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, 31245-31252 [2011-13278]

Download as PDF Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations (2) Rule 333, ‘‘Control of Emissions from Reciprocating Internal Combustion Engines,’’ adopted on June 19, 2008. * * * * * [FR Doc. 2011–13273 Filed 5–27–11; 8:45 am] BILLING CODE 6560–50–P 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 CharlotteGastonia-Rock Hill, North CarolinaSouth Carolina 1997 8-Hour Ozone Moderate Nonattainment Area Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: 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 CharlotteGastonia-Rock Hill, North CarolinaSouth 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. rmajette on DSK89S0YB1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 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 https:// 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 https:// 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 spann.jane@epa.gov. 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 farngalo.zuri@epa.gov. DATES: 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 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 31245 Implementation Plans; Extension of Attainment Date for the CharlotteGastonia-Rock Hill, North CarolinaSouth 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, E:\FR\FM\31MYR1.SGM 31MYR1 31246 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations rmajette on DSK89S0YB1PROD with RULES 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 oneyear 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 oneyear 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 8hour 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 VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 50, Appendix I. These data are recorded in the EPA Air Quality System database. These data are complete, qualityassured, 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 8hour 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 8hour 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 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. PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 is a summary of the comments and EPA’s response. 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 8hour 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 8hour 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 bistate 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 bistate 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 bistate 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.’’ E:\FR\FM\31MYR1.SGM 31MYR1 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations rmajette on DSK89S0YB1PROD with RULES 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 bistate 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 bistate 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 bistate 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. Comment 3: The Commenter asserts several times throughout the comment letter that EPA should reclassify the bistate 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 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. VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 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 bistate 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, PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 31247 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 ‘waitand-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 bistate 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 E:\FR\FM\31MYR1.SGM 31MYR1 rmajette on DSK89S0YB1PROD with RULES 31248 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 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 bistate 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 VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 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. § 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. § 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 § 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. § 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. § 7410(a)(1). Among the applicable requirements of Part D, ‘plan provisions * * * shall provide for PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 attainment of the national ambient air quality standards.’ Id. § 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 bistate 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 E:\FR\FM\31MYR1.SGM 31MYR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 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 VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 never been federally approved, and thus have not be made federally enforceable, see 42 U.S.C. § 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 oneyear 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. § 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 sparkignition 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 PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 31249 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 bistate 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 E:\FR\FM\31MYR1.SGM 31MYR1 rmajette on DSK89S0YB1PROD with RULES 31250 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations ensure that road capacity investments will not compromise air quality for years to come. See 40 CFR § 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 VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 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 8hour 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 E:\FR\FM\31MYR1.SGM 31MYR1 31251 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations 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] 1. The authority citation for part 81 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. 2. In § 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: ■ § 81.334 * * North Carolina. * * * NORTH CAROLINA—OZONE [8-Hour standard] Designation a Category/classification Designated Date 1 Charlotte-Gastonia-Rock Hill, NC–SC .... Cabarrus County .................................... Gaston County ........................................ Iredell County (part) Davidson Township, Coddle Creek Township. Lincoln County ........................................ Mecklenburg County ............................... Rowan County ........................................ Union County .......................................... * Date 1 Type Type This This This This action action action action is is is is effective effective effective effective May May May May 31, 31, 31, 31, 2011 2011 2011 2011 ... ... ... ... Nonattainment Nonattainment Nonattainment Nonattainment .. .. .. .. June June June June 15, 15, 15, 15, 2004 2004 2004 2004 .. .. .. .. 4 Subpart This This This This action action action action is is is is effective effective effective effective May May May May 31, 31, 31, 31, 2011 2011 2011 2011 ... ... ... ... Nonattainment Nonattainment Nonattainment Nonattainment .. .. .. .. June June June June 15, 15, 15, 15, 2004 2004 2004 2004 .. .. .. .. 4 Subpart * * * * 2/Moderate. 2/Moderate. 4 Subpart 2/Moderate. 4 Subpart 2/Moderate. 4 Subpart 2/Moderate. 2/Moderate. 4 Subpart 2/Moderate. 4 Subpart 2/Moderate. 4 Subpart * * a Includes rmajette on DSK89S0YB1PROD with RULES 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 § 81.341, the table entitled ‘‘South Carolina—Ozone (8-Hour Standard)’’ is amended under ‘‘Charlotte-Gastonia-Rock Hill, NC–SC’’ VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 by revising the entry for ‘‘York County (part) Portion along MPO lines’’ to read as follows: PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 * * * * § 81.341 * E:\FR\FM\31MYR1.SGM * South Carolina. * 31MYR1 * * 31252 Federal Register / Vol. 76, No. 104 / Tuesday, May 31, 2011 / Rules and Regulations SOUTH CAROLINA—OZONE [8-Hour standard] Designation a Category/classification Designated Date 1 * * Charlotte-Gastonia-Rock Hill, NC–SC: York County (part) Portion along MPO lines. * * * * Type * * * This action is effective May 31, 2011 ... * Date 1 Type Nonattainment .. * June 15, 2004 .. * 3 Subpart * 2/Moderate. * a Includes Indian Country located in each county or area, except as otherwise specified. date is June 15, 2004, unless otherwise noted. * * * * * 3 Attainment date extended to June 15, 2011. * * * * * 1 This BILLING CODE 6560–50–P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, and 25 [ET Docket No. 10–142; FCC 11–57] Fixed and Mobile Services in the Mobile Satellite Service Bands at 1525– 1559 MHz and 1626.5–1660.5 MHz, 1610–1626.5 MHz and 2483.5–2500 MHz, and 2000–2020 MHz and 2180– 2200 MHz Federal Communications Commission. ACTION: Final rule. AGENCY: In this document, the Commission amends its rules to make additional spectrum available for new investment in mobile broadband networks while also ensuring that the United States maintains robust mobile satellite service capabilities. First, this document adds co-primary Fixed and Mobile allocations to the Mobile Satellite Service (MSS) 2 GHz band, consistent with the International Table of Allocations, allowing more flexible use of the band, including for terrestrial broadband services, in the future. Second, to create greater predictability and regulatory parity with the bands licensed for terrestrial mobile broadband service, the document extends the Commission’s existing secondary market spectrum manager spectrum leasing policies, procedures, and rules that currently apply to wireless terrestrial services to terrestrial services provided using the Ancillary Terrestrial Component (ATC) of an MSS system. DATES: Effective June 30, 2011. rmajette on DSK89S0YB1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:21 May 27, 2011 Jkt 223001 Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Kevin Holmes, Wireless Telecommunications Bureau at 202– 418–2487 or kevin.holmes@fcc.gov, or Nicholas Oros, Office of Engineering and Technology at 202–418–0636 or nicholas.oros@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s Report and Order, FCC 11–57, adopted on April 5, 2011, and released on April 6, 2011, as corrected by an erratum issued on April 15, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY–A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY–B402, Washington, DC 20554, (202) 488–5300, facsimile (202) 488– 5563, or via e-mail at fcc@bcpiweb.com. The complete text is also available on the Commission’s Web site at https:// wireless.fcc.gov/edocs_public/ attachment/FCC-11-57A1doc. This full text may also be downloaded at: https://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418–7426, TTY (202) 418–7365, or via e-mail to bmillin@fcc.gov. ADDRESSES: [FR Doc. 2011–13278 Filed 5–27–11; 8:45 am] Summary The Federal Communications Commission makes additional spectrum available for new investment in mobile broadband networks while also ensuring that the United States maintains robust MSS capabilities. This action is consistent with Recommendation 5.8.4 of the National Broadband Plan, which PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 * * * * recommended that 90 megahertz of spectrum allocated to MSS could be made available for terrestrial mobile broadband use, while preserving sufficient MSS capability to serve rural areas, public safety, and other important national purposes. The rules adopted herein: (1) Add co-primary Fixed and Mobile allocations to the MSS 2GHz band, consistent with the International Table of Allocations, and (2) extend the Commission’s existing secondary market spectrum manager spectrum leasing policies, procedures, and rules that currently apply to wireless terrestrial services to services provided using the ATC of an MSS system. I. Background 1. Mobile Satellite Service Spectrum Allocation. MSS is a radiocommunications service involving transmission between mobile earth stations and one or more space stations. As we discussed in the MSS NPRM, three MSS frequency bands are capable of supporting broadband service: The 2 GHz band (‘‘S-band’’) from 2000–2020 MHz and 2180–2200 MHz, the Big LEO Band from 1610–1626.5 MHz and 2483.5–2500 MHz, and the L-band from 1525–1559 MHz and 1626.5–1660.5 MHz. 75 FR 49871 (August 16, 2010). Although the International Table of Allocations includes a primary Fixed and Mobile services allocation along with the primary Mobile-Satellite allocation in the S-band, such coallocations do not exist in the U.S. Table. The Big LEO and L-bands are not allocated for Fixed and Mobile services either in the United States or on an international basis. 2. In addition, as noted in the MSS NOI, MSS has the capability to serve important needs, such as rural access and disaster recovery. 75 FR 49871 (August 16, 2010). MSS has the ability to provide communications to mobile E:\FR\FM\31MYR1.SGM 31MYR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31245-31252]
From the Federal Register Online via the Government Printing 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.

-----------------------------------------------------------------------

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 https://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 https://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 spann.jane@epa.gov. 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 farngalo.zuri@epa.gov.

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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]
BILLING CODE 6560-50-P

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