[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31245-31252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13278]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2010-0504-201052; FRL- 9312-9]


Approval and Promulgation of Implementation Plans; Extension of 
Attainment Date for the Charlotte-Gastonia-Rock Hill, North Carolina-
South Carolina 1997 8-Hour Ozone Moderate Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve requests from the State 
of North Carolina, through the North Carolina Department of Environment 
and Natural Resources (NC DENR), and the State of South Carolina, 
through the South Carolina Department of Health and Environmental 
Control (SC DHEC), to grant a one-year extension of the attainment date 
for the 1997 8-hour ozone national ambient air quality standards 
(NAAQS) for the Charlotte-Gastonia-Rock Hill, North Carolina-South 
Carolina Area (hereafter referred to as the ``bi-state Charlotte Area'' 
or ``Metrolina Area''). These requests were sent to EPA via letter from 
NC DENR on April 28, 2010, and from SC DHEC on May 6, 2010. The bi-
state Charlotte Area consists of Cabarrus, Gaston, Lincoln, 
Mecklenburg, Rowan, Union and a portion of Iredell County (Davidson and 
Coddle Creek Townships), North Carolina; and a portion of York County, 
South Carolina. EPA is finalizing a determination that North Carolina 
and South Carolina have met the Clean Air Act (CAA or Act) requirements 
to obtain a one-year extension to their attainment date for the 1997 8-
hour ozone NAAQS for the bi-state Charlotte Area. As a result, EPA is 
approving a one-year extension of the 1997 8-hour ozone moderate 
attainment date for the bi-state Charlotte Area. Specifically, EPA 
(through this final action) is extending the bi-state Charlotte Area's 
attainment date from June 15, 2010, to June 15, 2011. EPA is also 
addressing adverse comments received on EPA's proposal to grant the 
one-year extension for the bi-state Charlotte 1997 8-hour ozone 
nonattainment area.

DATES: Effective Date: This rule will be effective June 30, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0504. 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: For information regarding the 1997 8-
hour ozone NAAQS, contact Ms. Jane Spann, 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. The telephone number for Ms. 
Spann is (404) 562-9029. Ms. Spann can also be reached via electronic 
mail at [email protected]. For information regarding the North 
Carolina or South Carolina SIPs, contact Mr. Zuri Farngalo, Regulatory 
Development Section, at the same address above. The telephone number 
for Mr. Farngalo is (404) 562-9152. Mr. Farngalo can also be reached 
via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. This Action
III. Comments and Responses
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    Detailed background information and rationale for this final action 
can be found in EPA's proposed rule entitled ``Approval and 
Promulgation of Implementation Plans; Extension of Attainment Date for 
the Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina 1997 8-
Hour Ozone Moderate Nonattainment Area,'' 75 FR 46881 (August 4, 2010). 
The comment period for EPA's proposed action closed on September 3, 
2010. EPA received three sets of comments on the August 4, 2010, 
proposed rulemaking which are discussed later in this rulemaking. This 
section includes a brief summary of the information and rationale for 
EPA's proposed approval of the bi-state Charlotte Area's one-year 
extension.
    Section 181(b)(2)(A) requires the Administrator, within six months 
of the attainment date, to determine whether an ozone nonattainment 
area attained the NAAQS. CAA section 181(b)(2)(A) states that, for 
areas classified as marginal, moderate, or serious, if the 
Administrator determines that the area did not attain the standard by 
its attainment date, the area must be reclassified to the next 
classification. However, CAA section 181(a)(5) provides an exemption 
from these reclassification requirements. Under this provision, EPA may 
grant up to two one-year extensions of the attainment date under 
specified conditions. Specifically, in relevant part, section 181(a)(5) 
states:
    Upon application by any State, the Administrator may extend for 1 
additional year (hereinafter referred to as the ``Extension Year'') the 
date specified in table 1 of paragraph (1) of this subsection if--
    (A) The State has complied with all requirements and commitments 
pertaining to the area in the applicable implementation plan, and
    (B) no more than 1 exceedance of the national ambient air quality 
standard level for ozone has occurred in the area in the year preceding 
the Extension Year.

With regard to the first element, ``applicable implementation plan'' is 
defined in section 302(q) of the CAA as, the portion (or portions) of 
the implementation plan, or most recent revision thereof, which has 
been approved under section 110, or promulgated under section 110(c), 
or promulgated or approved pursuant to regulations promulgated under 
section 301(d) and which implements the relevant requirements of the 
CAA.

    The language in section 181(a)(5)(B) reflects the form of the 1-
hour ozone NAAQS, which is exceedance based and does not reflect the 
1997 8-hour ozone NAAQS, which is concentration based. Because section 
181(a)(5)(B) does not reflect the form of the 8-hour NAAQS,

[[Page 31246]]

EPA promulgated a regulation interpreting this provision in a manner 
consistent with Congressional intent but reflecting the form of the 
1997 8-hour NAAQS. See 40 CFR 51.907. This regulation provides that an 
area will be eligible for the first of the one-year extensions under 
the 1997 8-hour NAAQS if, for the attainment year, the area's 4th 
highest daily 8-hour average is 0.084 parts per million (ppm) or less. 
The area will be eligible for the second extension if the area's 4th 
highest daily 8-hour value averaged over both the original attainment 
year and the first extension year is 0.084 ppm or less. No more than 
two one-year extensions may be issued for a single nonattainment area.
    In summary, EPA interprets the CAA and implementing regulations to 
allow the granting of a one-year extension under the following minimum 
conditions: (1) The State requests a one-year extension; (2) all 
requirements and commitments in the EPA-approved SIP for the area have 
been complied with; and (3) the area has a 4th highest daily 8-hour 
average of 0.084 ppm or less for the attainment year (or an area's 4th 
highest daily 8-hour value averaged over both the original attainment 
year and the first extension year is 0.084 ppm or less, if a second 
one-year extension is requested). Because the bi-state Charlotte Area's 
attainment date was June 15, 2010, the ``attainment year'' used for 
this purpose is the 2009 ozone season. See 40 CFR 51.900(g). The North 
Carolina and South Carolina ozone seasons run from April 1 to October 
31 of any given year.

II. This Action

    EPA has determined that North Carolina and South Carolina have met 
the CAA requirements to obtain a one-year extension of the June 2010 
attainment date for the 1997 8-hour ozone NAAQS for the bi-state 
Charlotte Area. As a result, EPA is taking final action to extend the 
bi-state Charlotte Area's attainment date from June 15, 2010, to June 
15, 2011, for the 1997 8-hour ozone NAAQS. Specifically, EPA has 
determined that North Carolina and South Carolina are in compliance 
with the requirements and commitments associated with the EPA-approved 
implementation plans, and that the 4th highest daily concentration for 
2009 for the bi-state Charlotte Area is below the 1997 8-hour ozone 
NAAQS. EPA has reviewed the 1997 8-hour ozone NAAQS ambient air quality 
monitoring data for the bi-state Charlotte Area, and has determined 
that these data are consistent with the ozone monitoring requirements 
contained in 40 CFR part 50, Appendix I. These data are recorded in the 
EPA Air Quality System database. These data are complete, quality-
assured, quality-controlled, and certified ambient air monitoring data 
for 2009. On the basis of that review, EPA has concluded that for the 
attainment year ozone season of 2009, the bi-state Charlotte Area's 4th 
highest daily 8-hour average concentration was 0.071 ppm, which is 
below 0.084 ppm. As provided in CAA section 181(a)(5) and 40 CFR 
51.907, this final action extends, by one year, the deadline by which 
the bi-state Charlotte Area must attain the 1997 8-hour ozone NAAQS. It 
also extends the timeframe by which EPA must make an attainment 
determination for the bi-state Charlotte Area.
    As described in section 181(a)(5) of the CAA, areas may qualify for 
up to two one-year extensions. EPA notes that this final action only 
relates to the initial one-year extension. The bi-state Charlotte Area 
will be eligible for the second extension if the bi-state Charlotte 
Area's 4th highest daily 8-hour value averaged over both the original 
attainment year and the first extension year is 0.084 ppm or less and 
the continues to comply with all requirements and commitments 
pertaining to the bi-state Charlotte Area in the applicable 
implementation plan. Any analysis of whether the bi-state Charlotte 
Area qualifies for the second extension would be based on data from 
both the 2009 and 2010 ozone seasons. If requested at a future date, 
EPA will make a determination of the appropriateness of a second one-
year extension for the bi-state Charlotte Area for the 1997 8-hour 
ozone NAAQS in a separate rulemaking.

III. Comments and Responses

    EPA received one set of adverse comments \1\ and two requests for 
additional information for its proposal to approve the requests from 
North Carolina and South Carolina to extend the attainment date for the 
bi-state Charlotte Area for the 1997 8-hour ozone NAAQS from June 15, 
2010, to June 15, 2011. The comments, received by September 3, 2010, 
were from the Southern Environmental Law Center (SELC) on behalf of 
Clean Air Carolina and from two citizens (hereinafter referred to as 
``the Commenter''). Below is a summary of the comments and EPA's 
response.
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    \1\ The full text of the comments is available in the Docket for 
this action. Electronic docket information can be found in the 
``Addresses'' portion of this notice. The comments are summarized in 
this Federal Register document; however, EPA considered all the 
comments expressed in the letters.
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    Comment 1: The Commenter requests clarification on why the 
attainment date for the bi-state Charlotte Area needs an extension and 
on what grounds is the extension being granted.
    Response 1: Effective June 15, 2004, EPA designated the bi-state 
Charlotte Area as nonattainment for the 1997 8-hour ozone NAAQS. Along 
with this nonattainment designation, EPA classified the bi-state 
Charlotte Area as a ``moderate'' ozone nonattainment area based on the 
level of the three year design value for the area at the time of EPA's 
designations. In accordance with the section 181 of the CAA, 
``moderate'' areas are required to attain the ozone NAAQS ``as 
expeditiously as practicable,'' but no later than 6 years after EPA's 
nonattainment designation. This means that the bi-state Charlotte Area 
was required to attain the 1997 8-hour ozone NAAQS by June 15, 2010 
(based on monitoring data from the 2007 through 2009 ozone seasons). In 
section 181(a)(5) of the CAA, Congress allows EPA to consider extension 
of the attainment dates for ozone areas provided the area meets the 
requirements for such extensions. See EPA's August 4, 2010, proposed 
rulemaking at 75 FR 46881 for the detailed rationale for approval of 
the bi-state Charlotte Area's attainment date extension, and the 
``Background'' section of this rulemaking for more detail on the 
section 181(a)(5) requirements. EPA has made the determination that 
both North Carolina and South Carolina meet the requirements of section 
181(a)(5) (as interpreted in 40 CFR 51.907) for the bi-state Charlotte 
Area for the 1997 8-hour ozone NAAQS, and as such EPA is granting an 
extension of the 1997 8-hour ozone attainment date from June 15, 2010, 
to June 15, 2011.
    Comment 2: The Commenter requests that EPA incorporate by reference 
comments previously provided for the attainment demonstrations for the 
bi-state Charlotte Area. Specifically, the Commenter states ``[t]hese 
comments incorporate by reference SELC's June 10, 2010 and May 19, 2010 
comments to the agency on the North Carolina and South Carolina 8-hour 
ozone attainment demonstration plan submission, and SELC's March 29, 
2010, March 22, 2010, December 17, 2009, November 13, 2003, and October 
26, 2009, submissions to the North Carolina Division of Air Quality 
(`NCDAQ') and the South Carolina Bureau of Air Quality, all of which 
have been previously submitted to EPA.''

[[Page 31247]]

    Response 2: EPA's August 4, 2010, proposed action relates to the 
States' requests for a one-year extension of the attainment date for 
the 1997 8-hour ozone NAAQS for the bi-state Charlotte Area, and does 
not relate to the approvability of the attainment demonstrations 
submitted by North Carolina and South Carolina for the bi-state 
Charlotte Area. There are separate requirements regarding requests for 
attainment date extensions (relevant to this final action and described 
in ``Background'' sections of EPA's August 4, 2010, proposed rulemaking 
and this final rulemaking) and approval of attainment demonstrations. 
EPA held a public comment period from August 4, 2010, through September 
3, 2010, to provide the public with opportunity to specifically comment 
on the proposed approval of the attainment date extension for the bi-
state Charlotte Area for the 1997 8-hour ozone NAAQS. The Commenter 
provided a detailed letter with their comments in opposition to EPA's 
proposed action to extend the bi-state Charlotte Area's attainment date 
to which EPA is responding in this final rulemaking. Although the 
Commenter suggests that EPA should incorporate by reference comments 
previously submitted to North Carolina and South Carolina during their 
state public comment periods for their attainment demonstrations and 
reasonable further progress plans, and to EPA during a public comment 
period on the attainment demonstration for the bi-state Charlotte 
Area,\2\ the Commenter does not identify and EPA did not identify 
anything in those comments that are relevant to the analysis of whether 
the bi-state Charlotte Area is eligible for the first attainment date 
extension provided under CAA section 181(a)(5) and 40 CFR 51.907.
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    \2\ The Commenter submitted comments during EPA's public comment 
period for review of the adequacy of the motor vehicle emissions 
budgets for the attainment demonstrations for the bi-state Charlotte 
Area as provided by North Carolina and South Carolina. EPA has a 
separate process from today's rulemaking to consider comments 
received during EPA's Adequacy public comment period.
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    Comment 3: The Commenter asserts several times throughout the 
comment letter that EPA should reclassify the bi-state Charlotte Area 
to ``serious'' for the 1997 8-hour ozone NAAQS. Specifically, the 
Commenter states ``EPA should instead reclassify the area to `serious' 
nonattainment status * * *'' and ``[i]n the wake of the missed 
deadline, the Act now requires reclassification of the Metrolina area 
to `serious' status.'' The Commenter goes on to conclude that ``[t]he 
proposed extension is inconsistent with the Clean Air Act's statutory 
scheme and its emphasis on attainment deadlines. EPA should require 
North and South Carolina officials to comply with the Act and prepare a 
SIP revision consistent with the Metrolina area's legally required 
bump-up to `serious' status.''
    Response 3: EPA disagrees with the Commenter's assertions and 
conclusion that the Act requires the Agency to reclassify the bi-state 
Charlotte Area to ``serious'' for the 1997 8-hour ozone NAAQS ``[i]n 
the wake of the missed deadline * * *'' Congress contemplated the 
potential for areas to miss the attainment date deadlines in the CAA 
and allows for extensions of the attainment date deadline so long as 
areas meet the requirements of section 181(a)(5). EPA's analysis 
indicates that both North Carolina and South Carolina have met the 
requirements of section 181(a)(5) of the CAA (as interpreted by 40 CFR 
51.907) for the initial one-year extension of the 1997 8-hour ozone 
moderate area attainment date for the bi-state Charlotte Area, and thus 
the Act does not require EPA to reclassify the bi-state Charlotte Area 
to ``serious'' status. Additionally, given that EPA has determined that 
the bi-state Charlotte Area qualifies for the one-year extension for 
the moderate ozone classification, the bi-state Charlotte Area is not 
subject to being ``bumped-up'' and thus is not subject to the planning 
requirements that would be triggered by a bump-up.
    Comment 4: The Commenter states ``[t]he deadline for meeting the 
1997 ozone standard was June 15, 2010, and there is still no Federally 
approved State Implementation Plan (`SIP') for meeting that standard. 
As a result, EPA lacks authority to grant the proposed extension, and 
the Metrolina area should instead be reclassified to `serious' 
nonattainment status, triggering the development of a new plan with 
additional control strategies. As we explained in our previous 
comments, the Clean Air Act allows EPA to grant extensions only when a 
state has complied with all the requirements of the approved SIP for an 
area. The States have no approved SIP for meeting the ozone NAAQS in 
this area. As indicated in the notice, both states have provided 
`necessary SIP [State Implementation Plan] submittals,' intended to 
meet `outstanding requirements related to the 1997 8-hour ozone 
attainment demonstration for the bi-state Charlotte area.' But these 
plan submissions were not made until after the conclusion of the 2009 
ozone season, and therefore could only purport to demonstrate 
attainment of the 1997 ozone NAAQS, retroactively, despite modeling and 
monitoring data to the contrary. The proposed extension signifies a de 
facto approval of these plans and introduces a relaxed post hoc 
standard, which would be contrary to the requirements of the Act and 
which would encourage states to take a `wait-and-see' approach to SIP 
control strategies.''
    Response 4: EPA does not agree with the Commenter's assertion that 
EPA lacks the authority to grant the requests from North Carolina and 
South Carolina for an extension of the bi-state Charlotte Area's 1997 
8-hour ozone attainment date. In EPA's August 4, 2010, proposed 
rulemaking, EPA explained that section 181(a)(5) of the CAA is what EPA 
must consider when contemplating a state's request for a one-year 
extension to an ozone attainment date. The Commenter appears to 
question whether North Carolina and South Carolina meet the 
requirements of section 181(a)(5)(A) which states ``the State has 
complied with all requirements and commitments pertaining to the area 
in the applicable implementation plan * * *'' As noted in EPA's August 
4, 2010, proposed rulemaking, the ``applicable implementation plan'' is 
defined by the CAA in section 302(q) as ``the portion (or portions) of 
the implementation plan, or most revision thereof, which has been 
approved under section 7410 of this title, or promulgated under section 
7410(c) of this title, or promulgated or approved pursuant to 
regulations promulgated under section 7601(d) of this title and which 
implements the relevant requirements of this chapter.'' [Emphasis 
added].Thus, the ``compliance'' that is relevant to evaluating the 
States' eligibility for an attainment date extension under section 
181(a)(5) is solely with those requirements and commitments that have 
been approved into the existing SIP--not with those which may yet be 
approved. EPA has made an independent assessment of whether North 
Carolina and South Carolina are in compliance with all the requirements 
and commitments pertaining to the bi-state Charlotte Area in the 
applicable implementation plan, as defined by section 302(q), and the 
Agency has made the determination that both states are in compliance. 
EPA also notes that originally, North Carolina and South Carolina 
submitted attainment demonstrations for the bi-Charlotte Area for the 
1997 8-hour ozone NAAQS on June 15, 2007, and August 31, 2007, 
respectively. Subsequently, both states withdrew their original 
attainment demonstrations but later submitted these attainment 
demonstrations with

[[Page 31248]]

updated and supplemental information. EPA disagrees that this final 
action is a de facto approval of these plans. These plans are still 
pending before EPA. The Commenter also mentions that EPA's final action 
to approve the extension of the attainment date for the bi-state 
Charlotte Area introduces a relaxed post hoc standard, which would be 
contrary to the requirements of the Act and which would encourage 
states to take a ``wait-and-see'' approach to SIP control strategies. 
EPA disagrees. If EPA determines that a state has not submitted a 
required nonattainment area SIP, mandatory sanctions are imposed 18 and 
24 months after such a finding and EPA is required to promulgate a 
Federal implementation plan within two years. The CAA provides 
appropriate incentives to ensure that states do not take a ``wait and 
see'' approach for attainment of the NAAQS. When North Carolina and 
South Carolina withdrew their original attainment demonstrations for 
the bi-state Charlotte Area (which were provided in 2007), EPA issued a 
finding of failure to submit. See 74 FR 21550 (May 8, 2009). The 
submissions that both North Carolina and South Carolina provided in 
2009 were provided in response to EPA's finding of failure to submit.
    Comment 5: One Commenter states ``[t]he Metrolina area's ozone 
problem is chronic and significant.'' Additionally, the Commenter cites 
the American Lung Association 2010 State of the Air Report and mentions 
that the report ranks Charlotte as the 10th most polluted city in the 
country for ozone. The Commenter goes on to state that ``[i]n contrast 
to the anomalous 2009 ozone season, pollution levels during the first 
part of the 2010 summer have continued to exceed the 1997 standard of 
84 ppb [parts per billion][or 0.084 ppm], with the `County Line' 
monitor registering as high as 96 ppb [or 0.096 ppm], and the Metrolina 
monitors recording 30 exceedances of the 2008 standard (75 ppb [or 
0.075 ppm]) as of August 28, 2010. Air quality planning should do as 
much as possible to protect citizens' health in nonattainment areas, 
and at the very least, the region must comply with express Clean Air 
Act Requirements.'' Another Commenter states ``[t]he 2010 ozone season 
clearly shows that the current control methods to obtain attainment for 
the 1997 standard for the Charlotte region are not effective. The 2009 
ozone season had favorable weather conditions. This alone allowed for 
the low ozone numbers. The intent of Congress, through the CAA, is for 
non-attainment areas to reach attainment. Delaying the decision by one 
year will allow the Charlotte area to continue building roads. Is not 
mobile sources the largest contributor to ozone formation in the 
Charlotte area?''
    Response 5: EPA agrees with the Commenters that the unusually hot 
summer of 2010 resulted in more exceedances of the ozone NAAQS at the 
monitors within the bi-state Charlotte Area. However, based on EPA's 
preliminary evaluation of the data, the bi-state Charlotte Area appears 
to still be monitoring attainment for the 1997 ozone NAAQS. 
Additionally, EPA's preliminary evaluation indicates that the bi-state 
Charlotte Area could be eligible for the second extension of the 
attainment date, if requested. Regardless, air quality data for the 
2010 ozone season is not relevant to the issue of whether the bi-state 
Charlotte Area qualifies for the first one-year extension of its 
attainment date as provided under CAA section 181(a)(5) and 40 CFR 
51.907. EPA notes that nonattainment areas are allowed to build roads 
and are subject to requirements to demonstrate that these activities 
will not interfere with air quality goals. EPA's granting of the one-
year extension to the attainment date will not relieve the bi-state 
Charlotte Area of continuing to make the demonstration that 
transportation planning activities will not interfere with air quality 
goals.
    Comment 6: The Commenter states ``EPA may only extend the 
nonattainment deadline for an area that has not met the NAAQS if `the 
State has complied with all requirements and commitments pertaining to 
the area in the applicable implementation plan.' 42 U.S.C. Sec.  
7511(a)(5)(A). The Act defines `the term ``applicable implementation 
plan' '' as `the portion (or portions) of the implementation plan, or 
most recent revision thereof, which has been approved under section 110 
of this title.' Id. Sec.  7602(q). [Emphasis added] Section 110, in 
turn, provides that `[e]ach State shall * * * adopt and submit to the 
Administrator, within 3 years * * * after promulgation of a [NAAQS] (or 
any revision thereof) under section 109 [42 Sec.  USCS 7409] for any 
air pollutant, a plan which provides for implementation, maintenance, 
an enforcement of such primary standard in each air quality control 
region * * * within such State,' Id. Sec.  7410(a)(1). Section 110 goes 
on to prescribe that `each such plan shall * * * meet the applicable 
requirements of Part D of this subchapter (relating to nonattainment 
areas).' Id. Sec.  7410(a)(1). Among the applicable requirements of 
Part D, `plan provisions * * * shall provide for attainment of the 
national ambient air quality standards.' Id. Sec.  7502(c)(1). In other 
words, to qualify for an extension, a state must comply with its 
federally approved SIP, which among other requirements, must 
demonstrate attainment.''
    Response 6: EPA agrees with the Commenter's citation to 42 U.S.C. 
7511(a)(5)(A)[section 181(a)(5)(A)], and to 42 U.S.C. 7602(q) [section 
302(q)] as the relevant provisions of the CAA to consider. 
Additionally, EPA agrees with the Commenter's emphasis on ``which has 
been approved'' of the Act's definition for the term ``applicable 
implementation plan.'' It is the emphasis on ``which has been 
approved'' that EPA relied on to make the determination that North 
Carolina and South Carolina are meeting the requirements of 
181(a)(5)(A). However, EPA does not agree with the Commenter's apparent 
broadening of the definition of ``applicable implementation plan'' to 
mean that EPA must consider plans which have not yet been approved. The 
CAA is unambiguous on the requirements for EPA to grant an extension 
and on what EPA should consider as the ``applicable implementation 
plan,'' and based on those requirements, EPA has determined that both 
North Carolina and South Carolina qualify for an extension of the 
attainment date for the 1997 8-hour ozone NAAQS for the bi-state 
Charlotte Area.
    Comment 7: The Commenter notes that both North Carolina and South 
Carolina submitted attainment demonstrations for the bi-state Charlotte 
Area in 2007, but later withdrew these submissions after EPA sent a 
letter to both States with a recommendation that North Carolina and 
South Carolina request a voluntary reclassification of the bi-state 
Charlotte Area to ``serious'' status for the 1997 8-hour ozone NAAQS. 
Additionally, the Commenter notes that in EPA's letter, the Agency 
states ``if we are required to take rulemaking action on the SIP, we 
see no alternative to proposing disapproval of the SIP's attainment 
demonstration.'' The Commenter goes on to state that ``[c]learly, the 
States submitted `a plan' as contemplated by the extension provision, 
but it was not an approvable plan, and therefore, not a plan that would 
provide a basis for a future extension request. Indeed, rather than 
demonstrate attainment, the modeling in the submissions actually 
predicted that the area would fail to meet the standard by the 
deadline. After signaling its intent to disapprove the submissions, 
however, EPA allowed the States to ``withdraw'' their plans, an

[[Page 31249]]

action that is not authorized under the Clean Air Act, which 
contravenes EPA's obligation to take action on a plan submission, and 
`approve or disapprove it, either in whole or in part.' ''
    Response 7: These comments are not relevant to this rulemaking. The 
issues raised concern whether attainment demonstrations submitted in 
2007 adequately demonstrated whether the bi-state Charlotte Area would 
attain the 1997 ozone NAAQS by June 2010 and they do not address 
whether the bi-state Charlotte Area qualifies for an attainment date 
extension. EPA notes, however, that we disagree with the Commenter's 
assertion that States are not authorized under the CAA to withdraw 
submitted SIPs. The CAA does not directly address this issue; however, 
EPA can see no reasonable interpretation that the Act prohibits a state 
from withdrawing a submitted plan prior to EPA final action. The CAA 
provides states with a choice whether to submit plans and to take the 
lead in regulating sources for purposes of attainment and maintenance 
of the NAAQS. Consistent with that overall paradigm, states can choose 
to withdraw submitted SIPs at any time prior to EPA final action, which 
establishes those requirements under Federal law. Once the plan is 
approved and made Federally enforceable, it can no longer be withdrawn 
or altered except through a SIP revision or a Federal implementation 
plan. If the withdrawn SIP had been submitted to meet a specific 
statutory requirement and the state does not replace the SIP submission 
upon withdrawal with a new SIP submission to meet that statutory 
requirement (or, in appropriate instances, with an attainment 
determination that suspends the obligation to meet such requirement), 
EPA has the authority to make a finding of failure to submit for that 
required submission. EPA also notes that subsequently, both North 
Carolina and South Carolina resubmitted their attainment demonstrations 
for the 1997 8-hour ozone NAAQS.
    Comment 8: The Commenter states that ``[d]uring the 2009 ozone 
season, cool temperatures and a slow economy contributed to a dramatic 
decline in ozone pollution, albeit not enough to bring the three-year 
ozone design value into attainment by the June 2010 deadline. 
Nevertheless, the States have resubmitted their `withdrawn' 2007 
submissions for public comment and agency approval, along with 
supplemental plans that establish higher motor vehicle emissions 
budgets. These submissions do not provide the legal basis for an 
extension because they have never been federally approved, and thus 
have not be made federally enforceable, see 42 U.S.C. Sec.  7413, and 
they therefore do not meet the definition of `applicable implementation 
plan.' ''
    Response 8: As provided in previous responses, EPA disagrees with 
the Commenter's premise that the attainment demonstration submissions 
are required to be approved in order for EPA to grant the request from 
North Carolina and South Carolina for a one-year extension to the 
attainment date for the 1997 8-hour ozone NAAQS.
    Comment 9: The Commenter states that ``EPA's Federal Register 
notice appears to indicate that the States `are meeting their 
federally-approved implementation plans' by virtue of adequate 
monitoring alone. 75 Fed. Reg. 46881, 46883.'' Further, the Commenter 
mentions that ``EPA guidance documents direct states requesting an 
extension under 42 U.S.C. Sec.  7511(a)(5) to both certify compliance 
with the approved SIP for the current classification, and to document 
the preparations being taken to address the `consequences of eventually 
not attaining the NAAQS,' including meeting new requirements that take 
effect upon reclassification of the area.'' The Commenter concludes 
this point by stating ``[t]he States' extension requests, however, 
neither explain how they have complied with all requirements of an 
`approved SIP' that does not exist, nor mention the possibility that 
the area might not attain the NAAQS by the extended deadline.''
    Response 9: EPA disagrees with the Commenter's assertion that EPA's 
analysis of whether North Carolina and South Carolina ``are meeting 
their federally-approved implementation plans'' is ``by virtue of 
adequate monitoring alone.'' Over the past several years, the bi-state 
Charlotte Area has benefitted from the reduction in emissions 
attributable to the implementation of federal, state and local 
programs. Some of the federal control measures that have come on line 
since the bi-state Charlotte Area was designated nonattainment for the 
1997 8-hour ozone NAAQS in 2004 include: Tier 2 vehicle and fuels 
standards; heavy-duty gasoline and diesel highway vehicle standards; 
nonroad spark-ignition engines and recreational engines standards; and 
large nonroad diesel engine standards. North Carolina has also 
implemented state programs that have provided emissions reductions in 
the bi-state Charlotte Area. These state programs include: (1) The 
Clean Air Bill which expanded the inspection and maintenance program 
from 9 to 48 counties; (2) North Carolina's nitrogen oxide (NOx) SIP 
Call rule which was predicted to reduce summertime NOx emissions from 
power plants and other industries by sixty-eight percent; and (3) North 
Carolina's Clean Smokestack Act which required coal-fired power plants 
in North Carolina to reduce annual NOx emissions by seventy-seven 
percent by 2009, and to reduce annual sulfur dioxide emissions by 
forty-nine percent by 2009 and seventy-three percent by 2013. 
Additionally, EPA disagrees with the Commenter's statement that an 
``approved SIP'' does not exist for the bi-state Charlotte Area. As 
noted in EPA's proposed rulemaking, the ``applicable implementation 
plan'' is defined by the CAA in section 302(q) as the portion (or 
portions) of the implementation plan, or most recent revision thereof, 
which has been approved under section 110, or promulgated under section 
110(c), or promulgated or approved pursuant to regulations promulgated 
under section 301(d) and which implements the relevant requirements of 
the CAA. Lastly, EPA disagrees with the Commenter's statement 
indicating that the States did not provide the necessary certification 
regarding compliance with their approved SIPs. On April 28, 2010, NC 
DENR stated in a letter to EPA, that it ``certifies that the state has 
complied with all requirements and commitments pertaining to the area 
in the applicable ozone implementation plan.'' On May 6, 2010, SC DHEC, 
in a letter to EPA, stated ``South Carolina has complied with all 
requirements and commitments pertaining to the area in the South 
Carolina State Implementation Plan.'' EPA believes that these 
statements provide the necessary certification from the States. EPA 
also notes that North Carolina and South Carolina considered the 
consequences of eventually not attaining the NAAQS. They conducted 
modeling for the year 2012 in case they did not have clean data and 
were required to be reclassified to serious. That modeling would have 
been submitted to EPA as the States' attainment demonstration for a 
serious classification had the area been reclassified to serious.
    Comment 10: The Commenter states that ``[t]he agency's permissive 
proposed approach would encourage poor air quality planning. Indeed, 
the State's plan submissions allow unfettered expansion of the area's 
highway network without regard to long-term air quality consequences.'' 
The Commenter goes on to say that ``[r]eclassification of the area to 
`serious' nonattainment status would require better developed and more 
accurate travel modeling that would help to

[[Page 31250]]

ensure that road capacity investments will not compromise air quality 
for years to come. See 40 CFR Sec.  93.122''
    Response 10: The August 4, 2010, proposed rulemaking and this final 
action do not involve the approval of any plans for the bi-state 
Charlotte Area for the 1997 8-hour ozone standard. Additionally, while 
not relevant to this final action, EPA notes that the development of 
the mobile emissions in the States' attainment demonstration plans for 
the bi-state Charlotte Area were developed through a required 
interagency process, pursuant to 40 CFR 93.105, that includes federal, 
state and local air quality and transportation partners. The Commenter 
mentions that the ``[r]eclassification of the area to `serious' 
nonattainment status would require better developed and more accurate 
travel modeling that would help to ensure that road capacity 
investments will not compromise air quality for years to come.'' While 
EPA agrees that there are different travel demand modeling requirements 
for ``serious'' versus ``moderate'' ozone areas, EPA also notes that 40 
CFR 93.122(d) states ``[i]n all areas not otherwise subject to 
paragraph (b) of this subsection, regional emissions analyses must use 
those procedures described in paragraph (b) of this section if the use 
of those procedures has been the previous practice of the MPO * * *'' 
The transportation modeling requirements for ``serious'' areas are 
outlined in 40 CFR 93.122(b). In a letter dated December 3, 2010, NC 
DENR provided EPA with additional information regarding the travel 
demand modeling practices currently employed in the bi-state Charlotte 
Area. Attached to the letter, the Senior Transportation Planner for the 
Charlotte Department of Transportation provides a comparison of the 
current practice for travel demand modeling for the entire bi-state 
Charlotte Area and the requirements of 40 CFR 93.122(b) for a 
``serious'' area. The comparison demonstrates that the current 
practices for travel demand modeling meet the requirements for a 
``serious'' area although the bi-state Charlotte Area is a ``moderate'' 
area. NC DENR's December 3, 2010, letter can be found in the docket for 
this final rulemaking. A reclassification of the area to ``serious'' 
would not change the current travel demand modeling practice in the bi-
state Charlotte Area since the bi-state Charlotte Area is currently 
meeting the ``serious'' area requirements, and in accordance with 40 
CFR 93.122(b) and (d), this practice must be maintained.
    Comment 11: The Commenter mentions that ``[s]tate officials have 
argued that reclassifying and undertaking more stringent control 
measures to ensure compliance with the existing ozone standard is 
unnecessary because EPA will soon approve a new standard and require 
new plans to meet the standard.'' Further, the Commenter goes on to 
say, ``* * * not only has EPA recently delayed its expected release of 
the new, stricter standards, but even without delay, waiting until 
implementation of the new standard would result in several years of 
delay in the adoption of the additional control measures required today 
as part of `bump up' to a `serious' classification.'' The Commenter 
continues by noting the delay of the promulgation of the new ozone 
standard and anticipated dates for the attainment demonstration 
submissions. The Commenter mentions ``approval of inadequate plans now 
will only delay efforts to address the serious air quality problems in 
the Charlotte metro area and make attainment under the 2008 standard, 
or a stronger one, much more difficult, uncertain, and expensive.''
    Response 11: Neither the States' position (as articulated by the 
Commenter) nor this comment are relevant to this action. This action 
solely concerns whether the States have demonstrated that a one-year 
attainment date extension is appropriate for the 1997 ozone NAAQS. EPA 
notes that in a separate process, the Agency is reconsidering the 2008 
ozone NAAQS and, if EPA determines a different NAAQS should be 
promulgated, the Agency will undertake rulemaking to address the 
requirements for the implementation of that NAAQS. The fact that EPA 
may issue a new standard at a future date has no bearing on whether the 
area qualifies for a one-year extension of its attainment date for the 
1997 ozone NAAQS.
    Comment 12: In their comment letter, the Commenter notes that at a 
meeting with EPA Region 4, EPA staff suggested that the Act requires 
the Agency to grant an extension. The Commenter states ``[n]o legal 
grounds exist for such an interpretation'' and goes on to state ``[t]he 
agency only has authority to grant an extension when a state's air 
quality and compliance with an approved implementation plan satisfy the 
statutory requirements, and even then, the agency's authority to grant 
an extension is discretionary.'' The Commenter also states ``To the 
contrary, disapproving the plan submissions and requiring bump-up is 
the only action that complies with the plain meaning of the Clean Air 
Act.''
    Response 12: For the reasons provided in previous comments, EPA 
disagrees with the Commenter's interpretation of the Act.

IV. Final Action

    EPA is taking final action to approve North Carolina's April 28, 
2010, and South Carolina's May 6, 2010, requests for EPA to grant a 
one-year extension (from June 15, 2010 to June 15, 2011) of the bi-
state Charlotte Area attainment date for the 1997 8-hour ozone NAAQS. 
EPA has determined that both North Carolina and South Carolina have met 
the statutory requirements for such an extension.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve SIP 
submissions and requests that comply with the provisions of the Act and 
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing the States' requests for an extension of the 1997 8-
hour ozone NAAQS attainment date for the bi-state Charlotte Area, EPA's 
role is to approve the States' requests, provided that they meet the 
criteria of the CAA. Accordingly, this proposed action merely approves 
a state request for an extension of the 1997 8-hour ozone NAAQS 
attainment date as meeting federal requirements and does not impose 
additional requirements beyond those imposed by state law. For that 
reason, this final action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National

[[Page 31251]]

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).
    EPA has also determined that the one year extension for the bi-
state Charlotte Area does not have Tribal implications as specified by 
Executive Order 13175 (65 FR 67249, November 9, 2000), because there 
are no ``substantial direct effects'' on an Indian Tribe as a result of 
this action. The Catawba Indian Nation Reservation is located within 
the South Carolina portion of the bi-state Charlotte Area. EPA notes 
that the proposal for this rule incorrectly stated that the South 
Carolina ``SIP is not approved to apply in Indian country located in 
the state.'' However, pursuant to the Catawba Indian Claims Settlement 
Act, S.C. Code Ann. 27-16-120, ``all state and local environmental laws 
and regulations apply to the [Catawba Indian Nation] and Reservation 
and are fully enforceable by all relevant state and local agencies and 
authorities.'' Thus, the South Carolina SIP does apply to the Catawba 
Reservation. This final action to approve the one year extension for 
the bi-state Charlotte Area, however, does not add, subtract or change 
any existing state or local regulations in the SIP. Therefore, EPA has 
determined that there will be no substantial direct effects to the 
Catawba. In addition, EPA also notes that this final action 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 August 1, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control.

    Dated: May 19, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

    40 CFR part 81 is amended as follows:

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 Sec.  81.334, the table entitled ``North Carolina-Ozone (8-Hour 
Standard)'' is amended under ``Charlotte-Gastonia-Rock Hill, NC-SC'' by 
revising the entries for ``Cabarrus County,'' ``Gaston County,'' 
``Iredell County (part) Davidson Township, Coddle Creek Township,'' 
``Lincoln County,'' ``Mecklenburg County,'' ``Rowan County,'' and 
``Union County'', and adding footnote 4, to read as follows:


Sec.  81.334  North Carolina.

* * * * *

                                                                  North Carolina--Ozone
                                                                    [8-Hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Designation \a\                                        Category/classification
            Designated             ---------------------------------------------------------------------------------------------------------------------
                                             Date \1\                      Type                      Date \1\                         Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Charlotte-Gastonia-Rock Hill, NC-   This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
 SC.                                 May 31, 2011.
Cabarrus County...................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
Gaston County.....................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
Iredell County (part) Davidson      This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
 Township, Coddle Creek Township.    May 31, 2011.
Lincoln County....................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
Mecklenburg County................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
Rowan County......................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
Union County......................  This action is effective    Nonattainment.............  June 15, 2004.............  \4\ Subpart 2/Moderate.
                                     May 31, 2011.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\4\ Attainment date extended to June 15, 2011.
* * * * * * *

    3. In Sec.  81.341, the table entitled ``South Carolina--Ozone (8-
Hour Standard)'' is amended under ``Charlotte-Gastonia-Rock Hill, NC-
SC'' by revising the entry for ``York County (part) Portion along MPO 
lines'' to read as follows:


Sec.  81.341  South Carolina.

* * * * *

[[Page 31252]]



                                                                  South Carolina--Ozone
                                                                    [8-Hour standard]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Designation \a\                                        Category/classification
            Designated             ---------------------------------------------------------------------------------------------------------------------
                                             Date \1\                      Type                      Date \1\                         Type
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Charlotte-Gastonia-Rock Hill, NC-
 SC:
York County (part) Portion along    This action is effective    Nonattainment.............  June 15, 2004.............  \3\ Subpart 2/Moderate.
 MPO lines.                          May 31, 2011.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
* * * * * * *
\3\ Attainment date extended to June 15, 2011.
* * * * * * *

[FR Doc. 2011-13278 Filed 5-27-11; 8:45 am]
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