[Federal Register: December 21, 2007 (Volume 72, Number 245)]
[Rules and Regulations]
[Page 72617-72622]
[DOCID:fr21de07-9]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2006-0928; FRL-8509-4]

Approval and Promulgation of Air Quality Implementation Plan;
South Dakota; Revisions to New Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving revisions to Chapter 74:36:09 of the South
Dakota Administrative Rules (Prevention of Significant Deterioration)
for incorporation into the South Dakota State Implementation Plan
(SIP). South Dakota adopted these rule revisions on August 29, 2006 and
May 14, 2007, and submitted the requests for approval to EPA on
September 1, 2006 and June 28, 2007. One rule provision that EPA had
proposed to disapprove has been corrected by South Dakota. Therefore,
EPA is also approving that provision. South Dakota was granted
delegation of authority by EPA on July 6, 1994, to implement and
enforce the federal Prevention of Significant Deterioration (PSD)
permitting regulations. As part of this final rule EPA is rescinding
South Dakota's delegation of authority for implementing the federal PSD
regulations. This action is being taken under section 110 of the Clean
Air Act (CAA).

DATES: Effective Date: This final rule is effective January 22, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2006-0928. 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, e.g., Confidential Business
Information (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 through http://www.regulations.gov or in hard copy at the Air

and Radiation Program, Environmental Protection Agency (EPA), Region 8,
1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if
at all possible, you contact the individual listed in the FOR FURTHER
INFORMATION CONTACT section to view the hard copy of the docket. You
may view the hard copy of the docket Monday through Friday, 8 a.m. to 4
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Cindy Cody, Air and Radiation Program,
U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Definitions

    For the purpose of this document, we are giving meaning to certain
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
    (iii) The initials SIP mean or refer to State Implementation Plan.
    (iv) The words State or South Dakota mean the State of South
Dakota, unless the context indicates otherwise.

Table of Contents

I. What is being addressed in this document?
II. What are the changes that EPA is approving?
III. What were the comments received and EPA's response?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is being addressed in this document?

    Chapter 74:36:09 was submitted to EPA for inclusion in the State

Implementation Plan (SIP) by the South Dakota Department of Environment
and Natural Resources (DENR) on September 1, 2006. Chapter 74:36:09
relates to the Prevention of Significant Deterioration (PSD) permit
program of the State of South Dakota. Revisions to Chapter 74:36:09
were adopted by the South Dakota Board Interim Rules Committee on
August 29, 2006. EPA proposed on February 1, 2007 (72 FR 4671) to
partially approve and partially disapprove Chapter 74:36:09 (Prevention
of Significant Deterioration) of the Administrative Rules of South
Dakota under section 110 of the CAA.\1\ Comments were received on our
February 2007 proposal (see discussion in section III. below).
Subsequent to the public comment period, South Dakota revised
74:36:09:02, adopted May 14, 2007, to address EPA's concern (see
Section II) and submitted the revised provision to EPA on June 28,
2007. After considering the comments received, EPA is finalizing its
approval of Chapter 74:36:09, including the now-corrected provision
that EPA had proposed to disapprove. EPA is also rescinding its
delegation to South Dakota of the federal PSD regulations.
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    \1\ Our proposal notice discusses EPA's December 31, 2002 NSR
Reform rules and the provisions that have subsequently been
clarified, and vacated and remanded by the courts.
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II. What are the changes that EPA is approving?

    EPA is approving a revision to South Dakota's SIP that incorporates
by reference the federal PSD requirements, found at 40 CFR 52.21, into
the State's SIP. The revision to the South Dakota Administrative Rules
Chapter 74:36:09 incorporates by reference the provisions of 40 CFR
52.21, as they exist on July 1, 2005, with the exceptions noted below.
    South Dakota did not incorporate by reference those sections of the
federal rules that do not apply to State activities or are reserved for
the Administrator of the EPA. These sections are 40 CFR 52.21(a)(1)
(plan disapproval), 52.21(q) (public participation), 52.21(s)
(environmental impact statements), 52.21(t) (disputed permit or
redesignations), and 52.21(u) (delegation of authority).
    South Dakota did not incorporate by reference provisions for Clean
Units and Pollution Control Project (PCPs). These provisions were
vacated by a June 24, 2005, ruling by the United States Court of
Appeals for the District of Columbia Circuit. References to Clean Units
and PCPs were removed by EPA from Federal regulation on June 13, 2007
(see 72 FR 32526). In addition, South Dakota did not incorporate by
reference the provisions for equipment replacement (40 CFR 52.21(cc)),
which were stayed indefinitely by a court order on December 24, 2003,
and subsequently vacated. See, New York v. EPA, 443 F.3d 880 (D.C. Cir.
2006). Therefore, the following federal provisions found in 40 CFR
52.21 are not incorporated by reference in Chapter 74:36:09: 40 CFR
52.21(x), 52.21(y), 52.21(z), 52.21(cc), 52.21(a)(2)(iv)(e), the second
sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h),
52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), 52.21(b)(42),
(b)(55), (b)(56), (b)(57), (b)(58), and the phrase ``other than
projects at a Clean Unit or at a source with a PAL'' in 40 CFR
52.21(r)(6).
    The phrase ``reasonable possibility'' used in the federal rule at
40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications
at facilities that use the actual-to-future-actual methodology to
calculate emissions changes and that may have a ``reasonable
possibility'' of a significant emissions increase. The South Dakota
rule does incorporate by reference the phrase ``reasonable
possibility'' as it is used at 40 CFR 52.21(r)(6). On March 8, 2007,
EPA published a proposed rule in response to the D.C. Circuit Court's
remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules
(see 72 FR 10445), but EPA has not yet made a final decision with
regard to the remand. Therefore, EPA may need to take further action on
this portion of South Dakota's PSD rule. At this time, however, South
Dakota's recordkeeping provisions are as stringent as the federal
requirements, and are therefore, approvable.
    The South Dakota incorporation by reference describes the
circumstances in which the term ``Administrator'' continues to mean the
EPA Administrator and when it means the Secretary of the South Dakota
DENR instead. South Dakota rule 74:36:09:02(1) identifies the following
provisions in Chapter 74:36:09 where the term ``Administrator''
continues to mean the Administrator of EPA: 40 CFR 52.21(b)(17),
52.21(b)(37)(i), 52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(50)(i),
52.21(g)(1) to 52.21(g)(6), 52.21(l)(2), and 52.21(p)(2). As submitted
on September 1, 2006, this list did not include 40 CFR 52.21(p)(2), and
under South Dakota's PSD rule, the term ``Administrator'' in 40 CFR
52.21(p)(2) referred to the Secretary of the DENR.
    This was inconsistent with EPA's determination that 40 CFR
52.21(p)(2) must still refer to the Administrator of EPA, and EPA
proposed to disapprove the incorporation by reference of 40 CFR
52.21(p)(2). On June 28, 2007, South Dakota submitted to EPA a revision
of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR
52.21(p)(2) to the list of provisions in Chapter 74:36:09 where the
term ``Administrator'' continues to mean the Administrator of EPA.
Therefore, EPA is approving the incorporation by reference of 40 CFR
52.21(p)(2) as part of the approval of Chapter 74:36:09.
    As noted above, South Dakota did not incorporate by reference 40
CFR 52.21(q) (public participation). South Dakota has instead
incorporated by reference 40 CFR 51.166(q) (public participation) at
74:36:09:03. The regulations at 40 CFR 51.166 are what a SIP must
contain for EPA to approve a PSD permit program, and generally mirror
the federal PSD regulations at 40 CFR 52.21. In addition, South Dakota
added in 74:36:09:03 six additional provisions that revise 40 CFR
51.166(q) in order to make the PSD permit public participation
requirements specific to South Dakota.
    The requirements included in South Dakota's PSD program, as
specified in Chapter 74:36:09, are substantively the same as the
federal PSD provisions due to South Dakota's incorporation of the
federal rules by reference. EPA reviewed the revisions South Dakota
made to 40 CFR 52.21 and 40 CFR 51.166 noted above and found them to be
as stringent as the federal rules. EPA has, therefore, determined that
the revisions are consistent with the program requirements for the
preparation, adoption, and submittal of implementation plans for the
Prevention of Significant Deterioration of Air Quality, as set forth at
40 CFR 51.166, and are approvable as part of the South Dakota SIP.

III. What were the comments received and EPA's response?

    EPA received three comment letters on our February 1, 2007 (72 FR
4671) proposal. Two commenters supported, and one commenter opposed,
our proposed action. We have considered the comments received and we
are generally finalizing our action as proposed. Following is a summary
of the comments.
    A. Two commenters support the inclusion of Chapter 74:36:09
Prevention of Significant Deterioration into the South Dakota State
Implementation Plan.
    Response: EPA acknowledges receipt of the comments and agrees with
the commenters.

    B. One commenter submitted comments opposing our proposed partial
approval and supporting our proposed partial disapproval of the
inclusion of Chapter 74:36:09 Prevention of Significant Deterioration
into the South Dakota State Implementation Plan.
    1. The commenter stated that our proposed approval ``appears to be
a thinly-veiled attempt by the state to rollback critical public health
and environmental safeguards in South Dakota by substituting a
delegated program with a more lax state-administered program'' and that
``the proposed changes would eliminate the public's opportunity to
obtain review of a PSD permit by the U.S. Environmental Protection
Agency's Environmental Appeals Board and remove the automatic stay
provision that provides the public with an opportunity to obtain review
of a permit before construction commences.''
    Response: Federal regulations specify the parameters that state-
administered programs must meet and these regulations help ensure that
public health and safety safeguards remain in place with the transition
from a federal to a state program. Regulations at 40 CFR 51.166 set
forth the criteria for PSD program approvals that EPA applies. EPA has
determined that South Dakota's PSD rules meet these criteria. As
discussed above, South Dakota's rules satisfy the public participation
criteria in 40 CFR 51.166(q). Since these minimum criteria are
satisfied, we have no grounds to conclude that South Dakota's SIP
approved program will be less rigorous than the federal permitting
program that the State currently administers through a delegation.
    Although permits issued under SIP approved programs are not subject
to appeal to EPA's Environmental Appeals Board, such actions are
instead subject to the opportunities for review and appeal provided
under state law. We interpret the statute and regulations to require at
minimum an opportunity for state judicial review of PSD permits. See,
61 FR 1880, 1882 (Jan. 24, 1996). South Dakota has specified procedures
for contesting a final PSD permit determination and requesting an
administrative hearing at Chapter 74:09 of the South Dakota
Administrative Rules (Contested Case Procedure). These procedures are
referenced in 74:36:09:03 (Public participation). South Dakota law also
provides for the right to judicial review of contested cases (SDCL 1-
26-30). We, thus, have no grounds to deny PSD program approval based on
the nature of review of final permit decisions under South Dakota law.
    2. The commenter stated that the proposed approval ``appears to be
an attempt to reduce U.S. EPA's obligation to protect endangered and
threatened species in South Dakota.'' The commenter noted that the
Endangered Species Act (ESA) applies to EPA's proposal to approve to
South Dakota's PSD permit program such that EPA ``must determine
whether this proposed action--approving major changes to the South
Dakota PSD permit program--may affect any listed species'' and
``consult with the [U.S. Fish and Wildlife Service] prior to
transferring air permitting authority to the State of South Dakota.''
In addition, the commenter stated that EPA ``must structure its
approval * * * in such a manner as to preserve the agency's duties to
protect and restore listed species and their habitat.''
    Response: EPA disagrees with the commenter. EPA's approval of the
South Dakota permitting program into the SIP is not an attempt to
reduce ESA requirements in connection with PSD permitting in the State.
As a practical matter, EPA has not carried out ESA consultation
requirements in its prior approvals of PSD permitting programs for
other states. Moreover, under relevant CAA provisions, states are
entitled to administer approved PSD permitting programs, and EPA is
required to approve a state's program that satisfies applicable CAA
requirements. The CAA SIP approval authority does not provide the
Agency with the discretion to refrain from taking the action of
approving the South Dakota PSD permit program if it meets all
applicable CAA requirements. Accordingly, and as confirmed by recent
Supreme Court precedent, the ESA requirements cited in the comments do
not apply to EPA's decision to approve South Dakota's PSD permitting
program into the SIP. See 50 CFR 402.03; National Ass'n of Home
Builders v. Defenders of Wildlife, 127 S. Ct. 2518 (2007).
    Section 7(a)(2) of the ESA generally requires federal agencies to
consult with the relevant federal wildlife agencies to ensure that
actions they authorize, fund, or carry out are not likely to jeopardize
the continued existence of federally-listed endangered or threatened
species, or result in the destruction or adverse modification of
designated critical habitat of such species. 16 U.S.C. 1536(a)(2). In
accordance with relevant ESA implementing regulations, this requirement
applies only to actions in which there is discretionary federal
involvement or control. 50 CFR 402.03. In the Defenders of Wildlife
case, the Supreme Court examined these provisions in the context of
EPA's decision to approve a state permitting program under the Clean
Water Act (CWA). In that case, the Court held that when a federal
agency is required by statute to undertake a particular action once
certain specified triggering events have occurred, there is no relevant
agency discretion, and thus the requirements of ESA section 7(a)(2) do
not apply. 127 S. Ct. at 2536.
    With regard to EPA's transfer of CWA permitting authority to a
state, the Court found that because the relevant CWA provision mandated
that EPA ``shall approve'' a state permitting program if a list of CWA
statutory criteria are met, EPA lacked the discretion to deny a
transfer application that satisfied those criteria. Id. at 2531-32. The
Court also found that the relevant CWA program approval criteria did
not include consideration of endangered or threatened species, and
stated that ``[n]othing in the text of [the relevant CWA provision]
authorizes EPA to consider the protection of threatened or endangered
species as an end in itself when evaluating [an] application'' to
transfer a permitting program to a state. Id. at 2537. Accordingly, the
Court held that the CWA required EPA to approve the state's permitting
program if the statutory criteria were met; those criteria did not
include the consideration of ESA-protected species; and thus,
consistent with 50 CFR 402.03, the non-discretionary action to transfer
CWA permitting authority to the state did not trigger relevant ESA
section 7 requirements.
    Similar to the CWA program approval provision at issue in Defenders
of Wildlife, section 110(k)(3) of the CAA mandates that EPA ``shall
approve'' a SIP submittal that meets applicable CAA requirements. 42
U.S.C. 7410(k)(3). The CAA provides a list of SIP submittal criteria in
section 110. See 42 U.S.C. 7410(a)(2). With respect to SIP submittals
involving PSD permitting program applications, the relevant program
approval criteria are found in the general CAA provisions regarding the
PSD program, Title I, Part C, and EPA's relevant regulations
implementing those provisions, 40 CFR 51.166. See 42 U.S.C. 7410
(a)(2)(J).
    As was the case with the CWA requirements in Defenders of Wildlife,
the SIP requirements contained in section 110 of the CAA do not include
protection of listed species, and neither Title I, Part C of the CAA
nor EPA's PSD implementing regulations explicitly state that
consideration of the impacts on listed species is a required factor in
PSD permitting decisions. EPA has interpreted sections 169(3) and

165(e)(3)(B) of the CAA as providing EPA with the relevant discretion
to carry out ESA section 7(a)(2) obligations during its review of
individual applications for federally-issued PSD permits under section
165. See, In re: Indeck-Elwood, LLC, PSD Appeal No. 03-04 (EAB Sept.
27, 2006), slip. op at 108 (holding EPA has discretion to consider
impacts to listed species in Best Available Control Technology and
soils and vegetation analysis). However, the use of this discretion in
individual PSD permitting decisions does not provide EPA similar
discretion in its SIP approval decisions under section 110.
    In issuing individual PSD permits, EPA is required to complete an
environmental impacts analysis in the best available control technology
determination of CAA section 169(3) and an additional impacts analysis,
including impacts on soils and vegetation, under section 165(e)(3)(B)
of the CAA. In carrying out these analyses, EPA has interpreted these
provisions as affording the Agency discretion to determine whether
listed species are impacted by individual federal PSD permitting
decision. In contrast, EPA's action on state SIP submittals is governed
by section 110 of the CAA, which unequivocally directs EPA to approve
state plans meeting applicable CAA requirements. Section 110 does not
provide for similar impact analyses in reviewing PSD SIP submittals.
Thus, although EPA's approval of an individual federal PSD permit and
its approval of a state PSD permitting program both involve PSD, they
are entirely different actions arising under different provisions of
the CAA. An ESA obligation triggered by one provision of the statute--
consideration of ESA in individual federal PSD permitting decisions--
cannot be bootstrapped to raise that obligation in another provision--
approval of a PSD SIP submittal--that does not provide EPA with similar
discretion. See generally Defenders of Wildlife (finding that while EPA
undertakes ESA consultation when issuing individual federal NPDES
permits, it was not required to do so in approving state NPDES
permitting programs). EPA recognizes that it exercises some judgment
when evaluating whether a SIP submittal meets specific statutory PSD
criteria. However, as the Supreme Court held in Defenders of Wildlife,
the use of such judgment does not allow the Agency ``the discretion to
add another entirely separate prerequisite''--such as the ESA section
7(a)(2) consultation requirements--to the list of required criteria EPA
considers when determining whether it ``shall approve'' a state
permitting program. 127 S. Ct. at 2537.
    Applying the reasoning of Defenders of Wildlife, ESA consultation
obligations do not apply to EPA's approval of South Dakota's PSD permit
program, because the SIP approval criteria contained in the CAA do not
provide EPA with the discretionary authority to consider whether
approval of the State PSD permitting program into the SIP may affect
any listed species. EPA has determined that the State has submitted a
SIP for a PSD program that satisfies all of the applicable SIP
requirements contained in section 110 of the CAA, as well as the
applicable PSD requirements found in CAA Title I, Part C, and 40 CFR
51.166. Thus, given this Supreme Court precedent and applicable
regulations, see 50 CFR 402.03, EPA is without discretion to disapprove
or condition the State's program based on concerns for listed species,
and the ESA requirements cited by the commenter are thus inapplicable
to this approval action.
    3. The commenter ``supports U.S. EPA disapproving SD's attempt to
have the state conduct the necessary consultation with a Federal Land
Manager when a proposed source may impact a class 1 area.''
    Response: EPA's proposed disapproval concerned only the narrow
issue of the Federal Land Manager's (FLM) responsibility to consult
with the EPA Administrator under 40 CFR 51.166(p)(2). See EPA's
February 1, 2007 Notice of Proposed Rule (72 FR 4673) for additional
discussion of this issue. On June 28, 2007, South Dakota submitted to
EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added
40 CFR 52.21(p)(2) to the list of provisions incorporated in Chapter
74:36:09 where the term ``Administrator'' continues to mean the
Administrator of EPA. Therefore, in South Dakota, an FLM will continue
to have the responsibility to consider, in consultation with the EPA,
whether a proposed source or modification in South Dakota will have an
adverse impact on air quality related values (including visibility).
This is consistent with 40 CFR 51.166(p)(2).
    EPA is approving the incorporation by reference of 40 CFR
52.21(p)(2) as part of the approval of Chapter 74:36:09. However, the
State will have the responsibility to consider and respond to the FLM's
analysis under the procedures set forth in sections 40 CFR 52.21(p)(3)-
(8). In accordance with 40 CFR 51.166(p)(3) and 165(d)(2)(C)(ii) of the
CAA, when there is no projected violation of the PSD increments, the
FLM bears the burden of demonstrating to the satisfaction of the state
permitting authority that a project will have an adverse impact on air
quality related values.

IV. What action is EPA taking?

    We are approving the inclusion of Administrative Rules of South
Dakota, Chapter 74:36:09, Prevention of Significant Deterioration, into
the South Dakota SIP, including 74:36:09:02's incorporation of 40 CFR
52.21(p)(2). Additionally, EPA is rescinding its delegation of the PSD
regulations to South Dakota.

V. 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 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

approves a state rule implementing a Federal standard, 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 approves a state rule implementing a Federal standard.
    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 19, 2008. 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).)

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: December 12, 2007.
Stephen S. Tuber,
Acting Regional Administrator, Region 8.

0
40 CFR part 52 is amended to read 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 QQ--South Dakota

0
2. In Sec.  52.2170, the table in paragraph (c) is amended by adding a
new entry for chapter 74:36:09 after the existing entry for 74:36:07 to
read as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                State           EPA  approval date and
          State citation                        Title/subject               effective date             citation\1\                   Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
                                                    74:36:09 Prevention of Significant Deterioration
74:36:09:01......................  Applicability..........................         9/18/06  [Insert Federal Register page
                                                                                number where the document
                                                                                begins and date]
74:36:09:01.01...................  Prevention of significant deterioration         9/18/06  [Insert Federal Register page
                                    permit required.                                         number where the document
                                                                                begins and date]
74:36:09:02......................  Prevention of significant deterioration         6/13/07  [Insert Federal Register page
                                                                                number where the document
                                                                                begins and date]
74:36:09:03......................  Public participation...................         9/18/06  [Insert Federal Register page
                                                                                number where the document
                                                                                begins and date]

                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this
  column for that particular provision.

0
3. Section 52.2178 is amended by revising paragraphs (a) and (b) to
read as follows and by deleting paragraph (c):

Sec.  52.2178  Significant deterioration of air quality.

    (a) The South Dakota plan, as submitted, is approved as meeting the
requirements of part C, subpart 1 of the CAA, except that it does not
apply to sources proposing to construct on Indian reservations;
    (b) Regulations for preventing significant deterioration of air
quality.

The provisions of Sec.  52.21 except paragraph (a)(1) are hereby
incorporated and made a part of the South Dakota State implementation
plan and are applicable to proposed major stationary sources or major
modifications to be located on Indian reservations.
* * * * *
[FR Doc. E7-24717 Filed 12-20-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 70 (Tuesday, April 12, 2011)]
[Proposed Rules]
[Pages 20293-20296]
[FR Doc No: 2011-8705]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0029-201103; FRL-9293-2]

Approval and Promulgation of Implementation Plans and
Designations of Areas for Air Quality Planning Purposes; Charlotte-
Gastonia-Rock Hill, North Carolina and South Carolina: Determination of
Attainment for the 1997 8-Hour Ozone Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Charlotte-Gastonia-Rock
Hill, North Carolina-South Carolina nonattainment area has attained the
1997 8-hour ozone national ambient air quality standards (NAAQS) based
on quality assured, quality controlled monitoring data from 2008-2010.
The Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina 1997 8-
hour ozone nonattainment area (hereafter referred to as the ``bi-state
Charlotte Area'') is comprised of Cabarrus, Gaston, Lincoln,
Mecklenburg, Rowan, Union and a portion of Iredell (Davidson and Coddle
Creek Townships) Counties in North Carolina; and a portion of York
County in South Carolina. If this proposed determination is made final,
the requirement for the States of North Carolina and South Carolina to
submit an attainment demonstration and associated reasonably available
control measures (RACM) analyses, reasonable further progress (RFP)
plans, contingency measures, and other planning State Implementation
Plans (SIPs) related to attainment of the 1997 8-hour ozone NAAQS for
the bi-state Charlotte Area, shall be suspended for as long as the Area
continues to meet the 1997 8-hour ozone NAAQS.

DATES: Written comments must be received on or before May 12, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0029 by one of the following methods:
    1. http:[sol][sol]www.regulations.gov: Follow the on-line
instructions for submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2011-0029,'' 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-
2011-0029. 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:[sol][sol]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:[sol][sol]www.regulations.gov or by e-mail information that you
consider to be CBI or otherwise protected. The
http:[sol][sol]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:[sol][sol]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 Docket Center homepage at
http:[sol][sol]www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
http:[sol][sol]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:[sol][sol]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 Zuri Farngalo,
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. Ms.
Spann may be reached by phone at<PHONE_NUMBER> or via electronic e-
mail at<EMAIL_ADDRESS>Mr. Farngalo may be reached by phone at
(404) 562-9152 or via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. What action is EPA taking?
II. What is the effect of this action?
III. What is the background for this action?
IV. What is EPA's analysis of the relevant air quality data?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is proposing to determine that the bi-state Charlotte Area has
attained the 1997 8-hour ozone NAAQS. Today's proposal is based upon
complete, quality assured, quality controlled, and certified ambient
air monitoring data for the years 2008-2010 showing that the bi-state
Charlotte Area has monitored attainment of the 1997 8-hour ozone NAAQS.
EPA is in the process of establishing a new 8-hour ozone NAAQS, and
expects to finalize the reconsidered NAAQS by July 2011. Today's
action, however, relates only to the 1997 8-hour ozone NAAQS.
Requirements for the bi-state Charlotte Area under the 2011 NAAQS will
be addressed in the future.

II. What is the effect of this action?

    If this determination is made final, under the provisions of EPA's
ozone implementation rule (see 40 CFR 51.918), it would suspend the
requirement to submit attainment demonstrations and associated RACM
analyses, RFP plans, contingency measures,\1\ and any other planning
SIPs related to attainment of the 1997 8-hour ozone NAAQS. The clean
data determination would continue until such time, if any, that EPA
subsequently determines that the bi-state Charlotte Area has violated
the 1997 8-hour ozone NAAQS. The clean data determination is separate
from any future designation determination or requirements for the bi-
state Charlotte Area based on the revised or reconsidered ozone NAAQS,
and would remain in effect regardless of whether EPA designates the bi-
state Charlotte Area as a nonattainment area for purposes of a future
revised or reconsidered 8-hour ozone NAAQS.\2\ Furthermore, as
described below, a final clean data determination is not equivalent to
the redesignation of the bi-state Charlotte Area to attainment for the
1997 8-hour ozone NAAQS. If this rulemaking is finalized and EPA
subsequently determines, after notice-and-comment rulemaking in the
Federal Register, that the bi-state Charlotte Area has violated the
1997 8-hour ozone NAAQS, the basis for the suspension of the specific
requirements, set forth at 40 CFR 51.918, would no longer exist, and
the bi-state Charlotte Area would thereafter have to address pertinent
requirements.
---------------------------------------------------------------------------

    \1\ Contingency measures associated with a maintenance plan
(such as if the States opt to redesignate this Area to attainment
for the 1997 8-hour ozone NAAQS) would still be required.
    \2\ As noted above, at this time the proposed determination of
attainment, if finalized, would suspend only those requirements
related to attainment that are currently applicable to the bi-state
Charlotte Area.
---------------------------------------------------------------------------

    As mentioned above, finalizing this proposed action would not
constitute a redesignation of the bi-state Charlotte Area to attainment
of the 1997 8-hour ozone NAAQS under section 107(d)(3) of the CAA.
Finalizing this proposed action does not involve approving maintenance
plans for the bi-state Charlotte Area as required under section 175A of
the CAA, or affirm that the Area has met all other requirements for
redesignation. The designation status of the bi-state Charlotte Area
would remain nonattainment for the 1997 8-hour ozone NAAQS until such
time as EPA determines that it meets the CAA requirements for
redesignation to attainment. The States of North Carolina and South
Carolina are currently working on a redesignation request and
maintenance plan to change the bi-state Charlotte Area's status from
nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA will
consider North Carolina and South Carolina's redesignation request and
maintenance plan for the bi-state

Charlotte Area in a rulemaking separate from today's proposed action.
    This proposed action, if finalized, is limited to a determination
that the bi-state Charlotte Area has attained the 1997 8-hour ozone
NAAQS. As noted above, the 1997 8-hour ozone NAAQS became effective on
July 18, 1997 (62 FR 38894), and are set forth at 40 CFR 50.10. On
March 12, 2008, EPA promulgated revised 8-hour ozone NAAQS.
Subsequently, on January 19, 2010, EPA published a proposed rule to
reconsider the 2008 8-hour ozone NAAQS (75 FR 2938) and to propose a
revised ozone NAAQS. Today's proposed determination for the bi-state
Charlotte Area, and any final determination, will have no effect on,
and is not related to, any future designation determination that EPA
may make based on the revised or reconsidered ozone NAAQS for the Bi-
state Charlotte Area.
    If this proposed determination is made final and the bi-state
Charlotte Area continues to demonstrate attainment with the 1997 8-hour
ozone NAAQS, the obligation for the States of North Carolina and South
Carolina to submit for the bi-state Charlotte Area an attainment
demonstrations and associated RACM analyses, RFP plans, contingency
measures, and any other planning SIPs related to attainment of the 1997
8-hour ozone NAAQS will remain suspended regardless of whether EPA
designates the bi-state Charlotte Area as a nonattainment area for
purposes of the revised or reconsidered ozone NAAQS. Once the bi-state
Charlotte Area is designated for the revised or reconsidered ozone
NAAQS, it will have to meet all applicable requirements for that
designation.

III. What is the background for this action?

    On July 18, 1997 (62 FR 38894), EPA promulgated a revised 8-hour
ozone NAAQS of 0.08 parts per million (ppm) for both the primary and
secondary standards. These NAAQS are more stringent than the previous
1-hour ozone NAAQS. Under EPA regulations at 40 CFR part 50, the 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
concentration is less than or equal to 0.08 ppm (i.e., 0.084 ppm when
rounding is considered). 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. Specifically,
section 2.3 of 40 CFR part 50, Appendix I, ``Comparisons with the
Primary and Secondary Ozone Standards'' states:

    ``The primary and secondary ozone ambient air quality standards
are met at an ambient air quality monitoring site when the 3-year
average of the annual fourth-highest daily maximum 8-hour average
ozone concentration is less than or equal to 0.08 ppm. The number of
significant figures in the level of the standard dictates the
rounding convention for comparing the computed 3-year average annual
fourth-highest daily maximum 8-hour average ozone concentration with
the level of the standard. The third decimal place of the computed
value is rounded, with values equal to or greater than 5 rounding
up. Thus, a computed 3-year average ozone concentration of 0.085 ppm
is the smallest value that is greater than 0.08 ppm.''

On April 30, 2004 (69 FR 23857), EPA published its air quality
designations and classifications for the 1997 8-hour ozone NAAQS based
upon air quality monitoring data from those monitors for calendar years
2001-2003. These designations became effective on June 15, 2004. The
bi-state Charlotte Area is comprised of Cabarrus, Gaston, Lincoln,
Mecklenburg, Rowan, Union and a portion of Iredell (Davidson and Coddle
Creek Townships) Counties in North Carolina; and a portion of York
County, South Carolina and was designated nonattainment for the 1997 8-
hour ozone NAAQS. See 40 CFR part 81.

IV. What is EPA's analysis of the relevant air quality data?

    EPA has reviewed the three most recent years of complete,
certified, quality assured and quality controlled ambient air
monitoring data for the 1997 8-hour ozone NAAQS, consistent with the
requirements contained in 40 CFR part 50, as recorded in the EPA Air
Quality System (AQS) database for the bi-state Charlotte Area. Based on
that review, EPA has preliminarily concluded that the bi-state
Charlotte Area attained the 1997 8-hour ozone NAAQS during the 2008-
2010 monitoring period. Under EPA regulations at 40 CFR 50.10, the 1997
8-hour primary and secondary ozone ambient air quality NAAQS are met at
an ambient air quality monitoring site when the three-year average of
the annual fourth-highest daily maximum 8-hour average concentration is
less than or equal to 0.08 ppm, as determined in accordance with
appendix I of 40 CFR part 50.
    Table 1 shows the design values (the metrics calculated in
accordance with 40 CFR part 50, appendix I, for determining compliance
with the NAAQS) for the 1997 8-hour ozone NAAQS for the bi-state
Charlotte Area monitors for the years 2008-2010.

 Table 1--Design Values for Counties in the Bi-State Charlotte, North and South Carolina Nonattainment Area for
                                           the 1997 8-Hour Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                                2008-2010
              Location                      AQS site ID        2008 (ppm)   2009 (ppm)   2010 (ppm)     Design
                                                                                value (ppm)
----------------------------------------------------------------------------------------------------------------
Lincoln County (NC).................  1487 Riverview Rd. (37-       0.079        0.065        0.072        0.072
                                       109-0004).
Mecklenburg County (NC).............  1130 Eastway Dr. (37-         0.085        0.069        0.082        0.078
                                       119-0041).
Mecklenburg County (NC).............  400 Westinghouse Blvd.        0.073        0.068        0.078        0.073
                                       (37-119-1005).
Mecklenburg County (NC).............  29 N @ Mecklenburg Cab        0.093        0.071        0.082        0.082
                                       Co. ( 37-119-1009).
Rowan County (NC)...................  301 West St. & Gold           0.084        0.071        0.077        0.077
                                       Hill Ave. (37-159-
                                       0021).
Rowan County (NC)...................  925 N Enochville Ave.         0.082        0.073        0.078        0.077
                                       (37-159-0022).
Union County (NC)...................  701 Charles St. (37-           0.08        0.067        0.071        0.072
                                       179-0003).
----------------------------------------------------------------------------------------------------------------

    Table 2 shows the data completeness percentages for the 1997 8-
hours ozone NAAQS for the Atlanta Area monitors for the years 2008-
2010.

Table 2--Completeness Percentages for Counties in the Bi-State Charlotte, North and South Carolina Nonattainment
                                       Area or the 1997 8-Hour Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
                                                                                2008-2010
              Location                     AQS site ID         2008 (%)     2009 (%)     2010 (%)   Completeness
                                                                                average (%)
----------------------------------------------------------------------------------------------------------------
Lincoln County (NC)................  1487 Riverview Rd. (37-          97           98           96            97
                                      109-0004).
Mecklen-...........................  1130 Eastway Dr (37-            100           97           99            99
burg County (NC)...................   119-0041).
Mecklen-...........................  400 Westinghouse Blvd.          100           97           99            99
burg County (NC)...................   (37-119-1005).
Mecklen-...........................  29 N @ Mecklenburg Cab           98           98           98            98
burg County (NC)...................   Co. ( 37-119-1009).
Rowan County (NC)..................  301 West St & Gold               93           91           95            93
                                      Hill Ave. (37-159-
                                      0021).
Rowan County (NC)..................  925 N Enochville Ave.            99           97           93            96
                                      (37-159-0022).
Union County (NC)..................  701 Charles St. (37-             98           96           98            97
                                      179-0003).
----------------------------------------------------------------------------------------------------------------

    EPA's review of these data indicate that the bi-state Charlotte
Area has met and continues to meet the 1997 8-hour ozone NAAQS. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.

V. Proposed Action

    EPA is proposing to determine that the Charlotte-Gastonia-Rock
Hill, North Carolina-South Carolina 1997 8-hour nonattainment area has
attained the 1997 8-hour ozone NAAQS based on 2008-2010 complete,
quality-assured, quality-controlled and certified monitoring data. As
provided in 40 CFR 51.918, if EPA finalizes this determination, it
would suspend the requirements for the States of North and South
Carolina to submit, for the bi-state Charlotte Area, an attainment
demonstrations and associated RACM analyses, RFP plans, contingency
measures, and any other planning SIPs related to attainment of the 1997
8-hour ozone NAAQS as long as the Area continues to attain the 1997 8-
hour ozone NAAQS.

VI. Statutory and Executive Order Reviews

    This action proposes to make a determination of attainment based on
air quality, and would, if finalized, result in the suspension of
certain federal requirements, and it would 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 proposed 1997 8-hour ozone clean NAAQS data determination for the
bi-state Charlotte Area 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 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: March 31, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-8705 Filed 4-11-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: January 16, 2008 (Volume 73, Number 11)]
[Proposed Rules]
[Page 2868-2873]
[DOCID:fr16ja08-26]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

44 CFR Part 67

[Docket No. FEMA-B-7757]

Proposed Flood Elevation Determinations

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Proposed rule.

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SUMMARY: Comments are requested on the proposed Base (1 percent annual-
chance) Flood Elevations (BFEs) and proposed BFE modifications for the
communities listed in the table below. The purpose of this notice is to
seek general information and comment regarding the proposed regulatory
flood elevations for the reach described by the downstream and upstream
locations in the table below. The BFEs and modified BFEs are a part of
the floodplain management measures that the community is required
either to adopt or show evidence of having in effect in order to
qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP). In addition, these elevations, once
finalized, will be used by insurance agents, and others to calculate
appropriate flood insurance premium rates for new buildings and the
contents in those buildings.

DATES: Comments are to be submitted on or before April 15, 2008.

ADDRESSES: The corresponding preliminary Flood Insurance Rate Map
(FIRM) for the proposed BFEs for each community is available for
inspection at the community's map repository. The respective addresses
are listed in the table below.
    You may submit comments, identified by Docket No. FEMA-B-7757, to
William R. Blanton, Jr., Chief, Engineering Management Branch,
Mitigation Directorate, Federal Emergency Management Agency, 500 C
Street, SW., Washington, DC 20472,<PHONE_NUMBER>, or (e-mail)
<EMAIL_ADDRESS>

FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Chief,
Engineering Management Branch, Mitigation Directorate, Federal
Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202) 646-3151 or (e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency

(FEMA) proposes to make determinations of BFEs and modified BFEs for
each community listed below, in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR
67.4(a).
    These proposed BFEs and modified BFEs, together with the floodplain
management criteria required by 44 CFR 60.3, are the minimum that are
required. They should not be construed to mean that the community must
change any existing ordinances that are more stringent in their
floodplain management requirements. The community may at any time enact
stricter requirements of its own, or pursuant to policies established
by other Federal, State, or regional entities. These proposed
elevations are used to meet the floodplain management requirements of
the NFIP and are also used to calculate the appropriate flood insurance
premium rates for new buildings built after these elevations are made
final, and for the contents in these buildings.
    Comments on any aspect of the Flood Insurance Study and FIRM, other
than the proposed BFEs, will be considered. A letter acknowledging
receipt of any comments will not be sent.
    Administrative Procedure Act Statement. This matter is not a
rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C.
553. FEMA publishes flood elevation determinations for notice and
comment; however, they are governed by the Flood Disaster Protection
Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of
1968, 42 U.S.C. 4001, et seq., and do not fall under the APA.
    National Environmental Policy Act. This proposed rule is
categorically excluded from the requirements of 44 CFR part 10,
Environmental Consideration. An environmental impact assessment has not
been prepared.
    Regulatory Flexibility Act. As flood elevation determinations are
not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, a regulatory flexibility analysis is not required.
    Executive Order 12866, Regulatory Planning and Review. This
proposed rule is not a significant regulatory action under the criteria
of section 3(f) of Executive Order 12866, as amended.
    Executive Order 13132, Federalism. This proposed rule involves no
policies that have federalism implications under Executive Order 13132.
    Executive Order 12988, Civil Justice Reform. This proposed rule
meets the applicable standards of Executive Order 12988.

List of Subjects in 44 CFR Part 67

    Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.

    Accordingly, 44 CFR part 67 is proposed to be amended as follows:

PART 67--[AMENDED]

    1. The authority citation for part 67 continues to read as follows:

    Authority: 42 U.S.C. 4001, et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.

Sec.  67.4  [Amended]

    2. The tables published under the authority of Sec.  67.4 are
proposed to be amended as follows:

----------------------------------------------------------------------------------------------------------------
                                                                  * Elevation in feet
                                                                 (NGVD) + Elevation in
                                                                 feet (NAVD)
         Flooding source(s)            Location of referenced     Depth in feet above      Communities affected
                                            elevation**                 ground
                                                              --------------------------
                                                                Effective     Modified
----------------------------------------------------------------------------------------------------------------
                                 Kenton County, Kentucky, and Incorporated Areas
----------------------------------------------------------------------------------------------------------------
Banklick Creek......................  Eaton Drive bridge.....         +498         +499  City of Covington, City
                                                                                of Erlanger, City of
                                                                                Fort Wright, City of
                                                                                Independence,
                                                                                Unincorporated Areas
                                                                                of Kenton County.
                                      3,500 feet upstream of          +649         +648
                                       Webster Lane bridge.
Bullock Pen Creek (Banklick Creek     140' upstream of CSX            None         +517  City of Edgewood.
 backwater).                           railroad crossing of
                                       Bullock Pen Creek.
                                      City of Edgewood and            None         +517
                                       City of Erlanger
                                       corporate limits.
DeCoursey Creek (Licking River        City of Fairview and            None         +504  City of Fairview.
 backwater).                           Kenton County
                                       Unincorporated
                                       corporate limits.
                                      4,670 feet upstream of          None         +504
                                       City of Fairview and
                                       Kenton County
                                       Unincorporated
                                       corporate limits.
Fowler Creek........................  Mouth at Banklick Creek         +554         +562  City of Independence,
                                                                                Unincorporated Areas
                                                                                of Kenton County.
                                      Pelly Road bridge......         +710         +713
Unnamed Tributary (Backwater from     870 feet downstream of          None         +518  Unincorporated Areas of
 Licking River).                       CSX Railroad Bridge.                               Kenton County.
                                      1,010 feet upstream of          None         +518
                                       CSX Railroad.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
+ North American Vertical Datum.
 Depth in feet above ground.

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream
 reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at
 the community map repository (see below) for exact locations of all BFEs to be changed.

Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal
 Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

                                                    ADDRESSES
City of Covington
Maps are available for inspection at 638 Madison Avenue, Covington, KY 41011.

City of Edgewood
Maps are available for inspection at 385 Dudley Road, Edgewood, KY 41017.

City of Erlanger
Maps are available for inspection at 505 Commonwealth Avenue, Erlanger, KY 41018.

City of Fairview
Maps are available for inspection at 303 Court Street, Covington, KY 41011.

City of Fort Wright
Maps are available for inspection at 409 Kyles Lane, Fort Wright, KY 41011.

City of Independence
Maps are available for inspection at 5292 Madison Pike, Independence, KY 41051.

                                      Unincorporated Areas of Kenton County
Maps are available for inspection at 303 Court Street, Covington, KY 41011.
----------------------------------------------------------------------------------------------------------------
                              Harrison County, Mississippi, and Incorporated Areas
----------------------------------------------------------------------------------------------------------------
Back Bay of Biloxi/Big Lake.........  Near the intersection            +11          +15  City of D'Iberville,
                                       of Popps Ferry Road                                City of Biloxi,
                                       and Causeway Drive.                                Unincorporated Areas
                                                                                of Harrison County.
                                      Near the intersection            +13          +21
                                       of Interstate 110 and
                                       Bay Shore Drive.
Bay of Biloxi.......................  Near the intersection            +11          +16  City of Biloxi, City of
                                       of D'Iberville                                     D'Iberville,
                                       Boulevard and Lamey                                Unincorporated Areas
                                       Bridge Road.                                       of Harrison County.
                                      At Harrison/Jackson              +16          +23
                                       county boundary near
                                       U.S. Highway 90.
Bernard Bayou.......................  Approximately 350 feet           +11          +15  Unincorporated Areas of
                                       upstream of Interstate                             Harrison County, City
                                       10.                                                of Gulfport.
                                      Approximately 3,000             None          +87
                                       feet upstream of
                                       Mennonite Road.
    Tributary 3.....................  At the confluence with          None          +23  Unincorporated Areas of
                                       Bernard Bayou.                                     Harrison County.
                                      Approximately 5,808             None          +44
                                       feet upstream of
                                       Orange Grove Road.
    Tributary 4.....................  At the confluence with          None          +24  Unincorporated Areas of
                                       Bernard Bayou                                      Harrison County, City
                                       Tributary 3.                                       of Gulfport.
                                      Approximately 1,900             None          +64
                                       feet upstream of
                                       Lambrecht Road.
    Tributary 5.....................  At the confluence with          None          +40  Unincorporated Areas of
                                       Bernard Bayou                                      Harrison County, City
                                       Tributary 4.                                       of Gulfport.
                                      Approximately 850 feet          None          +65
                                       upstream of Pheasant
                                       Drive.
    Tributary 6.....................  At the confluence with          None          +28  Unincorporated Areas of
                                       Bernard Bayou.                                     Harrison County.
                                      Approximately 300 feet          None          +52
                                       upstream of Orange
                                       Grove Road.
Big Creek...........................  Approximately 29,040            None          +55  Unincorporated Areas of
                                       feet upstream of the                               Harrison County.
                                       confluence with Wolf
                                       River.
                                      Approximately 32,208            None          +58
                                       feet upstream of the
                                       confluence with Wolf
                                       River.
Biloxi River........................  Approximately 100 feet           +11          +15  City of Biloxi, City of
                                       upstream of Lorraine                               Gulfport,
                                       Rd.                                                Unincorporated Areas
                                                                                of Harrison County.
                                      At Harrison/Stone               None         +104
                                       county boundary.
Brickyard Bayou.....................  Approximately 200 feet           +10          +13  City of Gulfport.
                                       upstream of 8th Avenue.
                                      Approximately 250 feet          None          +30
                                       upstream of Stewart
                                       Avenue.

Brickyard Bayou/Bernard Bayou/Turkey  Near intersection of             +10          +12  City of Gulfport.
 Creek.                                8th Avenue and Pass
                                       Road.
                                      Near the intersection            +11          +18
                                       of Ridge Road and
                                       Taylor Road.
Canal No. 1.........................  Approximately 2,100              +16          +18  City of Pass Christian,
                                       feet upstream of Epsy                              Unincorporated Areas
                                       Avenue.                                            of Harrison County.
                                      Approximately 2,900              +17          +18
                                       feet upstream of Epsy
                                       Ave.
Canal No. 3.........................  Approximately 1,000              +14          +17  Unincorporated Areas of
                                       feet downstream of                                 Harrison County, City
                                       Epsy Avenue.                                       of Long Beach.
                                      Approximately 1,000              +18          +19
                                       feet downstream of
                                       Beatline Road.
Crow Creek..........................  Approximately 19,008            None          +95  Unincorporated Areas of
                                       feet upstream of the                               Harrison County.
                                       confluence with Biloxi
                                       River.
                                      Approximately 24,816            None         +101
                                       feet upstream of the
                                       confluence with Biloxi
                                       River.
Flat Branch.........................  At the confluence with           +11          +15  Unincorporated Areas of
                                       Bernard Bayou.                                     Harrison County, City
                                                                                of Gulfport.
                                      Approximately 8,976             None          +66
                                       upstream of the
                                       confluence with Flat
                                       Branch Tributary 2.
    Tributary 1.....................  Approximately 1,450             None          +22  City of Gulfport.
                                       feet downstream of
                                       Hamilton Street.
                                      Approximately 3,900             None          +58
                                       feet upstream of
                                       Robinson Road.
    Tributary 2.....................  At the confluence with          None          +53  City of Gulfport.
                                       Flat Branch.
                                      Approximately 2,450             None          +56
                                       feet upstream of the
                                       confluence with Flat
                                       Branch.
Fritz Creek.........................  Approximately 3,400              +11          +15  City of Gulfport.
                                       feet upstream of
                                       Lorraine Road.
                                      Approximately 850 feet          None          +56
                                       upstream of Three
                                       Rivers Road.
    Tributary 1.....................  Shallow flooding area           None   2  City of Gulfport.
                                       bound by O'Neal Road
                                       to the North, Mays
                                       Road to the South,
                                       Crystal Weel Court to
                                       the West, and Three
                                       Rivers Road to the
                                       East.
                                      Approximately 100 feet          None          +52
                                       upstream of Three
                                       Rivers Road.
                                      Approximately 1,050             None          +60
                                       feet upstream of
                                       O'Neal Road.
    Tributary 2.....................  At the confluence with          None          +39  City of Gulfport,
                                       Fritz Creek.                                       Unincorporated Areas
                                                                                of Harrison County.
                                      Approximately 1,650             None          +58
                                       feet upstream of Three
                                       Rivers Road.
Gulf of Mexico/Mississippi Sound....  Near the intersection            +12          +17  City of Biloxi, City of
                                       of Main Street and                                 Gulfport, City of Long
                                       Water Street.                                      Beach, City of Pass
                                                                                Christian,
                                                                                Unincorporated Areas
                                                                                of Harrison County.
                                      Near the intersection            +18          +26
                                       of Espy Avenue and
                                       U.S. Highway 90.
Hickory Creek.......................  Approximately 3,850             None         +121  Unincorporated Areas of
                                       feet upstream of                                   Harrison County.
                                       McHenry Road.
                                      Approximately 7,920             None         +128
                                       feet upstream of
                                       McHenry Road.
Hog Branch..........................  Approximately 1,800              +35          +36  Unincorporated Areas of
                                       feet upstream of the                               Harrison County.
                                       confluence with
                                       Tuxachanie Creek.
                                      Approximately 10,032            None          +98
                                       feet upstream of South
                                       Carr Bridge Road.
Howard Creek........................  Approximately 2,700              +13          +15  City of Biloxi.
                                       feet upstream of Old
                                       Highway 67.
                                      Approximately 3,300              +15          +16
                                       feet upstream of Old
                                       Highway 67.
Little Biloxi River.................  Approximately 150 feet          None         +120  Unincorporated Areas of
                                       downstream of McHenry                              Harrison County.
                                       Road.
                                      Approximately 6,700             None         +129
                                       feet upstream of
                                       McHenry Road.
Mill Creek..........................  Approximately 4,900             None         +104  Unincorporated Areas of
                                       feet upstream of State                             Harrison County.
                                       Highway 53.
                                      Approximately 8,976             None         +114
                                       feet upstream of State
                                       Highway 53.

Palmer Creek........................  Approximately 3,800             None          +76  Unincorporated Areas of
                                       feet upstream of                                   Harrison County.
                                       Wortham Road.
                                      Approximately 9,200             None          +87
                                       feet upstream of
                                       Wortham Road.
Parker Creek........................  Approximately 430 feet           +13          +15  City of Biloxi,
                                       upstream of Woolmarket                             Unincorporated Areas
                                       Road.                                              of Harrison County.
                                      Approximately 9,504             None          +75
                                       feet upstream of State
                                       Highway 67.
Pole Branch.........................  Approximately 270 feet          None          +61  Unincorporated Areas of
                                       downstream of Cable                                Harrison County.
                                       Bridge Road.
                                      Approximately 3,200             None          +68
                                       feet upstream of Cable
                                       Bridge Road.
Ponding Area........................  Ponding area bound by           None          +21  City of Biloxi.
                                       Irish Hill Drive to
                                       the North, West Howard
                                       Avenue to the South,
                                       Porter Avenue to the
                                       West, and Iroquois
                                       Street to the East.
Ponding Areas.......................  Near intersection of            None          +25  City of Biloxi.
                                       Big Lake Road and
                                       Lejuene Drive.
                                      Near intersection of            None          +29
                                       Irish Hill Drive and
                                       Brister Place.
Sandy Creek.........................  Approximately 1,200             None          +72  Unincorporated Areas of
                                       feet downstream of                                 Harrison County.
                                       Steel Bridge Road.
                                      Approximately 2,500             None          +75
                                       feet upstream of Steel
                                       Bridge Road.
Saucier Creek.......................  Approximately 1,200             None          +92  Unincorporated Areas of
                                       feet upstream of State                             Harrison County.
                                       Highway 67.
                                      Just downstream of              None         +111
                                       Martha Redmond Road.
Shallow Flooding....................  Shallow flooding                None   1  City of Pass Christian.
                                       bounded by West 2nd
                                       Street to the North,
                                       Scenic Drive to the
                                       South, Leovy Avenue to
                                       the West, and Paul
                                       Dunbar Avenue to the
                                       East.
St. Louis Bay/Wolf River/Canal No. 1/ Near the intersection            +12          +17  Unincorporated Areas of
 Canal No. 3.                          of Red Creek Road and                              Harrison County, City
                                       Menge Avenue.                                      of Pass Christian.
                                      At Harrison/Hancock              +16          +26
                                       county boundary south
                                       of Interstate 10.
Tchoutacabouffa River...............  Approximately 5,400              +11          +14  City of Biloxi,
                                       feet upstream of State                             Unincorporated Areas
                                       Highway 15.                                        of Harrison County.
                                      Approximately 5,000             None          +75
                                       feet upstream of the
                                       confluence with
                                       Railroad Creek.
Tchoutacabouffa River/Biloxi River..  Near intersection of             +11          +13  City of Gulfport, City
                                       Old Highway 67 and                                 of Biloxi, City of
                                       Woolmarket Road.                                   D'Iberville,
                                                                                Unincorporated Areas
                                                                                of Harrison County.
                                      Near the intersection            +14          +19
                                       of Pin Oak Drive and
                                       Oaklawn Road.
Turkey Creek........................  Approximately 2,250              +11          +14  City of Gulfport,
                                       feet downstream of                                 Unincorporated Areas
                                       Airport Road.                                      of Harrison County.
                                      Approximately 3,350              +15          +16
                                       feet upstream of Ohio
                                       Avenue.
Tuxachanie Creek....................  Approximately 1,050              +33          +34  Unincorporated Areas of
                                       feet downstream of                                 Harrison County.
                                       Whit Plains Road.
                                      Approximately 21,120            None          +95
                                       feet upstream of
                                       Bethel Road.
West Creek..........................  Approximately 2,000             None          +85  Unincorporated Areas of
                                       feet downstream of                                 Harrison County.
                                       State Highway 67.
                                      Approximately 10,032            None          +95
                                       feet upstream of State
                                       Highway 67.
Wolf River..........................  Approximately 9,700              +17          +19  Unincorporated Areas of
                                       feet upstream of Bells                             Harrison County.
                                       Ferry Road.
                                      Approximately 1,000              +20          +21
                                       feet downstream of I-
                                       10.
----------------------------------------------------------------------------------------------------------------
* National Geodetic Vertical Datum.
 Depth in feet above ground.
+ North American Vertical Datum.
** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream
 reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at
 the community map repository (see below) for exact locations of all BFEs to be changed.

Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal
 Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.

                                                    ADDRESSES
City of Biloxi
Maps are available for inspection at Floodplain Management, 676 Dr. Martin Luther King Boulevard, Biloxi, MS
 39533.

City of D'Iberville
Maps are available for inspection at 10383 Automall Parkway, D'Iberville, MS 39540.

City of Gulfport
Maps are available for inspection at Department of Urban Development-Building Codes Services, 2200 15th Street,
 Trailer B-5, Gulfport, MS 39501.

City of Long Beach
Maps are available for inspection at Building Code Office, 645 Klondike Road, Long Beach, MS 39560.

City of Pass Christian
Maps are available for inspection at Building Code Office, 203 Fleitas Avenue, Pass Christian, MS 39571.

                                     Unincorporated Areas of Harrison County
Maps are available for inspection at County Code Office, 15309 Community Road, Gulfport, MS 39503.
----------------------------------------------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance No. 97.022, ``Flood
Insurance.'')

    Dated: January 3, 2008.
David I. Maurstad,
Federal Insurance Administrator of the National Flood Insurance
Program, Department of Homeland Security, Federal Emergency Management
Agency.
 [FR Doc. E8-724 Filed 1-15-08; 8:45 am]

BILLING CODE 9110-12-P


[Federal Register Volume 76, Number 134 (Wednesday, July 13, 2011)]
[Notices]
[Page 41240]
[FR Doc No: 2011-17599]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PR09-9-001]

Northwest Natural Gas Company; Notice of Motion for Extension of
Rate Case Filing Deadline

    Take notice that on July 6, 2011, Northwest Natural Gas Company (NW
Natural) filed a request for an extension consistent with the
Commission's revised policy of periodic review from a triennial to a
five year period. The Commission in Order No. 735 modified its policy
concerning periodic reviews of rates charges by section 311 and Hinshaw
pipelines to extend the cycle for such reviews from three to five
years.\1\ Therefore, NW Natural requests that the date for its next
rate filing be extended to December 11, 2013, which is five years from
the date of NW Natural's most recent rate filing with this Commission.
---------------------------------------------------------------------------

    \1\ Contract Reporting Requirements of Intrastate Natural Gas
Companies, Order No. 735, 131 FERC ] 61,150 (May 20, 2010).
---------------------------------------------------------------------------

    Any person desiring to participate in this rate proceeding must
file a motion to intervene or to protest this filing must file in
accordance with Rules 211 and 214 of the Commission's Rules of Practice
and Procedure (18 CFR 385.211 and 385.214). Protests will be considered
by the Commission in determining the appropriate action to be taken,
but will not serve to make protestants parties to the proceeding. Any
person wishing to become a party must file a notice of intervention or
motion to intervene, as appropriate. Such notices, motions, or protests
must be filed on or before the date as indicated below. Anyone filing
an intervention or protest must serve a copy of that document on the
Applicant. Anyone filing an intervention or protest on or before the
intervention or protest date need not serve motions to intervene or
protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 7 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For TTY,
call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on Monday, July 18, 2011.

    Dated: July 7, 2011.
Kimberly D. Bose,
Secretary.
[FR Doc. 2011-17599 Filed 7-12-11; 8:45 am]
BILLING CODE 6717-01-P