2010-6343. 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 ...

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 of the 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 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 (NO_X) 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 [phone] or via electronic mail at [e-mail].

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 NO_X 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 NO_X 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 NO_X 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 NO_X 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 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 NO_X 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 NO_X 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 NO_X 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 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.

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 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:

§ 52.170

Identification of plan.

* * * * *

(e) * * *

* * * * *

EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP

Name of SIP provision	Applicable geographic or nonattainment area	State submittal/ effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
8-Hour Ozone Maintenance plan for the Crittenden County, Arkansas Area	Crittenden, Shelby County	2/26/2009	3/24/2010 [Insert FR page where document begins]

PART 81—[AMENDED]

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 a		Category/classification
	Date 1	Type	Date 1	Type
	*         *         *         *         *         *         *
Memphis, TN-AR: (AQCR Metropolitan Memphis Interstate) Crittenden County	(3)	Attainment	(3)
	*         *         *         *         *         *         *
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.

* * * * *