Control Strategy: Ozone; Tennessee

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[TN-167-1-9702; FRL-5637-1]

Control Strategy: Ozone; Tennessee

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving an exemption request from the oxides of

nitrogen (NOX) reasonably available control technology (RACT) and

conformity requirements of the Clean Air Act as amended in 1990 (CAA)

for the five county Middle Tennessee (Nashville) moderate ozone

(O3) nonattainment area. The request for a NOX RACT and

conformity exemption was submitted on March 21, 1995, by the State of

Tennessee through the Tennessee Department of Environment and

Conservation (TDEC). The exemption request is based upon the most

recent monitoring data, which demonstrate that additional reductions of

NOX would not contribute to attainment of the National Ambient Air

Quality Standards (NAAQS). EPA initially published a direct-final rule

on July 11, 1996, approving this request. Due to the receipt of adverse

comments, EPA withdrew the direct-final rule on September 6, 1996. This

document addresses those comments received and grants final approval to

the exemption request.

EFFECTIVE DATE: This final rule is effective October 23, 1996.

ADDRESSES: A copy of the exemption request is available for inspection

at the following locations (it is recommended that you contact William

Denman at (404) 562-9030 before visiting the Region 4 office).

United States Environmental Protection Agency; Air, Pesticides, and

Toxics Management Division; Air Planning Branch; Regulatory Planning

Section; 100 Alabama Street SW., Atlanta, Georgia 30303.

Tennessee Department of Environment and Conservation, Division of Air

Pollution Control, L & C Annex, 9th Floor, 401 Church Street,

Nashville, Tennessee 37243-1531, 615/532-0554.

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FOR FURTHER INFORMATION CONTACT: William Denman; Regulatory Planning

Section; Air Planning Branch; Air Pesticides and Toxics Management

Division; U.S. Environmental Protection Agency; 100 Alabama Street SW.,

Atlanta, Georgia 30303; (404) 562-9030. Reference file TN-167-9702.

SUPPLEMENTARY INFORMATION: The original direct-final rule approving

Tennessee's NOX RACT exemption request was published on July 11,

1996, (61 FR 36502) and provided for a thirty day public comment period

which expired on August 12, 1996. Also, on July 11, 1996, a notice of

proposed rulemaking for the NOX RACT exemption was published (61

FR 36534). On August 12, 1996, the New York State Department of

Environmental Conservation, the Citizens Commission for Clean Air in

the Lake Michigan Basin, and the American Lung Association of Tennessee

submitted adverse comments. As a result, a Federal Register document

was published on September 6, 1996, withdrawing the direct-final

action. In this document, EPA is taking final action on the exemption

request and is addressing public comments received on the original

direct-final action. The comments received and EPA's responses are

given below.

1. The commenter disagrees with EPA viewing the NOX exemption

as non-controversial and taking the direct-final approach to approve

the exemption. This view results from the perception that EPA is not

granting NOX exemptions until the New York State's petition for

review is decided by the 7th Circuit or settled by the parties.

EPA Response

The approval of this NOX exemption was published as a direct-

final notice because Region 4 felt that all major comments regarding

NOX exemptions had been made on previous actions. These major

comments along with the EPA responses were restated in the direct-final

rule. The public was in no way impeded from comments under the direct-

final format. The other option for approval was to issue only a

proposal notice, and then publish a final notice addressing comments.

The only difference in the direct-final approach is that, due to the

possibility of receiving adverse comments, EPA had simultaneously

published a notice of proposed rulemaking, and after withdrawing the

direct-final rule now publishes this document as the final rule. EPA

has not decided to withhold action on NOX exemptions until the

results of the New York State petition for review before the 7th

Circuit are decided.

2. The commenter believes EPA's approval of the Middle Tennessee

NOX exemption request conflicts with section 110(a)(2)(D) of the

Clean Air Act because it fails to consider the effects that such action

will have on downwind areas. The commenter also believes this action is

inconsistent with efforts being taken on state, regional, and national

levels to address the problem of transport of NOX and ozone and

that EPA's ``clean data'' policy fails in that it does not address

problems of long range transport of ozone.

EPA Response

The requirements for redesignation to attainment of the ozone

standard do not currently require areas to address long-range

transport. Therefore, since Tennessee's SIP has been determined to

contain adequate regulations for continued attainment of the ozone

standard and their redesignation request has been determined to meet

all the redesignation requirements, Tennessee has met the necessary

criteria to be redesignated to attainment. With respect to the

requirements under Section 110(a)(2)(D) of the Act, EPA does not

believe, nor has the commenter provided any evidence, that granting a

NOX exemption to the Middle Tennessee area will contribute

significantly to nonattainment of the ozone standard in another state,

or interfere with maintenance of the ozone standard. The matter of long

range transport of ozone, NOX and volatile organic compounds is

still under study by EPA.

3. The commenter does not believe the NOX and VOC programs

currently in place in Middle Tennessee are adequate to maintain the

``clean data'' trend for the nonattainment area.

EPA Response

The Nashville ozone nonattainment area has ambient monitoring data

that show no violations of the ozone standard during the period of 1992

through 1995 and to date in 1996. EPA has determined that the

maintenance plan and contingency measures for the Nashville area are

adequate to ensure the attainment of the national ambient air quality

standard for ozone. In a separate notice published on July 29, 1996,

(61 FR 39326) EPA approved regulations providing for NOX controls

which Tennessee either imposed on major sources prior to attaining the

ozone standard or controls which Tennessee used to demonstrate future

maintenance of the ozone standard. It should be noted that all major

NOX sources in the area are regulated by the Tennessee regulation

for the control of NOX. This NOX RACT exemption merely

exempts the sources from meeting federal NOX RACT requirements.

4. The commenter believes that instead of decreasing the focus on

nitrogen oxides, recent comprehensive studies indicate we should be

increasing efforts to control NOX as a more effective strategy for

controlling ozone in the urban and rural areas of the South. The

commenter believes the control of ozone may not be possible without a

stronger focus on nitrogen oxides.

EPA Response

As stated previously, the Middle Tennessee ozone nonattainment area

attained the national ambient air quality standard for ozone for the

three year period 1992 through 1994, including 1995, and has continued

to maintain the standard to date. Therefore, not only is the control of

ozone in this area possible without a stronger focus on nitrogen

oxides, it has been demonstrated since the 1992-1994 attainment period.

5. The commenter believes that the Middle Tennessee Ozone Study

Network does not accurately indicate actual ozone and ozone precursor

emissions concentrations in the Middle Tennessee moderate ozone

nonattainment area.

EPA Response

The Ozone Study Network was not developed for the purpose of

determining attainment or nonattainment of the ozone standard. The

monitoring network developed and used for the purpose of monitoring

attainment or nonattainment ozone levels in the Middle Tennessee ozone

nonattainment area meets the requirements of 40 CFR Part 58 and

therefore meets the ozone redesignation requirements.

6. The commenter suggests that EPA should reconsider the Middle

Tennessee NOX exemption request, relying upon ambient ozone

monitoring data collected in 1992, 1993, and 1994, and review the

Southern Oxidant Study 1995 Nashville Intensive Ozone Field Study, and

Ozone Transport Assessment Group (OTAG) efforts to characterize,

examine, and make regional control recommendations addressing the

transport of ozone and ozone precursor emissions. Additionally, the

USEPA should await the successful implementation of a ``super-

regional'' NOX strategy prior to approval of the NOX

exemption and must review the

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Southern Oxidant Study 1995 Nashville Intensive study and reconcile its

results with this NOX exemption request.

EPA Response

Section 182(f) of the Clean Air Act does not require States to take

into account future findings of studies nor future efforts of

workgroups when applying for a NOX exemption. EPA believes

Tennessee has met the necessary requirements and has demonstrated

through attaining and continued maintenance of the ozone standard for

the years 1992 to 1996 that additional NOX controls are not

necessary to meet the national ambient air quality standard for ozone.

7. The ambient monitoring data is suspect due to a sparse ozone

monitoring network that consistently fails to accurately monitor

elevated ozone concentrations in the Middle Tennessee ozone

nonattainment area.

EPA Response

States with areas required to have monitoring networks must meet

the requirements of 40 CFR Part 58. EPA has determined that Tennessee's

monitoring network meets these requirements. The commenter mentions

that on July 12, 1995, during the 1995 Nashville Intensive Ozone Field

Study, a Southern Oxidant Study monitor recorded higher levels than the

official ozone monitors in the area. The monitoring networks are

designed to provide data representative of an entire area's ozone

concentration. However, ozone is not distributed evenly throughout the

atmosphere and therefore, an infinite number of monitors would be

required to determine the exact concentration of ozone at all points.

8. Under 182(f), the Administrator is authorized to waive NOX

RACT and NOX conformity requirements if the Administrator

determines that ``net air quality benefits are greater in the absence

of reductions of oxides of nitrogen from the sources concerned,'' or if

``additional reductions of oxides of nitrogen would not contribute to

attainment of the national ambient air quality standards for ozone in

the area''. The EPA submitted The Role of Ozone Precursors in

Tropospheric Ozone Formation and Control in July 1993, to meet the 185B

requirement of the Clean Air Act. The Administrator must consider the

185B report in evaluating 182(f) NOX exemption requests.

EPA Response

The middle Tennessee area has three years of attainment data for

1992, 1993, and 1994, and has continued to attain the standard to date

in 1996. Therefore, it is obvious that ``additional reductions of

oxides of nitrogen would not contribute to attainment of the national

ambient air quality standards for ozone in the area'', since the area

continues to attain the ozone standard. Therefore, it meets the 182(f)

requirement. Under section 185B, the Administrator is not required to

consider the report in evaluating the 182(f) NOX exemption.

9. Approval of the 182(f) NOX exemption request will have an

adverse impact on visibility in the Great Smoky Mountains National Park

and the Shenandoah National Park, adversely affect the health of

wildlife and fauna in these Class I areas, and should be reevaluated.

EPA Response

Tennessee has adopted and submitted to EPA regulations intended to

meet the visibility protection requirements of the CAA. EPA will act on

this submittal in a separate notice. EPA does not have the authority

under the CAA to regulate NOX for the purpose of visibility using

the requirements intended for meeting the ozone standard. The CAA

provides separate regulations to protect visibility in Class I areas.

Final Action

The EPA is today approving Tennessee's request to exempt the Middle

Tennessee moderate O3 nonattainment area from the section 182(f)

NOX RACT and NOX conformity requirements. Due to the receipt

of adverse public comments, the original approval of this request was

withdrawn on September 6, 1996. The original proposal notice published

on July 11, 1996, proposed the rule for approval and provided for a

thirty-day public comment period. Therefore, an additional comment

period is not required. This approval is based upon the evidence

provided by Tennessee showing compliance with the requirements outlined

in the CAA and in applicable EPA guidance. EPA feels all comments

received have been adequately addressed and is therefore proceeding

with approval of this action.

This action is not a SIP revision and is not subject to the

requirements of section 110 of the CAA. The authority to approve or

disapprove exemptions from NOX requirements under section 182 of

the CAA was delegated to the Regional Administrator from the

Administrator in a memo dated July 6, 1994, from Jonathan Cannon,

Assistant Administrator, to the Administrator, titled, ``Proposed

Delegation of

Authority: `Exemptions from Nitrogen Oxide Requirements Under Clean

Air Act section 182(f) and Related Provisions of the Transportation and

General Conformity Rules' Decision Memorandum.'' This action will be

effective on October 23, 1996.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

A. Executive Order 12866

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a

July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for

Air and Radiation. The Office of Management and Budget (OMB) has

exempted this regulatory action from E.O. 12866 review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. section 603 and

604. Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

Granting the NOX RACT exemption makes less burdensome the

requirements on those small entities in middle Tennessee that are

regulated under the State's ozone control plan. Accordingly, the

Administrator hereby certifies that this action will not have a

significant economic impact on a substantial number of small entities.

C. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

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achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule.

EPA has determined that the approval action does not include a

Federal mandate that may result in estimated costs of $100 million or

more to either State, local, or tribal governments in the aggregate, or

to the private sector. This Federal action approves pre-existing

requirements under State or local law, and imposes no new Federal

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

D. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) added by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA submitted 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 General

Accounting Office prior to publication of the rule in today's Federal

Register. This rule is not a ``major rule'' as defined by 5 U.S.C.

section 804(2).

E. Petitions for Judicial Review

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 December 23, 1996. 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, Intergovernmental

relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping

requirements.

Dated: October 7, 1996.

A. Stanley Meiburg,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401-7671q.

Subpart RR--Tennessee

2. Section 52.2237 is added to read as follows:

Sec. 52.2237 NOX RACT and NOX Conformity Exemption.

Approval. EPA is approving the section 182(f) oxides of nitrogen

(NOX) reasonably available control technology (RACT) and NOX

conformity exemption request submitted by the Tennessee Department of

Environment and Conservation on March 21, 1995, for the five county

middle Tennessee (Nashville) ozone moderate nonattainment area. This

approval exempts the area from implementing federal NOX RACT on

major sources of NOX and exempts Tennessee from NOX

conformity. This approval does not exempt sources from any State

required or State Implementation Plan (SIP) approved NOX controls.

If a violation of the ozone NAAQS occurs in the area, the exemption

from the requirement of section 182(f) of the CAA in the applicable

area shall not apply.

[FR Doc. 96-26875 Filed 10-22-96; 8:45 am]

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