[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63995-63999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28967]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R04-OAR-2009-0338-200908; FRL-9089-1]


Approval and Promulgation of Implementation Plans and 
Designations of Areas for Air Quality Planning Purposes; North 
Carolina: Redesignation of Great Smoky Mountains National Park 1997 8-
Hour Ozone Nonattainment Area to Attainment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a request submitted on 
July 24, 2009, from the State of North Carolina, through the North 
Carolina Department of Environment and Natural Resources (NCDENR), 
Division of Air Quality (DAQ), to redesignate the Great Smoky Mountains 
National Park (GSMNP) 1997 8-hour ozone nonattainment area (herein 
referred to as the ``GSMNP Area'') to attainment for the 1997 8-hour 
ozone national ambient air quality standards (NAAQS). The GSMNP Area 
for the 1997 8-hour ozone standard is comprised of portions of Haywood 
and Swain Counties in North Carolina. EPA's approval of the 
redesignation request is based on the determination that the GSMNP Area 
has met the criteria for redesignation to attainment set forth in the 
Clean Air Act (CAA), including the determination that the GSMNP Area 
has attained the 8-hour ozone standard. Additionally, EPA is approving 
a revision to the North Carolina State Implementation Plan (SIP) 
including the 8-hour ozone maintenance plan for the GSMNP Area that 
contains the new 2011 and 2020 motor vehicle emission budgets (MVEBs) 
for nitrogen oxides (NOX) and an insignificance finding for 
volatile organic compounds (VOC) contribution from motor vehicles to 
the 8-hour ozone pollution in the GSMNP Area. Through this action, EPA 
is also finding the NOX MVEBs and the VOC insignificance 
finding adequate for the purposes of transportation conformity. This 
action also approves the emissions inventory submitted with the 
maintenance plan

[[Page 63996]]

(under the CAA section 172(c)(3)). On March 12, 2008, EPA issued a 
revised 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 GSMNP Area under the 2008 standard 
will be addressed in the future.

DATES: Effective Date: This rule will be effective January 6, 2010.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0338. 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 http://www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jane Spann or Nacosta Ward, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Jane Spann may be 
reached by phone at (404) 562-9029 or via electronic mail at 
[email protected]. The telephone number for Ms. Ward is (404) 562-9140 
and the electronic mail at [email protected].

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 July 24, 2009, North Carolina, through the NCDENR, DAQ, 
submitted a request to redesignate the GSMNP Area to attainment for the 
1997 8-hour ozone standard, and for EPA approval of the North Carolina 
SIP revision containing a maintenance plan for the GSMNP Area. In an 
action published on October 16, 2009, (74 FR 53198) EPA proposed to 
approve the redesignation of the GSMNP Area to attainment. EPA also 
proposed approval of North Carolina's plan for maintaining the 1997 8-
hour NAAQS as a SIP revision, including the emissions inventory 
submitted pursuant to CAA section 172(c)(3); and proposed to approve 
the NOX MVEBs and VOC insignificance finding for the GSMNP 
Area that were contained in the maintenance plan. In the October 16, 
2009, proposed action, EPA also provided information on the status of 
EPA's transportation conformity adequacy determination for the GSMNP 
Area NOX MVEBs and the VOCs insignificance finding. EPA 
received no comments on the October 16, 2009, proposal.
    In this action, EPA is also finalizing its determination that the 
new NOX MVEBs and the VOC insignificance finding for the 
GSMNP Area are adequate for transportation conformity purposes. The 
MVEBs included in the maintenance plan area are as follows:

                        Table 1--GSMNP Area MVEBs
                         [Kilograms per day\1\]
------------------------------------------------------------------------
                                                        2011      2020
------------------------------------------------------------------------
NOX MVEBs...........................................    179.9     127.0
------------------------------------------------------------------------
\1\ North Carolina has provided the conversion factor of 907.1847
  kilograms per ton, rounded to two decimal places for tons to allow for
  comparison of the MVEBs to the emissions inventory (expressed in tons
  per day) in this Area.

    EPA's adequacy public comment period on these MVEBs and the VOC 
insignificance finding (as contained in North Carolina's submittal) 
began on May 18, 2009, and closed on June 17, 2009. No comments were 
received during EPA's adequacy public comment period. Through this 
Federal Register notice, EPA is finding the 2011 and 2020 
NOX MVEBs, and the VOC insignificance finding, as contained 
in North Carolina's submittal, adequate. These MVEBs and the 
insignificance finding meet the adequacy criteria contained in the 
Transportation Conformity Rule. The new NOX MVEBs must be 
used for future transportation conformity determinations. Additionally, 
transportation partners in this area should note the VOC insignificance 
finding in future conformity determinations.
    As was discussed in greater detail in the October 16, 2009, 
proposal, this redesignation is for the 1997 8-hour ozone designations 
finalized in 2004 (69 FR 23857, April 30, 2004). 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 
(NSR) 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. 
The June 8th decision clarified that the Court's reference to 
conformity requirements for anti-backsliding purposes was limited to 
requiring the continued use of 1-hour MVEBs until 8-hour budgets were 
available for 8-hour conformity determinations, which is already 
required under EPA's conformity

[[Page 63997]]

regulations. The Court thus clarified that 1-hour conformity 
determinations are not required for anti-backsliding purposes.
    With respect to the requirement for transportation conformity under 
the 1-hour standard, the Court in its June 8th decision clarified that 
for those areas with 1-hour MVEBs in their 1-hour maintenance plans, 
anti-backsliding requires only that those 1-hour budgets must be used 
for 8-hour conformity determinations until replaced by 8-hour budgets. 
To meet this requirement, conformity determinations in such areas must 
continue to comply with the applicable requirements of EPA's conformity 
regulations at 40 CFR Part 93. The GSMNP Area was never designated 
nonattainment for the 1-hour ozone standard and thus does not have 1-
hour MVEBs to consider.
    For the above reasons, and those set forth in the October 16, 2009, 
proposal for the redesignation of the GSMNP Area, 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 the GSMNP Area 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 North Carolina's 
redesignation request and to change the legal designation of the GSMNP 
Area from nonattainment to attainment for the 8-hour ozone NAAQS. The 
GSMNP Area is comprised of portions of Haywood and Swain Counties in 
North Carolina. EPA is also approving North Carolina's 8-hour ozone 
maintenance plan for the GSMNP Area (such approval being one of the CAA 
criteria for redesignation to attainment status), including the 
emissions inventory which was submitted pursuant to CAA section 
172(c)(3). The maintenance plan is designed to help keep the GSMNP Area 
in attainment for the 8-hour ozone NAAQS through 2020. These approval 
actions are based on EPA's determination that North Carolina has 
demonstrated that the GSMNP Area has met the criteria for redesignation 
to attainment specified in the CAA, including a demonstration that the 
GSMNP Area has attained the 8-hour ozone standard. EPA's analyses of 
North Carolina's 8-hour ozone redesignation request and maintenance 
plan are described in detail in the proposed rule published October 16, 
2009 (74 FR 53198).
    Consistent with the CAA, the maintenance plan that EPA is approving 
also includes 2011 and 2020 MVEBs for NOX, and a VOC 
insignificance finding for the GSMNP Area. In this action, EPA is 
approving these 2011 and 2020 MVEBs, and the VOC insignificance 
finding. For regional emission analysis years that involve years prior 
to 2020, the new 2011 MVEB are the applicable budgets (for the purpose 
of conducting transportation conformity analyses). For regional 
emission analysis years that involve the year 2020 and beyond, the 
applicable budgets, for the purpose of conducting transportation 
conformity analyses, are the new 2020 MVEB. In this action, EPA is also 
finding adequate the GSMNP Area's new NOX MVEBs and North 
Carolina's insignificance finding for VOC contribution from motor 
vehicles to the 8-hour ozone pollution for the GSMNP Area.

III. Why Is EPA Taking These Actions?

    EPA has determined that the GSMNP Area has attained the 8-hour 
ozone standard and has also determined that North Carolina has 
demonstrated that all other criteria for the redesignation of the GSMNP 
Area from nonattainment to attainment of the 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 the GSMNP Area as 
meeting the requirements of sections 175A and 107(d) of the CAA, and 
the emissions inventory as meeting the requirements of section 
172(c)(3) of the CAA. Furthermore, EPA is finding adequate and 
approving the new 2011 and 2020 regional MVEBs contained in North 
Carolina's maintenance plan because these MVEBs are consistent with 
maintenance for the GSMNP Area. In the October 16, 2009, proposal to 
redesignate the GSMNP 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 the portions of Haywood and Swain Counties in North Carolina (in 
association with the GSMNP Area) for the 1997 8-hour ozone NAAQS, found 
at 40 CFR part 81. The approval also incorporates into the North 
Carolina SIP a plan for maintaining the 8-hour ozone NAAQS in the GSMNP 
Area through 2020. The maintenance plan includes contingency measures 
to remedy future violations of the 1997 8-hour ozone NAAQS, establishes 
NOX MVEBs for the years 2011 and 2020 for the GSMNP Area, 
and provides a finding that VOC are an insignificant contributor from 
motor vehicles to the 8-hour ozone pollution in the GSMNP Area. 
Additionally, this action approves the emissions inventory for this 
area pursuant to section 172(c)(3) of the CAA.

V. Final Action

    After evaluating North Carolina's redesignation request, EPA is 
taking final action to approve the redesignation and change the legal 
designation of the portions of Haywood and Swain Counties in North 
Carolina (in association with the GSMNP Area) from nonattainment to 
attainment for the 1997 8-hour ozone NAAQS. Through this action, EPA is 
also approving into the North Carolina SIP the 8-hour ozone maintenance 
plan for the GSMNP Area, which includes the new NOX MVEBs of 
179.9 kilograms per day (kgd) for the year 2011, and 127.0 kgd for the 
year 2020. EPA is also finding adequate and approving the new 2011 and 
2020 MVEBs contained in North Carolina's maintenance plan for the GSMNP 
Area. If transportation conformity is implemented in this area, the 
North Carolina transportation partners will need to use these new MVEBs 
pursuant to 40 CFR 93.104(e). Additionally, EPA is approving the 
emissions inventory for the GSMNP Area pursuant to section 172(c)(3) of 
the CAA.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves State law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by State law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility

[[Page 63998]]

Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing 
requirements under State law and does not impose any additional 
enforceable duty beyond that required by State law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4).
    This rule also does not have Tribal implications because it will 
not have a substantial direct effect on one or more Indian Tribes, on 
the relationship between the Federal Government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian Tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely affects the status of a 
geographical area, does not impose any new requirements on sources or 
allow a State to avoid adopting or implementing other requirements, and 
does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. This rule also is not subject 
to Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because 
it is not economically significant and because the Agency does not have 
reason to believe that the rule concerns an environmental health risk 
or safety risk that may disproportionately affect children.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the State 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by February 5, 2010. 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) of the CAA.)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Incorporation by reference, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

    Dated: November 20, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 and 81 are 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 II--North Carolina

0
2. Section Sec.  52.1770(e) is amended by adding a new entry at the end 
of the table for ``8[dash]Hour Ozone Maintenance Plan for the Great 
Smoky Mountains National Park Area'' to read as follows:


Sec.  52.1770  Identification of plan

* * * * *
    (e) * * *

                           EPA[dash]Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                               State effective    EPA approval
                  Provision                          date             date          Federal Register citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
8[dash]Hour Ozone Maintenance Plan for the          7/24/2009         12/07/09   [Insert first page of
 Great Smoky Mountains National Park Area.                                        publication].
----------------------------------------------------------------------------------------------------------------

PART 81--[AMENDED]

0
1. The authority citation for part 81 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.


0
2. In Section Sec.  81.334, the table entitled ``North Carolina--Ozone 
(8[dash]Hour Standard)'' is amended under ``Haywood and Swain Cos. 
(Great Smoky NP), NC'' by revising the entries for ``Haywood County 
(part)'' and ``Swain County (part)'' to read as follows:


Sec.  81.334  North Carolina

* * * * *

[[Page 63999]]



                                              North Carolina--Ozone
                                             [8[dash]Hour standard]
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                                             Designation \a\                      Category/classification
        Designated area        ---------------------------------------------------------------------------------
                                     Date \1\               Type                Date \1\              Type
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Haywood and Swain Cos. (Great Smoky NP), NC:....................................................................
    Haywood County (part).....  This action is     Attainment.
                                 effective 12/07/
                                 09.
    Swain County (part).......  This action is     Attainment.
                                 effective 12/07/
                                 09.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\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\ Early Action Compact Area, effective date deferred until April 15, 2008.
\3\ November 22, 2004.

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[FR Doc. E9-28967 Filed 12-4-09; 8:45 am]
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