2013-04011. Approval and Promulgation of Air Quality Implementation Plans; Charlotte, Raleigh/Durham and Winston-Salem Carbon Monoxide Limited Maintenance Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

EPA is taking direct final action to approve a limited maintenance plan update submitted by the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), on August 2, 2012. The limited maintenance plan update is for the Charlotte, Raleigh/Durham and Winston-Salem carbon monoxide (CO) maintenance areas. Specifically, the State submitted a limited maintenance plan update for CO, showing continued attainment of the 8-hour CO National Ambient Air Quality Standard (NAAQS) for the Charlotte, Raleigh/Durham and Winston-Salem Areas. The 8-hour CO NAAQS is 9 parts per million (ppm). EPA is taking direct final action to approve the limited maintenance plan update because it is consistent with the Clean Air Act (CAA or Act), and EPA's policy for limited maintenance plans.

DATES:

This direct final rule is effective April 23, 2013 without further notice, unless EPA receives adverse comment by March 25, 2013. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0961, by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: [e-mail].

3. Fax: [phone].

4. Mail: EPA-R04-OAR-2012-0961, 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-2012-0961. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at 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 www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The 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 email comment directly to EPA without going through www.regulations.gov,, your email 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 Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the electronic docket are listed in the 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 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:

Richard Wong, 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 [phone]. Mr. Wong can be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. What criteria is EPA using to evaluate this submittal?

III. What is EPA's analysis of this submittal?

A. Requirements of Section 175A of the CAA

B. Consistency With the October 6, 1995, Memorandum

1. Attainment Inventory

2. Maintenance Demonstration

3. Monitoring Network and Verification of Continued Attainment

4. Contingency Plan

5. Conformity Determination Under Limited Maintenance Plan

IV. Final Action

V. Statutory and Executive Order Reviews

I. Background

A maintenance plan, as defined in section 175A of the CAA, is a revision to the SIP to provide for the maintenance of the NAAQS for the air pollutant in question in the area concerned for at least 10 years after the redesignation. Eight years after the redesignation, states are required to submit an update to the maintenance plan to provide for the maintenance of the NAAQS for another 10 years after the initial 10 year period has expired. North Carolina's second maintenance plan for the Charlotte, Raleigh-Durham and Winston-Salem Areas was approved on March 24, 2006 (71 FR 14817).

A limited maintenance plan for CO is a maintenance plan that is available to states that have demonstrated that the design values for CO in the nonclassifiable nonattainment or maintenance area are at, or below, 7.65 ppm or 85 percent of the 8-hour CO NAAQS. To qualify for a limited maintenance plan, the area's design value must not exceed the 7.65 ppm threshold throughout the entire rulemaking process. The design value for CO is defined as the second highest reading in the area in a two-year period. Should an area have more than one monitor, the monitor with the second highest value in a two-year period serves as the design monitor. EPA has also previously determined that the limited maintenance plan for CO is available to all states as part of their update to the maintenance plans as per section 175A(b), regardless of the original nonattainment classification, or lack thereof.

NC DENR elected to convert its second 10-year maintenance plan for CO to a limited maintenance plan, to provide additional flexibility for implementing transportation conformity requirements in these CO maintenance areas. Briefly, counties in the Charlotte, Raleigh-Durham and Winston-Salem Areas were previously designated nonattainment for the 8-hour CO NAAQS. See 56 FR 56694, November 6, 1991. These areas subsequently attained the 8-hour CO NAAQS and were redesignated from nonattainment to attainment. On November 7, 1994, EPA redesignated the Winston-Salem Area to attainment for the 8-hour CO NAAQS based on the measured air quality data and a 10-year maintenance plan submitted for the Winston-Salem Area. See 59 FR 48399. Additionally, on September 18, 1995, EPA redesignated both the Charlotte Area and the Raleigh-Durham Area to attainment for the 8-hour CO NAAQS based on the measured air quality data and the 10-year maintenance plan submitted for these areas. See 60 FR 39258.

Section 175A(b) of the CAA mandates that the State shall submit an additional revision to the maintenance plan eight years after redesignation of any area as an attainment area. NC DENR fulfilled this requirement by providing the second and final maintenance plan for all three CO maintenance areas in the State. EPA subsequently approved NC DENR's maintenance plan. In summary, on March 24, 2006, EPA approved the second 10-year maintenance plan for the Charlotte, Raleigh-Durham, and Winston-Salem CO Maintenance Areas, which are composed of the following four counties: Mecklenburg (Charlotte Area); Durham and Wake (Raleigh-Durham Area); and Forsyth (Winston-Salem Area). See 71 FR 14817.

As mentioned above, NC DENR elected to convert the second maintenance plan for the Charlotte, Raleigh-Durham and Winston-Salem Areas to a limited maintenance plan for the ease of implementing transportation conformity requirements for the CO NAAQS. The limited maintenance plans was submitted on August 2, 2012, for EPA approval. EPA has made the determination that North Carolina's limited maintenance plan satisfies the requirements for section 175A maintenance plan, and is consistent with EPA's policy for limited maintenance plan elements as outlined in an October 6, 1995, memorandum from the Office of Air Quality Planning and Standards , entitled “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas” (October 6, 1995, Memorandum). More information regarding limited maintenance plan requirements is provided below.

II. What criteria is EPA using to evaluate this submittal?

In addition to the general requirements in section 175A of the CAA, guidance for CO limited maintenance plans is provided in the October 6, 1995, memorandum, which states that the following five components need to be addressed: (1) Attainment inventory; (2) maintenance demonstration; (3) monitoring network/verification of continued attainment; (4) contingency plan; and (5) conformity determinations under limited maintenance plans. These elements were outlined in the October 6, 1995, EPA memorandum, and are comprehensively discussed below.

III. What is EPA's analysis of this submittal?

A. Requirements of Section 175A of the CAA

Section 175A contains four subsections pertaining to maintenance plans. Section 175A(a) establishes requirements for initial SIP redesignation request maintenance plans, as previously addressed by North Carolina and subsequently approved by EPA for all three of North Carolina's CO areas. See 59 FR 48399 and 60 FR 39258.

Section 175A(b) requires States to submit an update to the maintenance plan eight years following the original redesignation to attainment. For the section 175A(b) update, the State must outline methods for maintaining the pertinent NAAQS for ten years after the expiration of the ten-year period referred to in subsection (a), i.e., North Carolina's maintenance plan update must outline methods for maintaining the CO NAAQS through 2015, NC DENR satisfied the requirements for the second maintenance plans for all of its CO maintenance areas, and EPA subsequently approved NC DENR's second maintenance plan for each of its CO maintenance areas. See 71 FR 14817, March 24, 2006. As indicated above, although North Carolina has previously satisfied the requirements for the 175A(b) maintenance plan updates for all of its CO areas, the State has elected to convert these maintenance plans to limited maintenance plans.

Section 175A(c) does not apply to this rulemaking, given that EPA has previously redesignated the Charlotte, Raleigh/Durham, and Winston-Salem areas to attainment for CO.

Section 175A(d) which included the contingency provisions requirements are addressed in detail in section B4, below.

B. Consistency With the October 6, 1995, Memorandum

As discussed above, EPA's interpretation of section 175A of the CAA, as it pertains to limited maintenance plans for CO, is contained in the October 6, 1995, Memorandum. North Carolina addressed the five major elements of that policy, as follows:

1. Attainment Inventory

The State is required to develop an attainment emissions inventory to identify a level of emissions in the area which is sufficient to attain the CO NAAQS. This inventory should be consistent with EPA's most recent guidance on emission inventories for nonattainment areas available at the time and should include the emissions during the time period associated with the monitoring data showing attainment. It should be based on actual “typical CO season day” emissions for all source classifications (i.e., stationary point and area sources and nonroad and onroad mobile sources) for the attainment year. In its August 2, 2012, submittal, NC DENR provided a comprehensive CO emissions inventory for nonroad mobile, onroad mobile, point, and area sources for the Charlotte, Raleigh-Durham, and Winston-Salem CO Maintenance Areas.

NC DENR collected or developed point source emissions inventory from stationary sources that have the potential to emit more than five tons per year of CO emissions from a single facility and are required to have an operating permit. The stationary area source inventory is estimated on a county level and consisted of those sources whose emissions are relatively small, but due to the large number of sources, the collective emissions could be significant. North Carolina estimated the stationary area source emissions by multiplying an emission factor by some known indicator of collective activity (such as fuel usage, number of households, or population). For on-road mobile source emissions, NC DENR used USEPA's Motor Vehicle Emission Simulator (MOVES) model version 2010a (i.e., MOVES2010a), released in August 2010, for estimating vehicle emissions. Nonroad mobile sources are pieces of equipment that can move but do not use roadways (e.g. lawn mowers, construction equipment, railroad locomotives, aircraft). The emissions from this category are calculated at the county level using USEPA's NONROAD2008s nonroad mobile model, with the exception of railroad locomotives and aircraft engines. The railroad locomotives and aircraft engines are estimated by taking an activity and multiplying by an emission factor. Table 1 displays the 2010 attainment year emissions inventory as required for the limited maintenance plans. Appendix B of North Carolina's SIP submittal provides detailed discussions regarding the development of emissions for the four emission source classifications, and is provided in the docket for today's rulemaking.

Table 1—2010 CO Emissions (tons/day) for Maintenance Areas

County	Point source	Area source	On-road	Nonroad	Total
Raleigh-Durham Maintenance Area
Durham	0.97	1.54	186.00	19.04	207.55
Wake	1.17	4.26	642.97	70.62	719.02
Total	2.14	5.80	828.97	89.66	926.57
Winston-Salem Maintenance Area
Forsyth	2.22	1.41	244.16	23.97	271.76
Charlotte Maintenance Area
Mecklenburg	2.39	4.21	724.39	114.71	845.70

2. Maintenance Demonstration

In the October 6, 1995, Memorandum, EPA stated that the maintenance demonstration requirement is considered to be satisfied for nonclassifiable areas if the monitoring data show that the area is meeting the air quality criteria for limited maintenance areas (i.e., 85 percent of the eight hour CO NAAQS, or 7.65 ppm). EPA determined in this same memorandum that there is no requirement to protect emissions over the maintenance period. Instead, EPA believes that if the area begins the maintenance period at, or below, 7.65 ppm (85 percent of the 8-hour CO NAAQS), the applicability of prevention of significant deterioration (PSD) requirements, control measures already in the SIP, and other federal measures should provide adequate assurance of maintenance throughout the maintenance period. Monitoring data from 2008-2011 shows all three areas below the 8-hour CO NAAQS values as listed in Table 2. All monitoring levels are well below the 85 percent threshold of 7.65 ppm and therefore the State has satisfied the maintenance demonstration requirement for a limited maintenance plan for each of its CO maintenance areas.

Table 2—CO 8-Hour Monitored Concentration NAAQS

[parts per million]

County	Monitor ID	2009	2010	2011	8-hr NAAQS
Raleigh-Durham Maintenance Area
Wake	371830014	1.3	1.3	1.4	9
Winston-Salem Maintenance Area
Forsyth	370670023	1.7	1.9	2.1	9
Charlotte Maintenance Area
Mecklenburg	371190041	1.7	1.7	1.5	9

3. Monitoring Network and Verification of Continued Attainment

Once an area has been redesignated, the state should continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR Part 58, to verify the attainment status of the area. This is particularly important for areas using a limited maintenance plan because there will be no cap on emissions. In accordance with 40 CFR Part 58, NC DENR commits to continue monitoring CO at these three sites to ensure that CO concentrations remain well below the 7.65 ppm threshold for limited maintenance plans. The State's monitoring plan for 2012 can be found at the following site: http://www.ncair.org/​monitor/​monitoring_​plan/​new_​plan/​2012_​NCDAQ_​Network_​Plan.pdf. EPA has determined that the State has satisfied the monitoring network and verification of continued attainment requirements for the limited maintenance plan.

4. Contingency Plan

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of an area. The October 6, 1995, Memorandum further requires that the contingency provisions identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the state.

In its August 2, 2012, submittal, NC DENR committed to the same contingency measures that EPA previously approved on March 24, 2006 (71 FR 14817) and a subsequent clarification on June 19, 2007 (72 FR 33692). The State pre-adopted an oxygenated fuels program with minimum oxygen content by weight of 2.7 for Charlotte, Raleigh-Durham, and Winston-Salem maintenance areas. The oxygenated fuel program is required under the CAA for the Raleigh-Durham and Winston-Salem areas as a required control measure prior to the attainment redesignation. Charlotte was placed under oxygenated fuel program for effective area-wide CO emission reduction and ease for State implementation. The triggering date will be no more than 60 days after an ambient air quality violation is monitored. NC DENR will commence an analysis and regulation development process during this time. The State will consider the following control measures:

a. Amending the oxygenated fuels program by adopting oxygenate content of 2.0 percent to 2.7 percent by weight, or activate of the 2.7 percent by eight pre-adopted contingency measure, or 2.7 percent to 3.1 percent by weight.

b. Expanding coverage of oxygenated fuels to include counties where a strong commuting pattern into the core maintenance area exists.

c. Alternative fuel vehicle programs to include compressed natural gas and electric vehicles.

d. Employee commute options programs.

NC DENR committed to implement at least one of the control measures within 24 months of the trigger, or as expeditiously as practicable. EPA has determined that the State has satisfied the contingency plan requirements pursuant to section 175A(d) of the CAA as well as those of the October 6, 1995, Memorandum.

5. Conformity Determination Under Limited Maintenance Plan

The transportation conformity rule of November 24, 1993 (58 FR 62188), and the general conformity rule of November 30, 1993 (58 FR 63214), apply to nonattainment areas and maintenance areas operating under the maintenance plans. Under either rule, one means of demonstrating conformity of federal actions is to indicate that expected emissions from planned actions are consistent with the emissions budget for the area.

EPA's October 6, 1995, Memorandum states that emissions budgets in limited maintenance plan areas may be treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that such an area will experience so much growth in that period that a violation of the CO NAAQS would result. In other words, EPA concluded that, for these areas, emissions need not be capped for the maintenance period.

In accordance with the Transportation conformity rule, approval of a limited maintenance plan only removes the requirement to conduct a regional emissions analysis as part of the conformity determination. The requirement to demonstrate conformity per the requirements in section 93.109, in Table 1 still applies. Additionally, federally funded projects are still subject to “Hot Spot” analysis requirements. However, no regional modeling analysis would be required.

Transportation partners should note that this approval of these limited maintenance plans in future transportation conformity determinations. Additionally, while this finding waives the requirements for a regional emissions analysis for the CO, as mentioned above, it does not waive other conformity requirements for the CO standard for the Charlotte, Raleigh-Durham and Winston-Salem areas, and it does not waive transportation conformity requirement for other pollutants/precursors for which these areas may be designated nonattainment or redesigned to attainment with a full maintenance plan.

The State has satisfied the conformity determination under limited maintenance plan requirements for the Charlotte, Raleigh-Durham, and Winston-Salem areas in this limited maintenance plan.

IV. Final Action

EPA is approving the CO limited maintenance plan for the Charlotte, Raleigh-Durham, and Winston-Salem Areas. The State of North Carolina has complied with the requirements of section 175A of the CAA, as interpreted by the guidance provided in the October 6, 1995, Memorandum. North Carolina has shown monitored levels of CO in the three areas have been consistently well below the requisite level of 7.65 ppm for the 8-hour CO NAAQS in order to qualify for the limited maintenance plan. North Carolina has also shown monitored values for the 8-hour CO NAAQS have been consistently well below the NAAQS levels from 2009-2011. EPA has made the determination that the North Carolina, August 2, 2012, submission providing the CO limited maintenance plan for the Charlotte, Raleigh-Durham, and Winston-Salem Areas is consistent with the CAA and EPA's guidance on limited maintenance plans. This action is being taken pursuant to section 110 of the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 23, 2013 without further notice unless the Agency receives adverse comments by March 25, 2013.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 23, 2013 and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this final action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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 F43255, 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 final 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.

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 April 23, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: February 11, 2013.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart II—North Carolina

2. Section 52.1770(e) is amended by adding a new entry for entry for “8-Hour Carbon Monoxide Limited Maintenance Plan for Charlotte, Raleigh/Durham and Winston-Salem Maintenance Areas.” at the end of the table to read as follows:

§ 52.1770

Identification of plan.

* * * * *

(e) * * *

EPA Approved North Carolina Non-regulatory Provisions

Provision	State effective date	EPA approval date	Federal Register citation	Explanation
*         *         *         *         *         *         *
8-Hour Carbon Monoxide Limited Maintenance Plan for Charlotte, Raleigh/Durham and Winston-Salem Maintenance Area	August 2, 2012	2/22/13	[Insert citation of publication]