[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Proposed Rules]
[Pages 36468-36471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15636]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0386-201137; FRL- 9322-5]


Approval and Promulgation of Air Quality Implementation Plans; 
North Carolina: Clean Smokestacks Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP) 
revision submitted by the State of North Carolina for the purpose of 
establishing in North Carolina's SIP the system-wide emission 
limitations from the North Carolina Clean Smokestacks Act (CSA). On 
August 21, 2009, the State of North Carolina, through the North 
Carolina Department of Environment and Natural Resources (NC DENR), 
Division of Air Quality (DAQ), submitted an attainment demonstration 
for the Hickory-Morganton-Lenoir and Greensboro-Winston Salem-High 
Point 1997 fine particulate matter (PM2.5) nonattainment 
areas. That submittal includes a request that the system-wide emission 
limitations from the North Carolina CSA be incorporated into the 
State's Federally approved SIP. EPA proposes to determine that the SIP 
revision is approvable pursuant to the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before July 22, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0386, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-9029.
    4. Mail: EPA-R04-OAR-2011-0386, 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: Jane Spann, Acting 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 normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. The Regional Office 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-
2011-0386.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

[[Page 36469]]

    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that, if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Joel Huey or Nacosta C. Ward, 
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. Mr. Huey 
may be reached by phone at (404) 562-9104. Mr. Huey can also be reached 
via electronic mail at [email protected]. Ms. Ward may be reached by 
phone at (404) 562-9140 or via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What action is EPA proposing to take?
II. What is the background of North Carolina's CSA?
III. What are the general requirements of North Carolina's CSA?
IV. Why is EPA proposing this action?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What action is EPA proposing to take?

    EPA is proposing to approve a revision to the North Carolina SIP to 
incorporate the system-wide emission limitations (or caps) from the 
State's CSA. The specific provisions being incorporated into the SIP 
are paragraphs (a) through (e) of Section 1 of Session Law 2002-4, 
Senate Bill 1078 (hereafter ``Senate Bill 1078'') enacted June 20, 
2002. This proposed approval does not include incorporation into the 
North Carolina SIP of paragraphs (f) through (j) of Section 1 of Senate 
Bill 1078 nor any of Section 2 of Senate Bill 1078. Please refer to the 
docket for this rulemaking for the complete text of these provisions.

II. What is the background of North Carolina's CSA?

    In June 2002, the General Assembly of North Carolina, Session 2001, 
passed Session Law 2002-4, also known as Senate Bill 1078. This 
legislation, entitled ``An Act to Improve Air Quality in the State by 
Imposing Limits on the Emission of Certain Pollutants from Certain 
Facilities that Burn Coal to Generate Electricity and to Provide for 
Recovery by Electric Utilities of the Costs of Achieving Compliance 
with Those Limits,'' requires significant actual emission reductions 
from coal-fired power plants in North Carolina. The State expected that 
emission reductions from the CSA would have significant health benefits 
for the citizens of North Carolina and other states.
    North Carolina's CSA includes a schedule of system-wide caps on 
emissions of nitrogen oxides (NOX) and sulfur dioxide 
(SO2) from coal-fired power plants in the State, the first 
of which became effective in 2007. The State expected the resulting 
emission reductions would serve as a significant step towards meeting 
the 1997 PM2.5 and 8-hour ozone national ambient air quality 
standards (NAAQS), among other NAAQS, improving visibility in the 
mountains and other scenic vistas, and reducing acid rain. Reducing 
NOX and SO2 emissions, using certain 
technologies, also has the co-benefit of reducing mercury emissions. 
EPA notes that all areas in the State that were designated 
nonattainment for the 1997 PM2.5 and 8-hour ozone NAAQS are 
now attaining the standards. Although the Hickory-Morganton-Lenoir and 
Greensboro-Winston Salem-High Point nonattainment areas for the 1997 
PM2.5 NAAQS have not yet been redesignated to attainment, 
EPA determined that these areas had attaining data based on the three-
year period 2006-2008.\1\ Also, although the Charlotte 1997 8-hour 
ozone nonattainment area is still designated nonattainment, EPA has 
issued a proposed determination that the Area has attaining data based 
on the 2008-2010 design value period. See 76 FR 20293 (April 12, 2011). 
North Carolina has identified the CSA as part of its plan to attain and 
maintain the NAAQS. Because North Carolina is relying on emissions 
reductions from the CSA to demonstrate attainment and maintenance for 
certain areas in the State, North Carolina is now formally seeking that 
the CSA be included in the SIP so that the CSA's requirements may be 
considered ``permanent and enforceable.''
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    \1\ EPA's determination that the Hickory-Morganton-Lenoir and 
Greensboro-Winston Salem-High Point PM2.5 nonattainment 
areas have attained the 1997 PM2.5 NAAQS is not 
equivalent to the redesignation of the areas to attainment. The 
designation status of the areas remains nonattainment for the 1997 
PM2.5 NAAQS until such time as EPA determines that the 
areas meet all of the CAA requirements for redesignation to 
attainment. See 75 FR 54 (January 4, 2010) and 75 FR 230 (January 5, 
2010), respectively.
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III. What are the general requirements of North Carolina's CSA?

    North Carolina's CSA applies to the two investor-owned public 
utilities in North Carolina that own or operate coal-fired generating 
units with the capacity to generate 25 or more megawatts of 
electricity: Progress Energy Carolinas, Inc. (Progress Energy) and Duke 
Power, a division of Duke Energy Corporation (Duke Energy). Although 
the emission caps apply collectively to each investor-owned public 
utility, the CSA has no provision for the trading of pollution credits 
from one utility to another. Tables 1 and 2 below summarize the 
schedule for implementation of the NOX and SO2 
emission caps required by the CSA.

 Table 1--NOX Emission Caps for Investor-Owned Public Utilities That Own
                 or Operate Coal-Fired Generating Units
------------------------------------------------------------------------
                                      Collective          Collective
 Investor-owned public utilities     calendar year       calendar year
  that collectively emitted in       emission caps       emission caps
       calendar year 2000          beginning January   beginning January
                                        1, 2007             1, 2009
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More than 75,000 tons of NOX....  35,000 tons of NOX  31,000 tons of
                                                       NOX.
Equal to or less than 75,000      25,000 tons of NOX  Unchanged from
 tons of NOX.                                          2007 cap.
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[[Page 36470]]


 Table 2--SO2 Emission Caps for Investor-Owned Public Utilities That Own
                 or Operate Coal-Fired Generating Units
------------------------------------------------------------------------
                                      Collective          Collective
 Investor-owned public utilities     calendar year       calendar year
  that collectively emitted in       emission caps       emission caps
       calendar year 2000          beginning January   beginning January
                                        1, 2009             1, 2013
------------------------------------------------------------------------
More than 225,000 tons of SO2...  150,000 tons of     80,000 tons of
                                   SO2.                SO2.
Equal to or less than 225,000     100,000 tons of     50,000 tons of
 tons of SO2.                      SO2.                SO2.
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    According to documentation submitted by North Carolina, applicable 
utilities in North Carolina subject to the CSA must: (1) Reduce actual 
emissions of NOX from 245,000 tons in 1998 to 56,000 tons by 
2009 (a 77 percent reduction); and (2) reduce actual SO2 
emissions from 489,000 tons in 1998 to 250,000 tons by 2009 (a 49 
percent reduction) and to 130,000 tons by 2013 (a 73 percent 
reduction). This represents about a one-third reduction of the total 
NOX emissions and a one-half reduction of the total 
SO2 emissions from all sources in North Carolina. Table 3 
below lists the coal-fired power plants in North Carolina subject to 
the CSA.

                        Table 3--Coal-Fired Power Plants Subject to North Carolina's CSA
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                  Plant                           Parent company                         Location
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Allen....................................  Duke Energy.................  Belmont.
Belews Creek.............................  Duke Energy.................  Walnut Cove.
Buck.....................................  Duke Energy.................  Salisbury.
Cliffside................................  Duke Energy.................  Cliffside.
Dan River................................  Duke Energy.................  Eden.
Marshall.................................  Duke Energy.................  Terrell.
Riverbend................................  Duke Energy.................  Mount Holly.
Ashville.................................  Progress Energy.............  Arden.
Cape Fear................................  Progress Energy.............  Moncure.
Lee......................................  Progress Energy.............  Goldsboro.
Mayo.....................................  Progress Energy.............  Roxboro.
Roxborro.................................  Progress Energy.............  Semora.
L.V. Sutton..............................  Progress Energy.............  Wilmington.
Weatherspoon.............................  Progress Energy.............  Lumberton.
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    As noted above, this proposed approval does not include 
incorporation into the North Carolina SIP paragraphs (f) through (j) of 
Section 1 of Senate Bill 1078. These provisions of the State's law, 
which North Carolina did not request to be incorporated into the 
State's Federally-approved SIP, stipulate requirements regarding 
several aspects of implementation of the CSA. In brief, those 
requirements provide that: (1) Affected utilities may determine how 
compliance with the collective emissions limitations may be achieved 
and that CSA does not alter obligations to comply with any other 
Federal or state law or the authority of the Commission to impose 
specific limitations on the emissions of NOX and 
SO2; (2) a subject emission unit shall remain subject to the 
collective emissions limitations whether or not it continues to be 
owned or operated by an investor-owned public utility; (3) any permit 
or modified permit issued for a subject unit shall include conditions 
that provide for testing, monitoring, record keeping, and reporting 
adequate to assure compliance with the CSA requirements; (4) the 
Governor may enter into an agreement with an investor-owned public 
utility for the purpose of transferring to the State any trading 
program emission allowances that result from compliance with the CSA; 
and (5) a subject investor-owned public utility shall submit to the 
State an annual verified statement providing details of activities 
related to compliance with CSA. As also noted above, this proposed 
approval does not include incorporation into the North Carolina SIP any 
of Section 2 of Senate Bill 1078, which stipulates the permitting 
requirements for all air contaminant sources in the State of North 
Carolina. Nonetheless, the emission reductions are the key component of 
the CSA, and North Carolina relies on the reductions to demonstrate 
attainment and maintenance with the NAAQS. Thus, inclusion of the 
emission reductions into the SIP serves the purpose of making the 
reductions permanent and enforceable as well as providing a Federal 
source of applicable requirements for title V permitting and other 
purposes.

IV. Why is EPA proposing this action?

    The purpose of today's proposed approval is to make the CSA 
emissions reductions Federally enforceable (and permanent) because 
those reductions are part of North Carolina's plan to attain and 
maintain the NAAQS. NC DENR requested that specific provisions of the 
CSA be formally adopted into the North Carolina SIP in support of its 
attainment demonstrations for the 1997 PM2.5 NAAQS for both 
the Hickory-Morganton-Lenoir and Greensboro-Winston Salem-High Point 
nonattainment areas. Such inclusion is consistent with the requirements 
of the CAA. Under section 110(l) of the CAA, EPA may not approve a 
revision to a SIP if it would interfere with any applicable requirement 
concerning NAAQS attainment and reasonable further progress, or any 
other applicable requirement of the CAA. In reducing system-wide 
NOX and SO2 emissions allowed by coal-fired power 
plants in the State, the CSA is clearly a strengthening of the North 
Carolina's SIP and will not interfere with CAA requirements. In 
addition, Federal approval of the CSA will ensure the State may take 
credit for the associated NOX and SO2 emission 
reductions when pertinent to SIP submittals for other CAA requirements.

V. Proposed Action

    EPA is proposing to approve the portion of North Carolina's August 
21, 2009, SIP revision which incorporates

[[Page 36471]]

the system-wide emission caps from the State legislation entitled, ``An 
Act to Improve Air Quality in the State by Imposing Limits on the 
Emission of Certain Pollutants from Certain Facilities that Burn Coal 
to Generate Electricity and to Provide for Recovery by Electric 
Utilities of the Costs of Achieving Compliance with Those Limits.'' The 
specific provisions being proposed for incorporation into the SIP are 
paragraphs (a) through (e) of Section 1 of Session Law 2002-4, Senate 
Bill 1078 enacted June 20, 2002. Once this provision is adopted into 
the SIP, the collective emission caps applicable to each investor-owned 
public utility will be permanent and Federally enforceable.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides.

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

    Dated: June 9, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2011-15636 Filed 6-21-11; 8:45 am]
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