branch, MultimediaPlanning and Permitting Division, U.S. Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Mr. Riley may be reached by phone at (214) 665-8542 or via electronic mail at riley.jeffrey@epa.gov.



### SUPPLEMENTARY INFORMATION: Table ofContents I. What is the Background for the Actions? II. What Actions is EPA Taking? III. Why is EPA TakingThese Actions? IV. What are the Effects ofThese Actions? V. Final Action VI. Statutory and Executive OrderReviews

I. Whatis the Background for the Actions? On February 24,2009, the State ofArkansas submitted a requestto redesignate Crittenden County, Arkansas (as part ofthe bi-state Memphis Area) to attainment for the 1997 8- hour ozone standard, and for EPA approval ofthe Arkansas SIP revision containing a maintenance plan for Crittenden County, Arkansas. In an action published on January 14,2010 (75 FR 2091), EPA proposed to approve the redesignation ofCrittenden County, Arkansas (as part ofthe bi-state Memphis Area) to attainment. EPA also proposed approval ofArkansas' plan for maintaining the 1997 8-hourNAAQS as a SIP revision, and proposedto approve the NOx 3and VOC.MVEBs for Crittenden County that were contained in the maintenance plan. In the January 14,2010, proposed action, EPA also provided information on the status ofits transportation conformity adequacy determination for the Crittenden County NOx and VOC MVEBs. EPA received no comments on the January 14,2010, proposal. Additionally, in a separate notice, EPA has already found the NOx and VOC MVEBs; as contained in Arkansas' maintenance plan for Crittenden County, adequate for the purposes oftransportation conformity. The MVEBs included 

### in the maintenance plan area as follows:



### Table 1 CRITTENDEN COUNTY VOC AND NOx MVEBs (summer season tons per day) Year 2006 2021 

### NOx 6.27 1.84 

### VOC 2.95 1.39

EPA's adequacy public commentperiod on these MVEBs (as contained in Arkansas' submittal) began on March 11,2009, and closed on April 10, 2009. No comments were received during EPA's adequacy public commentperiod. In a letterdated April 20, 2009, EPA informed the State ofArkansas ofits intentto make an affirmative adequacy determination for the MVEBs contained in this maintenance plan for Crittenden County, Arkansas. On May 7, 2009 (74 FR 21356), EPA published a Federal Registernotice deeming the MVEBs for Crittenden County, Arkansas adequate for transportation conformity purposes. EPA provided a separate adequacy posting for the MVEBs in association with Shelby County, Tennessee. The Shelby County, Tennessee MVEBs (in association withthe bi-state Memphis Area) were found adequate through

4a separate action publishedNovember 12,2009 (74 FR 58277). This action approves the NOx and VOC budgets in Table 1 for Crittenden County. As was discussed in greater detail in the January 14,2010, proposal, this redesignation is for the 1997 8-hour ozone designations finalized in April 30, 2004 (69 FR 23857). Various aspects ofEPA's Phase 1 8-hour ozone implementation rule were challenged in court and on December 22,2006, the U.S. Court ofAppeals for the District ofColumbiaCircuit (D.C. Circuit Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South CoastAir QualityManagementDist. (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 clarifiedthat 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 subpart2 oftitle I, part D ofthe CAA as 8- hour nonattainment areas, the 8-hour attainmentdates and the timing for emissions reductions needed for attainmentofthe 8-hour ozone NAAQS, remain effective. The June 8th decision left intact the Court's rejection ofEPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu ofsubpart2. By limiting the vacatur, the Court let stand EPA's revocation ofthe l-hour standard and those anti-backsliding provisions ofthe 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 l-hour nonattainment areas under the anti-backsliding provisions ofthe regulations: (1) nonattainment

area New Source Review requirements based on an area's l-hournonattainment classification; (2) Section 185 penalty fees for I-hour severe or extreme nonattainment areas; and (3) measures to be implementedpursuantto section I72(c)(9) or I82(c)(9) ofthe CAA, on the contingency of 5an area not making reasonable further progress toward attainment ofthe l-hourNAAQS, or for failure to attain that NAAQS. As set forth in the January 14,2010, proposal for the redesignation ofCrittenden County, Arkansas, EPA does not believe that the Court's rulings alter any requirements relevantto this redesignation action so as to preclude redesignation, and do not preventEPA from finalizing this redesignation. EPA believes that the Court's December22, 2006, and June 8, 2007, decisions impose no impedimentto moving forward with redesignation ofCrittenden County, Arkansas to attainment. Even in light ofthe Court's decisions, redesignation is appropriate under the relevant redesignation provisions ofthe CAA and longstanding policies regarding redesignation requests.



### II. WhatActions is EPA Taking? EPA is taking final action to approve Arkansas' redesignation request and to change the legal designation ofCrittenden County, Arkansas from nonattainmentto attainmentfor the 1997 8-hour ozone NAAQS. The bi-state Memphis 1997 8-hour ozone NAAQS nonattainment area is composed ofCrittenden County, Arkansas and Shelby County, Tennessee. The redesignation request, maintenance plan and emission inventory in association with the Tennessee portion of this Area has been addressed through a separate, but coordinated action (75 FR 56). In this action, EPA is also approving Arkansas' 1997 8-hour ozone maintenance plan for Crittenden County, Arkansas (such approval being one ofthe CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep Crittenden County, Arkansas (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 Arkansas has demonstrated that Crittenden County, Arkansas has met the criteria for redesignation to attainment specified in the 6CAA, including a demonstration that the bi-state Memphis Area has attainedthe 1997 8-hour ozone standard. EPA's analyses ofArkansas' 1997 8-hour ozone redesignation request and maintenance plan are described in detail in the proposed rule published January 14,2010 (75 FR 2091). Consistent with the CAA, the maintenance plan that EPA is approving also includes 2006 and 2021 MVEBs for NOx and VOC for Crittenden County, Arkansas. In this action, EPA is approving these NOx and VOC MVEBs for the purposes oftransportation conformity. For regional emission analysis years that involve years prior to 2021, the new 2006 MVEB are the applicable budgets (for the purpose ofconducting transportation conformity analyses). For regional emission analysis years that involve the year 2021 and beyond, the applicable budgets, for the purpose ofconducting transportation conformity analyses, are the new 2021 MVEB.

III. Why isEPA Taking These Actions? EPA has determined that the bi-state Memphis Area has attained the 1997 8-hourozone standard and has also determined that Arkansas has demonstrated that all other criteria for the redesignation ofCrittenden County, Arkansas (as part ofthe bi-state Memphis Area) from nonattainmentto attainment ofthe 1997 8-hour ozone NAAQS have been met. See, section 107(d)(3)(E) ofthe CAA. EPA is also taking final actionto approve the maintenance plan for Crittenden County, Arkansas as meeting the requirements ofsections 175A and 107(d) ofthe CAA. Furthermore, EPA is approving the new NOx and VOC MVEBs for the years 2006 and 2021 contained in Arkansas' maintenance plan for Crittenden County because these MVEBs are consistent with maintenance for the bi-state Memphis Area. In the January 14,2010, proposal to redesignate Crittenden County, Arkansas (as part ofthe bi-state Memphis Area), EPA described 

### 7the applicable criteria for redesignation to attainment and its analysis ofhow those criteriahave 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 ofthe redesignation request changes the legal designation ofCrittenden County, Arkansas (as part ofthe bi-state Memphis Area) from nonattainmentto attainment for the 1997 8-hour ozone NAAQS, found at 40 CFR part 81. The approval also incorporates into the Arkansas 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 ofthe 1997 8-hourozone NAAQS, and establishes NOx and VOC MVEBs for the years 2006 and 2021 for Crittenden County, Arkansas. The otherportion ofthe bi-state Memphis Area is Shelby County, Tennessee. EPA has taken action on Tennessee's redesignation requestfor Shelby County, Tennessee (as part ofthe bi-state Memphis area) and the associated emissions inventory and maintenance plan through a separate rulemaking action (75 FR 56).



### V. Final Action Afterevaluating Arkansas' redesignation request, EPA is taking final actionto approve the redesignation and change the legal designation ofCrittenden County, Arkansas (as part ofthe bi-state Memphis Area) from nonattainmentto attainment for the 1997 8-hour ozone NAAQS. EPA has addressed the redesignation request, emission inventory and maintenance plan for Shelby County, Tennessee (as a portion ofthe bi-state Memphis Area) in a separate but 

### 8coordinated action. Through this action, EPA is also approving into the Arkansas SIP, the 1997 8-hourozone maintenance plan for the Crittenden County, Arkansas, which includes the new NOx MVEBs of6.27 tons per day (tpd) for 2006, and 1.84 tpd for 2021; and new VOC MVEBs of2.95 tpd for 2006, and 1.39 tpd for 2021. These new MVEBs were found adequate through a previous action (74 FR 21356). Within 24 months from the effective date ofEPA's adequacy finding for the MVEBs, the transportation partners will need to demonstrate conformity to the

newNOx and VOC MVEBs pursuant to 40 CFR 93.104(e)

VI. Statutory and Executive Order Reviews Underthe Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions ofthe Act and applicable Federal regulations. 42 U.S.c. 741O(k); 40 CFR 52.02(a). Thus, inreviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria ofthe 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 ofManagement and Budgetunder Executive Order 12866 (58 FR 51735, October 4, 1993); • does not impose an information collection burden under the provisions ofthe Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • is certified as not having a significant economic impact on a substantial number ofsmall entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

9• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of1995 (Public Law 104-4); • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • is not an economically significantregulatory actionbased on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • is not a significantregulatory action subjectto Executive Order 13211 (66 FR 28355, May 22,2001); • is not subjectto requirements ofSection 12(d) ofthe National Technology Transfer and AdvancementAct of 1995 (15 U.S.C. 272 note) because application ofthose requirements would be inconsistentwith 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 addedby 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 ofthe 10rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA will submit a report containing this action and other required informationto the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States priorto publication ofthe rule in the Federal Register. A major rule cannottake effectuntil 60 days after it is published in the Federal Register. This action is not a "majorrule" as defined by 5 U.S.C. 804(2).Under section 307(b)(l) ofthe Clean Air Act, petitions forjudicial review ofthis action mustbe filed in the United States Court ofAppeals for the appropriate circuitby [FEDERAL REGISTER OFFICE: insert date 60 days from date ofpublication ofthis document in the Federal Register]. Filing a petition for reconsideration by the Administratorofthis final rule does not affect the finality ofthis action for the purposes of judicial review nor does it extendthe time within which a petition forjudicial review may be filed, and shall not postpone the effectiveness ofsuch rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

11List ofSubjects:

40 CFR Part 52 Environmental protection, Airpollution control, Intergovernmental relations, Incorporation by reference', Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. 

# 3Lpl ;;/.010



### I Dated: Al Armendariz, Regional Administrator, Region 6

12

### 40 CFR parts 52 

### and 81 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 et seq. 

### Subpart E - Arkansas 2. In 

### § 52.170(e) the third table is amended by revising the title and column headings and by adding a new entry at the end ofthe table for "8-Hour Ozone Maintenance Plan for Crittenden County, Arkansas" to read as follows: 

### § 52.170 

### Identification ofplan 

### * * * * * (e) 

### * * *
* * * * * EPA-ApprovedNon-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP Name ofSIP Applicable State EPA approval Explanation provision geographic or submittal! date nonattainment area effective date 

### * * * * * * * 8-Hour Ozone Crittenden, Shelby 

### 2/26/2009 [Insert date Maintenance plan County 

### ofFR for the Crittenden 

### publication] County, Arkansas 

### [Insert FR Area 

### page where document begins]

13PART 81-[AMENDEl» 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.c. 7401 

### et seq. 2. In § 81.304, the table entitled "Arkansas-Ozone (8-Hour Standard)" is amended by revising the entry for "Memphis, TN-AR: (AQCR MetropolitanMemphis Interstate) Crittenden County," to read as follows: 

### § 81.304 Arkansas 

### * * * * * Arkansas-Ozone (8-Hour Standard)

Designated area Designation" Category/Classification Date1 Type Date I Type



### ******* Memphis, TN-AR: 

# e) Attainment 

# e) (AQCR Metropolitan Memphis Interstate) Crittenden County 

### *******

aIncludes Indian Country located in each county or area, except as otherwise specified. I This date is June 15, 2004, unless otherwise noted. 2April 28, 2008. 3 [Insert date 30 days after publication in Federal Register) 

### * * * * *

14