[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Rules and Regulations]
[Pages 38838-38841]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17251]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0454; FRL-9966-41-Region 4]


Air Plan Approval: North Carolina; Transportation Conformity

AGENCY: Environmental Protection Agency.

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
portion of a revision to the North Carolina State Implementation plan 
(SIP) submitted by the State of North Carolina on March 24, 2006, for 
the purpose of clarifying the State's transportation conformity rules 
consistent with Federal requirements.

DATES: This direct final rule is effective October 16, 2017 without 
further notice, unless EPA receives adverse comment by September 15, 
2017. If EPA receives such comments, it will publish a timely 
withdrawal of the direct final rule in the Federal Register and inform 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0454 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the Web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Nacosta Ward, Air Regulatory 
Management Section, Air Planning and Implementation 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 is (404) 562-9140. Ms. Ward can also 
be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background and Purpose

A. Call to States for Conformity SIP Revisions

    In the Clean Air Act (CAA or Act), Congress recognized that actions 
taken by federal agencies could affect a State, Tribal, or local 
agency's ability to attain and maintain the national ambient air 
quality standards (NAAQS). Congress added section 176(c) (42 U.S.C. 
7506) to the CAA to ensure federal agencies' proposed actions conform 
to the applicable SIP, Tribal Implementation Plan (TIP), or Federal 
Implementation Plan (FIP) for attaining and maintaining the NAAQS. That 
section requires federal entities to find that the emissions from the 
federal action will conform with the purposes of the SIP, TIP, or FIP 
or not otherwise interfere with the State's or Tribe's ability to 
attain and maintain the NAAQS.
    The CAA Amendments of 1990 clarified and strengthened the 
provisions in section 176(c). Because certain provisions of section 
176(c) apply only to highway and mass transit funding and approvals 
actions, EPA published two sets of regulations to implement section 
176(c). The Transportation Conformity Regulations, (40 CFR part 51, 
subpart T, and 40 CFR part 93, subpart A) first published on

[[Page 38839]]

November 24, 1993 (58 FR 62188), address federal actions related to 
highway and mass transit funding and approval actions. The conformity 
regulations have been revised numerous times since then.
    When promulgated in 1993, the Federal Transportation Conformity 
Rule at 40 CFR 51.395 mandated that the transportation conformity SIP 
revisions incorporate several provisions of the rule in verbatim form, 
except insofar as needed to give effect to a stated intent in the 
revision to establish criteria and procedures more stringent than the 
requirements stated in these sections.

B. What is transportation conformity?

    Transportation conformity is required under section 176(c) of the 
CAA to ensure that federally-supported highway projects, transit 
projects, and other activities are consistent with (``conform to'') the 
purpose of the SIP. Transportation conformity currently applies to 
areas that are designated nonattainment, as well as those areas 
redesignated to attainment after 1990 (maintenance areas), with plans 
developed under section 175A of the Act for the following 
transportation related pollutants: Ozone, particulate matter 
(PM2.5 and PM10), carbon monoxide, and nitrogen 
dioxide. Conformity to the purpose of the SIP means that transportation 
activities will not cause new air quality violations, worsen existing 
violations, or delay timely attainment of the relevant NAAQS. The 
transportation conformity regulation is found in 40 CFR part 93, 
subpart A and provisions related to conformity SIPs are found in 40 CFR 
51.390.

C. Prior Approval of North Carolina Conformity SIP Revisions

    EPA has approved several revisions to the North Carolina SIP to 
incorporate transportation conformity requirements consistent with the 
Federal regulations. Initially, on December 27, 2002, EPA approved 
North Carolina's SIP revision to address consultation requirements and 
procedures which included memoranda of agreements for areas in North 
Carolina. See 67 FR 78983. On September 15, 2003, EPA approved the 
Mecklenburg-Union Metropolitan Planning Organization interagency 
transportation conformity memorandum of agreement. See 68 FR 53883. EPA 
also approved an update to North Carolina's transportation conformity 
requirements on December 26, 2013, to establish transportation 
conformity criteria and procedures related to interagency consultation, 
conflict resolution, public participation, and enforceability of 
certain transportation related control measures and mitigation 
measures. See 78 FR 78272.

II. Analysis of State's Submittal

    On March 24, 2006, the North Carolina Department of Environment and 
Natural Resources (now the North Carolina Department of Environmental 
Quality) submitted a SIP revision to EPA to clarify the applicability 
of the State's transportation conformity rules. In this direct final 
rulemaking EPA is taking action to approve changes to regulation 15A 
NCAC Subchapter 2D, Section .2001, Purpose, Scope and Applicability. 
EPA has taken, will take, or, for various reasons, will not take 
separate action on all other revisions submitted on March 24, 2006.\1\
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    \1\ On July 18, 2017, EPA took direct final action on 15A NCAC 
2D Sections .0101, .0103, .0810, .1902, .1903 and 15A NCAC 2Q 
Sections .0103, .0105, .0304, .0305, and .0808. See 82 FR 32767. EPA 
will be taking separate action on 15A NCAC 2D Section.1904 and 2Q 
Sections .0101 and .0301. EPA did not take action on 15A NCAC 2D 
Section .1201. because this rule pertains to incinerators and 
addresses emission guidelines under CAA sections 111(d) and 129 and 
40 CFR part 60 and is not a part of the federally-approved SIP. 
Regulation 15A NCAC 2D Section .1401 was withdrawn by NCDEQ on June 
5, 2017. Regulation 15A NCAC 2Q Sections .0508 and 0523 were not 
acted on because these are title V rules and are not a part of the 
SIP.
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    The State explained in its submission that North Carolina's rule, 
as previously written, could be read in two ways. One way is that 
transportation conformity rules apply to areas identified as 
nonattainment or maintenance areas by EPA in the Code of Federal 
Regulations (CFR) or to areas listed in the rule. North Carolina 
explained the second way that their rule could be read is that 
transportation conformity rules apply only to areas identified as 
nonattainment or maintenance areas by the CFR and also identified in 
the rule. North Carolina explained that the State's intent is to apply 
transportation conformity rules to areas identified as nonattainment or 
maintenance areas by EPA in the CFR or to areas listed in the rule. 
North Carolina also updated its rule to clarify a vague statement in 
their previous rule that read that transportation conformity rules 
apply to areas ``not in compliance with the primary standard.'' The 
State replaced this language with a more specific reference to ozone 
and PM2.5 standards.
    EPA has reviewed North Carolina's transportation conformity rule 
changes to ensure consistency with Federal transportation conformity 
requirements at 40 CFR part 93, subpart A. North Carolina's 
clarification that transportation conformity requirements apply to 
areas identified as nonattainment or maintenance areas by EPA in the 
CFR or to areas listed in the rule is consistent with the Federal 
transportation conformity requirements in that it does not require a 
change to the State's rules in order for the requirements to apply. 
Pursuant to CAA section 176(c) transportation conformity requirements 
are applicable in relevant nonattainment and maintenance areas without 
a rule change by the State to be in effect. Thus, EPA is taking direct 
final action to approve the aforementioned change to North Carolina's 
transportation conformity provisions as found at 15A NCAC 2D Section 
.2001. Additionally, EPA is proposing to approve North Carolina's 
change in section (d) of 15A NCAC 2D Section .2001 to clarify the vague 
statement that transportation conformity requirements apply to apply to 
areas ``not in compliance with the primary standard'' by being more 
specific in identifying the applicable primary standards of 
PM2.5 and ozone. This change is consistent with Federal 
requirements that transportation conformity requirements do not apply 
in all areas ``not in compliance with the primary standard'' but only 
in nonattainment and maintenance areas for transportation-related 
pollutants.\2\
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    \2\ Transportation conformity requirements do not apply in areas 
designated nonattainment (or considered as maintenance areas) for 
lead or sulfur dioxide, although these are primary standards.
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III. Incorporation by Reference

    In this rule, EPA is taking direct final action to include in a 
final EPA rule regulatory text that includes incorporation by 
reference. In accordance with requirements of 1 CFR 51.5, EPA is 
finalizing the incorporation by reference of 15A NCAC Subchapter 2D, 
Section .2001, Purpose, Scope and Applicability, effective November 10, 
2005, which incorporates by reference the Federal Transportation 
Conformity Rule that was restructured and amended on March 14, 2012 (77 
FR 14979). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference by 
the Director of the Federal Register in the next update to the SIP 
compilation.\3\ EPA has made, and will continue to make, these 
materials generally available through www.regulations.gov and/or at the 
EPA Region 4 Office (please contact the person identified in

[[Page 38840]]

the For Further Information Contact section of this preamble for more 
information).
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    \3\ 62 FR 27968 (May 22, 1997).
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IV. Final Action

    Pursuant to section 110 of the CAA, EPA is approving the changes to 
the North Carolina SIP regarding the State's transportation conformity 
requirements. The approval of North Carolina's conformity SIP changes 
clarifies the State rules and is consistent with Federal transportation 
conformity requirements.
    EPA is publishing this rule without prior proposal because the 
Agency views this as a noncontroversial submittal and anticipates no 
adverse comments. However, in the proposed rules section of this 
Federal Register publication, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
adverse comments be filed. This rule will be effective October 16, 2017 
without further notice unless the Agency receives adverse comments by 
September 15, 2017.
    If EPA receives such comments, then EPA will publish a document 
withdrawing the final rule and informing the public that the rule will 
not take effect. All adverse comments received will then be addressed 
in a subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period. Parties interested in commenting 
should do so at this time. If no such comments are received, the public 
is advised that this rule will be effective on October 16, 2017 and no 
further action will be taken on the proposed rule.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, the Agency may adopt as final those 
provisions of the rule that are not the subject of an adverse comment. 
Please note that if we receive adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, we may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 October 16, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

    Dated: August 7, 2017.
V. Anne Heard
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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. In Sec.  52.1770 (c), Table 1 is amended under Subchapter 2D Air 
Pollution Control Requirements by revising the entry for ``Sect .2001'' 
to read as follows:

[[Page 38841]]

Sec.  52.1770  Identification of plan.

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    (c) * * *

                                Table 1--EPA Approved North Carolina Regulations
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                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanation
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                                                  * * * * * * *
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                                Subchapter 2D Air Pollution Control Requirements
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                                     Section .2000 Transportation Conformity
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Sect .2001.......................  Purpose, Scope and       11/10/2005  8/16/2017, [Insert   ...................
                                    Applicability.                       first page of
                                                                         publication].
 
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[FR Doc. 2017-17251 Filed 8-15-17; 8:45 am]
 BILLING CODE 6560-50-P