[Federal Register Volume 70, Number 205 (Tuesday, October 25, 2005)]
[Rules and Regulations]
[Pages 61556-61561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21261]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R04-OAR-2005-NC-0001-200503, FRL-7988-2]


Approval and Promulgation of Implementation Plans: NC: Approval 
of Revisions to the Control of Visible Emissions Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule

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SUMMARY: EPA is taking final action to approve the Control of Visible 
Emissions portion of a State Implementation Plan (SIP) revision 
submitted to EPA, by the State of North Carolina, on December 14, 2004. 
EPA is approving changes to the opacity standards for sources required 
to install, operate and maintain continuous opacity monitoring systems 
(COMs). These changes do not increase the number of exceptions or the 
number of minutes per day for exceptions, but allow the aggregation of 
the daily exceptions. At this time, we are not taking final action on 
the remaining portions of the SIP revision submitted by the State on 
December 14, 2004.

DATES: This rule will be effective November 25, 2005.

ADDRESSES: EPA has established a docket for this action under Regional 
Material in EDocket (RME) ID No. R04-OAR-2005-NC-0001. All documents in 
the docket are listed in the RME index at http://docket.epa.gov/rmepub/
, once in the system, select ``quick search,'' then key in the 
appropriate RME Docket identification number. 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 RME 
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 contact listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Jane Spann, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9029. Ms. Spann can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Today's Action
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews

I. Background

    On December 14, 2004, the North Carolina Department of Environment 
and Natural Resources (NC DENR) submitted to EPA revisions to the North 
Carolina SIP. In the December 14, 2004 submittal, the State of North 
Carolina requested adoption of new rules and amendments to existing 
rules including NCAC 2D. 0521 Control of Visible Emissions. On May 18, 
2005, EPA proposed approval of the NCAC 2D. 0521 Control of Visible 
Emissions portion of the December 14, 2004, submittal. Additional 
information regarding the specific proposed SIP revisions is available 
in the proposed rule (70 FR 28495, May 18, 2005) included in this 
docket. EPA provided the public with thirty days to submit comments on 
the proposed SIP revisions and we received six comment letters. The 
comments and our responses are discussed below in Part III., ``Response 
to Comments.'' One commenter requested that EPA hold a public hearing 
to discuss the proposed SIP revision. NC DENR held seven public 
hearings. Four public hearings were held in Raleigh, North Carolina on 
June 6, 2000; August 16, 2000; August 20, 2002; and August 12, 2004. 
Public hearings were also held in Winterville, North Carolina on 
October 30, 2003; in Enka, North Carolina on November 5, 2003; and in 
Charlotte, North Carolina on August 2, 2004. The revisions ultimately 
included in the December 14, 2004, SIP submission were discussed in 
these hearings, including the revisions to Rule NCAC 2D .0521 Control 
of Visible Emissions. The Administrative Procedure Act does not require 
EPA to hold a public hearing for SIP revisions and, as a matter of 
practice EPA rarely provides for public hearing for SIP revisions. We 
see no reason to depart from that practice here, particularly in light 
of the numerous public hearings held by the State to discuss the 
changes being made to this rule.

II. Today's Action

    Today's action addresses only the NCAC 2D .0521 Control of Visible 
Emissions portion of the December 14, 2004, submittal. EPA is approving 
portions of Rule NCAC 2D. 0521 as submitted December 14, 2004, and is 
not taking action on the remainder of NCAC 2D .0521. EPA does not 
intend to act on previous versions of NCAC 2D .0521 which are not part 
of the December 14, 2004 submittal. In light of the public comments 
received on the May 18, 2005 proposal, EPA needs to consider further 
the remaining portions of NCAC 2D .0521 in the December 14, 2004, SIP 
submission and is taking no action on those portions of the SIP 
revision in this action.
    Today's action includes the following:
    1. EPA is approving the amendments to Paragraphs (c) and (d) of 
Rule NCAC 2D .0521. These amendments add references to a new Paragraph 
(g) that has been added.
    2. EPA is approving a portion of Paragraph (g) of Rule NCAC 2D 
.0521 to allow sources required to install, operate and maintain COMs, 
to aggregate opacity exceptions on a daily basis rather than being 
restricted to one opacity exception per hour. Specifically, under the 
new amendment, sources with COMs are allowed no more than four six-
minute opacity exception periods in any one day with no hourly 
restriction provided that no excess emissions during these periods 
cause or contribute to a violation of any emission standard or any 
ambient air quality standard. The new amendment also further restricts 
the exception periods by requiring that the opacity exceptions for 
these sources shall not exceed 0.8 percent of the total operating hours 
in a calendar quarter. Opacity exceptions greater than 0.8 percent of 
the total operating hours per calendar quarter will be considered a 
violation of this rule. EPA is not taking action on that portion of 
Rule NCAC 2D .0521(g) that excludes startups, shutdowns, maintenance 
periods when fuel is not being combusted, and malfunctions approved as 
such according to procedures approved under Rule .0535.
    3. No action is being taken on Paragraphs (a), (b), (e) and 
Paragraph (f) of Rule NCAC 2D .0521.

III. Response to Comments

    Comment 1: Numerous commenters objected to changes made to the 
provisions in Rule NCAC 2D .0521 regarding the exclusion of startup, 
shutdown, maintenance and

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malfunction periods. Two commenters objected to how the proposed rule 
creates ``an automatic exemption from excess emissions violations 
during startup, shutdown, malfunctions and maintenance periods.'' They 
went on to say that by creating ``an automatic exemption,'' the 
proposed rule revision violates the continuous compliance requirements 
of the Clean Air Act (CAA or the Act) and EPA policy, citing EPA's 
``State Implementation Plans (SIPs): Policy Regarding Excess Emissions 
During Malfunctions, Startup and Shutdown,'' issued September 20, 1999 
(September 20, 1999 EPA guidance document). The commenters cited 
examples where EPA struck down ``similar automatic exemption'' 
proposals put forward by the States of Colorado and Michigan. They also 
cited the Sixth Circuit Court of Appeals decision to uphold EPA's 
aforementioned decision to disapprove the State of Michigan's SIP 
revision allowing ``automatic exemptions.'' One commenter stated that 
according to the memorandum accompanying EPA's September 20, 1999 
policy ``[a]ll Regions should review the SIPs for their states in light 
of this clarification and take steps to insure that excess emissions 
provisions in these SIPs are consistent with the attached guidance. 
(See, Memorandum of Steven A. Herman regarding State Implementation 
Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, 
and Shutdown. 20 September 1999).'' As such, the commenter stated that 
EPA must review the existing SIP in the same light. They stated that 
EPA must determine whether the existing SIP's automatic exemption for 
excess emissions during startup complies with the Act and EPA's 
regulations and policy governing excess emissions.
    Response: We believe that the portions of the submitted SIP 
revision that address emissions during start-up, shutdown, maintenance 
and malfunction deserve further evaluation in light of the comments 
received during the comment period. Therefore, we are not taking action 
on those provisions at this time. We will respond to these comments at 
the time we take final action on these provisions of the SIP revision.
    Comment 2: One commenter stated that Rule 15A NCAC 2D .0535 Excess 
Emissions and Reporting and Malfunctions ``violates the Act and EPA 
Policy and should be removed from the SIP.'' The commenter asserted 
this is true for several reasons.
    Response: Rule 15A NCAC 2D .0535 is not before the Agency in this 
action.
    Comment 3: A number of commenters objected to the change in 
paragraph (f) of Rule .0521 from ``may'' to ``shall''. The commenter 
stated that under the current SIP ``the Director is allowed to grant an 
exception and allow a source to comply with a 40% standard if the owner 
demonstrates compliance with applicable particulate matter (PM) 
standards and submits data necessary to show that opacity emissions at 
40% will not violate any NAAQS.'' In the commenter's opinion the 
revision states ``the Director is required to grant the exception and 
allow sources manufactured after July 1, 1971 to comply with a 40% 
rather than 20% opacity standard if the owner meets (certain) 
conditions.'' In the commenter's opinion, the required ``proof'' to 
demonstrate that conditions are met is not adequate to ensure that 
sources will not exceed particulate emission standards or will not 
cumulatively cause an exceedance of the NAAQS. The commenter 
recommended that the source be required to install PM Continuous 
Emissions Monitoring Systems (CEMS). They stated that a stack test is 
insufficient proof that a source operating at 40%, rather than 20% 
opacity will not exceed its PM limits. The commenter also recommends 
that modeling must be conducted assuming that all sources are operating 
at 40% opacity.
    Response: We believe that this provision of the submitted SIP 
revision deserves further evaluation in light of the comments received 
during the comment period. Therefore, we are not taking action on 
section (f) at this time. We will respond to this comment at the time 
we take final action on section (f) of the SIP revision.
    Comment 4: Some commenters opposed EPA's approval of Paragraph (g) 
of Rule 15A NCAC 2D .0521 because it would be less protective than the 
existing opacity limit. One commenter specifically objected to the 
change from a standard that is measured on a rolling ``24 hour period'' 
to one that is measured on the basis of the opacity limit exceptions 
allowed ``in any one day.'' The commenter argued that a ``rolling 
average'' is by its nature more protective, and pointed to a previous 
EPA statement to that effect in connection with a Colorado SIP 
revision. A number of commenters objected more generally that EPA 
should not approve the revision to the standard for sources required to 
operate COMs which, in effect, eliminates the current hourly limit on 
opacity exceptions, and would allow a source to aggregate the currently 
allowed 24 minutes of opacity exception time in a given day. The 
commenters argued that such a change would be contrary to CAA section 
110(l).
    Response: EPA agrees that North Carolina's submittal includes 
revisions that will allow sources using COMS to aggregate currently 
allowed opacity exceptions. EPA does not, however, believe that 
approval of the revisions is in conflict with either section 110(l) or 
section 193 of the Clean Air Act. The current SIP approved opacity 
regulations in North Carolina allow all affected sources to have 
exceptions to the opacity standard for up to four periods of six minute 
duration in a 24 hour period. In addition, the current State regulation 
also imposes other more specific limits on the percentage of opacity 
that a source may emit during an exception period, based upon the age 
of the source (e.g., pursuant to Paragraph (c), a source built before 
1971 may have no more than four six minute periods at over 40% opacity 
in a given day, no more than one six minute period at over 40% opacity 
in a given hour, and no six minute period that exceeds 90% opacity). By 
the addition of Paragraph (g), the State will allow sources that are 
required to install, operate, and maintain COMs to aggregate the 
currently existing opacity exception periods, but maintains the 
restriction that there may be no more than four six minute opacity 
exception periods in any calendar day. In effect, such a change 
eliminates only the current limit of one six minute period per hour, 
and potentially allows the source to aggregate the four daily six 
minute periods together for a 24 minute period on a given day. 
Paragraph (g) of the North Carolina regulation does not permit 
additional minutes of opacity limit exception in a day, and does not 
change the percentage of opacity allowed during those exception periods 
as otherwise required in Paragraphs (c) and (d). EPA notes, however, 
that by changing from a rolling 24-hour basis to a calendar day basis, 
there is the potential for a source to utilize the daily 24 minutes of 
exception period at the end of one calendar day and the 24 minutes of 
exception period at the beginning of the next calendar day, for a 
combined 48 continuous minutes of exception period at the opacity 
limits otherwise required by Paragraphs (c) and (d). Significantly, 
Paragraph (g) also imposes a new quarterly cap on the amount of time 
that a source may exceed the opacity limit, which will significantly 
reduce the total amount of exception period that would otherwise have 
been permissible under the

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existing regulation. EPA has evaluated whether this revision to 15A 
NCAC 2D .0521 would pose concerns under both section 110(l) and section 
193.
    Section 110(l) requires that revisions to SIPs do not interfere 
with any applicable requirement concerning attainment and reasonable 
further progress, or any other applicable requirement. EPA notes that 
the evaluation of compliance with section 110(l) must take into account 
all relevant impacts of the proposed change, and that those impacts may 
differ depending upon the circumstances. In this instance, EPA believes 
that because the State regulation at issue pertains to opacity, the 
primary CAA requirements of concern should be impacts on compliance 
with the NAAQS for PM10 and PM2.5, and impacts on 
regional haze. Opacity standards are, even if only indirectly, 
standards that restrict the emissions of particulate matter, whether 
solid or liquid. Thus, EPA has looked first to the relevant PM 
standards and how compliance with those standards is to be determined, 
as provided in 40 CFR part 50, appendices K, L, and M. In the case of 
the 24-hour PM10 NAAQS, that standard is calculated or 
measured from midnight to midnight on calendar days, and evaluated for 
the number of calendar days exceeding the standard per calendar year. 
For the annual PM10 NAAQS, compliance is evaluated based 
upon the average mean for four calendar quarters, to derive the 
expected annual arithmetic mean. In the case of the 24 hour 
PM2.5 NAAQS, compliance is determined by measuring the 
concentration from midnight to midnight on calendar days, and based 
upon the 98th percentile concentration. For the annual PM2.5 
NAAQS, the determination is made by averaging the annual average over 
three years. This is a simplification of the calculations, but 
illustrates the essential point that for purposes of the NAAQS, the 
shortest period of time against which compliance is measured is a 
calendar day. In the case of regional haze, the relevant time periods 
are also longer. That program relies on a comparison of a number of 
most and least impaired days over the course of a calendar year. See, 
40 CFR 51.308. Therefore, the shortest time period for which an 
evaluation of possible impacts on regional haze would also be a 
calendar day.
    EPA acknowledges that there is not necessarily a direct correlation 
between PM mass and opacity. However, the time duration of opacity 
exceptions and the percentage of opacity during those exceptions can be 
appropriate measures for evaluating whether a change in an opacity 
standard may be contrary to 110(l). In the case of the revision to add 
Paragraph (g) to 15A NCAC 2D .0521, EPA notes that the State has not 
increased the number of minutes of opacity exception permitted in a 
day, and has not altered the permissible opacity percentage during 
those exception periods. The next relevant question is whether the 
elimination of the current restriction of no more than one six minute 
exception period per hour would pose a problem for purposes of section 
110(l). From this perspective, the CAA requirements of concern would be 
the PM10 and PM2.5 NAAQS, and regional haze. 
Because compliance with those requirements entails evaluation of 
compliance in periods no shorter than a calendar day, EPA concludes 
that whether the 24 minutes of opacity exception occur together at one 
time, or spaced out over four six minute periods over the course of a 
given day, should have no meaningful impact on the compliance with the 
NAAQS or regional haze requirements. In other words, for example, 
because ambient PM2.5 concentrations would be measured over 
the course of a calendar day, when the 24 minutes of opacity exception 
periods occur during the course of the day should not matter for 
purposes of the 24 hour PM2.5 NAAQS.
    The next question of concern is whether aggregation of the total 
daily exception periods back to back on two successive calendar days 
would pose a problem for purposes of section 110(l). EPA agrees that 
there are situations in which a 24 hour rolling standard can be more 
protective, and situations where revising such a standard would 
potentially be problematic. Here, however, EPA believes that because 
calculation of compliance with the NAAQS is gauged over no shorter time 
period than a calendar day, the aggregation of the opacity exception 
periods from two calendar days should have no significant impacts for 
purposes of section 110(l). Moreover, given the type of sources likely 
to be governed by Paragraph (g), i.e., large electric generation units, 
EPA believes that such sources are unlikely to be operated in such a 
fashion that they would typically use all of the exception period 
minutes from two successive days back to back. EPA's understanding of 
the methods of operation of these sources is that the exception periods 
are typically more likely to be used in shorter increments throughout a 
given day, thereby minimizing the possibility of 48 continuous minutes 
over two successive days that would previously have been precluded by a 
24 hour rolling standard.
    Finally, EPA notes that the revised North Carolina opacity standard 
in Paragraph (g) explicitly provides that sources cannot rely on the 
opacity exception periods, if excess emissions during such periods 
would ``cause or contribute to a violation of an emission standard in 
this Subchapter or 40 CFR part 60, 61, or 63, or any ambient air 
quality standard in Section 15A NCAC 2D .0400 or 40 CFR part 50.'' EPA 
interprets this provision as a federally enforceable limitation on 
opacity exception periods that will help to insure that emissions 
during such periods do not interfere with other requirements of the 
CAA.
    Section 193 requires that no control requirement in effect before 
November 15, 1990, in any nonattainment area for any air pollutant may 
be modified after November 15, 1990 in any manner unless the 
modification insures equivalent or greater emission reductions of such 
air pollutant. EPA has evaluated the inclusion of Paragraph (g) in 
light of this requirement and concluded that the revision is approvable 
following the same logic. Because the revision has not increased the 
total number of minutes of opacity exception periods during the course 
of a day, or altered the percentage of opacity permissible during such 
periods, EPA does not think that the revision will allow an increase in 
opacity during the course of a day. EPA agrees that the change from a 
rolling 24-hour period to a calendar day period for purposes of 
limiting exception periods could potentially have posed a problem in 
the context of section 193 if looked at solely from the perspective of 
a given rolling 24 hour period, but the State's inclusion of a 
quarterly cap on the number of minutes of exception period serves to 
negate that concern. EPA believes that the imposition of the quarterly 
cap on exception periods provides assurances that the revised standard 
will provide equivalent or greater protection on a quarterly or annual 
basis.
    Comment 5: One commenter stated that no worst-case analysis has 
been conducted for these proposed amendments. Previous worst-case 
analysis (based on modeling data collected during a Method-5 stack test 
of a large boiler at an electrical generation unit) fails to adequately 
establish that any small group of sources subject to the proposed 
exemption does not have the potential to cause an exceedance of the 
NAAQS or PSD increments.
    Another commenter stated that North Carolina has not adequately 
addressed

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the requirements of section 110(l) of the Act because the State did not 
provide modeling data and analysis to justify its proposed SIP 
revisions. The commenter stated that NC DENR established a relationship 
between opacity and emission rate of particulate from data collected 
during a Method-5 stack test of a large boiler at an electrical 
generation unit (EGU). The commenter argued that because EPA 
disapproved a similar Colorado SIP revision based on data from one out 
of twenty-five statewide boilers, EPA should not approve North 
Carolina's SIP revisions because they are based on data obtained from 
only one boiler out of, at least, forty-one in the State of North 
Carolina. The commenter also stated that it appears that the modeling 
analysis was based on actual emissions from a sample startup/shutdown 
sequence that was simply repeated in the model throughout the year. The 
commenter cites EPA's Guidelines on Air Quality Models to argue that 
North Carolina did not use worst case hourly emissions rates (from the 
test sequence) in the model for every hour of the year when testing for 
compliance with 24-hour standards.
    Response: EPA believes that allowing aggregation of the daily 
exceptions allowed will not result in additional opacity. Therefore, 
EPA has concluded that a worst-case demonstration is not required.
    Comment 6: One commenter stated that NCDENR has not adequately 
addressed the requirements of Section 193. The commenter stated that 
because the SIP provision governing visible emissions was initially 
approved by EPA prior to November 15, 1990, North Carolina must 
demonstrate compliance with this provision prior to EPA approval of its 
proposed SIP revisions. The commenter believes that these 
demonstrations must be conducted for all sources within nonattainment 
areas.
    Response: As mentioned previously, these rule changes are not 
allowing any increase in the number of minutes per day for exceptions 
from the opacity standard or any increase in the percentage of opacity 
during such periods. In addition, the imposition of the quarterly cap 
on minutes of exception to the opacity standard provides assurances 
that the revised standards will provide equivalent or greater 
protection on a quarterly or annual basis. Therefore, EPA has concluded 
that the SIP revision meets the requirements of Section 193 of the Act.
    Comment 7: One commenter stated that NCDENR has not adequately 
addressed the requirements of 40 CFR 51.166(a)(2) (PSD Plan Revisions) 
in the revision to the rule. The commenter stated that ``if a SIP 
revision would result in increased air quality deterioration over any 
baseline concentration, the SIP revision must include a demonstration 
that it will not cause or contribute to a violation of the applicable 
increments.'' The commenter stated that EPA must disapprove the 
proposed revision if EPA finds that the proposed revisions represent a 
relaxation from existing requirements that will allow increased 
emissions into the air.
    Response: As explained more fully above, these rule changes are not 
allowing a relaxation from existing requirements because there is no 
increase in the minutes of daily opacity exceptions and there is a 
reduction of such exceptions on a quarterly basis. Thus, EPA has 
concluded that these revisions do not require the suggested 
demonstration.
    Comment 8: The commenter stated that the SIP revisions do not meet 
the Clean Air Act requirements that SIP measures be enforceable. The 
commenter cited EPA's disapproval of Colorado's proposed SIP revisions 
based on the fact that those revisions did not comply with the Clean 
Air Act's requirement that such revisions be enforceable. The commenter 
noted that ``EPA held that Colorado's proposed revisions were 
insufficient because `the State does not specify whether exceedances 
will be measured against the 20% opacity limit * * *, the 30% opacity 
limit * * *, or both. Id.' '' The commenter believes that EPA must 
disapprove NC DENR's revisions because the North Carolina regulations 
are likewise vague and ambiguous, and do not clearly specify whether 
the exceedances will be measured against the 90%, 87%, 20% or 40% 
opacity limits, or some combination thereof.
    As an example, the commenter argued that the North Carolina 
revisions do not clearly define whether or not various activities, such 
as fire building, process modification and adjustment of control 
equipment are to be counted in determining the number of exceedances in 
a given quarter. Similarly, the commenter argued that the SIP revisions 
do not clearly indicate how sources must conduct required recordkeeping 
and reporting. Also, the commenter stated that the State has failed to 
address issues relating to significant planned maintenance outage (PMO) 
startups.
    Response: EPA believes that the NC rule is clear about how the 
opacity exceptions will be measured. Depending on the source, 40% 
opacity or 20% opacity are the standards. 15A NCAC 2D .0521 paragraphs 
(c) and (d) include exception periods that allow a source to go above 
the 40% or 20% opacity for a short period of time (four six minute 
periods in any 24-hour period). At no time can opacity exceed the upper 
limits of 90% or 87%, depending on the source. EPA notes that because 
the sources governed by paragraph (g) have COMs, it should be easier to 
assure compliance with these limits.
    The current rule does not provide for specific exemptions for fire 
building activities, process modification, adjustment of control 
equipment or planned maintenance outage (PMO) startups and the rule 
revisions do not change this. Also, neither the current Rule .0521 nor 
the rule revision addresses reporting and recordkeeping. Therefore, it 
is not necessary for the rule revision to address these issues as 
recommended by the commenter. There will be no change to the scope of 
Rule .0521 and EPA is not taking action on changes in provisions 
related to startup, shutdown, maintenance and malfunction.
    Comment 9: One commenter stated that the new standard could not be 
a relaxation of the existing standard because continuous measurement of 
emissions is more stringent than the visual observation method, 
implying that more frequent monitoring renders a standard more 
stringent.
    Response: The revision to Rule NCAC 2D .0521 is not a relaxation of 
the standard for the reasons already given in this Federal Register 
document. EPA does not agree with the commenter's assertion that more 
frequent monitoring automatically renders a standard more stringent.

IV. Final Action

    EPA is taking final action on the Control of Visible Emissions 
portion of a State Implementation Plan (SIP) revision submitted to EPA, 
by the State of North Carolina on December 14, 2004. EPA is approving 
the changes to Paragraphs (c) and (d) of Rule NCAC 2D .0521 Control of 
Visible Emissions that reference new Paragraph (g) of said rule. EPA is 
also approving Paragraph (g) of Rule NCAC 2D .0521, with the exception 
of the clause that provides ``excluding startups, shutdowns, 
maintenance periods when fuel is not being combusted, and malfunctions 
approved as such according to procedures approved under Rule .0535 of 
this Section.'' We are not taking action at this time on that portion 
of Paragraph (g) or on Paragraphs (a), (b), (e), and (f).

[[Page 61560]]

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 Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 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 Clean Air Act. 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. section 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 Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 27, 2005. 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, 
Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: October 17, 2005.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.


0
40 CFR Part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

0
2. In Section 52.1770(c), table 1 is amended under subchapter 2D by 
revising the entry for ``.0521 Control of Visible Emissions'' to read 
as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                Table 1.--EPA Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
                                     State
   State        Title/subject      effective    EPA approval date                    Explanation
  citation                            date
----------------------------------------------------------------------------------------------------------------
                                Subchapter 2D Air Pollution Control Requirements
 
                                                   * * * * * *
      .0521  Control of Visible      01/01/05  10/25/05 [Insert     Approving changes to Paragraphs (c) and (d)
              Emissions.                        first page of        that reference new Paragraph (g). Also,
                                                publication].        approving Paragraph (g) excluding the
                                                                     following language: ``excluding startups,
                                                                     shutdowns, maintenance periods when fuel is
                                                                     not being combusted, and malfunctions
                                                                     approved as such according to procedures
                                                                     approved under Rule .0535 of this
                                                                     Section.''
 
 
                                                  * * * * * * *
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[[Page 61561]]

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[FR Doc. 05-21261 Filed 10-24-05; 8:45 am]
BILLING CODE 6560-50-P