[Federal Register Volume 76, Number 220 (Tuesday, November 15, 2011)]
[Rules and Regulations]
[Pages 70656-70660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29184]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0029-201103; FRL-9490-5]


Approval and Promulgation of Implementation Plans and 
Designations of Areas for Air Quality Planning Purposes; Charlotte-
Gastonia-Rock Hill, NC and SC; Determination of Attainment of the 1997 
8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to determine that the Charlotte-
Gastonia-Rock Hill, North Carolina-South Carolina nonattainment area 
has attained the 1997 8-hour ozone national ambient air quality 
standards (NAAQS). The Charlotte-Gastonia-Rock Hill, North Carolina-
South Carolina 1997 8-hour ozone nonattainment area (hereafter referred 
to as the ``bi-state Charlotte Area'') is composed of Cabarrus, Gaston, 
Lincoln, Mecklenburg, Rowan, Union and a portion of Iredell (Davidson 
and Coddle Creek Townships) Counties in North Carolina; and a portion 
of York County in South Carolina. This determination is based upon 
complete, quality assured, quality controlled, and certified ambient 
air monitoring data for the years 2008-2010 showing that the bi-state 
Charlotte Area has monitored attainment of the 1997 8-hour ozone NAAQS. 
Under the provisions of EPA's ozone implementation rule the 
requirements for the States of North Carolina and South Carolina to 
submit an attainment demonstration and associated reasonably available 
control measures (RACM) analyses, reasonable further progress (RFP) 
plans, contingency measures, and other planning state implementation 
plans (SIPs) related to attainment of the 1997 8-hour ozone NAAQS for 
the bi-state Charlotte Area, shall be suspended for as long as the Area 
continues to attain the 1997 8-hour ozone NAAQS. Additionally, EPA is 
responding to comments received on EPA's April 12, 2011, proposed 
rulemaking.

DATES: Effective Date: This final rule is effective on December 15, 
2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R04-OAR-2011-0029. All documents in the docket are listed in 
the http://www.regulations.gov Web site. Although listed in the 
electronic docket, 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 for public inspection during normal business hours 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.

FOR FURTHER INFORMATION CONTACT: Jane Spann or Zuri Farngalo, 
Regulatory Development Section, Air Planning

[[Page 70657]]

Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. Ms. Spann may be reached by phone at (404) 
562-9029 or via electronic mail at [email protected]. Mr. Farngalo may 
be reached by phone at (404) 562-9152 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What action is EPA taking?
II. What is the effect of this action?
III. What is EPA's response to comments?
IV. What is EPA's final action?
V. What are the statutory and Executive Order reviews?

I. What action is EPA taking?

    EPA is determining that the bi-state Charlotte Area has attained 
the 1997 8-hour ozone NAAQS. This determination is based upon complete, 
quality-assured, quality-controlled and certified ambient air 
monitoring data that shows the bi-state Charlotte Area has attained the 
1997 8-hour ozone NAAQS based on the 2008-2010 data. Preliminary data 
available for 2011 are consistent with continued attainment of the 1997 
8-hour ozone standard.
    Other specific requirements of the determination and the rationale 
for EPA's final action are explained in the notice of proposed 
rulemaking published on April 12, 2011, (76 FR 20293) and will not be 
restated here. The comment period closed on May 12, 2011. EPA received 
one set of adverse comments. In this action, EPA is responding to those 
adverse comments.

II. What is the effect of this action?

    In accordance with 40 CFR 51.918, this final determination suspends 
the requirements for North Carolina and South Carolina to submit 
attainment demonstrations, associated RACM, RFP, contingency measures, 
and other planning SIPs related to attainment of the 1997 8-hour ozone 
NAAQS in the bi-state Charlotte area, as long as the Area continues to 
meet the 1997 8-hour ozone NAAQS. Finalizing this action does not 
constitute a redesignation of the bi-state Charlotte Area to attainment 
for the 1997 8-hour ozone NAAQS under section 107(d)(3) of the Clean 
Air Act (CAA or Act), nor is it a determination that the States have 
met all requirements for redesignation of the Area.

III. What is EPA's response to comments?

    EPA received one set of comments from Robert Ukeiley on the April 
12, 2011, proposed determination of attainment for the bi-state 
Charlotte Area for the 1997 8-hour ozone NAAQS. A summary of the 
comments and EPA's responses are provided below.
    Comment 1: The Commenter cites CAA section 110(l) and asserts that 
EPA's proposed determination is not in compliance with CAA section 
110(l). Specifically, the Commenter states: ``Clean Air Act Sec.  
110(l) provides that the `Administrator shall not approve a revision of 
a plan if the revision would interfere with an applicable requirement 
concerning attainment and reasonable further progress * * * or any 
other applicable requirement of this chapter.' '' 42 U.S.C. 7410(l). 
The Commenter argues that EPA may not make the determination without 
providing an analysis under section 110(l).
    Response 1: EPA disagrees with the Commenter that a section 110(l) 
analysis is required. This action is not approving a SIP revision, and 
thus CAA section 110(l) is not applicable. CAA section 110(l) applies 
explicitly and only to a ``revision to an implementation plan.'' EPA's 
rulemaking here is restricted to EPA's determination, based on ambient 
air quality, that the Area is attaining the 1997 8-hour ozone standard. 
It is not a SIP revision, and thus section 110(l) is by its own terms 
not applicable to this rulemaking. It is not this determination of 
attainment, but rather EPA's ozone implementation rule, 40 CFR 51.918, 
that specifies the consequence of the determination as suspension of 
the area's obligations to submit an attainment demonstration, a RFP 
plan, contingency measures and other planning requirements related to 
attainment as SIP revisions for as long as the area continues to 
attain. In any case, the requirements that are suspended by the 
regulation are related solely to attainment for the 1997 8-hour ozone 
standard. EPA is determining, and the Commenter does not contest, that 
the area is attaining that standard and the suspension of attainment 
planning SIP submissions lasts only as long as the area is meeting that 
standard. No other requirements are suspended. The Commenter is 
incorrect in arguing that the determination of attainment would delay 
implementation of measures needed for attainment of the 1997 8-hour 
ozone standard, and that it would relax SIP control measures. This 
action has no effect on control measures, or air quality, in the area. 
For example, contrary to Commenter's contention, reasonably available 
control technology (RACT) requirements for the 1997 8-hour ozone 
standard (or for any other standard), are not suspended or delayed by 
this determination, nor by 40 CFR 51.918. In sum, no evaluation under 
section 110(l) is required by law, and even if such an evaluation were 
required, EPA would conclude that this determination of attainment 
would not interfere with attainment, reasonable further progress 
towards attainment, or any other applicable requirement of the CAA.
    Comment 2: The Commenter claims that the attainment determination 
``effectively relax[es] the SIP by staying its implementation,'' and 
goes on to say that ``the Federal Register notice as well as the docket 
are devoid of any analysis of how delaying implementation of the 
attainment demonstration, RACM, [RFP], contingency measures and other 
planning requirements related to attainment of the 85 [parts per 
billion (ppb)] ozone NAAQS will interfere with attaining, making 
reasonable further progress on attaining and maintaining the 75 ppb 
ozone NAAQS as well as the 1-hour 100 ppb nitrogen oxides 
[NO2] NAAQS.'' Further, the Commenter states that ``[t]he 
notice and docket are also devoid of any analysis of how delaying 
implementation of the various 85 ppb ozone nonattainment SIP provisions 
will interfere with attaining, making reasonable further progress, and 
maintaining the other NAAQS through co-benefits. For example, 
transportation control measures should have the co-benefit of reduced 
carbon monoxide [CO] and sulfur dioxide [SO2] emissions from 
mobile sources.''
    Response 2: The sole question addressed by EPA's rulemaking is 
whether the monitored ambient air quality in the Area shows that the 
Area has attained the 1997 8-hour ozone standard.\1\ The Commenter does 
not contest EPA's finding that the bi-State Charlotte Area meets this 
NAAQS. Upon EPA's final determination that the Area has attained the 
standard, 40 CFR 51.918 provides that the CAA requirement to submit 
planning SIPs associated with attainment of that standard are suspended 
for as long as the Area continues to have ambient air quality data that 
meets that NAAQS. This regulation, which was upheld by the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Cir.) in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), is based on the 
principle that when an area is already attaining a standard, and 
continues in attainment, there is no basis for requiring planning SIPs 
to attain that

[[Page 70658]]

standard. In other words, if an area is meeting the NAAQS, it does not 
need a plan to meet the NAAQS. No additional measures are required for 
the area to attain the standard, since the area is already in 
attainment. In any event, EPA's determination of attainment is based 
solely on quality-assured ambient air quality monitoring. It is 40 CFR 
51.918 that directs the suspension of planning requirements for the 
1997 8-hour ozone standard. This suspension lasts only for so long as 
the area continues in attainment. Contrary to the Commenter's 
contention, under these circumstances there are no adverse impacts from 
the suspension. Moreover, this action concerns only the 1997 8-hour 
ozone standard, and is not relevant to the revised 8-hour ozone NAAQS 
of 0.075 ppm (75 ppb) that EPA promulgated on March 12, 2008. Further, 
EPA's determination of attainment for the bi-state Charlotte Area does 
not revise or remove any existing emissions limit for any NAAQS, or any 
other existing substantive SIP provisions relevant to the 1997 8-hour 
ozone NAAQS or the new NO2 and SO2 NAAQS. Nor 
does this determination revise or remove any existing emissions limit, 
or any existing substantive SIP provisions related to the CO NAAQS. As 
a result, this action does not relax any existing requirements or alter 
the status quo air quality.
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    \1\ EPA notes that the 1997 8-hour ozone NAAQS as published in a 
July 18, 1997, (62 FR 38856) is 0.08 parts per million (ppm), which 
is effectively 0.084 ppm or 84 ppb (due to the rounding convention) 
and not 85 ppb as the Commenter stated.
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    The Commenter expresses concerns that this action ``will interfere 
with attaining, making reasonable further progress, and maintaining the 
other NAAQS through co-benefits.'' To support this claim, the Commenter 
mentions that transportation control measures should have the co-
benefit of reduced CO and SO2 emissions from mobile sources. 
EPA does not understand the concern the Commenter is expressing with 
regard to transportation control measures. There are no mandatory or 
statutory requirements for this Area to implement transportation 
control measures even without EPA's action to suspend the requirements 
to submit attainment demonstrations, associated RACM, RFP, contingency 
measures, and other planning SIPs related to attainment of the 1997 8-
hour ozone NAAQS.
    Comment 3: The Commenter asserts that ``EPA's analysis must 
conclude that this proposed action would [violate] Sec.  110(l) if 
finalized.'' To support this statement, the Commenter gives the example 
``42 U.S.C. Sec.  7502(a)(2)(A) & (B) provides that the attainment date 
for nonattainment areas `shall be the date by which attainment can be 
achieved as expeditiously as practicable[.]' '' The Commenter goes on 
to contend that ``delaying implementing the nonattainment SIP 
[measures] for the 85 ppb NAAQS will delay the date by which the area 
can achieve the 75 ppb NAAQS, or a more protective NAAQS that EPA may 
promulgate.''
    Response 3: EPA disagrees with the Commenter's assertion that a 
final determination of attainment for the bi-state Charlotte Area for 
the 1997 8-hour ozone NAAQS would violate section 110(l). First, as 
noted above, this action is not approving a SIP revision and thus 
section 110(l) is not applicable. Second, EPA's implementing 
regulation, 40 CFR 51.918, provides that as a result of the 
determination that the Area is attaining, the nonattainment planning 
measures--which are designed to bring the Area into attainment--are no 
longer necessary so long as the Area continues to have attaining data 
for the 1997 8-hour ozone NAAQS. See 40 CFR 51.918. These logical 
consequences are articulated by regulation, and EPA's determination of 
attainment does not make any substantive revision that could result in 
any change in emissions. This action does not relax any existing 
requirements, delay implementation of measures, or alter the status quo 
air quality.
    Comment 4: The Commenter expresses concerns regarding the sources' 
compliance with RACT and control techniques guidelines (CTG), and cites 
to 42 U.S.C. 7502(c)(1) explaining ``that nonattainment SIPs shall 
provide for RACM as expeditiously as practicable.'' Specifically, the 
Commenter states ``[d]elay in implementing the nonattainment SIP for 
the 85 ppb NAAQS will interfere with the expeditious implementation of 
RACM for the 75 ppb NAAQS.'' The Commenter goes on to explain that ``if 
a source has already installed pollution controls to comply with RACT 
for the 85 ppb NAAQS, then the source can expeditiously comply with 
RACT for the 75 ppb NAAQS. However, delaying compliance with RACT for 
the 85 ppb NAAQS will interfere with the expeditious compliance with 
RACT for the 75 ppb NAAQS. This is especially true for sources that 
comply with RACT set forth in the Control Techniques Guidelines 
(CTG).''
    Response 4: EPA believes that the Commenter's concerns regarding 
compliance of RACT and meeting the requirements for CTG are misplaced 
because this action does not relieve North Carolina or South Carolina 
of meeting these requirements for the 1997 8-hour ozone NAAQS. Both 
North Carolina and South Carolina have provided EPA with SIP revisions 
to comply with the RACT and CTG requirements for the 1997 8-hour ozone 
NAAQS for the bi-state Charlotte Area. (EPA is taking action on these 
SIP revisions in rulemakings separate from today's action. In any 
event, a determination of attainment does not result in the suspension 
of any obligation to submit 8-hour ozone RACT requirements). The 
Commenter's concern regarding ``expeditious compliance with RACT for 
the 75 ppb NAAQS,'' is misplaced. No designations have been made for 
the revised NAAQS, and thus no RACT requirements for that NAAQS are in 
place. Should the bi-state Charlotte Area (or any part thereof) be 
designated nonattainment for the 75 ppb ozone NAAQS or another revised 
NAAQS, the States will be subject to the applicable CAA requirements 
for that area based on the area's classification after EPA's 
nonattainment designation process is complete.
    Comment 5: The Commenter states that:

``some nitrogen oxides (NOX) emissions which should be 
controlled by the 85 ppb nonattainment SIP provisions will become 
fine particulate matter. Allowing these NOX emission[s] 
will interfere with the national goal of remedying existing 
impairment of visibility in mandatory Class I [F]ederal areas which 
impairment results from manmade air pollution as set forth in 42 
U.S.C. Sec.  7491(a)(1) as well as making reasonable progress 
towards that goal as required by 42 U.S.C. Sec.  7491(a)(4) and its 
implementing regulations.''

The Commenter goes on to state that ``[d]elay in requiring 
implementation of the 85 ppb nonattainment SIP provisions will also 
interfere with the requirement to procure, install and operate, as 
expeditiously as practicable best available retrofit technology as 
required by 42 U.S.C. Sec.  7491(b)(2)(A) and its implementing 
regulations.''
    Response 5: The Commenter provides no basis for their assertion 
that determination of attainment for the 1997 8-hour ozone NAAQS for 
the bi-state Charlotte Area will delay implementation of controls and 
thus allow NOX emissions to interfere with ``the national 
goal of remedying existing impairment of visibility in mandatory Class 
I [F]ederal areas'' or ``the requirement to procure, install and 
operate, as expeditiously as practicable best available retrofit 
technology.'' As previously described, EPA's determination of the bi-
state Charlotte Area's attainment of the 1997 8-hour ozone NAAQS does 
not make substantive revisions that could result in or delay required 
controls. Today's action, pursuant to 40 CFR 51.918 merely suspends the 
requirements for

[[Page 70659]]

the bi-state Charlotte Area to submit attainment demonstrations, 
associated RACM, RFP, contingency measures, and other planning SIPs 
related to attainment of the 1997 8-hour ozone NAAQS (when the Area has 
already attained that standard). It does not, in and of itself, relax 
any existing requirements or alter the status quo air quality.
    This action also does not relieve North Carolina and South Carolina 
of the requirements related to improving visibility impairment, 
including meeting reasonable progress goals and the consideration of 
best available control technology for Class I areas in North Carolina 
and South Carolina. Both North Carolina and South Carolina have 
submitted SIP revisions to address requirements related to improving 
visibility impairment including meeting reasonable progress goals and 
the consideration of best available control technology for their 
respective Class I areas. EPA will address these SIP submissions in a 
rulemaking separate from today's action.

IV. What is EPA's final action?

    EPA is taking final action to determine that the bi-state Charlotte 
Area has attained the 1997 8-hour ozone NAAQS. This determination is 
based upon complete, quality-assured, quality-controlled, and certified 
ambient air monitoring data showing that the bi-state Charlotte Area 
has monitored attainment of the 1997 8-hour ozone NAAQS during the 
period 2008-2010. This final action, in accordance with 40 CFR 51.918, 
will suspend the requirements for the States of North Carolina and 
South Carolina to submit attainment demonstrations, associated RACM, 
RFP plans, contingency measures, and other planning SIPs for the bi-
State Charlotte Area related to attainment of the 1997 8-hour ozone 
NAAQS, for as long as the Area continues to meet the 1997 8-hour ozone 
NAAQS.

V. What are statutory and Executive Order reviews?

    This action makes a determination of attainment based on air 
quality, and will result in the suspension of certain federal 
requirements, and it will not impose additional requirements beyond 
those imposed by State law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this 1997 8-hour ozone NAAQS determination of 
attainment for the bi-state Charlotte Area does not have Tribal 
implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because the determination does not have substantial 
direct effects on an Indian Tribe. 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. While this statement is 
generally true with regard to Indian country throughout the United 
States, for purposes of the Catawba Indian Nation Reservation in Rock 
Hill, the SIP does apply within the Reservation. 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.'' However, 
because today's action will not result in any direct effects on the 
Catawba, EPA's initial assessment that Executive Order 13175 does not 
apply remains valid. Furthermore, EPA notes today's action also 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 January 17, 2012. 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 52

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

    Dated: November 2, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

0
2. Section 52.1779 is added to read as follows:


Sec.  52.1779  Control strategy: Ozone.

    (a) Determination of attaining data. EPA has determined, as of 
November 15, 2011, the bi-state Charlotte-Gastonia-Rockhill, North 
Carolina-South Carolina

[[Page 70660]]

nonattainment area has attaining data for the 1997 8-hour ozone NAAQS. 
This determination, in accordance with 40 CFR 51.918, suspends the 
requirements for this area to submit an attainment demonstration, 
associated reasonably available control measures, a reasonable further 
progress plan, contingency measures, and other planning SIPs related to 
attainment of the standards for as long as this area continues to meet 
the 1997 8-hour ozone NAAQS.
    (b) [Reserved]

Subpart PP--South Carolina

0
3. Section 52.2125 is added to read as follows:


Sec.  52.2125  Control strategy: Ozone.

    (a) Determination of attaining data. EPA has determined, as of 
November 15, 2011, the bi-state Charlotte-Gastonia-Rockhill, North 
Carolina-South Carolina nonattainment area has attaining data for the 
1997 8-hour ozone NAAQS. This determination, in accordance with 40 CFR 
51.918, suspends the requirements for this area to submit an attainment 
demonstration, associated reasonably available control measures, a 
reasonable further progress plan, contingency measures, and other 
planning SIPs related to attainment of the standards for as long as 
this area continues to meet the 1997 8-hour ozone NAAQS.
    (b) [Reserved]

[FR Doc. 2011-29184 Filed 11-14-11; 8:45 am]
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