[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Rules and Regulations]
[Pages 63995-63999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28967]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R04-OAR-2009-0338-200908; FRL-9089-1]
Approval and Promulgation of Implementation Plans and
Designations of Areas for Air Quality Planning Purposes; North
Carolina: Redesignation of Great Smoky Mountains National Park 1997 8-
Hour Ozone Nonattainment Area to Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to approve a request submitted on
July 24, 2009, from the State of North Carolina, through the North
Carolina Department of Environment and Natural Resources (NCDENR),
Division of Air Quality (DAQ), to redesignate the Great Smoky Mountains
National Park (GSMNP) 1997 8-hour ozone nonattainment area (herein
referred to as the ``GSMNP Area'') to attainment for the 1997 8-hour
ozone national ambient air quality standards (NAAQS). The GSMNP Area
for the 1997 8-hour ozone standard is comprised of portions of Haywood
and Swain Counties in North Carolina. EPA's approval of the
redesignation request is based on the determination that the GSMNP Area
has met the criteria for redesignation to attainment set forth in the
Clean Air Act (CAA), including the determination that the GSMNP Area
has attained the 8-hour ozone standard. Additionally, EPA is approving
a revision to the North Carolina State Implementation Plan (SIP)
including the 8-hour ozone maintenance plan for the GSMNP Area that
contains the new 2011 and 2020 motor vehicle emission budgets (MVEBs)
for nitrogen oxides (NOX) and an insignificance finding for
volatile organic compounds (VOC) contribution from motor vehicles to
the 8-hour ozone pollution in the GSMNP Area. Through this action, EPA
is also finding the NOX MVEBs and the VOC insignificance
finding adequate for the purposes of transportation conformity. This
action also approves the emissions inventory submitted with the
maintenance plan
[[Page 63996]]
(under the CAA section 172(c)(3)). On March 12, 2008, EPA issued a
revised ozone standard. EPA later announced on September 16, 2009, that
it may reconsider this revised ozone standard. The current action,
however, is being taken to address requirements under the 1997 8-hour
ozone NAAQS. Requirements for the GSMNP Area under the 2008 standard
will be addressed in the future.
DATES: Effective Date: This rule will be effective January 6, 2010.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2009-0338. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jane Spann or Nacosta Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street, SW., Atlanta, Georgia 30303-8960. Jane Spann may be
reached by phone at (404) 562-9029 or via electronic mail at
[email protected]. The telephone number for Ms. Ward is (404) 562-9140
and the electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Is the Background for the Actions?
II. What Actions Is EPA Taking?
III. Why Is EPA Taking These Actions?
IV. What Are the Effects of These Actions?
V. Final Action
VI. Statutory and Executive Order Reviews
I. What Is the Background for the Actions?
On July 24, 2009, North Carolina, through the NCDENR, DAQ,
submitted a request to redesignate the GSMNP Area to attainment for the
1997 8-hour ozone standard, and for EPA approval of the North Carolina
SIP revision containing a maintenance plan for the GSMNP Area. In an
action published on October 16, 2009, (74 FR 53198) EPA proposed to
approve the redesignation of the GSMNP Area to attainment. EPA also
proposed approval of North Carolina's plan for maintaining the 1997 8-
hour NAAQS as a SIP revision, including the emissions inventory
submitted pursuant to CAA section 172(c)(3); and proposed to approve
the NOX MVEBs and VOC insignificance finding for the GSMNP
Area that were contained in the maintenance plan. In the October 16,
2009, proposed action, EPA also provided information on the status of
EPA's transportation conformity adequacy determination for the GSMNP
Area NOX MVEBs and the VOCs insignificance finding. EPA
received no comments on the October 16, 2009, proposal.
In this action, EPA is also finalizing its determination that the
new NOX MVEBs and the VOC insignificance finding for the
GSMNP Area are adequate for transportation conformity purposes. The
MVEBs included in the maintenance plan area are as follows:
Table 1--GSMNP Area MVEBs
[Kilograms per day\1\]
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2011 2020
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NOX MVEBs........................................... 179.9 127.0
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\1\ North Carolina has provided the conversion factor of 907.1847
kilograms per ton, rounded to two decimal places for tons to allow for
comparison of the MVEBs to the emissions inventory (expressed in tons
per day) in this Area.
EPA's adequacy public comment period on these MVEBs and the VOC
insignificance finding (as contained in North Carolina's submittal)
began on May 18, 2009, and closed on June 17, 2009. No comments were
received during EPA's adequacy public comment period. Through this
Federal Register notice, EPA is finding the 2011 and 2020
NOX MVEBs, and the VOC insignificance finding, as contained
in North Carolina's submittal, adequate. These MVEBs and the
insignificance finding meet the adequacy criteria contained in the
Transportation Conformity Rule. The new NOX MVEBs must be
used for future transportation conformity determinations. Additionally,
transportation partners in this area should note the VOC insignificance
finding in future conformity determinations.
As was discussed in greater detail in the October 16, 2009,
proposal, this redesignation is for the 1997 8-hour ozone designations
finalized in 2004 (69 FR 23857, April 30, 2004). Various aspects of
EPA's Phase 1 8-hour ozone implementation rule were challenged in court
and on December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit (DC Circuit Court) vacated EPA's Phase 1
Implementation Rule for the 8-hour ozone standard. (69 FR 23951, April
30, 2004). South Coast Air Quality Management Dist. (SCAQMD) v. EPA,
472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several
petitions for rehearing, the DC Circuit Court clarified that the Phase
1 Rule was vacated only with regard to those parts of the Rule that had
been successfully challenged. Therefore, the Phase 1 Rule provisions
related to classifications for areas currently classified under subpart
2 of title I, part D of the CAA as 8-hour nonattainment areas, the 8-
hour attainment dates and the timing for emissions reductions needed
for attainment of the 8-hour ozone NAAQS, remain effective. The June
8th decision left intact the Court's rejection of EPA's reasons for
implementing the 8-hour standard in certain nonattainment areas under
subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let
stand EPA's revocation of the 1-hour standard and those anti-
backsliding provisions of the Phase 1 Rule that had not been
successfully challenged. The June 8th decision affirmed the December
22, 2006, decision that EPA had improperly failed to retain measures
required for 1-hour nonattainment areas under the anti-backsliding
provisions of the regulations: (1) Nonattainment area New Source Review
(NSR) requirements based on an area's 1-hour nonattainment
classification; (2) Section 185 penalty fees for 1-hour severe or
extreme nonattainment areas; and (3) measures to be implemented
pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the
contingency of an area not making reasonable further progress toward
attainment of the 1-hour NAAQS, or for failure to attain that NAAQS.
The June 8th decision clarified that the Court's reference to
conformity requirements for anti-backsliding purposes was limited to
requiring the continued use of 1-hour MVEBs until 8-hour budgets were
available for 8-hour conformity determinations, which is already
required under EPA's conformity
[[Page 63997]]
regulations. The Court thus clarified that 1-hour conformity
determinations are not required for anti-backsliding purposes.
With respect to the requirement for transportation conformity under
the 1-hour standard, the Court in its June 8th decision clarified that
for those areas with 1-hour MVEBs in their 1-hour maintenance plans,
anti-backsliding requires only that those 1-hour budgets must be used
for 8-hour conformity determinations until replaced by 8-hour budgets.
To meet this requirement, conformity determinations in such areas must
continue to comply with the applicable requirements of EPA's conformity
regulations at 40 CFR Part 93. The GSMNP Area was never designated
nonattainment for the 1-hour ozone standard and thus does not have 1-
hour MVEBs to consider.
For the above reasons, and those set forth in the October 16, 2009,
proposal for the redesignation of the GSMNP Area, EPA does not believe
that the Court's rulings alter any requirements relevant to this
redesignation action so as to preclude redesignation, and do not
prevent EPA from finalizing this redesignation. EPA believes that the
Court's December 22, 2006, and June 8, 2007, decisions impose no
impediment to moving forward with redesignation of the GSMNP Area to
attainment. Even in light of the Court's decisions, redesignation is
appropriate under the relevant redesignation provisions of the CAA and
longstanding policies regarding redesignation requests.
II. What Actions Is EPA Taking?
EPA is taking final action to approve North Carolina's
redesignation request and to change the legal designation of the GSMNP
Area from nonattainment to attainment for the 8-hour ozone NAAQS. The
GSMNP Area is comprised of portions of Haywood and Swain Counties in
North Carolina. EPA is also approving North Carolina's 8-hour ozone
maintenance plan for the GSMNP Area (such approval being one of the CAA
criteria for redesignation to attainment status), including the
emissions inventory which was submitted pursuant to CAA section
172(c)(3). The maintenance plan is designed to help keep the GSMNP Area
in attainment for the 8-hour ozone NAAQS through 2020. These approval
actions are based on EPA's determination that North Carolina has
demonstrated that the GSMNP Area has met the criteria for redesignation
to attainment specified in the CAA, including a demonstration that the
GSMNP Area has attained the 8-hour ozone standard. EPA's analyses of
North Carolina's 8-hour ozone redesignation request and maintenance
plan are described in detail in the proposed rule published October 16,
2009 (74 FR 53198).
Consistent with the CAA, the maintenance plan that EPA is approving
also includes 2011 and 2020 MVEBs for NOX, and a VOC
insignificance finding for the GSMNP Area. In this action, EPA is
approving these 2011 and 2020 MVEBs, and the VOC insignificance
finding. For regional emission analysis years that involve years prior
to 2020, the new 2011 MVEB are the applicable budgets (for the purpose
of conducting transportation conformity analyses). For regional
emission analysis years that involve the year 2020 and beyond, the
applicable budgets, for the purpose of conducting transportation
conformity analyses, are the new 2020 MVEB. In this action, EPA is also
finding adequate the GSMNP Area's new NOX MVEBs and North
Carolina's insignificance finding for VOC contribution from motor
vehicles to the 8-hour ozone pollution for the GSMNP Area.
III. Why Is EPA Taking These Actions?
EPA has determined that the GSMNP Area has attained the 8-hour
ozone standard and has also determined that North Carolina has
demonstrated that all other criteria for the redesignation of the GSMNP
Area from nonattainment to attainment of the 8-hour ozone NAAQS have
been met. See, section 107(d)(3)(E) of the CAA. EPA is also taking
final action to approve the maintenance plan for the GSMNP Area as
meeting the requirements of sections 175A and 107(d) of the CAA, and
the emissions inventory as meeting the requirements of section
172(c)(3) of the CAA. Furthermore, EPA is finding adequate and
approving the new 2011 and 2020 regional MVEBs contained in North
Carolina's maintenance plan because these MVEBs are consistent with
maintenance for the GSMNP Area. In the October 16, 2009, proposal to
redesignate the GSMNP Area, EPA described the applicable criteria for
redesignation to attainment and its analysis of how those criteria have
been met. The rationale for EPA's findings and actions is set forth in
the proposed rulemaking and summarized in this final rulemaking.
IV. What Are the Effects of These Actions?
Approval of the redesignation request changes the legal designation
of the portions of Haywood and Swain Counties in North Carolina (in
association with the GSMNP Area) for the 1997 8-hour ozone NAAQS, found
at 40 CFR part 81. The approval also incorporates into the North
Carolina SIP a plan for maintaining the 8-hour ozone NAAQS in the GSMNP
Area through 2020. The maintenance plan includes contingency measures
to remedy future violations of the 1997 8-hour ozone NAAQS, establishes
NOX MVEBs for the years 2011 and 2020 for the GSMNP Area,
and provides a finding that VOC are an insignificant contributor from
motor vehicles to the 8-hour ozone pollution in the GSMNP Area.
Additionally, this action approves the emissions inventory for this
area pursuant to section 172(c)(3) of the CAA.
V. Final Action
After evaluating North Carolina's redesignation request, EPA is
taking final action to approve the redesignation and change the legal
designation of the portions of Haywood and Swain Counties in North
Carolina (in association with the GSMNP Area) from nonattainment to
attainment for the 1997 8-hour ozone NAAQS. Through this action, EPA is
also approving into the North Carolina SIP the 8-hour ozone maintenance
plan for the GSMNP Area, which includes the new NOX MVEBs of
179.9 kilograms per day (kgd) for the year 2011, and 127.0 kgd for the
year 2020. EPA is also finding adequate and approving the new 2011 and
2020 MVEBs contained in North Carolina's maintenance plan for the GSMNP
Area. If transportation conformity is implemented in this area, the
North Carolina transportation partners will need to use these new MVEBs
pursuant to 40 CFR 93.104(e). Additionally, EPA is approving the
emissions inventory for the GSMNP Area pursuant to section 172(c)(3) of
the CAA.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves State law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by State law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility
[[Page 63998]]
Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing
requirements under State law and does not impose any additional
enforceable duty beyond that required by State law, it does not contain
any unfunded mandate or significantly or uniquely affect small
governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4).
This rule also does not have Tribal implications because it will
not have a substantial direct effect on one or more Indian Tribes, on
the relationship between the Federal Government and Indian Tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely affects the status of a
geographical area, does not impose any new requirements on sources or
allow a State to avoid adopting or implementing other requirements, and
does not alter the relationship or the distribution of power and
responsibilities established in the CAA. This rule also is not subject
to Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because
it is not economically significant and because the Agency does not have
reason to believe that the rule concerns an environmental health risk
or safety risk that may disproportionately affect children.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This rule does not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 5, 2010. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2) of the CAA.)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Incorporation by reference, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: November 20, 2009.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
0
40 CFR part 52 and 81 are amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. Section Sec. 52.1770(e) is amended by adding a new entry at the end
of the table for ``8[dash]Hour Ozone Maintenance Plan for the Great
Smoky Mountains National Park Area'' to read as follows:
Sec. 52.1770 Identification of plan
* * * * *
(e) * * *
EPA[dash]Approved North Carolina Non-Regulatory Provisions
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State effective EPA approval
Provision date date Federal Register citation
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* * * * * * *
8[dash]Hour Ozone Maintenance Plan for the 7/24/2009 12/07/09 [Insert first page of
Great Smoky Mountains National Park Area. publication].
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PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Section Sec. 81.334, the table entitled ``North Carolina--Ozone
(8[dash]Hour Standard)'' is amended under ``Haywood and Swain Cos.
(Great Smoky NP), NC'' by revising the entries for ``Haywood County
(part)'' and ``Swain County (part)'' to read as follows:
Sec. 81.334 North Carolina
* * * * *
[[Page 63999]]
North Carolina--Ozone
[8[dash]Hour standard]
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Designation \a\ Category/classification
Designated area ---------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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* * * * * * *
Haywood and Swain Cos. (Great Smoky NP), NC:....................................................................
Haywood County (part)..... This action is Attainment.
effective 12/07/
09.
Swain County (part)....... This action is Attainment.
effective 12/07/
09.
* * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
\2\ Early Action Compact Area, effective date deferred until April 15, 2008.
\3\ November 22, 2004.
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[FR Doc. E9-28967 Filed 12-4-09; 8:45 am]
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