[Federal Register Volume 76, Number 241 (Thursday, December 15, 2011)]
[Proposed Rules]
[Pages 77952-77962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32183]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0352-201120; FRL-9507-4]


Approval and Promulgation of Implementation Plans; North 
Carolina; 110(a)(1) and (2) Infrastructure Requirements for the 1997 8-
Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part, and to conditionally 
approve or disapprove in part, the State Implementation Plan (SIP), 
submitted by the State of North Carolina, through the Department of 
Environment and Natural Resources (NC DENR), Division of Air Quality 
(DAQ), to demonstrate that the State meets the requirements of sections 
110(a)(1) and (2) of the Clean Air Act (CAA or Act) for the 1997 8-hour 
ozone national ambient air quality standards (NAAQS). Section 110(a) of 
the CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by the EPA, which is commonly referred to as an ``infrastructure'' SIP. 
DAQ certified that the North Carolina SIP contains provisions that 
ensure the 1997 8-hour ozone NAAQS are implemented, enforced, and 
maintained in North Carolina (hereafter referred to as ``infrastructure 
submission''). With the exception of sub-element 110(a)(2)(E)(ii), EPA 
is proposing to determine that North Carolina's infrastructure 
submission, provided to EPA on December 12, 2007, and clarified in a 
subsequent submission submitted on June 20, 2008, addressed the 
required infrastructure elements for the 1997 8-hour ozone NAAQS.

DATES: Written comments must be received on or before January 17, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2011-0352, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9140.
    4. Mail: ``EPA-R04-OAR-2011-0352,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.

[[Page 77953]]

    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2011-0352. 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 through http://www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. 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 email comment directly to EPA without 
going through http://www.regulations.gov, your email 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.
    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: 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. The telephone number 
is (404) 562-9140. Ms. Ward can be reached via electronic mail at 
[email protected].

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how North Carolina addressed the 
elements of sections 110(a)(1) and (2) ``infrastructure'' 
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated a new NAAQS for ozone based on 8-
hour average concentrations. The 8-hour averaging period replaced the 
previous 1-hour averaging period, and the level of the NAAQS was 
changed from 0.12 parts per million (ppm) to 0.08 ppm. See 62 FR 38856. 
Pursuant to section 110(a)(1) of the CAA, states are required to submit 
SIPs meeting the requirements of section 110(a)(2) within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(2) 
require states to address basic SIP requirements, including emissions 
inventories, monitoring, and modeling to assure attainment and 
maintenance of the NAAQS. States were required to submit such SIPs for 
the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However, 
intervening litigation over the 1997 8-hour ozone NAAQS created 
uncertainty about how to proceed and many states did not provide the 
required ``infrastructure'' SIP submission for these newly promulgated 
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 8-hour ozone NAAQS. 
EPA entered into a consent decree with Earthjustice which required EPA, 
among other things, to complete a Federal Register notice announcing 
EPA's determinations pursuant to section 110(k)(1)(B) as to whether 
each state had made complete submissions to meet the requirements of 
section 110(a)(2) for the 1997 8-hour ozone NAAQS by December 15, 2007. 
Subsequently, EPA received an extension of the date to complete this 
Federal Register notice until March 17, 2008, based upon agreement to 
make the findings with respect to submissions made by January 7, 2008. 
In accordance with the consent decree, EPA made completeness findings 
for each state based upon what the Agency received from each state as 
of January 7, 2008.
    On March 27, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans; 
8-Hour Ozone NAAQS,'' making a finding that each state had submitted or 
failed to submit a complete SIP that provided the basic program 
elements of section 110(a)(2) necessary to implement the 1997 8-hour 
ozone NAAQS. See 73 FR 16205. For those states that did receive 
findings, such as North Carolina, the findings of failure to submit for 
all or a portion of a state's implementation plan established a 24-
month deadline for EPA to promulgate a Federal Implementation Plan 
(FIP) to address the outstanding SIP elements unless, prior to that 
time, the affected states submitted, and EPA approved, the required 
SIPs. However, the findings of failure to submit did not impose 
sanctions or set deadlines for imposing sanctions as described in 
section 179 of the CAA, because these findings do not pertain to the 
elements contained in the Title I part D plan for nonattainment areas 
as required under section 110(a)(2)(I). Additionally, the findings of 
failure to submit for the infrastructure submittals are not a SIP call 
pursuant to section 110(k)(5).
    The finding that all or portions of a state's submission are 
complete established a 12-month deadline for EPA to take action upon 
the complete SIP elements in accordance with section 110(k). North 
Carolina's infrastructure submission was received by EPA on December 
12, 2007, and was determined to be complete on March 27, 2008, for all 
elements with the exception of 110(a)(2)(C) and (J). Specifically, 
110(a)(2)(C) and (J) relate to a SIP addressing changes to its part C 
prevention of significant deterioration (PSD) permit program required 
by the November 29, 2005, final rule (See 70 FR 71612, 71699) that made 
nitrogen oxides (NOX) a precursor for ozone in 40 CFR 51.166 
and 40 CFR 52.21. North Carolina was among other states that received a 
finding of failure to submit because its infrastructure submission was 
not complete for elements (C) and (J) for the 1997 8-hour ozone NAAQS 
by March 1, 2008. The finding of failure to submit action triggered a 
24-month

[[Page 77954]]

clock for EPA to either issue a FIP or take final action on a SIP 
revision which corrects the deficiency for which the finding of failure 
to submit was received.
    On June 20, 2008, DAQ submitted a SIP revision to EPA for federal 
approval which includes revisions to rules North Carolina's Air 
Pollution Control Requirements (NCAC) 02D.0530 and .0531 that address 
the infrastructure requirements (C) and (J). On August 10, 2011, EPA 
finalized approval of North Carolina's June 20, 2008, SIP revision. See 
76 FR 49313. With the exception of element 110(a)(2)(E)(ii), today's 
action is proposing to approve North Carolina's infrastructure 
submission for which EPA made the completeness determination and 
finding of failure to submit on March 27, 2008. This action is not 
approving any specific rule, but rather proposing that North Carolina's 
already approved SIP meets certain CAA requirements.

II. What elements are required under Sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with previous ozone 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below \1\ and in EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and, (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
North Carolina consistent with the Clean Air Interstate Rule (CAIR). 
On December 23, 2008, CAIR was remanded by the DC Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (DC Cir. 2008). Prior to this remand, EPA took final 
action to approve North Carolina's SIP revision, which was submitted 
to comply with CAIR. See 72 FR 56914 (October 5, 2007). In so doing, 
North Carolina's CAIR SIP revision addressed the interstate 
transport provisions in section 110(a)(2)(D)(i) for the 1997 8-hour 
ozone NAAQS. In response to the remand of CAIR, EPA has promulgated 
a new rule to address the interstate transport. See 76 FR 48208 
(August 8, 2011). EPA's action on element 110(a)(2)(D)(i) will be 
addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\5\ Those Commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction at sources, that may be contrary to the CAA 
and EPA's policies addressing such excess emissions (``SSM''); and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated in other proposals that it would address 
the issues separately: (i) Existing provisions for minor source new 
source review programs that may be inconsistent with the requirements 
of the CAA and EPA's regulations that pertain to such programs (``minor 
source NSR [New Source Review]''); and (ii) existing provisions for PSD 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as 
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). In light of 
the comments, EPA believes that its statements in various proposed 
actions on infrastructure SIPs with respect to these four individual 
issues should be explained in greater depth. It is important to 
emphasize that EPA is taking the same position with respect to these 
four substantive issues in this action on the infrastructure SIPs for 
the 1997 8-hour ozone NAAQS from North Carolina.
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    \5\ See Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.

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[[Page 77955]]

    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a re-approval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
re-approval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
the infrastructure SIP for North Carolina.
    Unfortunately, the Commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\6\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See ``Rule To 
Reduce Interstate Transport of Fine Particulate Matter and Ozone 
(Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\8\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\9\ This illustrates that EPA

[[Page 77956]]

may conclude that subdividing the applicable requirements of section 
110(a)(2) into separate SIP actions may sometimes be appropriate for a 
given NAAQS where a specific substantive action is necessitated, beyond 
a mere submission addressing basic structural aspects of the state's 
implementation plans. Finally, EPA notes that not every element of 
section 110(a)(2) would be relevant, or as relevant, or relevant in the 
same way, for each new or revised NAAQS and the attendant 
infrastructure SIP submission for that NAAQS. For example, the 
monitoring requirements that might be necessary for purposes of section 
110(a)(2)(B) for one NAAQS could be very different than what might be 
necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division OAQPS, to Regional Air Division 
Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \12\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \13\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \14\ However, for the one exception to that general 
assumption (i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS), EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State would work with its corresponding EPA regional office to refine 
the scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's implementation plans for the NAAQS in 
question.
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    \11\ See ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National 
Ambient Air Quality Standards,'' from William T. Harnett, Director 
Air Quality Policy Division, to Air Division Directors, Regions I--
X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007 
Guidance nor the 2009 Guidance explicitly referred to the SSM, 
director's discretion, minor source NSR, or NSR Reform issues as among 
specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 
2009 Guidance, however, EPA did not indicate to states that it intended 
to interpret these provisions as requiring a substantive submission to 
address these specific issues in existing SIP provisions in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's proposals for other states 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from

[[Page 77957]]

the pending infrastructure SIP actions. The same holds true for this 
action on the infrastructure SIPs for North Carolina.
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    \15\ See ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I--X, dated September 25, 
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 p.m.2.5 NAAQS because 
of the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or otherwise to comply with the CAA.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action at a 
later time. For example, although it may not be appropriate to require 
a state to eliminate all existing inappropriate director's discretion 
provisions in the course of acting on the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641 
(June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado 
on the grounds that it would have included a director's discretion 
provision inconsistent with CAA requirements, including section 
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed 
disapproval of director's discretion provisions); 76 FR 4540 
(January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how North Carolina addressed the elements 
of sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The North Carolina infrastructure submission addresses the 
provisions of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: North 
Carolina's SIP provides an overview of the provisions of the North 
Carolina Air Pollution Control Regulations relevant to air quality 
control regulations. The regulations described below have been 
federally approved in the North Carolina SIP and include enforceable 
emission limitations and other control measures. NCAC 2D.0400, Ambient 
Air Quality Standards, and 2D.0500, Emissions Control Standards, 
establish emission limits for ozone and address the required control 
measures, means and techniques for compliance with the ozone NAAQS. EPA 
has made the preliminary determination that the provisions contained in 
these chapters and North Carolina's practices are adequate to protect 
the 1997 8-hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in the future. In the 
meantime, EPA encourages any state having a deficient SSM provision to 
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109, November 24, 1987), and the Agency plans to take 
action in the future to address such State regulations. In the 
meantime, EPA encourages any State having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: NCAC 
2D.0600, Monitoring, and 2D.0806, Ambient Monitoring and Modeling 
Analysis, along with the North Carolina Network Description and Ambient 
Air Monitoring Network Plan, provide for an ambient air quality 
monitoring system in the State. Annually, EPA approves the ambient air 
monitoring network plan for the State agencies. On July 1, 2011, North 
Carolina submitted its plan to EPA, and on October 20, 2011, EPA 
approved this plan. North Carolina's approved monitoring network plan 
can be accessed at http://www.regulations.gov using Docket ID No. EPA-
R04-OAR-2011-0352. EPA has made the preliminary determination that 
North Carolina's SIP and practices are adequate for the ambient air 
quality monitoring and data system related to the 1997 8-hour ozone 
NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: Regulation NCAC 2D.0530, 
Prevention of Significant Deterioration, and 2D.0531, Sources in a 
Nonattainment Area, pertain to the construction or modification of any 
major stationary source in areas designated as attainment, 
nonattainment or unclassifiable. On December 20, 2005, May 16, 2007, 
and June 20, 2008,

[[Page 77958]]

DAQ submitted revisions to its PSD/NSR regulations for EPA approval. In 
North Carolina's December 12, 2007, infrastructure submission, the 
State certified that it has treated NOX as a precursor to 
ozone since 1995 and that it has addressed the 110(a)(2)(J) requirement 
(relating to prevention of significant deterioration of air quality and 
visibility protection) with rule amendments that include reference to 
definitions in 40 CFR 51.166--Prevention of significant deterioration 
of air quality. These rule amendments became state-effective in March 
2008. In the June 20, 2008, SIP revision, North Carolina included 
revisions to NCAC 02D.0530 and .0531 that address the infrastructure 
requirements of sections 110(a)(2)(C) and (J). On August 10, 2011, EPA 
finalized approval of the December 20, 2005, May 16, 2007, and June 20, 
2008, SIP revisions. The June 20, 2008, SIP revision addresses the 
Ozone Implementation NSR Update requirements to include NOX 
as an ozone precursor for permitting purposes. Specifically, the Ozone 
Implementation NSR Update requirements include changes to major source 
thresholds for sources in certain classes of nonattainment areas, 
changes to offset ratios for marginal, moderate, serious, severe, and 
extreme ozone nonattainment areas, provisions addressing offset 
requirements for facilities that shut down or curtail operation, and a 
requirement stating that NOX emissions are ozone precursors.
    EPA finalized approval of North Carolina's greenhouse gas (GHG) 
regulations on October 18, 2011 (76 FR 64240). The proposed revisions 
establish 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. The 
October 18, 2011, rulemaking finalizes approval of the North Carolina 
rules which address the thresholds for GHG permitting applicability in 
North Carolina.
    On December 30, 2010, EPA published a final rulemaking, ``Action To 
Ensure Authority To Implement Title V Permitting Programs Under the 
Greenhouse Gas Tailoring Rule'' (75 FR 82254) to narrow EPA's previous 
approval of State title V operating permit programs that apply (or may 
apply) to GHG-emitting sources; this rule hereafter is referred to as 
the ``Narrowing Rule.'' EPA narrowed its previous approval of certain 
State permitting thresholds, for GHG emissions so that only sources 
that equal or exceed the GHG thresholds, as established in the final 
Tailoring Rule, would be covered as major sources by the Federally-
approved programs in the affected States. North Carolina was included 
in this rulemaking.
    In this action, EPA is proposing to approve North Carolina's 
infrastructure SIP for the 1997 8-hour ozone NAAQS with respect to the 
general requirement in section 110(a)(2)(C) to include a program in the 
SIP that regulates the modification and construction of any stationary 
source as necessary to assure that the NAAQS are achieved. EPA is not 
proposing to approve or disapprove the State's existing minor NSR 
program to the extent that it is inconsistent with EPA's regulations 
governing this program. EPA believes that a number of states may have 
minor NSR provisions that are contrary to the existing EPA regulations 
for this program. EPA intends to work with States to reconcile state 
minor NSR programs with EPA's regulatory provisions for the program. 
The statutory requirements of section 110(a)(2)(C) provide for 
considerable flexibility in designing minor NSR programs, and EPA 
believes it may be time to revisit the regulatory requirements for this 
program to give the States an appropriate level of flexibility to 
design a program that meets their particular air quality concerns, 
while assuring reasonable consistency across the country in protecting 
the NAAQS with respect to new and modified minor sources.
    EPA has made the preliminary determination that North Carolina's 
SIP and practices are adequate for program enforcement of control 
measures including review of proposed new sources related to the 1997 
8-hour ozone NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: NCAC 2D.0530, Prevention of Significant Deterioration, 
2D.0531, Sources in a Nonattainment Area, and 2D.0532, Sources 
Contributing to an Ambient Violation, outline how the State will notify 
neighboring States of potential impacts from new or modified sources. 
Additionally, North Carolina has federally-approved regulations in its 
SIP that satisfy the requirements for the NOX SIP Call. See 
67 FR 78987 (December 27, 2002). EPA has made the preliminary 
determination that North Carolina's SIP and practices are adequate for 
insuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 1997 8-hour 
ozone NAAQS.
    5. 110(a)(2)(E) Adequate resources: EPA is proposing two separate 
actions with respect to the sub-elements required pursuant to section 
110(a)(2)(E). Section 110(a)(2)(E) requires that each implementation 
plan provide (i) Necessary assurances that the State will have adequate 
personnel, funding, and authority under State law to carry out its 
implementation plan, (ii) that the State comply with the requirements 
respecting State Boards pursuant to section 128 of the Act, and (iii) 
necessary assurances that, where the State has relied on a local or 
regional government, agency, or instrumentality for the implementation 
of any plan provision, the State has responsibility for ensuring 
adequate implementation of such plan provisions. As with the remainder 
of the infrastructure elements addressed by this notice, EPA is 
proposing to approve North Carolina's SIP as meeting the requirements 
of sub-elements 110(a)(2)(E)(i) and (iii). With respect to 
110(a)(2)(E)(ii) (regarding State Boards), EPA is proposing to either 
conditionally approve, or in the alternative, proposing to disapprove 
this sub-element. EPA's rationale for today's proposals respecting each 
sub-element is described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), EPA notes that DAQ is responsible for 
adopting air quality rules, revising SIPs, developing and tracking the 
budget, establishing the title V fees, and other planning needs. DAQ 
also coordinates agreements with local air pollution control programs. 
Additionally, the SIP submittal cover letter provided by North Carolina 
certifies the sufficiency of the State program with 110(a)(2)(E)(i) and 
(iii) requirements. As evidence of the adequacy of DAQ's resources with 
respect to sub-elements (i) and (iii), EPA submitted a letter to North 
Carolina on March 17, 2011, outlining 105 grant commitments and the 
current status of these commitments for fiscal year 2010. The letter 
EPA submitted to North Carolina can be accessed at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0352. 
Annually, States update these grant commitments based on current SIP 
requirements, air quality planning, and applicable requirements related 
to the NAAQS. There were no outstanding issues for fiscal year 2010, 
therefore, North Carolina's grants were finalized and closed out. EPA 
has made a preliminary determination that, for purposes of 
110(a)(2)(E)(i) and (iii), North Carolina has adequate resources for 
implementation of the 1997 8-hour ozone NAAQS.

[[Page 77959]]

    As discussed above, with respect to sub-element 110(a)(2)(E)(ii), 
EPA is proposing to conditionally approve, and in the alternative, to 
disapprove North Carolina's infrastructure SIP as to this requirement. 
North Carolina's March 27, 2008, infrastructure certification letter 
did not certify the adequacy of the State's implementation plan to meet 
the requirements of section 110(a)(2)(E)(ii) (requiring state 
compliance with section 128 of the CAA), and presently North Carolina's 
SIP does not include provisions to meet section 128 requirements.
    As a result, EPA is proposing to conditionally approve North 
Carolina's infrastructure SIP with respect to element 110(a)(2)(E)(ii) 
based upon assurances by the State that DAQ will submit to EPA a formal 
commitment to adopt specific enforceable measures into its SIP within 
one year to address the applicable portions of section 128. In order 
for EPA to take final action conditionally approving the State's 
infrastructure SIP with respect to element 110(a)(2)(E)(ii), DAQ must 
formally commit to taking the actions described in this notice prior to 
EPA's final action on North Carolina's infrastructure SIP. As described 
further below, in the event DAQ should fail to provide an adequate 
commitment to address the applicable 110(a)(2)(E)(ii) infrastructure 
requirements, EPA is hereby proposing, in the alternative, to 
disapprove the State's infrastructure SIP with respect to this sub-
element.
    The section 128 State Board requirements--as applicable to the 
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)--provide at 
subsection (a)(1) that each SIP shall contain requirements that any 
board or body which approves permits or enforcement orders be subject 
to the described public interest and income restrictions. It further 
requires at subsection (a)(2) that any board or body, or the head of an 
executive agency with similar power to approve permits or enforcement 
orders under the CAA, shall also be subject to conflict of interest 
disclosure requirements. EPA's proposed conditional approval of North 
Carolina's 110(a)(2)(E)(ii) infrastructure SIP requires the State to 
commit to adopting specific enforceable measures related to both 
128(a)(1) and 128(a)(2) to address current deficiencies in the North 
Carolina SIP.
    For purposes of section 128(a)(1), a recent North Carolina law, 
which becomes effective no later than June 15, 2012, rescinds the 
authority of the State's Environmental Management Commission to issue 
final decisions on contested cases involving permits and enforcement 
orders. See North Carolina Session Law 2011-398, Section 18. Instead, 
Session Law 2011-398 shifts this authority to individual State 
Administrative Law Judges in the North Carolina Office of 
Administrative Hearings. Once corresponding revisions have been made to 
the federally-approved SIP to effectuate this change, a ``board or 
body'' will no longer be responsible for approving permits or 
enforcement orders in North Carolina.\19\ As such, EPA is proposing to 
conditionally approve element 110(a)(2)(E)(ii) with respect to 
128(a)(1) based upon a commitment by the State to timely submit any SIP 
revisions necessary to remove the Environmental Management Commission's 
authority to approve permits or enforcement orders under the State's 
Air Pollution Act.\20\
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    \19\ Initial permit approvals and enforcement orders are issued 
by delegated officials within NC DENR. Pursuant to N.C.G.S. Sec.  
143-215.114A, the Secretary NC DENR is authorized to assess civil 
penalties for violations of the State's Air Pollution Control laws. 
NC DENR is also authorized pursuant to N.C.G.S. Sec.  143-215.114C 
to request the Attorney General of the State to institute a civil 
action seeking injunctive relief to restrain the violation or 
threatened violation of the State's Air Pollution Control laws. The 
North Carolina Environmental Management Commission is authorized 
pursuant to N.C.G.S. Sec.  143-215.108, to approve Air Pollution 
Control permits in the State, however, the Commission has delegated 
by regulation this authority to the Secretary of the Department of 
Environment, Health, and Natural Resources. See 15A N.C. Admin. Code 
02A.0105(a)(2).
    \20\ Pursuant to section 55.2 of N.C. Session Law 2011-398, the 
North Carolina Office of Administrative Hearings is required to seek 
U.S. EPA approval to become an agency responsible for administering 
programs under the Clean Air Act. This ongoing separate process may 
result in additional SIP revisions implicating section 
110(a)(2)(E)(ii). Any such actions are distinct from today's 
proposed actions and would be address in a separate rulemaking.
---------------------------------------------------------------------------

    Regarding section 128(a)(2) (also made applicable to the 
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)), North 
Carolina has indicated that it intends to commit to EPA to submit for 
incorporation into the SIP relevant provisions of N.C.G.S. Sec.  138A, 
Article 3: Public Disclosure of Economic Interests, sufficient to 
satisfy the conflict of interest provisions applicable to the head of 
NC DENR and those officials within the Department delegated his 
authority.
    Both commitments described above must be received by EPA prior to 
final action on this proposed conditional approval with respect to 
element 110(a)(2)(E)(ii). Furthermore, these commitments must provide 
that the State will adopt the specified enforceable provisions by a 
date certain within one year from EPA's final action in this matter. 
See section 110(k)(4) of the CAA, 42 U.S.C. 7410(k)(4). Failure to 
adopt these provisions into the North Carolina SIP within one year 
would result in the conditional approval becoming a disapproval.
    EPA is also proposing, in the alternative, to disapprove North 
Carolina's 110(a)(2)(E)(ii) infrastructure SIP because North Carolina 
has yet to submit to EPA a formal commitment to make the changes 
described in this notice. In the event that North Carolina fails to 
provide such commitment, or commits to addressing the section 128 
requirements in a manner materially different from that which is 
described herein, EPA is proposing to disapprove North Carolina's 
infrastructure SIP with respect to section 110(a)(2)(E)(ii). Should 
North Carolina provide the requisite timely commitment, EPA intends to 
move forward with finalizing the conditional approval consistent with 
section 110(k)(4) of the Act.
    6. 110(a)(2)(F) Stationary source monitoring system: North 
Carolina's infrastructure submission describes how the State 
establishes requirements for emissions compliance testing and utilizes 
emissions sampling and analysis. It further describes how the State 
ensures the quality of its data through observing emissions and 
monitoring operations. North Carolina DAQ uses these data to track 
progress towards maintaining the NAAQS, develop control and maintenance 
strategies, identify sources and general emission levels, and determine 
compliance with emission regulations and additional EPA requirements. 
These requirements are provided in NCAC 2D.0605, General Recordkeeping 
and Reporting Requirements, 2D.0613, Quality Assurance Program, and 
2D.0614, Compliance Assurance Monitoring.
    Additionally, North Carolina is required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data (see 
73 FR 76539). The AERR shortened the time states had to report 
emissions data from 17 to 12 months, giving states one calendar year to 
submit emissions data. All states are required to submit a 
comprehensive emissions inventory every three years and report 
emissions for certain larger sources annually through EPA's online 
Emissions Inventory System. States report emissions data for the six 
criteria pollutants and the precursors that form them--NOX, 
sulfur dioxide, ammonia,

[[Page 77960]]

lead, carbon monoxide, particulate matter, and volatile organic 
compounds (VOCs). Many states also voluntarily report emissions of 
hazardous air pollutants. North Carolina made its latest update to the 
NEI on March 25, 2011. EPA compiles the emissions data, supplementing 
it where necessary, and releases it to the general public through the 
Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made 
the preliminary determination that North Carolina's SIP and practices 
are adequate for the stationary source monitoring systems related to 
the 1997 8-hour ozone NAAQS.
    7. 110(a)(2)(G) Emergency power: NCAC 2D.0300 Air Pollution 
Emergencies, authorizes the North Carolina DAQ Director to determine 
the existence of an air pollution emergency and it describes the 
preplanned abatement strategies triggered by the occurrence of such an 
emergency. These criteria have previously been approved by EPA. EPA has 
made the preliminary determination that North Carolina's SIP and 
practices are adequate for emergency powers related to the 1997 8-hour 
ozone NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: DAQ is responsible for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS in North Carolina. DAQ has the ability and authority 
to respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. Specific to 
the 1997 8-hour ozone NAAQS, North Carolina has provided a number of 
submissions, including the following:
     June 19, 2006, SIP Revision--(EPA approval, 71 FR 64891, 
November 6, 2006) Redesignation of the Rocky Mount, North Carolina 
Area;
     June 15, 2007, SIP Revision, Charlotte, North Carolina 
(North Carolina portion)--8-hr Ozone Reasonably Available Control 
Technology and Reasonable Further Progress;
     February 4, 2008, SIP Revision (EPA approval, 73 FR 18963, 
April 8, 2008) Raleigh/Durham and Greensboro 1-hour Maintenance Plan 
Update;
     July 24, 2009, SIP Revision (EPA approval, 74 FR 63995, 
December 7, 2009) Great Smoky Mountains National Park Redesignation;
     November 30, 2009, SIP Revision--Charlotte, North Carolina 
(North Carolina portion)--8-hr Ozone Reasonable Further Progress 
Update;
     April 5, 2010, SIP Revision--Supplement and Resubmission 
of the 1997 8-hour Ozone Charlotte Attainment Demonstration (North 
Carolina portion); and
     November 2, 2011, SIP Revision--Charlotte, North Carolina 
(North Carolina portion) 1997 8-hour Ozone Redesignation/Maintenance 
Plan.

    EPA has made the preliminary determination that North Carolina's 
SIP and practices adequately demonstrate a commitment to provide future 
SIP revisions related to the 1997 8-hour ozone NAAQS when necessary. 
EPA notes, however, that North Carolina's one remaining 1997 8-hour 
ozone NAAQS nonattainment area--the Charlotte-Gastonia-Rock Hill, NC-SC 
Area (hereafter referred to as the ``Charlotte Area'')--is currently 
attaining 1997 8-hour ozone NAAQS. In a November 15, 2011, final 
rulemaking, EPA determined that the Charlotte Area has attained the 
1997 8-hour ozone NAAQS. See 76 FR 70656. That final action, in 
accordance with 40 CFR 51.918, suspended the requirements for the 
Charlotte Area to submit attainment demonstrations, associated RACM, 
RFP plans, contingency measures, and other planning SIPs related to 
attainment of the 1997 8-hour ozone NAAQS so long as the Charlotte Area 
continues to meet the 1997 8-hour ozone NAAQS.
    9. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: NCAC 2D.0530, Prevention of Significant Deterioration, and 
2D.0531, Sources in a Nonattainment Area, as well as North Carolina's 
Regional Haze Implementation Plan (which allows for consultation 
between appropriate state, local, and tribal air pollution control 
agencies as well as the corresponding Federal Land Managers), provide 
for consultation with government officials whose jurisdictions might be 
affected by SIP development activities. North Carolina adopted state-
wide consultation procedures for the implementation of transportation 
conformity. These consultation procedures include considerations 
associated with the development of mobile inventories for SIPs. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires DAQ to consult with federal, state and 
local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA approved North 
Carolina's consultation procedures on December 27, 2002 (See 67 FR 
78983). EPA has made the preliminary determination that North 
Carolina's SIP and practices adequately demonstrate consultation with 
government officials related to the 1997 8-hour ozone NAAQS when 
necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: DAQ 
has public notice mechanisms in place to notify the public of ozone and 
other pollutant forecasting, including an air quality monitoring Web 
site providing ground level ozone alerts, http://xapps.enr.state.nc.us/aq/ForecastCenter. North Carolina also has an outreach program to 
educate the public and promote voluntary emissions reduction measures 
including the ``Turn Off Your Engine'' idling reduction program. NCAC 
2D.0300, Air Pollution Emergencies, requires that DAQ notify the public 
of any air pollution episode or NAAQS violation. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately demonstrate the State's ability to provide public 
notification related to the 1997 8-hour ozone NAAQS when necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: North 
Carolina demonstrates its authority to regulate new and modified 
sources of ozone precursors, VOCs and NOx to assist in the protection 
of air quality in NCAC 2D.0530, Prevention of Significant 
Deterioration, and 2D.0531, Sources in a Nonattainment Area. On 
December 20, 2005, May 16, 2007, and June 20, 2008, DAQ submitted 
revisions to its PSD/NSR regulations for EPA approval. In North 
Carolina's December 12, 2007, infrastructure submission, the State 
certified that it has treated NOX as a precursor to ozone 
since 1995 and has addressed the requirement for 110(a)(2)(J) with rule 
amendments that include reference to definitions in 40 CFR 51.166--
Prevention of significant deterioration of air quality. These revisions 
addressing section 110(a)(2)(J) requirements became state-effective in 
March 2008.
    As described above, the June 20, 2008, SIP revision, includes 
revisions to rules NCAC 02D.0530 and .0531 that address the 
infrastructure requirements of sections 110(a)(2)(C) and (J). SIP 
revision addressed the Ozone Implementation NSR Update requirements to 
include NOx as an ozone precursor for permitting purposes. This 
involved changes to major source thresholds for sources in certain 
classes of nonattainment areas, changes to offset ratios for marginal, 
moderate, serious, severe, and extreme ozone nonattainment areas, 
provisions addressing offset requirements for facilities that shut down 
or curtail operation, and a requirement stating that NOx emissions are 
ozone precursors. In a August 10, 2011, final rulemaking action, EPA 
approved the December 20, 2005, May 16, 2007, and

[[Page 77961]]

June 20, 2008, SIP revisions. See 76 FR 49313.
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. North Carolina has submitted SIP revisions for approval to satisfy 
the requirements of the CAA Section 169A and 169B, and the regional 
haze and best available retrofit technology rules contained in 40 CFR 
51.308. These revisions are currently under review and will be acted on 
in a separate action. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate the State's 
ability to implement PSD programs and to provide for visibility 
protection related to the 1997 8-hour ozone NAAQS when necessary.\21\
---------------------------------------------------------------------------

    \21\ Notably, EPA is currently engaged in discussions with North 
Carolina and Federal Land Managers regarding an aspect of visibility 
analysis for Class I areas under the State's PSD Program.
---------------------------------------------------------------------------

    12. 110(a)(2)(K) Air quality and modeling/data: NCAC 2D.0300, Air 
Pollution Emergencies, and NCAC 2D.0806, Ambient Monitoring and 
Modeling Analysis, require that air modeling be conducted to determine 
permit applicability. These regulations demonstrate that North Carolina 
has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 8-hour ozone NAAQS. 
Additionally, North Carolina supports a regional effort to coordinate 
the development of emissions inventories and conduct regional modeling 
for several NAAQS, including the 1997 8-hour ozone NAAQS, for the 
Southeastern states. Taken as a whole, North Carolina's air quality 
regulations demonstrate that DAQ has the authority to provide relevant 
data for the purpose of predicting the effect on ambient air quality of 
the 8-hour ozone NAAQS. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate the State's 
ability to provide for air quality and modeling, along with analysis of 
the associated data, related to the 1997 8-hour ozone NAAQS when 
necessary.
    13. 110(a)(2)(L) Permitting fees: North Carolina addresses the 
review of construction permits as previously discussed in 110(a)(2)(C). 
Permitting fees in North Carolina are collected through the State's 
federally-approved title V fees program, according to State's 
federally-approved title V fees program according to State Regulation 
NCAC 2Q.0200, Permit Fees. EPA has made the preliminary determination 
that North Carolina's SIP and practices adequately provide for 
permitting fees related to the 1997 8-hour ozone NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities: NCAC 2Q.0307, Public Participation Procedures requires that 
DAQ notify the public of an application, preliminary determination, the 
activity or activities involved in a permit action, any emissions 
associated with a permit modification, and the opportunity for comment 
prior to making a final permitting decision. Furthermore, DAQ has 
demonstrated consultation with, and participation by, affected local 
entities through its work with local political subdivisions during the 
developing of its Transportation Conformity SIP, Regional Haze 
Implementation Plan, Early Action Compacts, and the 8-Hour Ozone 
Attainment Demonstration for the North Carolina portion of the 
Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately demonstrate consultation with affected local entities 
related to the 1997 8-hour ozone NAAQS when necessary.

V. Proposed Action

    As described above, with the exception of sub-element 
110(a)(2)(E)(ii), EPA is proposing to determine that North Carolina's 
infrastructure submission, provided to EPA on December 12, 2007, and 
clarified in a subsequent submission submitted on June 20, 2008, 
addressed the required infrastructure elements for the 1997 8-hour 
ozone NAAQS. EPA is proposing to approve in part, and to conditionally 
approve or disapprove in part consistent with section 110 of the CAA.
    With respect to 110(a)(2)(E)(ii) (referencing section 128 of the 
CAA), EPA is proposing to conditionally approve North Carolina's 
infrastructure SIP with respect to element 110(a)(2)(E)(ii) based upon 
assurances by the State that DAQ will submit to EPA a formal commitment 
to adopt specific enforceable measures into its SIP within one year to 
address the applicable portions of section 128. In order for EPA to 
take final action conditionally approving the State's infrastructure 
SIP with respect to element 110(a)(2)(E)(ii), DAQ must formally commit 
to taking the actions described in this notice prior to EPA's final 
action on North Carolina's infrastructure SIP. In the event DAQ fails 
to provide an adequate commitment to address the applicable 
110(a)(2)(E)(ii) infrastructure requirements, EPA is hereby proposing, 
in the alternative, to disapprove the State's infrastructure SIP with 
respect to this sub-element. EPA is also proposing to approve North 
Carolina's infrastructure submission for the 1997 8-hour ozone NAAQS, 
with the exception of sub-element 110(a)(2)(E)(ii) because its December 
12, 2007, and June 20, 2008, submissions are consistent with section 
110 of the CAA.

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. See 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);

[[Page 77962]]

     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed 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, Reporting and recordkeeping 
requirements, Volatile organic compounds.

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

    Dated: December 7, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.
[FR Doc. 2011-32183 Filed 12-14-11; 8:45 am]
BILLING CODE 6560-50-P