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[Federal Register: March 24, 2010 (Volume 75, Number 56)]
[Rules and Regulations]               
[Page 14077-14081]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr10-7]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

 [EPA-R06-OAR-2009-0202; FRL-9129-2]

 
Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Arkansas; Redesignation of 
the Crittenden County, AR Portion of the Memphis, Tennessee-Arkansas 
1997 8-Hour Ozone Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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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 of the bi-state Memphis, Tennessee-Arkansas 8-hour 
ozone nonattainment area (hereafter referred to

[[Page 14078]]

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 of 
Crittenden County, Arkansas and Shelby County, Tennessee. EPA's 
approval of the 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 of Tennessee 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.

DATES: Effective Date: This rule will be effective April 23, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R06-OAR-2009-0202. All documents in the docket 
are listed on the http://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.

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 of the bi-state 
Memphis Area) to attainment for the 1997 8-hour ozone standard, and for 
EPA approval of the 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 of 
Crittenden County, Arkansas (as part of the 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 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 of its 
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 of 
transportation 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 of Arkansas of its 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 
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 of EPA's 
Phase 1 8-hour ozone implementation rule were challenged in court and 
on December 22, 2006, the U.S. Court of Appeals for the District of 
Columbia Circuit (DC 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 (DC Cir. 2006). On June 8, 2007, in response to several 
petitions for rehearing, the DC 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 of title I, part D of the CAA as 8-hour nonattainment areas, the 8-
hour attainment dates and the timing for emissions reductions needed 
for attainment of the 8-hour ozone NAAQS, remain effective. The June 
8th decision left intact the Court's rejection of EPA's reasons for 
implementing the 8-hour standard in certain nonattainment areas under 
subpart 1 in lieu of subpart 2. By

[[Page 14079]]

limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the 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 1-hour nonattainment areas under the 
anti-backsliding provisions of the regulations: (1) Nonattainment area 
New Source Review requirements based on an area's 1-hour nonattainment 
classification; (2) Section 185 penalty fees for 1-hour severe or 
extreme nonattainment areas; and (3) measures to be implemented 
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the 
contingency of an area not making reasonable further progress toward 
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS.
    As set forth in the January 14, 2010, proposal for the 
redesignation of Crittenden 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 of Crittenden County, 
Arkansas to attainment. Even in light of the Court's decisions, 
redesignation is appropriate under the relevant redesignation 
provisions of the 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 of Crittenden 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 of Crittenden County, Arkansas and Shelby County, 
Tennessee. The redesignation request, maintenance plan and emission 
inventory in association with the Tennessee portion of this Area have 
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 of the 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 CAA, including a demonstration that the bi-state 
Memphis Area has attained the 1997 8-hour ozone standard. EPA's 
analyses of Arkansas' 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 of transportation 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 Is EPA 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 of 
Crittenden County, Arkansas (as part of the bi-state Memphis Area) from 
nonattainment to attainment of the 1997 8-hour ozone NAAQS have been 
met. See, section 107(d)(3)(E) of the CAA. EPA is also taking final 
action to approve the maintenance plan for Crittenden County, Arkansas 
as meeting the requirements of sections 175A and 107(d) of the 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 of the bi-state 
Memphis Area), EPA described 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 of the redesignation request changes the legal designation 
of Crittenden County, Arkansas (as part of the 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 of the 1997 8-hour ozone NAAQS, 
and establishes NOx and VOC MVEBs for the years 2006 and 2021 for 
Crittenden County, Arkansas. The other portion of the bi-state Memphis 
Area is Shelby County, Tennessee. EPA has taken action on Tennessee's 
redesignation request for Shelby County, Tennessee (as part of the 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 of Crittenden County, Arkansas (as part of the 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 of the bi-state Memphis Area) in a separate but coordinated 
action. Through this action, EPA is also approving into the Arkansas 
SIP, the 1997 8-hour ozone maintenance plan for 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 of 2.95 
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 of EPA'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 of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(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 of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose

[[Page 14080]]

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 of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 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) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those 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 of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the 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)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by May 24, 2010. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the 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).)

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.

    Dated: March 12, 2010.
Al Armendariz,
Regional Administrator, Region 6.

0
40 CFR parts 52 and 81 are amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart E--Arkansas

0
2. In Sec.  52.170(e) the third table is amended by revising the table 
heading and column headings; and by adding a new entry at the end of 
the table for ``8-Hour Ozone Maintenance Plan for Crittenden County, 
Arkansas'' to read as follows:


Sec.  52.170  Identification of plan.

* * * * *
    (e) * * *
* * * * *

            EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP
----------------------------------------------------------------------------------------------------------------
                                       Applicable           State
      Name of SIP provision          geographic or       submittal/     EPA approval date        Explanation
                                   nonattainment area  effective date
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
8-Hour Ozone Maintenance plan     Crittenden, Shelby        2/26/2009  3/24/2010 [Insert
 for the Crittenden County,        County.                              FR page where
 Arkansas Area.                                                         document begins].
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.


0
2. In Sec.  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:


Sec.  81.304  Arkansas.

* * * * *

[[Page 14081]]



                                                 Arkansas--Ozone
                                                [8-Hour standard]
----------------------------------------------------------------------------------------------------------------
                                                  Designation \a\                  Category/classification
            Designated area            -------------------------------------------------------------------------
                                        Date \1\             Type            Date \1\             Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Memphis, TN-AR: (AQCR Metropolitan        (\3\)   Attainment...............    (\3\)   .........................
 Memphis Interstate) Crittenden County.

                                                  * * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ April 28, 2008.
\3\ April 23, 2010.

* * * * *
[FR Doc. 2010-6343 Filed 3-23-10; 8:45 am]
BILLING CODE 6560-50-P
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