[Federal Register Volume 61, Number 184 (Friday, September 20, 1996)]
[Rules and Regulations]
[Pages 49414-49418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24043]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[NC-78-1-7236a; NC-80-1-2-9631a; FRL-5606-3]


Approval and Promulgation of Implementation Plans State: Approval 
of Revisions to the State of North Carolina's State Implementation Plan 
(SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the North Carolina State 
Implementation Plan (SIP) to allow the State air pollution control 
agency and the Forsyth County, North Carolina air pollution control 
agency to utilize exclusionary rules for the purpose of limiting 
potential to emit (PTE) criteria pollutants for certain source 
categories to less than the title V permitting major source thresholds. 
EPA is also approving under section 112(l) of the Clean Air Act several 
source-categories of the submitted regulations for limiting

[[Page 49415]]

PTE of hazardous air pollutants (HAP) to less than title V permitting 
major source thresholds. These exclusionary rules allow facilities to 
compute potential emissions based on actual emissions or raw material 
usage for the following source categories: gasoline service stations 
and dispensing facilities; coating, solvent degreasing, and graphic 
arts operations; dry cleaning facilities, grain elevators, cotton gins, 
and emergency generators. On August 4, 1995, the State of North 
Carolina through the Department of Environment, Health, and Natural 
Resources (DEHNR) submitted a SIP revision fulfilling the requirements 
necessary to utilize exclusionary rules to limit PTE of air pollutants 
in a federally enforceable manner. On December 28, 1995, the Forsyth 
County Department of Environmental Affairs (FCDEA) through the DEHNR 
submitted a SIP revision fulfilling the requirements necessary to allow 
Forsyth County to utilize exclusionary rules to limit PTE of air 
pollutants in a federally enforceable manner. Forsyth County's SIP 
regulations are a verbatim adoption of the State of North Carolina 
exclusionary regulations.

DATES: This action is effective November 19, 1996 unless notice is 
received by October 21, 1996 that someone wishes to submit adverse or 
critical comments. If the effective date is delayed, timely notice will 
be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Scott Miller at the 
EPA Regional office listed below.
    Copies of the material submitted by North Carolina may be examined 
during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460
Environmental Protection Agency, Region 4 Air Planning Branch, 100 
Alabama Street, SW, Atlanta, Georgia 30303
North Carolina Department of Health, Environment, and Natural 
Resources, Air Quality Section, P.O. Box 29535, Raleigh, North Carolina 
27626
Forsyth County Environmental Affairs Department, Air Quality Section, 
537 North Spruce Street, Winston-Salem, North Carolina 27101

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365. 
The telephone number is 404/347-3555 extension 4153. Reference file 
numbers NC78 and NC80.

SUPPLEMENTARY INFORMATION: On August 4, 1995, and December 28, 1995, 
the State of North Carolina and the FCDEA, respectively, through the 
DEHNR submitted SIP revisions designed to allow the two agencies to 
utilize exclusionary rules for the purpose of limiting PTE for gasoline 
service stations and dispensing facilities; coating, solvent 
degreasing, and graphic arts operations; dry cleaning facilities, grain 
elevators, cotton gins, and emergency generators. Exclusionary rules 
are designed to create federally enforceable limits on a facility's PTE 
in a manner that does not require a facility-specific evaluation of 
emissions and limiting conditions. As such, exclusionary rules are 
appropriate for the purpose of limiting PTE when a facility has one 
type of emission source. EPA is approving all source-category rules 
submitted for purposes of limiting PTE for criteria pollutants. EPA is 
approving under section 112(l) of the CAA, North Carolina regulations 
15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and Forsyth County 
regulations 3Q.0801, 3Q.0803 through 3Q.0804 for purposes of limiting 
PTE of HAP. For a description of this and other ways to limit PTE for a 
facility see the EPA guidance document entitled ``Options for Limiting 
the Potential to Emit (PTE) of a Stationary Source Under Section 112 
and Title V of the Clean Air Act (Act)'' dated January 25, 1995, from 
John Seitz to the EPA Regional Air Division Directors.
    North Carolina and FCDEA exclusionary rules were designed to meet 
criteria listed in the EPA guidance memorandum entitled ``Guidance for 
State Rules for Optional Federally Enforceable Emissions Limits Based 
on Volatile Organic Compound Use'' dated October 15, 1993, from D. Kent 
Barry to the EPA Regional Air Division Directors, an EPA guidance 
document entitled ``Approaches to Creating federally-Enforceable 
Emissions Limits'' dated November 3, 1993, and the January 25, 1995, 
guidance memorandum referenced above. These guidance documents set out 
specific guidelines for exclusionary rule development regarding 
applicability, compliance determination and certification, monitoring, 
reporting, recordkeeping, public involvement, practical enforceability, 
and the requirement that a facility cannot rely on emission limits or 
caps contained in a exclusionary rule to justify violation of any rate-
based emission limits or other applicable requirements.
    An exclusionary rule applies to facilities which agree to limit 
their annual emissions to less than major source thresholds for 
criteria and/or hazardous air pollutant (HAP) emissions. An 
exclusionary rule must also provide that a facility owner or operator 
specifically apply for coverage under the exclusionary rule. Regulation 
15A North Carolina Administrative Code (NCAC) 2Q.0801(a) and Forsyth 
County Regulation 3Q.0801(a) provide that certain source categories may 
define and limit their potential emissions to less than 100 tons per 
year of each regulated pollutant, 10 tons per year of each hazardous 
air pollutant, and 25 tons per year of all hazardous air pollutants 
combined. The source categories covered by the exclusionary rules are 
gasoline service stations and dispensing facilities; coating, solvent 
degreasing, and graphic arts operations; dry cleaning facilities, grain 
elevators, cotton gins, and emergency generators. North Carolina 
Regulation 15A NCAC 2Q.0801(c) and Forsyth County Regulation 3Q.0801(c) 
provide that even though a facility is exempted from obtaining a title 
V permit by complying with these exclusionary rules, it may still be 
required to be permitted under the State or local's minor source 
construction and operating permit regulations found at North Carolina 
Regulation 15A NCAC 2Q.0300 and Forsyth County Regulation 3Q.0300. As 
such, these regulations meet the guidelines specified in the October 
15, 1993, and the January 25, 1995, guidance documents that require 
that an exclusionary rule to clearly identify the category of sources 
that qualify for the rule's coverage.
    The October 15, 1993, and the January 25, 1995, guidance documents 
suggest that facilities be required to show compliance with the 
exclusionary rule on a yearly basis by requiring monthly recordkeeping 
of the relevant variable causing emissions and showing compliance using 
the monthly record of the relevant variable affecting emissions. The 
January 25, 1995, guidance document stipulates that where monitoring 
cannot be used to determine emissions directly, limits on appropriate 
operating parameters must be established for the units or source, and 
monitoring must verify compliance with those limits. In the case of the 
State of North Carolina and Forsyth County regulations, a facility is 
required to keep records of the use of or processing of a product or 
substance that produces the emissions. For instance, North Carolina 
Regulation 15A NCAC 2Q.0802 and

[[Page 49416]]

Forsyth County Regulation 3Q.0802 require gasoline service stations and 
gasoline dispensing facilities to keep monthly records of gasoline 
throughput. The gasoline service station and gasoline dispensing 
facility must then show compliance with the 15,000,000 gallon 
exclusionary yearly rule limit on a monthly rolling average of gasoline 
throughput. EPA believes that the exclusionary rules submitted by the 
DEHNR and FCDEA meet guidelines outlined in the October 15, 1993, and 
January 25, 1995, guidance documents for purposes of detailing specific 
compliance monitoring to show compliance with the relevant limit 
resulting from a exclusionary rule.
    The October 15, 1993, guidance document requires that all 
submittals from a source required pursuant to an exclusionary rule be 
certified for truth, accuracy, and completeness. Each facility which 
chooses to be covered by an exclusionary rule submitted by the DEHNR 
and FCDEA must make submissions which are certified by the appropriate 
official as defined under North Carolina Regulation 15A NCAC 2Q.0304(j) 
and Forsyth County Regulation 3Q.0304(j). Regulation 15A NCAC 
2Q.0304(j) and Forsyth County Regulation 3Q.0304(j) require 
certifications to be signed by the following: For corporations, by a 
principal executive officer of at least the level of vice president, or 
his duly authorized representative, if such representative is 
responsible for the overall operation of the facility from which the 
emissions described originates; for partnership or limited partnership, 
by a general partner; for a sole proprietorship, by the proprietor; and 
for municipal, state, Federal, or other public entity, by a principal 
executive officer, ranking elected official, or other duly authorized 
employee. These requirements for the certifying official are similar to 
those requirements found in 40 CFR 70.2 for a responsible official 
which would certify truth, accuracy, and completeness of a part 70 
permit application. Therefore, EPA believes that the exclusionary rules 
submitted by the DEHNR and FCDEA meet requirements outlined in the 
October 15, 1993, guidance document for purposes of certification with 
respect to truth, completeness, and accuracy.
    The October 15, 1993, guidance document recommends that reporting 
requirements should vary based on how close the facility emissions are 
to the relevant major source threshold. For facilities that are close 
to the major source threshold, the guidance recommends that a state or 
local air pollution control agency require more frequent reporting of 
the variable affecting emissions (i.e. gasoline throughput). For 
instance, North Carolina Regulation 15A NCAC 2Q.0802 and Forsyth County 
Regulation 3Q.0802 require that gasoline service stations and gasoline 
dispensing facilities with annual gasoline throughput that exceeds 
10,000,000 gallons per year report gasoline throughput once yearly. For 
those gasoline service stations and gasoline dispensing facilities with 
annual gasoline throughput that exceeds 13,000,000 gallons per year, a 
facility must report gasoline throughput once every six months. EPA 
believes that the exclusionary rules submitted by the DEHNR and FCDEA 
meet requirements outlined in the October 15, 1993, guidance document 
for purposes of reporting the relevant variable affecting emissions 
from the process. The October 15, 1993, guidance document also requires 
that a facility report any exceedance of an exclusionary rule within 
one week after its occurrence. The DEHNR and FCDEA regulations satisfy 
this requirement by a verbatim incorporation of this requirement under 
each exclusionary rule source-category. Therefore, EPA believes that 
the DEHNR and FCDEA regulations meet the requirements set out in the 
above-listed guidance documents for reporting.
    The October 15, 1993, and the January 25, 1995, guidance documents 
specify that recordkeeping is required by a facility to show that the 
facility is eligible for the exclusionary rule and that the facility is 
in compliance with the relevant exclusionary rule. The October 15, 
1993, guidance document requires that recordkeeping shall be maintained 
on site and available to the permitting authority upon demand. The 
October 15, 1993, guidance document also requires that a facility be 
required to retain records for a period sufficient to support 
enforcement efforts. The DEHNR and FCDEA regulations require that 
copies of all records required to be kept for exclusionary rule 
purposes be kept on site and be available to each agency on demand. The 
exclusionary rules submitted by DEHNR and FCDEA require that records be 
kept for a period of three years from the date the records are 
originated. EPA believes that a three year time period is an adequate 
time period for a facility subject to an exclusionary rule to maintain 
records in order to support enforcement efforts.
    The November 3, 1993, guidance document and the January 25, 1995, 
guidance document set out requirements for public involvement in the 
development and application of exclusionary rules. The November 3, 
1993, guidance document states that if exclusionary rules are 
sufficiently reliable and replicable, EPA and the public need not be 
involved with their application to individual sources, as long as the 
protocols themselves have been subject to notice and opportunity to 
comment and have been approved by EPA into the SIP. The January 25, 
1995, guidance document provides that source-category standards 
approved into the SIP or under section 112(l) of the Clean Air Act can 
be used as federally enforceable limits on PTE. Once a specific source 
qualifies under the applicability requirements of the source-category 
rule, additional public participation is not required to make the 
limits federally enforceable as a matter of legal sufficiency since the 
rule itself underwent public participation and EPA review. Both the 
DEHNR and FCDEA exclusionary rules underwent public participation at 
the State and local level when these rules were made State and locally-
effective. EPA believes that with this Federal Register document and 
other public process received at the State and local level that the 
DEHNR and FCDEA exclusionary rules satisfy requirements for public 
participation outlined in the November 3, 1993, and the January 25, 
1995, guidance documents.
    The January 25, 1995, guidance document sets out requirements for 
exclusionary rule conditions to be practically enforceable. These 
requirements stem from past precedence in what the EPA has required for 
a permit to be considered enforceable as a practical matter. See 54 FR 
27274 (June 28, 1989) and a June 13, 1989, EPA policy memorandum 
entitled ``Limiting Potential to Emit in New Source Permitting.'' The 
criteria include clear statements as to the applicability, specificity 
as to the standard that must be met, explicit statements of the 
compliance time frames (e.g. hourly, daily, monthly, or 12-month 
averages, etc.), that the time frame and method of compliance employed 
must be sufficient to protect the standard involved, recordkeeping 
requirements must be specified, and equivalency provisions must meet 
specific requirements. In general, practical enforceability means that 
the provision must specify (1) a technically accurate limitation and 
the portions of the source subject to the limitation; (2) the time 
period for the limitation; (3) the method to determine compliance 
including appropriate monitoring, recordkeeping, and reporting. Each of 
these elements have been discussed prior to this paragraph in this 
Federal Register with the

[[Page 49417]]

exception of (2) above. The DEHNR and FCDEA regulations require 
facilities subject to the exclusionary rule to keep records on a 
monthly basis and to determine compliance with a yearly limit on a 
calendar monthly rolling average basis. This method for determining 
compliance with the exclusionary rule limitation was addressed 
specifically as one practically enforceable way to show compliance with 
a permit limit in the June 13, 1989, guidance document entitled 
``Limiting Potential to Emit in New Source Permitting.'' As such, EPA 
believes the DEHNR and FCDEA exclusionary rule regulations meet the 
requirements necessary for exclusionary rules to be enforceable as a 
practical matter.
    Finally, the October 15, 1993, guidance document stipulates that a 
facility cannot rely on emission limits or caps contained in a 
exclusionary rule to justify violation of any rate-based emission 
limits or other applicable requirements. This requirement is reflected 
by a verbatim incorporation of this provision found at North Carolina 
regulation 15A NCAC 2Q.0801(b) and Forsyth County regulation 
3Q.0801(b). Therefore, EPA believes that the DEHNR and FCDEA 
exclusionary rules meet the requirements listed in the October 15, 
1993, guidance document regarding the use of an exclusionary rule cap 
to justify violation of any rate-based emission limit or other 
applicable requirements.
    Eligibility for federally enforceable exclusionary rule 
certifications extends not only to certifications made after the 
effective date of this rule, but also to certifications issued under 
the State or local current rule prior to the effective date of this 
rulemaking. If the State or local agency followed its own regulation 
meaning that, each source received exclusionary rule certifications 
that established a limiting condition on the facility's PTE, EPA will 
consider all such exclusionary rule certifications as federally 
enforceable upon the effective date of this action.

Final action

    In this action, EPA is approving the State of North Carolina 
exclusionary rules found at 15A NCAC 2Q.0800 through 15A NCAC 2Q.0807 
into the North Carolina SIP. EPA is also approving the Forsyth County 
exclusionary rules found at 3Q.0800 through 3Q.0807 into the Forsyth 
County portion of the North Carolina SIP. EPA is approving North 
Carolina regulations 15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and 
Forsyth County regulations 3Q.0801, 3Q.0803 through 3Q.0804 for 
purposes of limiting PTE of HAP under section 112(l) of the CAA. EPA is 
publishing this document without prior proposal because the EPA views 
this as a noncontroversial amendment and anticipates no adverse 
comments. However, in a separate document in this Federal Register 
publication, EPA is proposing to approve the SIP revision should 
adverse or critical comments be filed. This action will be effective 
November 19, 1996, unless within 30 days of its publication, adverse or 
critical comments are received. If EPA receives such comments, this 
action will be withdrawn before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on this action serving as a proposed rule. EPA will not institute 
a second comment period on this action. Any parties interested in 
commenting on this action should do so at this time. If no such 
comments are received, the public is advised that this action will be 
effective November 19, 1996.
    EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Amendments 
enacted on November 15, 1990. EPA has determined that this action 
conforms with those requirements.
    Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by November 
19, 1996. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for purposes 
of judicial review nor does it extend the time within which a petition 
for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2) of the CAA, 42 U.S.C. 7607 (b)(2).)
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by 
a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget has exempted 
this action from review under Executive Order 12866.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the SIP 
shall be considered separately in light of specific technical, 
economic, and environmental factors and in relation to relevant 
statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must 
prepare a regulatory flexibility analysis assessing the impact of any 
proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    SIP approvals under section 110 and subchapter I, Part D of the CAA 
do not create any new requirements, but simply approve requirements 
that the State is already imposing. Therefore, because the Federal SIP-
approval does not impose any new requirements, I certify that it does 
not have a significant impact on any small entities affected. Moreover, 
due to the nature of the Federal-state relationship under the CAA, 
preparation of a regulatory flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
CAA forbids EPA to base its actions concerning SIPs on such grounds. 
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 
42 U.S.C. 7410(a)(2) and 7410(k)(3).

D. Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the direct final approval action 
promulgated today does not include a Federal mandate that may result in 
estimated costs of $100 million or more to State, local, or tribal 
governments in the aggregate, or to the private sector. This Federal 
action approves pre-existing requirements

[[Page 49418]]

under State or local law, and imposes no new Federal requirements. 
Accordingly, no additional costs to State, local, or tribal 
governments, or to the private sector, result from this action.
    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Hydrocarbons, Incorporation by Reference, Intergovernmental relations, 
Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.

    Dated: August 5, 1996.
A. Stanley Meiburg,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

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

    Authority: 42. U.S.C. 7401-7671q.

    2. Section 52.1770 is amended by adding paragraph (c)(89) to read 
as follows:


Sec. 52.1770  Identification of plan.

* * * * *
    (c) * * *
    (89) Exclusionary rules for the State of North Carolina Department 
of Environment, Health, and Natural Resources and the Forsyth County 
Department of Environmental Affairs submitted by the North Carolina 
Department of Environment, Health, and Natural Resources on August 8, 
1995, and December 28, 1995, respectively, as part of the North 
Carolina SIP.
    (i) Incorporation by reference.
    (A) Regulations 15A NCAC 2Q.0801 through 15A NCAC 2Q.0807 of the 
North Carolina SIP as adopted by the North Carolina Environmental 
Management Commission on June 8, 1995, and which became effective on 
August 1, 1995.
    (B) Regulations Subchapter 3Q.0801 through Subchapter 3Q.0807 of 
the Forsyth County portion of the North Carolina SIP as adopted and 
made effective by the Forsyth County Board of Commissioners on November 
13, 1995.
    (ii) Other material. None.
* * * * *
[FR Doc. 96-24043 Filed 9-19-96; 8:45 am]
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