ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R06-0AR-2009~202; FRL- --'

Approval and Promulgation of Implementation Plans and Designation of Areas for Air

Quality Planning Purposes; Arkansas; Redesignation of the Crittenden County,

Arkansas Portion of the Memphis, Tennessee-Arkansas 1997 8-Hour Ozone Nonattainment

Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to approve a request submitted on February 24,2009,

from the State of Arkansas to redesignate the Arkansas portion ofthe 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

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 attained the 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 similar redesignation request and maintenance plan for the Tennessee portion of
this 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 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.

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 Docket Identification No.

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 not placed on the Internet and will be

publicly available only in hard copy form, Publicly available docket materials are available

either electronically through www.regulations.gov or in hard copy at the Air Planning Section,

Air Planning 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 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.

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FOR FURTHER INFORMATION CONTACT: Jeffrey Riley, Air Planning Section, Air

Planning Branch, Multimedia Planning 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 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 24,2009, the State of Arkansas submitted a request to 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 of Arkansas' plan

for maintaining the 1997 8-hour NAAQS as a SIP revision, and proposed to approve the NOx

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and 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 comment period 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 comment period. In a letter dated April 20, 2009, EPA informed

the State ofArkansas ofits intent to 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 Register notice 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 with the bi-state Memphis Area) were found adequate through

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a separate action published November 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 ofColumbia Circuit (D.C. 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 (D.C. Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the

D.C. 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 oftitle I, part D ofthe CAA as 8-

hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions

needed for attainment ofthe 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 ofsubpart 2. 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-hour nonattainment classification;

(2) Section 185 penalty fees for I-hour severe or extreme nonattainment areas; and (3) measures

to be implemented pursuant to section I72(c)(9) or I82(c)(9) ofthe CAA, on the contingency of

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an area not making reasonable further progress toward attainment ofthe l-hour NAAQS, 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 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 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. What Actions is EPA Taking?

EPA is taking final action to approve Arkansas' redesignation request and to change the

legal designation ofCrittenden County, Arkansas from nonattainment to attainment for 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

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CAA, including a demonstration that the bi-state Memphis Area has attained the 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 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.

III. Why isEPA 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 Arkansas has demonstrated that all other criteria for the

redesignation ofCrittenden County, Arkansas (as part ofthe bi-state Memphis Area) from

nonattainment to attainment ofthe 1997 8-hour ozone NAAQS have been met. See, section

107(d)(3)(E) ofthe CAA. EPA is also taking final action to 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

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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 ofthe redesignation request changes the legal designation ofCrittenden

County, Arkansas (as part ofthe 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 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-hour ozone NAAQS, and establishes NOx and VOC MVEBs for the

years 2006 and 2021 for Crittenden County, Arkansas. The other portion ofthe bi-state

Memphis Area is Shelby County, Tennessee. EPA has taken action on Tennessee's

redesignation request for 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

After evaluating Arkansas' redesignation request, EPA is taking final action to approve

the redesignation and change the legal designation ofCrittenden County, Arkansas (as part ofthe

bi-state Memphis Area) from nonattainment to 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

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coordinated action. Through this action, EPA is also approving into the Arkansas SIP, the 1997

8-hour ozone maintenance plan for the Crittenden County, Arkansas, which includes the new

NOx MVEBs of 6.27 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

new NOx and VOC MVEBs pursuant to 40 CFR 93.104(e)

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 ofthe Act and applicable Federal regulations. 42 U.S.c. 741O(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 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 Budget under 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.);

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• does not contain any unfunded mandate or significantly or uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995 (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 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) ofthe National Technology Transfer and

Advancement Act of 1995 (15 U.S.C. 272 note) because application ofthose

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 ofthe

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rule, to each House ofthe Congress and to the Comptroller General ofthe United States. EPA

will submit a report containing this action and other required information to the U.S. Senate, the

U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to

publication ofthe 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)(l) ofthe Clean Air Act, petitions for judicial review ofthis action

must be filed in the United States Court of Appeals for the appropriate circuit by [FEDERAL

REGISTER OFFICE: insert date 60 days from date of publication ofthis document in the

Federal Register]. Filing a petition for reconsideration by the Administrator ofthis final rule

does not affect the finality ofthis action for the purposes ofjudicial review nor does it extend the

time within which a petition for judicial 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).)

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List of Subjects:

40 CFR Part 52

Environmental protection, Air pollution 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

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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 of plan

* * * * *

(e) * * *

* * * * *

EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory

Measures in the Arkansas SIP

Name of SIP 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]

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PART 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 Metropolitan Memphis 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

*******

a Includes 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)

* * * * *

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