E9-618. Approval and Promulgation of Air Quality Implementation Plans; Arkansas; Emissions Inventory for the Crittenden County Ozone Non-Attainment Area; Emissions Statements

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a revision to the Arkansas State Implementation Plan (SIP) to meet the Emissions Inventory and Emissions Statements requirements of the Clean Air Act (CAA) for the Crittenden County ozone nonattainment area. EPA is approving the SIP revision because it satisfies the Emissions Inventory and Emissions Statements requirements for 8-hour ozone nonattainment areas. EPA is approving the revision pursuant to section 110 of the CAA.

DATES:

This direct final rule will be effective March 16, 2009 without further notice unless EPA receives adverse comments by February 17, 2009. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket No. EPA-R06-OAR-2007-1153, by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov.
• Follow the online instructions for submitting comments.
• EPA Region 6 “Contact Us” Web site: http://epa.gov/​region6/​r6coment.htm. Please click on “6PD (Multimedia)” and select “Air” before submitting comments.
• E-mail: Mr. Guy Donaldson at [e-mail]. Please also send a copy by e-mail to the person listed in the FOR FURTHER INFORMATION CONTACT section below.
• Fax: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), at fax number 214-665-7242.
• Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.
• Hand or Courier Delivery: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal holidays. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket No. EPA-R06-OAR-2007-1153. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below or Mr. Bill Deese at 214-665-7253 to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.

The State submittal is also available for public inspection during official business hours, by appointment, at the Arkansas Department of Environmental Quality, 5301 Northshore Drive, North Little Rock, AR 72118-5317.

FOR FURTHER INFORMATION CONTACT:

Dylan Van Dyne, Air Planning Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone [phone]; fax number 214-665-7263; e-mail address [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever “we”, “us”, or “our” is used, we mean the EPA.

Outline

I. What Action is EPA Taking?

II. What is a SIP?

III. What is the Background for this Action?

IV. What is EPA's Evaluation of the Revision?

V. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

We are approving a revision to the Arkansas SIP, submitted to meet the Emissions Inventory and Emissions Statement requirements of the CAA for the Crittenden County 8-hour ozone non-attainment area.^[1] The revision was adopted by the State of Arkansas on June 22, 2007, became effective July 15, 2007, and was submitted to EPA on November 19, 2007. We are approving the Emissions Inventory for Crittenden County because it satisfies the Emissions Inventory requirements for 8-hour ozone nonattainment areas classified as marginal or above. We are approving the revisions to the Arkansas Regulations requiring Emissions certification as meeting Emissions Statement requirements of the CAA. We are approving the revision pursuant to section 110 of the CAA.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on March 16, 2009 without further notice unless we receive relevant adverse comment by February 17, 2009. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

II. What Is a SIP?

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the national ambient air quality standards (NAAQS) established by EPA. NAAQS are established under section 109 of the CAA and currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

A SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that the state meets the NAAQS. It is required by section 110 and other provisions of the CAA. A SIP protects air quality primarily by addressing air pollution at its point of origin. A SIP can be extensive, containing state regulations or other enforceable documents, and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit regulations and control strategies to EPA for approval and incorporation into the federally-enforceable SIP.

III. What Is the Background for This Action?

Inhaling even low levels of ozone, a key component of urban smog, can trigger a variety of health problems including chest pains, coughing, nausea, throat irritation, and congestion. It can also worsen bronchitis and asthma, and reduce lung capacity. Volatile organic compounds (VOC) and oxides of nitrogen (NO_X) are known as “ozone precursors”, as VOCs react with NO_X, oxygen, and sunlight to form ozone.

EPA promulgated, on July 18, 1997, a revised 8-hour ozone standard of 0.08 parts per million (ppm), which is more protective than the previous 1-hour ozone standard (62 FR 38855).^[2] On April 30, 2004 EPA published designations for the 1997 standard 8-hour ozone standard (69 FR 23858). Crittenden County, Arkansas and Memphis, Tennessee were designated as an ozone nonattainment area; and the area was classified as a moderate nonattainment area under subpart 2 with an attainment date of no later than June 15, 2010. On July 15, 2004, pursuant to section 181(a)(4) of the CAA, the States of Tennessee and Arkansas submitted a petition to EPA Regions 4 and 6, requesting a downward reclassification of the area “moderate” to “marginal” for the 8-hour ozone standard. The petition was approved by EPA on September 22, 2004 (69 FR 56697). As a result of the downward classification, the new attainment date for the area was set at no later than June 15, 2007 (73 FR 15087). The 1997 ozone standard was not attained by this date, so the area was reclassified back to “moderate” on March 28, 2008, with a new attainment date of no later than June 15, 2010 (73 FR 16547).

Sections 172(c)(3) and 182(a)(1) of the Clean Air Act (CAA) and EPA's 8-hour ozone regulation (40 CFR 51.915) require submission of an emissions inventory for each 8-hour ozone non-attainment area. An emissions inventory is an estimation of actual emissions of air pollutants in an area. The emissions inventory for an ozone nonattainment area contains nitrogen oxide (NO_X), volatile organic compound (VOC), and carbon monoxide (CO) emissions as these pollutants are precursors to ozone formation. In this case, the emissions inventory is for the year 2002.

CAA section 182(a)(3)(B) calls for the SIP to require that owners or operators of each stationary source of NO_X and VOC in an ozone non-attainment area submit an annual emissions statement. The emissions statement must show the actual emissions of NO_X or VOC and contain a certification that the information contained in the statement is accurate to the best knowledge of the individual certifying the statement.

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Rule in South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the court modified the scope of vacatur of the Phase 1 Rule. See 489 F.3d 1245 (DC Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). The court vacated those portions of the Phase 1 Rule that provide for regulation of the 1997 8-hour ozone NAAQS in some nonattainment areas under Subpart 1 in lieu of Subpart 2 and that allowed areas to revise their SIPs to no longer require certain programs as they applied for purposes of the 1-hour NAAQS; new source review, section 185 penalties, and contingency plans for failure to meet RFP and attainment milestones. The decision does not affect the requirements for areas classified under subpart 2, such as the Crittenden area, to submit a base year emission inventory for the 1997 8-hour ozone NAAQS. Litigation on the Phase 2 Rule is pending before the D.C. Circuit Court of Appeals.

On November 19, 2007, ADEQ submitted both the 2002 base year emission inventory for the Crittenden County 8-hour ozone non-attainment area and the certification statement requirement that was added to the Arkansas Pollution Control and Ecology Commission's Regulation Number 19 (Regulations of the Arkansas Plan of Implementation for Air Pollution Control). These regulations require each emission inventory is to be accompanied by a certifying statement attesting that the information contained in the inventory is true and accurate to the best knowledge of the certifying official.

IV. What Is EPA's Evaluation of the Revision?

EPA has reviewed the revision for consistency with the requirements of EPA regulations. A summary of EPA's analysis is provided below. For a full discussion of our evaluation, please see our TSD.

A. Crittenden County Has an Approvable Base Year Emissions Inventory

CAA sections 172(c)(3) and 182(a)(1) require an inventory of actual emissions from all sources of relevant pollutants in the nonattainment area. EPA strongly recommended using 2002 as the base year emissions inventory. Arkansas has developed a 2002 base year inventory for the Crittenden County nonattainment area. The 2002 base year emissions inventory includes all point, area, non-road mobile, and on-road mobile source emissions in all of Crittenden County. EPA has determined that the inventory was developed in accordance with EPA guidelines, and that the revised 2002 base year emission inventory is approvable. For more information, see the TSD for this section. Table 1 lists the emissions inventory for the Crittenden County area. For more detail on how emissions inventories were estimated, see the Technical Support Document.

Table 1—Base Year Emissions Inventory in Tons per Day (TPD)

Source category	VOC	NOX	CO
Point	2.21	1.05	0.35
Non-Point	7.66	0.84	61.34
On-Road	5.13	7.61	64.57
Non-Road	2.71	11.99	18.02
County total	17.71	21.49	144.28

B. The Arkansas Emissions Statement Regulation Is Approvable

CAA section 182(a)(3)(B) calls for the SIP to require that owners or operators of each stationary source of NO_X and VOC in an ozone non-attainment area submit an annual emissions statement. The emissions statement must show the actual emissions of NO_X or VOC and contain a certification that the information contained in the statement is accurate to the best knowledge of the individual certifying the statement.

Arkansas revised Regulation 19, Chapter 7 (Sampling, Monitoring, and Reporting Requirements), to require emissions statements. Regulation 19.705(D) states, “Each emission inventory is to be accompanied by a certifying statement, signed by the owner(s) or operator(s) and attesting that the information contained in the inventory is true and accurate to the best knowledge of the certifying official. The certification shall include the full name, title, signature, date of signature, and telephone number of the certifying official.” This revision is a statewide rule, applying to all counties in Arkansas, not just Crittenden County.

By requiring the owner or operator of each stationary source to submit annual emissions statements of emissions of NO_X and VOCs, the revision to Regulation 19.705 meets the requirements of CAA section 182(a)(3)(B).

V. 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 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 March 16, 2009. 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 in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Volatile organic compounds

Dated: December 24, 2008.

Richard E. Greene,

Regional Administrator, Region 6.

40 CFR part 52 is 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. Section 52.170 is amended as follows:

a. The table in paragraph (c) entitled “EPA Approved Regulations in the Arkansas SIP” is amended by revising the entry for Reg. 19.705;

b. Paragraph (e) is amended by adding a new table entitled “EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP” and an entry for the Crittenden County Emissions Inventory.

The revision and addition reads as follows:

§ 52.170

Identification of plan.

* * * * *

(c) * * *

EPA Approved Regulations In the Arkansas SIP

State citation	Title/subject	State submittal/effective date	EPA approval date	Comments
*         *         *         *         *         *         *
Reg. 19.705	Recordkeeping and Reporting Requirements	6/22/07	1/15/09 [Insert FR page number where document begins]
*         *         *         *         *         *         *

(e) * * *

* * * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures In the Arkansas SIP

Name of SIP provision	Applicable geographic or non-attainment area	State approval/submittal date	EPA approval date	Comments
Emissions Inventory for Crittenden County	Crittenden County	6/22/07	1/15/09 [Insert FR page number where document begins]

Footnotes

1.  The Emissions Statement portion of the revision is a statewide rule applying to all counties in Arkansas.

2.  EPA issued a revised 8-hour ozone standard on March 27, 2008 (73 FR 16436). The designation and implementation process for that standard is just starting and does not affect EPA's action here.