E6-17854. Approval and Promulgation of Implementation Plans; Tennessee: Memphis/Shelby County Area Second 10-Year Maintenance Plan for the Carbon Monoxide National Ambient Air Quality Standard

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is approving a revision to the Tennessee State Implementation Plan (SIP) submitted in final form on May 17, 2006. The SIP revision provides the second 10-year maintenance plan for the Memphis/Shelby County Carbon Monoxide (CO) Maintenance Area. The second 10-year maintenance plan includes a new motor vehicle emission budget (MVEB) for CO for the year 2017. EPA is approving this SIP revision, including the new 2017 MVEB for CO, because it satisfies the requirement of the Clean Air Act (CAA) for the second 10-year maintenance plan for the Memphis/Shelby County Area.

In addition, in this rulemaking, EPA is providing information on its transportation conformity adequacy determination for the new MVEB for the year 2017 that is contained in the second 10-year CO maintenance plan for the Memphis/Shelby County Area.

DATES:

This rule is effective on December 26, 2006 without further notice, unless EPA receives adverse comments by November 24, 2006. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2006-0531, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail], or [e-mail].

3. Fax: [phone].

4. Mail: “EPA-R04-OAR-2006-0531”, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

5. Hand Delivery or Courier: Egide Louis, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

Instructions: Direct your comments to Docket ID No.: “EPA-R04-OAR-2006-0531”. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://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 through www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. 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. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI 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 in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 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 legal holidays.

FOR FURTHER INFORMATION CONTACT:

Dr. Egide Louis of the Regulatory Development Section or Ms. Lynorae Benjamin of the Air Quality Modeling and Transportation Section at the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Dr. Louis's telephone number is [phone]. He can be reached also via electronic mail at [e-mail]. Ms. Benjamin's telephone number is [phone] and her electronic mail is [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is the Background for This Action?

II. What Is EPA's Analysis of the Memphis/Shelby County Area's Second 10-Year Maintenance Plan?

III. What Is EPA's Action on the Memphis/Shelby County Area's Second 10-Year Maintenance Plan?

IV. What Is an Adequacy Determination and What Is EPA's Adequacy Determination for the Memphis/Shelby County Area's New MVEBs for the Year 2017?

V. Final Action

VI. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

In 1992, based on measured air quality data, the Memphis/Shelby County Area was able to demonstrate attainment with the CO National Ambient Air Quality Standard (NAAQS) due to numerous control measures implemented in the Memphis/Shelby County Area. As a result of the measured air quality data, Tennessee petitioned EPA for redesignation of this Area to attainment for CO. EPA redesignated the Memphis/Shelby County Area to attainment based on the measured air quality data and a 10-year maintenance plan submitted for the Memphis/Shelby County Area on July 26, 1994 (59 FR 37939).

The air quality maintenance plan is a requirement of the 1990 CAA amendments for nonattainment areas that come into compliance with the NAAQS and request redesignation, to assure their continued maintenance of that standard. Eight years after redesignation to attainment, section 175A(b) of the CAA requires the state to submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the 10 years following the initial 10-year period (this is known as the second 10-year maintenance plan). The second 10-year maintenance plan updates the original 10-year CO maintenance plan for the next 10-year period. Thus, pursuant to the CAA section 175A(b), Tennessee was required to submit the second 10-year maintenance plan for the Memphis/Shelby County Area demonstrating that it would continue to attain the CO NAAQS in this area through at least 2014.

II. What Is EPA's Analysis of the Memphis/Shelby County Area's Second 10-Year Maintenance Plan?

On May 17, 2006, the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), Air Pollution Control Division, submitted a SIP revision to EPA that provided for the second 10-year maintenance plan for the Memphis/Shelby County Area as required by section 175A(b) of the CAA. This second 10-year maintenance plan for the Memphis/Shelby County Area includes a new CO emission inventory for 1990 which reflects emission controls applicable for the Memphis/Shelby County Area, and actual and projected emissions for 1990, 2002, 2007, and 2017. The SIP revision also establishes a new MVEB for CO for 2017 for the Memphis/Shelby County Area.

The emission reduction measures for CO emissions implemented in the Memphis/Shelby County Area from 1990 to 2002, and control measures that are projected to occur between 2007 and 2017 are accounted for in the 1990 emission inventory and projected emissions estimates. Tables 1 and 2 provide emissions data and projections for CO with and without the use of an inspection and maintenance (I&M) program, respectively. The on-road mobile portion of the data was calculated with MOBILE6.2. The difference between the 1990 mobile source base year emissions for this maintenance plan and the initial maintenance plan are primarily a result of a change in the mobile emissions factor model (e.g., MOBILE6.2) that was used to develop these emissions.

 Table 1.—Memphis/Shelby Carbon Monoxide Area—Emission Inventory and Projected CO Emissions (1990-2017)—With I&M Plan

[Tons per day]

Year	Area	Non-road mobile	On-road mobile with I&M	Point	Total
1990	10.14	100.83	893.76	22.77	1027.50
2002	7.03	115.67	615.98	14.53	753.21
2007	7.42	125.85	441.15	15.35	589.77
2017	8.08	138.84	327.88	16.56	491.36

Table 2.—Memphis/Shelby County Carbon Monoxide Area—Emission Inventory and Projected CO Emissions (1990-2017)—Without I&M Plan

[Tons per day]

Year	Area	Non-road mobile	On-road mobile without I&M	Point	Total	Safety margin based on 1990 emissions
1990	10.14	100.83	893.76	22.77	1027.50	n/a
2002	7.03	115.67	654.37	14.53	791.60	235.90
2007	7.42	125.85	492.13	15.35	640.75	386.75
2017	8.08	138.84	383.33	16.56	546.81	480.69

The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Since 1990, the Memphis/Shelby County Area has not violated the CO standard for the 8-hour average concentration as shown by monitoring data in Table 3. The data also show a consistent downward trend in CO levels as a result in part of the Federal Motor Vehicle Control Program. In this SIP revision, the emissions from the year 1990 are used to calculate a new attainment emissions level for the Memphis/Shelby County Area. The emissions from point, area, non-road, and mobile sources in 1990 equal 1027.50 tons per day (tpd) of CO. These emission calculations were made using the MOBILE6.2 model and the most recent version of the nonroad model. The projected emissions, with and without I&M, are lower than the attainment level of emissions, thus demonstrating continued maintenance of the CO NAAQS.

Table 3.—Summary of Memphis/Shelby County Area Carbon Monoxide Monitoring Data

[In parts per million]

Year	CO 8-hr NAAQS	Second highest CO 8-hr average value 1
1990	9.0	8.8
1991	9.0	6.4
1992	9.0	8.2
1993	9.0	8.5
1994	9.0	8.0
1995	9.0	6.2
1996	9.0	6.3
1997	9.0	5.2
1998	9.0	5.4
1999	9.0	4.9
2000	9.0	4.4
2001	9.0	4.3
2002	9.0	3.5
2003	9.0	2.9

The safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin credit, or a portion thereof, can be allocated to the transportation sector, however, the total emission level must stay below the attainment level. The safety margin for CO was calculated as the difference between these amounts or, in this case, 480.69 tpd for 2017. The emissions are projected to maintain the Memphis/Shelby County Area's air quality consistent with the CO NAAQS.

Maintenance plans and other control strategy SIPs create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. The MVEB serves as a ceiling on emissions from an area's planned transportation system.

The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish and revise MVEBs in a SIP. In this SIP revision, the Memphis/Shelby County Area used MOBILE6.2 to establish a MVEB for CO for the year 2017. The State of Tennessee has chosen to allocate 95% of the safety margin (i.e., 456.66 tpd) to the transportation section. This MVEB is listed in Table 4.

Table 4.—Memphis/Shelby County Carbon Monoxide Maintenance Area MVEB With Safety Margin Included

	2017 Projected on-road emissions (tons per day)	Allocated safety margin	2017 MVEB with safety margin
CO	383.33	456.66	839.99

The MVEB presented in Table 4 is directly reflective of the combined on-road (or “highway”) emissions for the Memphis/Shelby County Area for CO, plus an allocation from the available safety margin (95%). After allocation of the safety margin to the MVEB, the remaining safety margin for future allocation is 24.03 tpd. In summary, the new CO MVEB for the year 2017 is 839.99 tpd.

III. What Is EPA's Action on the Memphis/Shelby County Area's Second 10-Year Maintenance Plan?

EPA is approving Tennessee's SIP revision pertaining to the Memphis/Shelby County Area's second 10-year maintenance plan for CO. Approval of the maintenance plan for Memphis/Shelby County Area is appropriate, because the State of Tennessee has demonstrated that the plan meets the requirements of section 175A as described fully in this rulemaking. Additionally, EPA is finding adequate and approving the new 2017 MVEB, submitted by Tennessee for Memphis/Shelby County, in conjunction with its maintenance plan update. Within 24 months from the effective date of this action, the transportation partners will need to demonstrate conformity to this new MVEB pursuant to 40 CFR 93.104(e).

IV. What Is an Adequacy Determination and What Is EPA's Adequacy Determination for the Memphis/Shelby County Area's New MVEB for the Year 2017?

Under Section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. Under the transportation conformity rule, at 40 CFR part 93, projected emissions from transportation plans and programs must be equal to or less than MVEBs for the area. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria and procedures for demonstrating and assuring conformity of such transportation activities to a SIP.

Until MVEBs in a SIP submittal are approved by EPA, they cannot be used for transportation conformity purposes unless EPA makes an affirmative finding that the MVEBs contained therein are “adequate.” Once EPA affirmatively finds the submitted MVEBs adequate for transportation conformity purposes, those MVEBs can be used by the State and Federal agencies in determining whether proposed transportation projects “conform” to the SIP even though the approval of the SIP revision containing those MVEBs has not yet been finalized. EPA's substantive criteria for determining “adequacy” of MVEBs in submitted SIPs are set out in EPA's Transportation Conformity Rule at 40 CFR 93.118(e)(4).

EPA's process for determining “adequacy” consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations.

Memphis/Shelby County Area's second 10-year maintenance plan submission contained a new MVEB for the year 2017. The availability of the SIP submission with the 2017 MVEB was announced for public comment on EPA's adequacy Web page on June 6, 2006, at: http://www.epa.gov/​otaq/​stateresources/​transconf/​currsips.htm. The adequacy comment period for this MVEB closed on July 6, 2006. No requests for the submittal or adverse comments were received during EPA's Adequacy Public Comment Period.

Through this rulemaking, EPA is finding adequate this 2017 MVEB for use to determine transportation conformity because this MVEB meets the adequacy criteria contained in the Transportation Conformity Rule. The 2017 MVEB for CO for the Memphis/Shelby County Area is 839.99 tpd.

V. Final Action

EPA is approving the aforementioned changes to the SIP. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective December 26, 2006 without further notice unless the Agency receives adverse comments by November 24, 2006.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 26, 2006 and no further action will be taken on the proposed rule.

VI. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely affects the status of a geographical area, does not impose any new requirements on sources or allow a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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
• Carbon monoxide
• Intergovernmental relations
• Ozone
• Reporting and recordkeeping requirements

Dated: October 6, 2006.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

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 RR—Tennessee

2. Section 52.2220(e) is amended by adding a new entry at the end of the table for “Carbon Monoxide Second 10-Year Maintenance Plan for the Memphis/Shelby County Area” to read as follows:

§ 52.2220

Identification of plan.

* * * * *

(e) * * *

EPA-Approved Tennessee Non-Regulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Carbon Monoxide Second 10-Year Maintenance Plan for the Memphis/Shelby County Area	Memphis/Shelby	5/10/2006	10/25/2006 [Insert first page of publication].