### ENVIRONMENTAL PROTECTION AGENCY 40 

### CFR Parts 52 

### and 81 [EPA-RO4-OAR-2009-0164-200916; 

### FRL- ] 

### Approval and Promulgationof Implementation Plans and 

### Designationof Areas for Air Quality Planning Purposes; Tennessee; Redesignationof the Shelby County, Tennessee Portion of the Memphis, Tennessee-Arkansas1997 8-HourOzone Nonattainment Area to Attainment

AGENCY: Environmental ProtectionAgency (EPA). 

### ACTION: Final rule. 

### SUMMARY: EPA is taking final actionto approve a request submitted on February 26,2009, from the State of Tennessee,through the Tennessee Department of Environment and Conservation (TDEC), Air Pollution Control Division, to redesignate the Tennessee portion of the bi-state Memphis,Tennessee-Arkansas 8-hour ozone nonattainmentarea (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 of Shelby County, Tennesseeand Crittenden County,Arkansas. EPA's approval of the redesignationrequest is based on the determinationthat the bi-state Memphis Area has met the criteria for redesignation to attainment set forth in the Clean Air Act (CAA), including the determinationthat the bi-state Memphis Area has attained the 1997 8-hour ozone standard. Additionally,EPA is approving a revision to the Tennessee State Implementation Plan (SIP) includingthe 1997 8-hour ozone maintenance plan for Shelby County, Tennessee that contains the new 2006, 2009,2017, and 2021 motor vehicle emissionbudgets (MVEBs)for nitrogen oxides (NOx) and volatile organic compounds (VOC) for Shelby County, Tennessee.This action also approves the emissions inventory submittedwith the maintenance plan (under the CAA section l82(a)(l)). The State of Arkansas has submitted a similar redesignation request and maintenanceplan for the Arkansas portion of this 1997 8-hour ozone area. EPA is taking action on Arkansas' redesignation request, emissions inventory and maintenance plan through a separaterulemaking action. 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 addressrequirements 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 of publication 

### in the Federal Register].



### ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-20094164. 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., ConfidentialBusiness Information or other information whose disclosureis restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly availableonly in hard copy form. Publicly available docket materials are available either electronicallythrough www.regulations.gov or in hard copy at the Regulatory Development Section,Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental ProtectionAgency, Region 4,61Forsyth Street, SW,Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the 

### FOR

### FURTHER INFORMATION CONTACT sectionto schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30to 4:30, excluding federal holidays.



### FOR FURTHER INFORMATION CONTACT: Jane Spann or Twunjala Bradley, Regulatory Development Section,Air Planning Branch,Air, Pesticides and Toxics Management Division,U.S. Environmental Protection Agency, Region 4,61Forsyth Street, SW, Atlanta, Georgia 30303-8960. Jane Spann may be reached by phone at (404) 562-9029 or via electronic mail at spann.iane@e~a.g;ov. The telephone number for Ms. Bradley is (404) 562-9352 and the electronicmail at bradley.twun~ala@epa.g;ov.



### SUPPLEMENTARYINFORMATION: Table of Contents I. 11. 111. IV. 

# v. VI.

I. What is the Background for the Actions? What Actions is EPA Taking? Why is EPA Taking These Actions? What are the Effects of These Actions? Final Action Statutory and Executive Order Reviews

What is the Background for the Actions? On February 26,2009, the State of Tennessee,through TDEC, submitted a request to redesignate Shelby County, Tennessee (as part of the bi-state Memphis Area) to attainment for 3the 1997 8-hour ozone standard,and for EPA approval of the Tennessee SIP revision containing
a maintenance plan for Shelby County, Tennessee. 

### In an action published on November 19, 2009 (74 

### FR 59943),EPA proposed to approve the redesignationof Shelby County, Tennessee (as part of the bi-state Memphis Area) to attainment. EPA also proposed approval of Tennessee's plan for maintainingthe 1997 8-hour NAAQS as a SIPrevision, including the emissionsinventory submitted pursuant to CAA section 182(a)(l); and proposed to approve the NOx and VOC MVEBs for Shelby County that were contained in the maintenanceplan. 

### In the November 19,2009,proposed action,EPA also provided information on the status of its transportationconformity adequacy determination for the Shelby County NOx and VOC MVEBs. EPA received no comments on the November 19,2009,proposal. Additionally,in a separate notice,EPA has already found the NOx and VOC MVEBs, as contained in Tennessee's maintenance plan for Shelby County, adequate for the purposes of transportationconformity. The MVEBs included in the maintenance plan area as follows:

Table 

### 1 SHELBY COUNTY VOC 

### AND NOx MVEBs I (summer season tons per day) Year

EPA's adequacy public commentperiod on these MVEBs (as contained in Tennessee's NOx VOC

submittal)began on March 12,2009, and closed on April 13,2009. No comments were received 

### 2006

duringEPA's adequacy public comment period. In a letter dated September 18,2009,EPA 55.878 25.216

informed the State of Tennessee of its intent to make an affirmative adequacy determination for 4 

### 2009 55.620 27.240 

### 2017 2021 55.173 18.323 54.445 13.817the MVEBs contained in this maintenance plan for Shelby County, Tennessee. On November 12,2009(74 

### FR 58277),EPA published a Federal Register notice deeming the MVEBs for Shelby County, Tennessee adequate for transportation conformitypurposes. EPA provided a separate adequacy posting for the MVEBs in association with Crittenden County,Arkansas. The Crittenden County, Arkansas MVEBs (in association with the bi-state Memphis Area) were found adequatethrough a separate action published May 7,2009 (74

### FR 21356). As was discussed in greater detail in the November 19,2009,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 (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 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 clarified that the Phase 1 Rule was vacated only with regard to those parts of the Rule that had been successfullychallenged. Therefore,the Phase 1Rule provisions related to classifications for areas currently classifiedunder 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 standardin certain nonattainment areas under subpart 1in lieu of subpart 2. By limitingthe vacatur, the Court let stand EPA's revocation of the l-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 l-hour 5nonattainment areas under the anti-backslidingprovisions of the regulations: (1) nonattainment
area New Source Review requirements based on an area's 1-hournonattainment classification; (2) Section 185 penalty fees for 1 -hour severe or extremenonattainment areas; and (3) measures to be implemented pursuant to section 172(c)(9)or 182(c)(9)of the CAA, on the contingencyof an area not making reasonable furtherprogress toward attainmentof the 1-hourNAAQS, or for failureto attain that NAAQS. The June 8th decision clarified that the Court's referenceto conformityrequirements for anti-backslidingpurposes was limited to requiring the continued use of 1 -hour MVEBs until 8-hourbudgets were available for 8-hour conformity determinations, which is alreadyrequired under EPA's conformityregulations. The Court thus clarifiedthat 1- hour conformity determinations are not required for anti-backslidingpurposes. With respect to the requirement for transportationconformity under the 1 -hour standard, the Court 

### in its June 8th decision clarifiedthat for those areas with 1-hourMVEBs in their 1- hour maintenance plans, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinationsuntil replaced by 8-hourbudgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicablerequirements of EPA's conformityregulations at 40 CFR Part 93. Shelby County, Tennessee has 1-hourbudgets and is currently using these budgets to demonstrate transportation conformityuntil 1997 8-hourbudgets are in place. For the above reasons, and those set forth in the November 19,2009,proposal for the redesignation of Shelby County, Tennessee,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 impedimentto moving forward with redesignation 6of shklby County, Tennessee to attainment. Even in light of the Court's decisions, redesignation is appropriateunder the relevant redesignation provisions of the CAA and longstandingpolicies regarding redesignationrequests.

11. 

### What Actions is EPA Taking? EPA is taking final action to approve Tennessee's redesignationrequest and to change the legal designationof Shelby County, Tennessee 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 Shelby County, Tennessee and Crittenden County, Arkansas. The redesignation request, maintenanceplan and emission inventory in association with the Arkansas portion of this Area will be addressedthrough a separate,but coordinatedaction. 

### In this action,EPA is also approving Tennessee's 1997 8-hour ozone maintenanceplan for Shelby County, Tennessee (such approval being one of the CAA criteria for redesignation to attainment status), includingthe emissions inventory which was submittedpursuant to CAA section 182(a)(l). The maintenance plan is designed to help keep Shelby County, Tennessee (as part of the bi-state Memphis Area) in attainment for the 1997 8-hour ozone NAAQS through 2021. These approval actions arebased
on EPA's determinationthat Tennesseehas demonstrated that Shelby County, Tennessee 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 Tennessee's 1997 8-hour ozone redesignation request and maintenance plan are described in detail in the proposed rule published November 19,2009(74FR 59943). Consistent with the CAA, the maintenance plan that EPA is approving also includes 2006,2009,2017, and 2021 MVEBs for NOx and VOC for Shelby County, Tennessee. 

### In this 7action, EPA is approving these NOx and VOC MVEBs for the purposes of transportation conformity. For regional emission analysis years that involve years prior to 2017, the new 2009 MVEB are the applicablebudgets (for the purpose of conducting transportation conformity analyses). For regional emission analysis years that involve years prior to 2021, the new 2017 MVEB are the applicablebudgets (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. In practical terms, the 2006 MVEBs will not be used in Shelby County, Tennessee because this action is being taken in 2009, and there are MVEBs being established for the year 2009 which are required to be used.

111. 

### 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 Tennesseehas demonstrated that all other criteria for the redesignationof Shelby County, Tennessee (as part of the bi-state Memphis Area) from nonattainmentto attainmentof the 1997 8-hour ozoneNAAQS have been met. See, section 107(d)(3)(E)of the CAA. EPA is also taking final actionto approve the maintenanceplan for Shelby County, Tennessee as meeting the requirements of sections 175A and 107(d)of the CAA, and the emissions inventory as meeting the requirements of section 182(a)(l)of the CAA. Furthermore,EPA is approvingthe new NOx and VOC MVEBs for the years 2006,2009,2017, and 2021 containedin Tennessee's maintenance plan for ShelbyCounty because these MVEBs are consistent with maintenance for the bi-state Memphis Area. 

### In the November 19,2009, proposal to redesignate Shelby County, Tennessee (as part of the bi-state Memphis Area), EPA 8described the applicable criteria for redesignationto 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 redesignationrequest changes the legal designationof Shelby County, Tennessee (as part of the 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 Tennessee SIP a plan for maintainingthe 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 establishesNOx and VOC MVEBs for the years 2006,2009,2017, and 2021 for Shelby County,Tennessee. Additionally, this action approves the emissions inventory for this area pursuant to section 182(a)(l) of the CAA. The other portion of the bi-state Memphis Area is Crittenden County, Arkansas. EPA is taking action on Arkansas' redesignation request for Crittenden County Arkansas (as part of the bi-state Memphis area) and the associated emissions inventory and maintenance plan through a separate rulemaking action.



### V. Final Action After evaluating Tennessee's redesignation request, EPA is taking final actionto approve the redesignation and change the legal designationof Shelby County, Tennessee (as part of the bi-state Memphis Area) from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is addressing the redesignationrequest, emission inventory and maintenance plan for 9Crittenden County,Arkansas (as a portion of the bi-state Memphis Area) in a separatebut coordinated action. Through this action,EPA is also approving into the Tennessee SIP, the 1997 8-hour ozone maintenance plan for the Shelby County, Tennessee,which includes the new NOx MVEBs of 55.878tons per day (tpd) for 2006,55.620 tpd for 2009,55.173 tpd for 2017, and 54.445 tpd for 2021; and new VOC MVEBs of 25.2 16tpd for 2006,27.240 tpd for 2009, 18.323 tpd for 2017, and 13.817 tpd for 202 1. These new MVEBs were found adequate through a previous action (74 FR 58277). Within 24 months from the effectivedate 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). Additionally, EPA is approving the emissions inventory for the Shelby County pursuant to section 182(a)(l) of the CAA.



### VI. Statutory and Executive Order Reviews Under the Clean Air Act, the Administrator is required to approve a SIP submissionthat 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 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 ExecutiveOrder 12866 (58 FR 51735, October 4,1993); does not impose an information collection burden under the provisions of the Paperwork ReductionAct (44 U.S.C. 3501 et seq.);is certified as not having a significant economic impact on a substantialnumber of small entities under the Regulatory FlexibilityAct (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantlyor uniquely affect small governments,as described in the Unfunded Mandates ReformAct of 1995 (Public Law

does not have Federalism implicationsas 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 significant regulatory action subject to Executive Order 1321 1 (66 

### FR 28355, May 22,2001); is not subject to requirements of Section 12(d)of the National Technology Transfer and ~dvancement 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 ExecutiveOrder 13175 (65 

### FR 67249, November 9,2000), because the SIP is not approvedto apply in Indian country located in the state, and EPA notes that it will not impose substantialdirect costs on tribal goverpments or preempt tribal law.The CongressionalReview Act, 

### 5 U.S.C. 801 et seq., as added by the Small Business RegulatoryEnforcement Fairness Act of 1996, generallyprovides 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 ComptrollerGeneral 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 Statesprior 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)(l) of the Clean Air Act, petitions forjudicial review of this action must be filed in the United States Court of Appeals for the appropriate circuitby [FEDERAL REGISTER OFFICE: insert date 60 dayfrom date of ~ublication of this document in the Federal Register]. Filing a petition for reconsiderationby the Administrator of this final rule does not affect the finality of this action for the purposes ofjudicial review nor does it extend the time within which a petition forjudicial review may be filed, and shall not postpone the effectivenessof 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 dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.



### 40 CFR Part 81 Environmental protection and Air pollution control.



### DEC 2 

### 2 XQ9 Dated: ~everr~ H. Banister 

### J Acting Regional Administrator, Region 4.

### 40 CFR part 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 sea. 

### Subpart

### RR

# - Tennessee 2. Section 52.2220(e) is amendedby adding a new entry at the end of the table for "8-Hour Ozone Maintenance Plan for Shelby County, Tennessee" to read as follows: 

### 8 52.2220Identificationof plan
(e) 

## * * *

regulatory SIP provision ZPA-Approved Tern Applicable geographic or nonattainrnent area
8-Hour Ozone Maintenance plan for the Shelby County,Tennessee Area Memphis, Shelby County February 26, 2009 [Insert date of publication in Federal Register] [Insert citationof publication] Explanation

### PART 81-[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401et seq. 2. In 

### 5 81.343, the table entitled "Tennessee-Ozone (8-Hour Standard)" is amendedby revising the entry for "Memphis, TN-AR: Shelby County," to read as follows: 

### 8 81.343 Tennessee

Designated area

Memphis, TN-AR: ShelbyCounty Tennessee-Ozone (8-Hour Standard)

[Insert date of publication in Federal Register1 Attainment 

## -

-
-



## - J I I I a Includes Indian Country located in each county or area, except as otherwise specified.

This date is June 15,2004,unless otherwisenoted. '~ffective April 15,2008. 

## *****