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[Federal Register: August 4, 2010 (Volume 75, Number 149)]
[Proposed Rules]               
[Page 46881-46884]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au10-16]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R04-OAR-2010-0504-201029; FRL-9185-1]

 
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: Proposed rule.

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SUMMARY: 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 
Environmental Control (SC DHEC), submitted letters with a request for 
EPA 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''), on April 
28, 2010, and May 6, 2010, respectively. 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. In today's 
action, EPA is proposing to determine that the states of North Carolina 
and South Carolina have met the Clean Air Act (CAA or the 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 proposing to approve a one-year extension of the 1997 8-
hour ozone moderate attainment date for the bi-state Charlotte Area. 
Specifically, EPA is proposing to extend the bi-state Charlotte Area's 
attainment date from June 15, 2010, to June 15, 2011.

DATES: Comments must be received on or before September 3, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-0504 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: benjamin.lynorae@epa.gov.
    3. Fax: 404-562-9019.
    4. Mail: ``EPA-R04-OAR-2010-0504'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2010-0504-201029.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The http://www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA

[[Page 46882]]

Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI 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 in 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, 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 is (404) 
562-9029. Ms. Spann can also be reached via electronic mail at 
spann.jane@epa.gov.

SUPPLEMENTARY INFORMATION: 
I. Background
II. Today's Action
III. EPA's Analysis of the States' Requests for an Attainment Date 
Extension for the Bi-State Charlotte Area for the 1997 8-Hour Ozone 
NAAQS
IV. Proposed Actions
V. Statutory and Executive Order Reviews

I. Background

A. 1997 8-Hour Ozone NAAQS

    Ground level ozone is not directly emitted by sources. Rather, 
emissions of nitrogen oxides (NOX) and volatile organic 
compounds (VOC) react in the presence of sunlight to form ground-level 
ozone. NOX and VOC are referred to as precursors of ozone. 
The CAA establishes a process for air quality management through the 
NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone NAAQS 
of 0.08 parts per million (ppm). Under EPA's regulations at 40 CFR part 
50, the 1997 8-hour ozone NAAQS is attained when the 3-year average of 
the annual fourth highest daily maximum 8-hour average ambient air 
quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 
0.084 ppm when rounding is considered) (69 FR 23857, April 30, 2004). 
Ambient air quality monitoring data for the 3-year period must meet a 
data completeness requirement. The ambient air quality monitoring data 
completeness requirement is met when the average percent of days with 
valid ambient monitoring data is greater than 90 percent, and no single 
year has less than 75 percent data completeness as determined in 
Appendix I of part 50.
    Upon promulgation of a new or revised NAAQS, the CAA requires EPA 
to designate as nonattainment any area that is violating the NAAQS, 
based on the three most recent years of ambient air quality data at the 
conclusion of the designation process. The bi-state Charlotte Area was 
designated nonattainment for the 1997 8-hour ozone NAAQS on April 30, 
2004 (effective June 15, 2004) using 2001-2003 ambient air quality data 
(69 FR 23857, April 30, 2004). At the time of designation the bi-state 
Charlotte Area was classified as a moderate nonattainment area for the 
1997 8-hour ozone NAAQS. In the April 30, 2004, Phase I Ozone 
Implementation Rule, EPA established ozone nonattainment area 
attainment dates based on Table 1 of section 181(a) of the CAA. This 
established an attainment date 6 years after the June 15, 2004, 
effective date for areas classified as moderate areas for the 1997 8-
hour ozone nonattainment designations. Therefore the bi-state Charlotte 
Area's original attainment date was June 15, 2010. (See 69 FR 23951, 
April 30, 2004.) Under certain circumstances, the CAA allows for 
extensions of the attainment dates prescribed at the time of the 
original nonattainment designation. See below for further discussion.
    As a point of clarification EPA issued a revised 8-hour ozone NAAQS 
in 2008. EPA subsequently reconsidered the 2008 NAAQS, and proposed a 
new 8-hour ozone NAAQS in January 2010. Final 8-hour ozone NAAQS are 
expected to be effective in August 2010. The current proposed action, 
however, is being taken with regard to the 1997 8-hour ozone NAAQS. 
Requirements for the bi-state Charlotte Area for the 2010 8-hour ozone 
NAAQS will be addressed in the future.

B. CAA Requirements for One-Year Extension Requests

    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 2 one-year extensions of the attainment date under 
specified conditions. Specifically, 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 and 
application would produce an absurd result, EPA interprets this 
provision in a manner consistent with Congressional intent but 
reflecting the form of the 1997 8-hour NAAQS. Therefore, EPA adopted an 
interpretation that under both sections 172(a)(2)(C) and 181(a)(5), an 
area will be eligible for the first of the one-year extensions under 
the 8-hour NAAQS if, for the attainment year, the area's 4th highest 
daily 8-hour average is 0.084 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 2 one-year extensions may be 
issued for a single nonattainment area.
    EPA interprets the CAA and implementing regulations to allow the

[[Page 46883]]

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).

II. Today's Actions

    EPA is proposing to determine that North Carolina and South 
Carolina have met the CAA requirements to obtain a one-year extension 
of the attainment date for the 1997 8-hour ozone NAAQS for the bi-state 
Charlotte Area. As a result, EPA is proposing 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. EPA's proposed actions are based upon 
complete, quality assured, quality controlled, and certified ambient 
air monitoring data for 2009, and on EPA's preliminary determination 
that the States are meeting their federally-approved implementation 
plans. If today's proposed actions are finalized, the bi-state 
Charlotte Area's attainment date for the 1997 8-hour ozone NAAQS will 
be extended one-year from June 15, 2010, to June 15, 2011.

III. EPA's Analysis of the State's Requests for an Attainment Date 
Extension for the Bi-State Charlotte Area for the 1997 8-Hour Ozone 
NAAQS

    As mentioned above in this rulemaking, 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). Below 
provides EPA's analysis of how North Carolina and South Carolina have 
met these minimum requirements.
    (1) The State(s) request(s) a one-year extension.
    The State of North Carolina, through NC DENR, and the State of 
South Carolina, through SC DHEC, submitted letters on April 28, 2010, 
and May 6, 2010, respectively, requesting that EPA grant a one-year 
extension of the attainment date for the 1997 8-hour ozone NAAQS for 
the bi-state Charlotte Area. Both letters contained certifications that 
each state is complying with all requirements and commitments 
pertaining to the bi-state Charlotte Area in the applicable 
implementation plan; and that the bi-state Charlotte Area has a 4th 
highest daily 8-hour average of 0.084 ppm or less for the attainment 
year (i.e., 2009) for this initial request for an extension. EPA's 
analysis of the certifications from North Carolina and South Carolina, 
and of the ambient air quality monitoring data for the bi-state 
Charlotte Area for the 1997 8-hour ozone NAAQS (i.e., in relation to 
the States' attainment date extension request) is provided below.
    (2) All requirements and commitments in the EPA-approved SIP for 
the area have been complied with.
    In the letters submitted by NC DENR and SC DHEC, on April 28, 2010, 
and May 6, 2010, respectively, both states discuss implementation of 
state measures in the SIP. One of the required elements for a one-year 
extension required under Section 181(a)(5) of the CAA is that the State 
has complied with all requirements and commitments pertaining to the 
area in the applicable implementation plan. EPA has conducted an 
independent review of whether both North Carolina and South Carolina 
are in compliance with the applicable implementation plans for the bi-
state Charlotte Area as intended by Section 181(a)(5)(A) of the CAA, 
and has made the preliminary determination that both states are in 
compliance. This preliminary determination is based on EPA's belief 
that both states are currently meeting the EPA-approved implementation 
plans for the bi-state Charlotte Area.
    While both states previously had outstanding requirements related 
to the 1997 8-hour ozone attainment demonstrations for the bi-state 
Charlotte Area, both states have provided the necessary SIP submittals. 
Nonetheless, EPA does not and did not view submission or approval of 
these attainment demonstrations as relevant for meeting the 
``applicable implementation plans'' for the bi-state Charlotte Area 
with regard to Section 181(a)(5)(A) of the CAA. However, EPA does note 
that on May 27, 2010,\1\ letters were sent to the Governors of North 
Carolina and South Carolina acknowledging submission of the attainment 
demonstrations for the bi-state Charlotte Area. EPA's May 27, 2010, 
letters also announced EPA's determination that the attainment 
demonstration submissions provided by North Carolina and South Carolina 
were complete pursuant to Section 110(k)(1) of the CAA and the 
``Criteria for Determining the Completeness of Plan Submissions,'' as 
described in 40 CFR Part 51, Appendix V, and thus EPA stopped the 
sanctions clocks that were running for the States' previous failure to 
provide these required submissions. EPA is currently reviewing the 
approvability of these attainment demonstration submissions and will 
make its final determination on approvability through a separate 
rulemaking in the Federal Register.
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    \1\ In EPA's May 27, 2010, letters to the Governors of North 
Carolina and South Carolina regarding the stoppage of the sanctions 
clocks for the finding of failure to submit for the bi-state 
Charlotte attainment demonstration for the 1997 8-hour ozone NAAQS, 
EPA inadvertently indicated the dates of the North Carolina 
attainment demonstration submissions were November 12, 2008, and 
April 5, 2009; and the dates of the South Carolina attainment 
demonstration submissions were November 13, 2008, and April 29, 
2009. EPA has since sent a follow up letter correcting the dates of 
the submission for North Carolina as November 12, 2009, and April 5, 
2010; and for South Carolina as November 13, 2009, and April 29, 
2010.
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    (3) The area has a 4th highest daily 8[dash]hour average of 0.084 
ppm or less for the attainment year.
    In the letters submitted by NC DENR and SC DHEC, on April 28, 2010, 
and May 6, 2010, respectively, both states have certified that the 4th 
highest daily 8-hour average ozone concentration for the bi-state 
Charlotte Area in 2009 was below 0.084 ppm, and that the 2009 ozone 
data which are included in EPA's Air Quality System (AQS) meets 
necessary quality control and quality assurance requirements. Table 1 
provides the 2009 4th highest concentrations at the monitors in the bi-
state Charlotte Area.

[[Page 46884]]

Table 1--2009 4th Highest Concentrations for the Bi-State Charlotte Area
------------------------------------------------------------------------
                                                       2009 4th Highest
     Monitoring Site \2\               County            Concentration
                                                             (ppm)
------------------------------------------------------------------------
Arrowood.....................  Mecklenburg, County,                0.068
                                NC.
County Line..................  Mecklenburg County,                 0.071
                                NC.
Crouse.......................  Lincoln County, NC...               0.065
Enochville...................  Rowan County, NC.....               0.073
Garinger (Plaza).............  Mecklenburg County,                 0.069
                                NC.
Monroe.......................  Union County, NC.....               0.067
Rockwell.....................  Rowan County, NC.....               0.071
------------------------------------------------------------------------

    EPA has reviewed the 1997 8[dash]hour ozone NAAQS ambient air 
quality monitoring data for the bi-state Charlotte Area, consistent 
with the requirements contained in 40 CFR part 50 and as recorded in 
the EPA AQS database. On the basis of that review, EPA has 
preliminarily concluded that for the attainment year, 2009, the bi-
state Charlotte Area's 4th highest daily 8-hour average concentration 
was 0.073 ppm which is below the 8-hour ozone standard of 0.08 ppm 
(effectively 0.084 ppm).
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    \2\ While York County, South Carolina does have an ozone 
monitor, this monitor is not included in the portion of the bi-state 
Charlotte Area that is currently designated nonattainment for ozone 
and thus is not relevant for consideration of the attainment date 
extension requests. However, the 4th maximum highest concentration 
in 2009 for the York County, South Carolina ozone monitor is 0.62 
ppm--well below 0.084 ppm.
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    Because the statutory provisions have been satisfied, EPA is 
proposing approval of North Carolina and South Carolina's attainment 
date extension requests for the bi-state Charlotte Area for the 1997 8-
hour ozone NAAQS.

IV. Proposed Actions

    EPA is proposing 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 because 
EPA believes that both North Carolina and South Carolina have met the 
statutory requirements for such an extension. EPA's belief is based on 
its preliminary determination that both states are in compliance of the 
requirements and commitments associated with the EPA-approved 
implementation plans, and on the belief that the 4th highest daily 8-
hour ozone average concentration for 2009 for the bi-state Charlotte 
Area is below the 1997 8-hour ozone NAAQS as required by the CAA. As 
provided in 40 CFR 51.907, if EPA finalizes this action, it will 
extend, by one year, the deadline by which the bi-state Charlotte Area 
must attain the 1997 8-hour ozone NAAQS. It will also extend the 
timeframe by which EPA must make an attainment determination for the 
area. EPA notes that this proposed action only relates to the initial 
one- year extension. As noted in Section 181(a)(5) of the CAA, areas 
may qualify for up to 2 one-year extensions. 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.

VI. 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 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 state's request, provided that it meets 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 
proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

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

    Dated: July 23, 2010.
Beverly H. Banister,
Acting Regional Administrator, Region 4.
[FR Doc. 2010-19141 Filed 8-3-10; 8:45 am]
BILLING CODE 6560-50-P
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