[Federal Register Volume 74, Number 88 (Friday, May 8, 2009)]
[Rules and Regulations]
[Pages 21550-21554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10683]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0043; FRL-8901-8]


Finding of Failure To Submit State Implementation Plans Required 
for the 1997 8-Hour Ozone National Ambient Air Quality Standard; North 
Carolina and South Carolina

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking a final action finding that North Carolina and 
South Carolina have failed to submit state implementation plan (SIP) 
revisions to satisfy certain requirements of the Clean Air Act (CAA) 
for the 1997 8-hour ozone national ambient air quality standards 
(NAAQS). The submissions at issue were due because the Charlotte bi-
state area (Charlotte Area), which includes areas in both North and 
South Carolina, is a moderate nonattainment area for the 1997 8-hour 
ozone standard. Under the CAA and EPA's implementing regulations, 
states with nonattainment areas classified as moderate, serious, severe 
or extreme were required to submit by June 15, 2007, SIPs: 
demonstrating how each nonattainment area would attain the 1997 8-hour 
ozone standard as expeditiously as practicable but no later than the 
applicable dates established in the implementing regulations and 
demonstrating reasonable further progress (RFP). Additionally, states 
were required by September 15, 2006, to submit for these same areas, 
SIPs demonstrating that sources specified under the CAA were subject to 
reasonably available control technology requirements (RACT). North 
Carolina and South Carolina made these required submissions but later 
withdrew the attainment demonstration submissions for the Charlotte 
Area. As a result, EPA is making a finding of failure to submit for 
both North Carolina and South Carolina of the attainment demonstrations 
for the Charlotte Area.

DATES: Effective Date: This action is effective on May 8, 2009.

FOR FURTHER INFORMATION CONTACT: General questions concerning this 
notice should be addressed to Mr. Richard A. Schutt, U.S. EPA Region 4; 
e-mail: [email protected]; telephone (404) 562-9033.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Statutory Requirements
III. Consequences of Findings of Failure To Submit
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    The CAA requires states with areas that are designated 
nonattainment for the 1997 8-hour ozone NAAQS to develop a SIP 
providing how such areas will attain and maintain the NAAQS. Part D of 
title I of the CAA specifies the required elements of a SIP for an area 
designated nonattainment. These requirements include, but are not 
limited to, RFP, RACT, and an attainment demonstration. See CAA 
sections 172 and 182. On March 24, 2008, EPA published a final rule in 
the Federal Register announcing that EPA had found that 11 states 
failed to make required SIP submissions for 11 nonattainment areas and 
3 states or portions of states in the Ozone Transport Region. 73 FR 
15416. At that time, EPA was in receipt of the required submissions 
from North Carolina and South Carolina for RFP, RACT and an attainment 
demonstration. However, both North Carolina and South Carolina have 
since withdrawn their attainment demonstration submittals, thus 
resulting in their failure to submit a required SIP.
    EPA received the required submittals from North Carolina on June 
15, 2007, and South Carolina on August 31, 2007. EPA reviewed the 
submittals, as well as air quality data from the ozone season in 2007 
and, more recently, preliminary

[[Page 21551]]

data from the ozone season in 2008. After undertaking this review, EPA 
sent North Carolina and South Carolina letters on November 17, 2008, 
explaining its intention to propose disapproval of the attainment 
demonstrations for the Charlotte Area for the 1997 8-hour ozone 
standard by January 9, 2009, unless the States requested voluntary 
reclassification from moderate to serious. EPA's letter was prompted by 
air quality data for the area which indicates that the area will be 
unable to meet the latest moderate area attainment date of June 2010, 
which was the attainment date relied on in the submitted attainment 
demonstrations. On December 19, 2008, and December 22, 2008, the states 
of North Carolina and South Carolina, respectively, submitted letters 
to EPA withdrawing their attainment demonstrations for the Charlotte 
area. As such, EPA no longer has pending before it the required 
attainment demonstrations for the 1997 8-hour ozone standard for either 
the North Carolina or South Carolina portion of the Charlotte Area. 
Therefore, EPA is now making a finding of failure to submit for North 
Carolina and South Carolina for these required SIPs. Specifically, this 
finding is for the attainment demonstration requirement found in 
sections 172, 182(b), of the CAA, and 40 CFR 51.112 and 40 CFR 51.908 
(c) and (d), of EPA's implementing regulations.
    On January 9, 2009, letters were sent to North Carolina and South 
Carolina informing them that as a result of the withdrawal of their 
attainment demonstrations, EPA would be moving forward with a finding 
of failure to submit the attainment demonstration SIP elements. On 
January 9, 2009, EPA also sent the Catawba Indian Nation a letter 
informing them of this pending EPA action. The Catawba Indian Nation 
has land that is included in York County, South Carolina, which is 
included as part of the Charlotte Area.\1\ These letters, and any 
accompanying enclosures, have been included in the docket to this 
rulemaking.
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    \1\ The Catawba Indian Nation does not have jurisdiction over 
CAA implementation. See, e.g., 69 FR 23858, 23862 (April 30, 2004) 
(EPA 8-hour ozone classifications explaining Tribal involvement).
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II. Statutory Requirements

    On July 18, 1997, EPA issued a revised ozone standard. At that 
time, the ozone standard was 0.12 parts per million (ppm) measured over 
a 1-hour period. EPA revised the NAAQS to rely on an 8-hour averaging 
period (versus 1 hour for the previous NAAQS), and the level of the 
standard was changed from 0.12 ppm to 0.08 ppm (62 FR 38856). EPA's 
initial implementation strategy for the 1997 8-hour standard was 
vacated and remanded by the Supreme Court. Whitman v. American Trucking 
Associations, Inc., 531 U.S. 457 (2001). On April 30, 2004 (69 FR 
23951) and on November 29, 2005 (70 FR 71612), EPA published final 
rules that addressed the elements related to implementation of the 1997 
8-hour ozone NAAQS (Phase 1 and Phase 2 Implementation Rules). In an 
April 30, 2004, rulemaking (69 FR 23858), EPA designated attainment and 
nonattainment areas for the 1997 8-hour ozone standard, and specified 
the classification for each nonattainment area. The 1997 8-hour ozone 
designations took effect on June 15, 2004. The November 30, 2005, Phase 
2 implementation rule set forth deadlines for state and local 
governments to develop and submit to EPA implementation plans designed 
to meet the 1997 8-hour standard by reducing air pollutant emissions 
contributing to ground-level ozone concentrations. The Phase 2 Rule 
required states with nonattainment areas to submit SIPs by June 15, 
2007, demonstrating how each nonattainment area would attain the 1997 
8-hour ozone standard as expeditiously as practicable, but no later 
than specified dates and demonstrating how the area would make 
reasonable further progress toward attainment in the years prior to the 
attainment year. Additionally, the Phase 2 Rule required states to 
submit SIPs requiring RACT for nonattainment areas and for areas within 
the OTR by September 15, 2006.

III. Consequences of Findings of Failure To Submit

    The CAA establishes specific consequences if EPA finds that a state 
has failed to submit a SIP or, with regard to a submitted SIP, EPA 
determines it is incomplete or disapproves it. CAA section 179(a)(1). 
Additionally, any of these findings also triggers an obligation for EPA 
to promulgate a Federal Implementation Plan (FIP) if the states have 
not submitted, and EPA has not approved the required SIP within 2 years 
of the finding. CAA section 110(c). The first finding, that a state has 
failed to submit a plan or one or more elements of a plan required 
under the CAA, is the finding relevant to this action.
    EPA is finding that North Carolina and South Carolina have failed 
to make required attainment demonstration SIP submissions for the 
Charlotte Area. If EPA has not affirmatively determined that North 
Carolina and South Carolina have made the required complete submittals 
for the area within 18 months of the effective date of this action, 
pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the offset 
sanction identified in CAA section 179(b)(2) will apply in the area 
subject to the finding.\2\ The highway funding sanction will apply six 
months after the offset sanctions applies if EPA has not determined 
that the states submitted complete attainment demonstration submittals 
within that time. The sanctions clock will stop and the sanctions will 
not take effect if, within the required timeframe after the date of the 
finding, EPA finds that the States have made complete attainment 
demonstration submittals. In addition, we note that if the area is 
reclassified to serious or above for the 1997 8-hour standard, the area 
will then have a new attainment demonstration requirement for its new 
classification and such reclassification would stop the sanction clock 
triggered for the moderate area attainment demonstration.
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    \2\ If EPA has not affirmatively determined that the state has 
made a complete submission within 6 months after the offset sanction 
is imposed, then the highway funding sanction will apply in areas 
designated nonattainment, in accordance with CAA section 179(b)(1) 
and 40 CFR 52.31. If the highway funding sanction is implemented, 
the conformity status of the transportation plans and transportation 
improvement programs will lapse on the date of implementation of the 
highway sanctions. During a conformity lapse, only projects that are 
exempt from transportation conformity, transportation control 
measures that are in the approved SIP, and project phases that were 
approved prior to the start of the lapse can proceed.
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    In addition, this finding triggers EPA's FIP obligation. However, 
EPA is not required to promulgate a FIP if the States make the required 
SIP submittals and EPA takes final action to approve the submittals 
within 2 years of EPA's finding. Additionally, if the area is 
reclassified for the 1997 ozone standard, EPA would be relieved of the 
FIP obligation.

IV. Final Action

    In this action, EPA is making a finding that North Carolina and 
South Carolina have failed to submit the required moderate-area 
attainment demonstration SIP submittals for the Charlotte Area for the 
1997 8-hour ozone standard. This finding starts the sanctions clock and 
a 24-month clock for the promulgation of a FIP by EPA. This action will 
be effective on May 8, 2009.

[[Page 21552]]

V. Statutory and Executive Order Reviews

A. Notice and Comment Under the Administrative Procedure Act (APA)

    This is a final EPA action, but is not subject to notice-and-
comment requirements of the APA, 5 U.S.C. 553(b). EPA believes that 
because of the limited time provided to make findings of failure to 
submit regarding SIP submissions, Congress did not intend such findings 
to be subject to notice-and-comment rulemaking. However, to the extent 
such findings are subject to notice-and-comment rulemaking, EPA invokes 
the good cause exception pursuant to the APA, 5 U.S.C. 553(b)(3)(B). 
Notice and comment are unnecessary because no EPA judgment is involved 
in making a nonsubstantive finding of failure to submit elements of SIP 
submissions required by the CAA. Furthermore, providing notice and 
comment would be impracticable because of the limited time provided 
under the statute for making such determinations. Finally, notice and 
comment would be contrary to the public interest because it would 
divert agency resources from the critical substantive review of 
complete SIPs. See 58 FR 51270, 51272, n.17 (October 1, 1993); 59 FR 
39832, 39853 (August 4, 1994).

B. Effective Date Under the APA

    This action will be effective on May 8, 2009. Under the APA, 5 
U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days 
after the date of publication in the Federal Register if the agency has 
good cause to specify an earlier effective date. This action concerns 
SIP submissions that are already overdue; and EPA previously cautioned 
the affected states that the SIP submissions were overdue and that EPA 
was considering taking this action. In addition, this action simply 
starts a ``clock'' that will not result in sanctions against the states 
for 18 months, and that the states may ``turn off'' through the 
submission of complete SIP submittals. These reasons support an 
effective date prior to 30 days after the date of publication.

C. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order. The Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is not a ``significant regulatory action'' 
because none of the above factors apply. As such, this final rule was 
not submitted to OMB for review.

D. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
This rule relates to the requirement in the CAA for states to submit 
SIPs under section Part D of title I of the CAA to satisfy elements 
required for the 1997 8-hour ozone NAAQS. The present final rule does 
not establish any new information collection requirement. Burden means 
that total time, effort, or financial resources expended by persons to 
generate, maintain, retain, or disclose or provide information to or 
for a Federal agency. This includes the time needed to review 
instructions; develop, acquire, install, and utilize technology and 
systems for the purposes of collecting, validating, and verifying 
information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information. An Agency may not conduct or 
sponsor, and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations in the CFR are listed in 
40 CFR part 9.

E. Regulatory Flexibility Act (RFA)

    This final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the APA or any other statute. This rule is not subject to notice and 
comment requirements under the APA or any other statute because 
although the rule is subject to the APA, the Agency has invoked the 
``good cause'' exemption under 5 U.S.C. 553(b), therefore it is not 
subject to the notice and comment requirement.

F. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on state, local and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandate'' that 
may result in expenditures to state, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small government on compliance with 
regulatory requirements. This action

[[Page 21553]]

does not include a Federal mandate within the meaning of UMRA that may 
result in expenditures of $100 million or more in any 1 year by either 
state, local, or Tribal governments in the aggregate or to the private 
sector, and therefore, is not subject to the requirements of sections 
202 and 205 of the UMRA. It does not create any additional requirements 
beyond those of the 1997 8-hour ozone NAAQS (62 FR 38652; 62 FR 38856, 
July 18, 1997), therefore, no UMRA analysis is needed. EPA has 
determined that this action is not a Federal mandate. The CAA 
provisions require states to submit SIPs. This notice merely provides a 
finding that the States at issue have not met the requirement to submit 
certain SIPs and begins a clock that could result in the imposition of 
sanctions if the states continue to not meet this statutory obligation. 
This notice does not, by itself, require any particular action by any 
state, local, or Tribal government; or by the private sector. For the 
same reasons, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The EPA believes that any new controls imposed as a result 
of this action will not cost in the aggregate $100 million or more 
annually. Thus, this Federal action will not impose mandates that will 
require expenditures of $100 million or more in the aggregate in any 1 
year.

G. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, or the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.'' This final 
rule does not have federalism implications. It will 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. The CAA establishes the scheme 
whereby states take the lead in developing plans to meet the NAAQS and 
the Federal Government acts as a backstop where states fail to take the 
required actions. This rule will not modify the relationship of the 
states and EPA for purposes of developing programs to implement the 
NAAQS. Thus, Executive Order 13132 does not apply to this rule.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' EPA has concluded that this 
final rule will not have Tribal implications. It will neither impose 
substantial direct compliance costs on Tribal governments, nor preempt 
Tribal law. This rule responds to the requirement in the CAA for states 
to submit SIPs to satisfy the nonattainment area requirements of the 
CAA for the 1997 8-hour ozone NAAQS. The CAA requires states with areas 
that are designated nonattainment for the NAAQS to develop a SIP 
describing how the state will attain and maintain the NAAQS. There are 
Tribal governments within certain nonattainment areas for which this 
rule turns on a sanctions clock. However, this rule does not have 
Tribal implications because it does not impose any compliance costs on 
Tribal governments nor does it preempt Tribal law. The rule 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).

I. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not subject to the Executive Order because it is not 
economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children. This action should reduce the levels 
of harmful pollutants in the air that should reduce harmful effects on 
children.

J. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. In this action, 
EPA is finding that several states have failed to submit SIPs to 
satisfy certain nonattainment area requirements of the CAA for the 1997 
8-hour ozone NAAQS.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this final 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not directly affect the level of protection provided to human 
health or the environment. This notice finds that certain states have 
not met the requirement to submit one or more SIPs and begins a clock 
that could result in the imposition of sanctions if the states continue 
to not meet this statutory obligation. If the states fail to submit the 
required SIPs or if they submit SIPs that EPA cannot approve, then EPA 
will be required to develop the plans in lieu of the states.

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L. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note) directs EPA 
to use voluntary consensus standards (VCS) in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impracticable. VCS are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by VCS bodies. The NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable VCS. This action 
does not involve technical standards. Therefore, EPA did not consider 
the use of any VCS.

M. Congressional Review Act

    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). This rule will be effective May 8, 2009.

N. Judicial Review

    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 District of Columbia Circuit Court within 60 days from the date 
final action is published in the Federal Register. 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 
must be filed, and shall not postpone the effectiveness of such rule or 
action. Thus, any petitions for review of this action making findings 
of failure to submit attainment demonstration SIPs for the Charlotte 
Area, must be filed in the Court of Appeals for the District of 
Columbia Circuit within 60 days from the date final action is published 
in the Federal Register.

List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: April 29, 2009.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. E9-10683 Filed 5-7-09; 8:45 am]
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