[Federal Register Volume 78, Number 96 (Friday, May 17, 2013)]
[Rules and Regulations]
[Pages 29027-29032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11677]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2013-0044 (a); FRL-9814-5 ]
Approval and Promulgation of Implementation Plans; Tennessee;
Transportation Conformity Revisions
AGENCY: Environmental Protection Agency.
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a State
Implementation Plan (SIP) revision submitted by the State of Tennessee,
through the Tennessee Department of Environment and Conservation
(TDEC),
[[Page 29028]]
Bureau of Environment, Air Pollution Control Division (APCD), on July
12, 2012. This revision consists of updates to transportation
conformity criteria and procedures related to interagency consultation
and enforceability of certain transportation-related control measures
and mitigation measures. The intended effect is to update the
transportation conformity criteria and procedures in the Tennessee SIP.
This action is being taken pursuant to section 110 of the Clean Air Act
(CAA or Act).
DATES: This direct final rule is effective July 16, 2013 without
further notice, unless EPA receives adverse comment by June 17, 2013.
If EPA receives such comments, it will publish a timely withdrawal of
the direct final rule in the Federal Register and inform the public
that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2013-0044 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2013-0044,'' Air Quality Modeling and
Transportation 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: Amanetta Somerville or Kelly Sheckler,
Air Quality Modeling and Transportation 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-
2013-0044.'' 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 through
www.regulations.gov or email, 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 email comment directly to EPA without
going through www.regulations.gov, your email 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 Air Quality Modeling and Transportation 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
federal holidays.
FOR FURTHER INFORMATION CONTACT: Amanetta Somerville or Kelly Sheckler,
Air Quality Modeling and Transportation 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. Ms. Somerville's telephone number is 404-562-9025. She can
also be reached via electronic mail at [email protected]. Ms.
Sheckler's telephone number is 404-562-9222. She can also be reached
via electronic mail at [email protected]. mailto:
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Transportation Conformity
II. Background for this Action
A. Federal Requirements
B. Tennessee State Rule
C. Chattanooga Conformity SIP
D. Clarksville-Hopkinsville Conformity SIP
E. Knoxville Conformity SIP
F. Memphis Conformity SIP
III. State Submittal and EPA Evaluation
IV. Final Action
V. Statutory and Executive Order Reviews
I. Transportation Conformity
Transportation conformity (hereafter referred to as ``conformity'')
is required under section 176(c) of the CAA to ensure that federally
supported highway projects, transit projects, and other activities are
consistent with (conform to) the purpose of the SIP. Conformity
currently applies to areas that are designated nonattainment, and to
areas that have been redesignated to attainment after 1990 (maintenance
areas) with plans developed under section 175A of the Act, for the
following transportation related criteria pollutants: Ozone,
particulate matter (e.g., PM2.5 and PM10), carbon
monoxide, and nitrogen dioxide.
Conformity to the purpose of the SIP means that transportation
activities will not cause new air quality violations, worsen existing
violations, or delay timely attainment of the relevant national ambient
air quality standards (NAAQS) for criteria pollutants. The
transportation conformity regulation is found in 40 CFR part 93 and
provisions related to conformity SIPs are found in 40 CFR 51.390.
II. Background for This Action
A. Federal Requirements
EPA promulgated the federal transportation conformity criteria and
procedures (``Conformity Rule'') on November 24, 1993 (58 FR 62188).
Among other things, the rule required states to address all provisions
of the conformity rule in their SIPs, frequently referred to as
``conformity SIPs.'' Under 40 CFR 51.390, most sections of the
conformity rule were required to be copied verbatim. States were also
required to tailor all or portions of the following three sections of
the conformity rule to meet their state's individual circumstances: 40
CFR 93.105, which addresses consultation procedures; 40 CFR
93.122(a)(4)(ii), which addresses written commitments
[[Page 29029]]
to control measures that are not included in a metropolitan planning
organization's (MPO's) transportation plan and transportation
improvement program that must be obtained prior to a conformity
determination, and the requirement that such commitments, when they
exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written
commitments to mitigation measures that must be obtained prior to a
project-level conformity determination, and the requirement that
project sponsors must comply with such commitments, when they exist.
On August 10, 2005, the ``Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users'' (SAFETEA-LU) was signed
into law (Public Law 109-59). SAFETEA-LU revised section 176(c) of the
CAA transportation conformity provisions. One of the changes
streamlines the requirements for conformity SIPs. Under SAFETEA-LU,
states are required to address and tailor only three sections of the
rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii),
and, 40 CFR 93.125(c), described above. In general, states are no
longer required to submit conformity SIP revisions that address the
other sections of the conformity rule. These changes took effect on
August 10, 2005, when SAFETEA-LU was signed into law.
B. Tennessee State Rule
Previously, Tennessee established a transportation conformity SIP
for the entire state. Specifically, on May 16, 2003, EPA approved a SIP
revision for the State of Tennessee which incorporated by reference 40
CFR part 93 Subpart A, and customized 40 CFR 93.105, 93.122 (a)(4)(ii),
and 93.125(c) for all of the MPOs in the entire state (68 FR 26492).
The conformity SIP revision (the subject of this rulemaking) removes
any incorporation by reference and revises the procedures for
consultation, conflict resolution and public participation to be
consistent with the SAFETEA-LU revisions to the CAA and subsequent
regulations published on January 24, 2008 (73 FR 4420).
C. Chattanooga Conformity SIP
Effective April 5, 2005, EPA designated Hamilton County in
Tennessee, Walker and Catoosa Counties in Georgia, and a portion of
Jackson County, Alabama in the tri-state Chattanooga, Tennessee-Georgia
area (hereafter referred to as the ``Chattanooga Area''), as
nonattainment for the 1997 annual PM2.5 NAAQS. See 70 FR
944. The current designation status of the Chattanooga 1997 annual
PM2.5 area is nonattainment.
The States of Georgia and Alabama have established transportation
conformity procedures for the counties that make up the Georgia and
Alabama portion of the Chattanooga Area in their individual conformity
SIPs. Tennessee's July 2012 SIP revision includes the transportation
conformity consultation, conflict resolution and public participation
procedures for Hamilton County as part of the 1997 annual
PM2.5 Chattanooga Area.
D. Clarksville-Hopkinsville Conformity SIP
Effective June 15, 2004, EPA designated Christian County, Kentucky
and Montgomery County, Tennessee in the bi-state Clarksville-
Hopkinsville, Tennessee-Kentucky area (hereafter referred to as the
``Clarksville-Hopkinsville Area''), as nonattainment for the 1997 8-
hour ozone NAAQS. See 69 FR 23857. The current designation status for
the Clarksville-Hopkinsville Area is attainment and this area has an
approved maintenance plan.
The Commonwealth of Kentucky has established conformity procedures
for Christian County that makes up the Kentucky portion of the
Clarksville-Hopkinsville Area in its individual conformity SIP.
Tennessee's July 2012 SIP revision updates the transportation
conformity consultation, conflict resolution and public participation
procedures for Montgomery County, Tennessee as part of the Clarksville-
Hopkinsville Area.
E. Knoxville Conformity SIP
Effective June 15, 2004, EPA designated 6 whole counties and a
portion of one county in the Knoxville, Tennessee area (hereafter
referred to as the Knoxville Area), as nonattainment for the 1997 8-
hour ozone NAAQS. See 69 FR 23857. The counties include Anderson,
Blount, Jefferson, Knox, Loudon and Sevier counties and a portion of
Cocke County. The current designation status of the Knoxville 1997 8-
hour ozone area is attainment, with an approved maintenance plan.
Effective April 5, 2005, EPA designated 4 whole counties and a portion
of one county in the Knoxville Area as nonattainment for the 1997
annual PM2.5 NAAQS. The counties include Anderson, Blount,
Knox, Loudon counties and a portion of Roane County. See 70 FR 944. On
November 13, 2009, EPA designated 4 whole counties and a portion of one
county in the Knoxville Area as nonattainment for the 2006 24-hour
PM2.5 NAAQS. The counties include Anderson, Blount, Knox,
Loudon counties and a portion of Roane County. See 74 FR 58688.
Effective July 20, 2012, EPA designated 1 whole county (i.e., Knox
County) and two partial counties (i.e., Blount and Anderson counties)
in the Knoxville Area as nonattainment for the 2008 8-hour ozone NAAQS.
See 77 FR 30088. The current designation status of the Knoxville Area
for 1997 annual PM2.5, 2006 24-hour PM2.5, and
the 2008 8-hour ozone NAAQS is nonattainment.
The Lakeway Area Metropolitan Transportation Planning Organization
(LAMTPO) \1\ and the Knoxville Regional Transportation Planning
Organization (KRTPO) \2\ are within the same maintenance area for the
1997 8-hour ozone NAAQS. KRTPO is the MPO for most of the Knoxville
2008 8-hour ozone area and is the MPO for most of the Knoxville 1997
PM2.5 area. For the purposes of implementing transportation
conformity for the 1997 annual PM2.5, 1997 8-hour ozone and
2008 8-hour ozone NAAQS, KRTPO served as the lead agency for the
preparation, consultation, and distribution of the conformity
determinations. Tennessee's July 2012, SIP revision updates the
transportation conformity consultation, conflict resolution and public
participation procedures for the applicable Knoxville areas in relation
to the 1997 annual PM2.5, 1997 8-hour ozone and 2008 8-hour
ozone NAAQS.
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\1\ LAMTPO is the MPO for Jefferson County.
\2\ KRTPO's planning boundary includes Knox County, and the
urbanized areas of Blount, Loudon, and Sevier counties.
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F. Memphis Conformity SIP
Effective January 6, 1992, EPA designated Shelby County in the
Memphis, Tennessee area as nonattainment for the carbon monoxide NAAQS.
See 56 FR 56694. The current designation status of the area is
attainment with an approved maintenance plan for the carbon monoxide
NAAQS. Effective June 15, 2004, EPA designated Shelby County in
Tennessee, and Crittenden County in Arkansas as nonattainment for the
1997 8-hour ozone NAAQS. See 69 FR 23857. This entire area is known as
the bi-state Memphis, Tennessee 1997 8-hour ozone area (hereafter
referred to as the bi-state Memphis Area). The current designation
status for the bi-state Memphis Area for the 1997 8-hour ozone NAAQS is
attainment with an approved maintenance plan. Effective July 20, 2012,
EPA designated 2 whole counties (i.e., Shelby County, Tennessee, and
Crittenden County, Arkansas) and one partial county (i.e., DeSoto
County, Mississippi) in the Memphis Area as
[[Page 29030]]
nonattainment for the 2008 8-hour ozone NAAQS. See 77 FR 30088.
The Memphis MPO's planning boundary includes Shelby County,
Tennessee and a portion of DeSoto County, Mississippi. For the purposes
of transportation conformity requirements related to the carbon
monoxide, 1997 8-hour ozone and 2008 8-hour ozone NAAQS, the Memphis
MPO serves as the lead agency for the preparation, consultation, and
distribution of the conformity determinations for the Tennessee and
Mississippi portions of this Area.
The State of Arkansas has established conformity procedures for
Crittenden County which makes up the Arkansas portion of the bi-state
Memphis Area in its individual conformity SIP. Mississippi is
establishing transportation conformity procedures for the portion of
Desoto County that is included in the Memphis nonattainment area for
the 2008 8-hour ozone NAAQS. Tennessee's July 2012 SIP revision updates
the transportation conformity consultation, conflict resolution and
public participation procedures for Shelby County, Tennessee as part of
the Memphis Area.
III. State Submittal and EPA Evaluation
On July 12, 2012, the State of Tennessee, through TDEC, submitted
updates to the State's transportation conformity and consultation rule
to EPA as a revision to the SIP. This SIP revision deleted the
incorporation by reference to 40 CFR 93 Subpart A, established
procedures for interagency consultation, conflict resolution and public
participation, and included provisions for control and mitigation
measures. This revised conformity SIP replaces the August 31, 2001,
rule amendment that was approved by EPA on May 16, 2003 (68 FR 26492).
The State of Tennessee developed its consultation rule based on the
elements contained in 40 CFR 93.105. As a first step, the State worked
with the existing transportation planning organization's interagency
committee that included representatives from the State air quality
agency, State Department of Transportation (DOT), United States DOT
(i.e., the Federal Highway Administration--Tennessee Division, and
Federal Transit Administration), the MPOs of the maintenance and
nonattainment areas of Tennessee, and EPA. The interagency committee
met regularly and drafted the consultation rules considering elements
in 40 CFR 93.105, and integrated the local procedures and processes
into the rule. The consultation process developed in this rule is for
the areas of Tennessee described above. In addition, the conformity SIP
includes the provision for written commitment for control measures and
mitigation measures based on 40 CFR 93.122(a)(4)(ii) and 93.125(c),
respectively. On October 20, 2009, APCD held a public hearing for the
transportation conformity rulemaking.
EPA has evaluated this SIP and has determined that Tennessee has
met the requirements of federal transportation conformity rule as
described in 40 CFR Part 51, Subpart T and 40 CFR Part 93, Subpart A.
APCD has satisfied the public participation and comprehensive
interagency consultation requirement during development and adoption of
the State Rule at the local level. Therefore, EPA is approving the rule
as a revision to the Tennessee SIP. EPA's rule requires the states to
develop their own processes and procedures for interagency consultation
among the federal, state, and local agencies and resolution of
conflicts meeting the criteria in 40 CFR 93.105. The SIP revision must
include processes and procedures to be followed by the MPO, state DOT,
and U.S. DOT in consulting with the state and local air quality
agencies and EPA before making conformity determinations. The
transportation conformity SIP revision must also include processes and
procedures for the state and local air quality agencies and EPA to
coordinate the development of applicable SIPs with MPOs, state DOTs,
and U.S. DOT.
EPA has reviewed the submittal to assure consistency with the CAA
as amended by SAFETEA-LU and EPA regulations (40 CFR Part 93 and 40 CFR
51.390) governing state procedures for transportation conformity and
interagency consultation and has concluded that the submittal is
approvable. Details of EPA's review are set forth in a technical
support document (TSD), which has been included in the docket for this
action. Specifically, in the TSD, EPA identifies how the submitted
procedures satisfy our requirements under 40 CFR 93.105 for interagency
consultation with respect to the development of transportation plans
and programs, SIPs, and conformity determinations, the resolution of
conflicts, and the provision of adequate public consultation, and the
requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for
enforceability of control measures and mitigation measures.
IV. Final Action
For the reasons set forth above, EPA is taking action under section
110 of the Act to approve the rule implementing the conformity criteria
and consultation procedures revision to the Tennessee SIP pursuant to
the CAA, as a revision to the Tennessee SIP. As a result of this
action, Tennessee's previously SIP-approved conformity procedures for
Tennessee (68 FR 26492, May 16, 2003), will be replaced by the
procedures submitted to EPA on July 12, 2012, for approval and adopted
by State of Tennessee on January 18, 2012. This action also establishes
consultation procedures for all counties in Tennessee.
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 July 16, 2013
without further notice unless the Agency receives adverse comments by
June 17, 2013.
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 July 16, 2013 and no
further action will be taken on the proposed rule. Please note that if
EPA receives adverse comment on an amendment, paragraph, or section of
this rule and if that provision may be severed from the remainder of
the rule, EPA may adopt as final those provisions of the rule that are
not the subject of an adverse comment.
V. Statutory and Executive Order Reviews
Under the CAA, 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 CAA. 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
[[Page 29031]]
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 CAA; 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by July 16, 2013. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 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,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Ozone, Particular Matter, Reporting and recordkeeping
requirements, Volatile organic compounds.
Dated: May 8, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart (RR)--(Tennessee)
0
2. In Sec. 52.2220, table 1 in paragraph (c) is amended by revising
entry for ``1200-3-34.01'' to read as follows:
Sec. 52.2220 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA Approved Tennessee Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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* * * * * * *
Section 1200-3-34-.01............ Transportation 4/17/2012 5/17/2013 [Insert
Conformity citation of
Interagency publication].
Consultation and
General Provisions.
* * * * * * *
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[FR Doc. 2013-11677 Filed 5-16-13; 8:45 am]
BILLING CODE 6560-50-P