[Federal Register Volume 76, Number 201 (Tuesday, October 18, 2011)]
[Rules and Regulations]
[Pages 64240-64244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26898]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0741-201071; FRL-9476-5]


Approval and Promulgation of Implementation Plans; North 
Carolina: Prevention of Significant Deterioration; Greenhouse Gas 
Tailoring Rule Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the State 
Implementation Plan (SIP), submitted by the State of North Carolina, 
through the North Carolina Department of Environment and Natural 
Resources' (NC DENR) Division of Air Quality, to EPA on August 11, 
2010, for parallel processing. NC DENR submitted the final version of 
this SIP revision on May 17, 2011. The SIP revision establishes new NC 
DENR air quality regulations, specific to the regulation of greenhouse 
gases (GHGs) under North Carolina's New Source Review (NSR) Prevention 
of Significant Deterioration (PSD) program. Specifically, the SIP 
revision establishes appropriate emission thresholds for determining 
which new stationary sources and modification projects become subject 
to North Carolina's PSD permitting requirements for their GHG 
emissions. This rule incorporates state law changes into the federally 
approved SIP, and specifically, clarifies the applicable thresholds in 
the North Carolina SIP for GHG PSD requirements. EPA is approving North 
Carolina's May 17, 2011, SIP revision because the Agency has made the 
determination that this SIP revision is in accordance with the Clean 
Air Act (CAA or Act) and EPA regulations, including regulations 
pertaining to PSD permitting for GHGs. Additionally, EPA is responding 
to adverse comments received on EPA's November 5, 2010, proposed 
approval of North Carolina's August 11, 2010, draft SIP revision.

DATES: Effective Date: This rule will be effective November 17, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0741. 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, i.e., 
Confidential Business Information 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 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 for further information. The Regional Office's official hours 
of business are Monday through Friday, 8:30 to 4:30, excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the North 
Carolina SIP, contact Ms. Twunjala Bradley, 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. Bradley's telephone 
number is (404) 562-9352; e-mail address: [email protected]. For 
information regarding the Tailoring Rule, contact Ms. Heather Abrams, 
Air Permits Section, at the same address above. Ms. Abrams' telephone 
number is (404) 562-9185; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the North Carolina SIP. Four of these actions include, as they are 
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together and in conjunction with the 
CAA, these actions established regulatory requirements for GHGs emitted 
from new motor vehicles and new motor vehicle engines; determined that 
such regulations, when they took effect on January 2, 2011, subjected 
GHGs emitted from stationary sources to PSD requirements; and limited 
the applicability of PSD requirements to GHG sources on a phased-in 
basis.
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    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 
2010).
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    On August 11, 2010, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, NC DENR submitted a draft revision to EPA for 
approval into the North Carolina SIP to establish appropriate emission 
thresholds for determining which new or modified stationary sources 
become subject to North Carolina's PSD permitting requirements for GHG 
emissions. Subsequently, on November 5, 2010, EPA published a proposed 
rulemaking to approve a portion of North Carolina's August 11, 2010, 
SIP revision under parallel processing. See 75 FR 68279. Specifically, 
North Carolina's August 11, 2010, draft SIP revision incorporates by 
reference the Tailoring Rule provisions at 40 Code of Federal 
Regulations (CFR) 51.166 (as amended June 3, 2010, and effective August 
2, 2010), into the North Carolina SIP at 15A North Carolina 
Administrative Code (NCAC) 02D .0544--Prevention of Significant 
Deterioration Requirements for Greenhouse Gases, to address the 
thresholds for GHG permitting applicability. Detailed background 
information and EPA's rationale for the proposed approval are provided 
in EPA's November 5, 2010, Federal Register notice.
    EPA's November 5, 2010, proposed approval was contingent upon North 
Carolina providing a final SIP revision that was substantively the same 
as the revision proposed for approval by EPA in the November 5, 2010, 
proposed rulemaking. See 75 FR 68279. North Carolina provided its final 
SIP revision on May 17, 2011. In its final SIP revision, North Carolina 
made minor

[[Page 64241]]

formatting changes, and added a couple of clarifications. The 
formatting changes included changing a couple of periods to semicolons 
and adding the word ``and'' behind a semicolon to transition to the 
next statement. With regard to the clarifications, North Carolina 
deleted the phrase ``Except for 40 CFR 81.334'' and added a notation to 
explicitly identify the effective date of the Federal Tailoring Rule 
(i.e., August 2, 2010) that is being incorporated by reference by North 
Carolina. Besides the minor formatting changes and the aforementioned 
clarifications, there were no differences between North Carolina's 
August 11, 2010, draft SIP revision, and the final SIP revision which 
was provided on May 17, 2011.
    On December 30, 2010, EPA published a final rule which narrowed its 
previous approval of PSD programs as applicable to GHG-emitting sources 
in SIPs for 24 states, including North Carolina.\5\ See 75 FR 82536 
(PSD Narrowing Rule). Specifically, in the PSD Narrowing Rule, EPA 
withdrew its previous approval of North Carolina's SIP to the extent it 
applied PSD to GHG-emitting sources below the thresholds in the final 
Tailoring Rule.
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    \5\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).
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    The effect of the PSD Narrowing Rule on the approved North Carolina 
SIP was to establish that new and modified sources are subject to PSD 
permitting requirements for their GHG emissions only if they emit GHGs 
at or above the Tailoring Rule's emission thresholds. As result of 
today's action approving North Carolina's incorporation of the 
appropriate GHG permitting thresholds into its SIP, paragraph (c) in 40 
CFR 52.1772, as included in EPA's Narrowing Rule, is no longer 
necessary, Thus, today's action also amends section 40 CFR 52.572 to 
remove this unnecessary regulatory language.

II. What is EPA's response to comments received on this action?

    EPA received three sets of comments on the November 5, 2010, 
proposed rulemaking to approve revisions to North Carolina's SIP. One 
set of comments, provided by the Sierra Club, was in favor of EPA's 
November 5, 2010, proposed action. The other two sets of comments, 
provided by the Air Permitting Forum and the John Locke Foundation, 
raised concerns with final action on EPA's November 5, 2010, proposed 
action. A full set of the comments provided by the Sierra Club, the Air 
Permitting Forum (hereinafter referred to as the ``Commenter'') and the 
John Locke Foundation (also hereinafter referred to as the 
``Commenter'') is provided in the docket for today's final action. The 
comments can be accessed at http://www.regulations.gov using Docket ID 
No. EPA-R04-OAR-2010-0741. A summary of the adverse comments and EPA's 
responses are provided below.
    Generally, the adverse comments fall into six categories. First, 
the Commenter asserts that PSD requirements cannot be triggered by 
GHGs. Second, the Commenter expresses concerns regarding a footnote in 
the November 5, 2010, proposal describing EPA's previously announced 
intention to narrow its prior approval of some SIPs to ensure that 
sources with GHG emissions that are less than the Tailoring Rule's 
thresholds will not be obligated under federal law to obtain PSD 
permits prior to a SIP revision incorporating those thresholds. The 
Commenter explains that the planned SIP approval narrowing action, 
which has now resulted in the PSD Narrowing Rule, ``is illegal.'' 
Third, the Commenter states that EPA has failed to meet applicable 
statutory and executive order review requirements. Fourth, the 
Commenter states: ``EPA should explicitly state in any final rule that 
the continued enforceability of these provisions in the North Carolina 
SIP is limited to the extent to which the federal requirements remain 
enforceable.'' Fifth, the Commenter states that ``EPA does not have 
statutory authority for the Tailoring Rule.'' Lastly, the Commenter 
recommends that EPA re-propose the action once North Carolina has 
finalized its changes to the SIP. EPA's responses to these six 
categories of comments are provided below.
    Comment 1: The Commenter asserts that PSD requirements cannot be 
triggered by GHGs. In its letter, the Commenter reiterates EPA's 
statement that without the Tailoring Rule thresholds, PSD will apply as 
of January 2, 2011, to all stationary sources that emit or have the 
potential to emit, depending on the source category, either 100 or 250 
tons of GHG per year. The Commenter also reiterates EPA's statement 
that beginning January 2, 2011, a source owner proposing to construct 
any new major source that emits at or above the GHG applicability 
levels, or modifies any existing major source in a way that would 
increase GHG emissions, would need to obtain a PSD permit that 
addresses these emissions before construction could begin. In raising 
concerns with the two aforementioned statements, the Commenter states: 
``[n]o area in the State of North Carolina has been designated 
attainment or unclassifiable for greenhouse gases (GHGs), as there is 
no national ambient air quality standard (NAAQS) for GHGs. Therefore, 
GHGs cannot trigger PSD permitting.'' The Commenter notes that it made 
this argument in detail in comments submitted to EPA on the Tailoring 
Rule and other related GHG rulemakings. The Commenter attached those 
previously submitted comments to its comments on the proposed 
rulemaking related to this action. Finally, the Commenter states that 
``EPA should immediately provide notice that it is now interpreting the 
Act not to require that GHGs trigger PSD and allow North Carolina to 
rescind that portion of its rules that would allow GHGs to trigger 
PSD.''
    Response 1: EPA established the requirement that PSD applies to all 
pollutants newly subject to regulation, including non-NAAQS pollutants 
such as GHGs, in earlier national rulemakings concerning the PSD 
program, and EPA has not re-opened that issue in this rulemaking. In an 
August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712, and 45 FR 
52735, EPA stated that a ``major stationary source'' was one which 
emitted ``any air pollutant subject to regulation under the Act'' at or 
above the specified numerical thresholds; and defined a ``major 
modification,'' in general, as a physical or operational change that 
increased emissions of ``any pollutant subject to regulation under the 
Act'' by more than an amount that EPA variously termed as de minimis or 
significant. In addition, EPA's 2002 NSR Reform rules EPA added to the 
PSD regulations the new definition of ``regulated NSR pollutant'' 
(currently codified at 40 CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)) 
and; noted that EPA added this term based on a request from a commenter 
to ``clarify which pollutants are covered under the PSD program.'' 
Further EPA explained that in addition to criteria pollutants for which 
a NAAQS has been established, ``[t]he PSD program applies automatically 
to newly regulated NSR pollutants, which would include final 
promulgation of an NSPS [new source performance standard] applicable to 
a previously unregulated pollutant.'' See 67 FR 80186, 80240 and 80264 
(December 31, 2002). Among other things, the definition of ``regulated 
NSR pollutant'' includes ``[a]ny pollutant that otherwise is subject to 
regulation under the Act.'' See 40 CFR 52.21(b)(50)(d)(iv); 40 CFR 
51.166(a)(49)(iv).
    EPA disagrees with the Commenter's underlying premise that PSD

[[Page 64242]]

requirements were not triggered for GHGs when GHGs became subject to 
regulation on January 2, 2011. This has been well established and 
discussed in connection with prior EPA actions, including, most 
recently, the Johnson Reconsideration and the Tailoring Rule. In 
addition, EPA's November 5, 2010, proposed rulemaking action provides 
the general basis for the Agency's rationale that GHGs, while not a 
NAAQS pollutant, can trigger PSD permitting requirements. The November 
5, 2010, action also refers the reader to the preamble of the Tailoring 
Rule for further information on this rationale. In that rulemaking, EPA 
addressed at length the comment that PSD can be triggered only by 
pollutants subject to the NAAQS, and concluded such an interpretation 
of the Act would contravene Congress' unambiguous intent. See 75 FR 
31560-31562. Further discussion of EPA's rationale for concluding that 
PSD requirements are triggered by non-NAAQS pollutants such as GHGs 
appears in the Tailoring Rule Response-to-Comments document 
(``Prevention of Significant Deterioration and Title V GHG Tailoring 
Rule: EPA's Response to Public Comments''), pp. 34-41; and in EPA's 
response to motions for a stay filed in the litigation concerning those 
rules (``EPA's Response to Motions for Stay,'' Coalition for 
Responsible Regulation v. EPA, D.C. Cir. No. 09-1322 (and consolidated 
cases)), at pp. 47-59, and are incorporated by reference here. These 
documents have been placed in the docket for today's action and can be 
accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-0741.
    Comment 2: The Commenter expresses concerns regarding a footnote in 
which EPA describes its previously announced intention to narrow its 
prior approval of some SIPs. In the footnote, EPA explained that such 
narrowing would ensure that sources with GHG emissions that are less 
than the Tailoring Rule's thresholds are not obligated under federal 
law to obtain PSD permits during any gap between the effective date of 
GHG-permitting requirements (January 2, 2011) and the date that a SIP 
is revised to incorporate the Tailoring Rule thresholds. The Commenter 
asserts that EPA's narrowing of its prior SIP approvals ``is illegal.'' 
Further, the Commenter states that ``EPA has not proposed to narrow 
North Carolina's SIP approval here and any such proposal must be 
explicit and address the action specifically made with respect to North 
Carolina's. EPA cannot sidestep these important procedural 
requirements.''
    Response 2: While EPA disagrees with the Commenter's assertion that 
the narrowing approach discussed in EPA's Tailoring Rule is illegal, 
the narrowing approach was not the subject of EPA's November 5, 2010, 
proposed rulemaking to approve North Carolina's August 11, 2010, SIP 
revision. Rather, the narrowing approach was the subject of a separate 
rulemaking, which was considered and finalized in the PSD Narrowing 
Rule in an action separate from today's rulemaking. See 75 FR 82536 
(December 30, 2010). In today's final action, EPA is acting to approve 
a SIP revision submitted by North Carolina, and is not otherwise 
narrowing its approval of prior submitted and approved provisions in 
the North Carolina SIP. Accordingly, the legality of the narrowing 
approach is not at issue in this rulemaking.
    Comment 3: The Commenter states that EPA has failed to meet 
applicable statutory and executive order review requirements. 
Specifically, the Commenter refers to the statutory and executive 
orders for the Paperwork Reduction Act, the Regulatory Flexibility Act 
(RFA), Unfunded Mandates Reform Act, and Executive Order 13132 
(Federalism). Additionally, the Commenter mentions that EPA has never 
analyzed the costs and benefits associated with triggering PSD for 
stationary sources in North Carolina, much less nationwide.
    Response 3: EPA disagrees with the Commenter's statement that EPA 
has failed to meet applicable statutory and executive order review 
requirements. As stated in EPA's proposed approval of North Carolina's 
May 17, 2011, SIP revision, this action merely approves state law as 
meeting federal requirements and does not impose additional 
requirements beyond those imposed by state law. Accordingly, EPA 
approval, in and of itself, does not impose any new information 
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would 
require additional review under the Paperwork Reduction Act. In 
addition, because today's action simply approves existing state law, it 
will not have a significant economic impact on a substantial number of 
small entities beyond the impact of existing state law requirements. 
Thus, a regulatory flexibility analysis is not required under the RFA. 
Accordingly, this rule is appropriately certified under section 605(b) 
of the RFA. Moreover, as this action 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 
mandates or significantly or uniquely affect small governments, such 
that it would be subject to the Unfunded Mandates Reform Act. Finally, 
this action does not have federalism implications that would make 
Executive Order 13132 applicable because it 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.
    In sum, today's rule is a routine approval of a SIP revision, 
approving state law, and does not impose any requirements beyond those 
imposed by state law. To the extent these comments are directed more 
generally to the application of the statutory and executive order 
reviews to the required regulation of GHGs under PSD programs, EPA 
provided an extensive response to similar comments in promulgating the 
Tailoring Rule. EPA refers the Commenter to the sections in the 
Tailoring Rule entitled ``VII. Comments on Statutory and Executive 
Order Reviews,'' 75 FR 31601-31603, and ``VI. What are the economic 
impacts of the final rule?,'' 75 FR 31595-31601. EPA also notes that 
today's action is not itself the trigger for regulation of GHGs. To the 
contrary, by helping to clarify that higher PSD applicability 
thresholds for GHGs apply than would otherwise be in effect under the 
Act, this rulemaking, as well as EPA's Tailoring Rule, is part of the 
effort to provide relief to smaller GHG-emitting sources that would 
otherwise be subject to PSD permitting requirements for their GHG 
emissions.
    Comment 4: The Commenter states that ``[i]f EPA proceeds with this 
action, it must condition approval on the continued validity of its 
determination that PSD can be triggered by or is applicable to GHGs.'' 
Further, the Commenter remarks on the ongoing litigation in the U.S. 
Court of Appeals for the D.C. Circuit. Specifically, regarding EPA's 
determination that PSD can be triggered by GHGs or is applicable to 
GHGs, the Commenter mentions that ``EPA should explicitly state in any 
final rule that continued enforceability of these provisions in the 
North Carolina SIP is limited to the extent to which the federal 
requirements remain enforceable.'' The Commenter notes that if a stay 
is issued, these requirements should also be stayed.
    Response 4: EPA believes that it is most appropriate to take 
actions that are consistent with the federal regulations that are in 
place at the time the action is being taken. To the extent that any 
changes to federal regulations related to

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today's action result from pending legal challenges or other actions, 
EPA will process appropriate SIP revisions in accordance with the 
procedures provided in the Act and EPA's regulations. EPA notes that in 
an order dated December 10, 2010, the United States Court of Appeals 
for the D.C. Circuit denied motions to stay EPA's regulatory actions 
related to GHGs. Coalition for Responsible Regulation, Inc. v. EPA, 
Nos. 09-1322, 10-1073, 10-1092 (and consolidated cases), Slip Op. at 3 
(D.C. Cir. December 10, 2010) (order denying stay motions).
    Comment 5: The Commenter states that ``EPA does not have statutory 
authority for the Tailoring Rule.'' Additionally, the Commenter states 
that ``EPA's proposal to revise North Carolina's SIP to include 
greenhouse gases (GHG) is grounded in an improper interpretation of the 
Clean Air Act (CAA). Specifically, the EPA is ignoring the plain and 
unambiguous language of the CAA to justify the regulation of GHG. If 
the EPA did not change the threshold levels for GHG, by the agency's 
own admission, there would be `absurd' results.''
    Response 5: While EPA does not agree with the Commenter's statement 
that ``EPA does not have statutory authority for the Tailoring Rule,'' 
EPA notes that the statutory authority for the Tailoring Rule was not 
the subject of EPA's November 5, 2010, proposed rulemaking to approve 
North Carolina's August 11, 2010, SIP revision. Rather, the 
requirements of the Tailoring Rule were the subject of a separate 
rulemaking. In EPA's final action for the Tailoring Rule, EPA provided 
extensive discussion and response to comments regarding legality of the 
Tailoring Rule in a section entitled, ``V. What is the Legal and Policy 
Rationale for the Final Action?'' See 75 FR 31527-31595. In today's 
final action, EPA is taking action to approve a SIP revision submitted 
by North Carolina, and is not reopening comment on the legality of the 
Tailoring Rule.
    Comment 6: The Commenter mentions that the ``comments being 
provided to EPA are based on proposed revisions, not final revisions,'' 
and that ``the differences between the proposed and final North 
Carolina revisions may or may not be substantial, but they certainly 
could affect how the public comments on the EPA's proposed rule.'' The 
Commenter states ``it is unclear why the EPA believes it is appropriate 
and legally supportable to seek comments on a yet-to-be finalized 
revision to a SIP. Further, it is not clear what would constitute 
`significant changes' that would require the EPA to re-propose the 
action.'' The Commenter concludes by recommending that EPA re-propose 
the action once North Carolina has finalized its changes to the SIP.
    Response 6: The procedure utilized by EPA to solicit public comment 
on North Carolina's SIP revision was appropriate and lawful. As 
explained in EPA's proposal at 75 FR 68279, EPA utilized a ``parallel 
processing'' procedure for this SIP revision. Under this procedure, EPA 
proposes rulemaking action concurrently with the State's procedures for 
approving a SIP submittal and amending its regulations (40 CFR part 51, 
appendix V, 2.3). EPA reviews that SIP submittal, even though the 
regulation is not yet adopted in final form by the State, as if it were 
a final, adopted regulation. In doing so, EPA evaluates the draft 
regulation against the same approvability criteria as any other SIP 
submittal. Thus, EPA has not used the ``parallel processing'' procedure 
to avoid any statutory requirements. In this case, as explained earlier 
in this action, EPA has determined that the minor differences between 
the draft and final regulations are insignificant and do not warrant 
re-proposal of this action. Accordingly, the proposal gave the public 
the appropriate opportunity to comment on the substance of the SIP 
revision for which EPA is today issuing a final approval.

III. What is the effect of this final action?

    Final approval of North Carolina's May 17, 2011, SIP revision will 
put in place the GHG emission thresholds for PSD applicability set 
forth in EPA's Tailoring Rule (75 FR 31514, June 3, 2010) and adopted 
as state law, making clear that smaller GHG sources emitting less than 
these thresholds will not be subject to permitting requirements under 
the approved North Carolina SIP. Pursuant to section 110 of the CAA, 
EPA is approving the changes made in North Carolina's May 17, 2011, SIP 
revision into North Carolina's SIP.
    North Carolina's May 17, 2011, revision establishes a new 
regulation specifically to incorporate by reference the relevant 
federal Tailoring Rule provisions set forth at 40 CFR 51.166 into the 
North Carolina SIP at 15A North Carolina Administrative Code (NCAC) 02D 
.0544--Prevention of Significant Deterioration Requirements for 
Greenhouse Gases. EPA has determined that North Carolina's May 17, 
2011, SIP revision is consistent with the Tailoring Rule. Furthermore, 
EPA has determined that the May 17, 2011, revision to North Carolina's 
SIP is consistent with section 110 of the CAA. See, e.g., Tailoring 
Rule, 75 FR 31561.

IV. Final Action

    EPA is taking final action to approve North Carolina's May 17, 
2011, SIP revision which includes updates to North Carolina's air 
quality regulations, 15A North Carolina Administrative Code (NCAC) 02D 
.0544--Prevention of Significant Deterioration Requirements for 
Greenhouse Gases. Specifically, North Carolina's May 17, 2011, SIP 
revision clarifies appropriate emissions thresholds for determining PSD 
applicability with respect to new or modified GHG-emitting sources in 
accordance with EPA's Tailoring Rule, and incorporates those thresholds 
in the form in which they are stated in state law. EPA has made the 
determination that the May 17, 2011, SIP revision is approvable because 
it is in accordance with the CAA and EPA regulations, including 
regulations pertaining to PSD permitting for GHGs.
    As result of EPA's approval of North Carolina's changes to its air 
quality regulations to incorporate the appropriate thresholds for GHG 
permitting applicability into North Carolina's SIP, paragraph (c) in 
Section 52.1772 of 40 CFR part 52, as included in EPA's Narrowing Rule, 
is no longer necessary. In today's final action EPA is also amending 
Section 52.1772 of 40 CFR part 52 to remove this unnecessary regulatory 
language.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
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 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

[[Page 64244]]

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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 19, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. See CAA section 307(b)(2), 42 U.S.C. 
7607(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases, 
Incorporation by reference, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: September 20, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    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. Section 52.1770(c) Table 1, is amended under Subchapter 2D, Section 
.0500 by adding a new entry ``Sect .0544'' to read as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                Table 1--EPA Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
          State citation              Title/subject    State effective date     EPA approval date    Explanation
----------------------------------------------------------------------------------------------------------------
                                Subchapter 2D Air Pollution Control Requirements
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                    Section .0500 Emission Control Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sect .0544........................     Prevention of  12/16/10.............  October 18, 2011,       ...........
                                         Significant                          [Insert citation of
                                       Deterioration                          publication].
                                    Requirements for
                                    Greenhouse Gases
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *


Sec.  52.1772  [Amended]

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3. Section 52.1772 is amended by removing paragraph (c).

[FR Doc. 2011-26898 Filed 10-17-11; 8:45 am]
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