[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5703-5706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2602]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2011-0352-201204; FRL-9627-6]


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: Final rule.

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SUMMARY: EPA is taking final action to approve in part and 
conditionally approve in part, the State Implementation Plan (SIP) 
submission, submitted by the State of North Carolina, through the 
Department of Environment and Natural Resources (NC DENR), Division of 
Air Quality (DAQ), as demonstrating that the State meets the state 
implementation plan (SIP) requirements of sections 110(a)(1) and (2) of 
the Clean Air Act (CAA or the 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. North 
Carolina certified that the North Carolina SIP contains provisions that 
ensure the 1997 8-hour ozone NAAQS is implemented, enforced, and 
maintained in North Carolina (hereafter referred to as ``infrastructure 
submission''). With the exception of sub-element 110(a)(2)(E)(ii), 
North Carolina's infrastructure submission, provided to EPA on December 
12, 2007, and clarified in a subsequent submission submitted on June 
20, 2008, addresses all the required infrastructure elements for the 
1997 8-hour ozone NAAQS.

DATES: Effective Date: This rule will be effective March 7, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2011-0352. All documents in the docket 
are listed on the 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 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].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. This Action
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and 
(2) of the CAA require states to address basic SIP requirements, 
including emissions inventories, monitoring, and modeling to assure 
attainment and maintenance for that new NAAQS. On July 18, 1997, EPA 
promulgated a new NAAQS for ozone based on 8-hour average 
concentrations, thus states were required to provide submissions to 
address sections 110(a)(1) and (2) of the CAA for this new NAAQS. North 
Carolina provided its infrastructure submission for the 1997 8-hour 
ozone NAAQS on December 12, 2007, and clarified it in a subsequent 
submission submitted on June 20, 2008. On March 27, 2008, North 
Carolina was among other states that received a finding of failure to 
submit because its infrastructure submission was deemed incomplete for 
elements 110(a)(2)(C) and (J) for the 1997 8-hour ozone NAAQS by March 
1, 2008. See 73 FR 16205. Infrastructure elements 110(a)(2)(C) and (J) 
relate to a SIP addressing changes to its part C prevention of 
significant deterioration (PSD) permit program as required by the 1997 
8-Hour Ozone NAAQS Implementation Rule New Source

[[Page 5704]]

Review (NSR) Update--Phase 2 Rule (hereafter referred to as the Ozone 
Implementation NSR Update) recognizing nitrogen oxides (NOX) 
a precursor for ozone in 40 CFR 51.166 and 40 CFR 52.21, among other 
requirements. See 70 FR 71612, (November 29, 2005). The June 20, 2008, 
submission corrected the deficiencies for which the finding of failure 
to submit was received. On August 10, 2011, EPA finalized approval of 
North Carolina's June 20, 2008, SIP revision. See 76 FR 49313.
    EPA has determined that North Carolina's federally-approved SIP 
includes the provisions necessary from the Ozone Implementation NSR 
Update, including the addition of NOX as a precursor to 
ozone in 40 CFR 51.166 and 40 CFR 52.21 for the 1997 8-hour ozone 
standard, and thus, has determined that North Carolina has satisfied 
the requirements for 110(a)(2)(C) and (J). On December 15, 2011, EPA 
proposed to approve North Carolina's December 12, 2007, infrastructure 
submission and proposed conditional approval of infrastructure sub-
element 110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS. >See 76 FR 
77952.\1\ CAA section 110(a)(2)(E)(ii) pertains to section 128 State 
Board requirements which requires 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.
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    \1\ In the December 15, 2011, proposed rule, EPA also proposed, 
in the alternative, to disapprove North Carolina's infrastructure 
submission with respect to sub-element 110(a)(2)(E)(ii) (regarding 
State Boards). EPA proposed disapproval in the alternative for this 
element to account for the possibility that North Carolina could 
fail to submit a commitment letter sufficient for EPA to take final 
action on a conditional approval for this sub-element. Because North 
Carolina did submit an adequate commitment letter, EPA is proceeding 
with a conditional approval of sub-element 110(a)(2)(E)(ii) and does 
not plan to take further action on the proposed disapproval 
discussed in the December 15, 2011, proposed rule. See 76 FR 77952, 
77958-77959.
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    On January 11, 2012, North Carolina submitted a letter of 
commitment to EPA to adopt specific enforceable measures related to 
both 128(a)(1) and 128(a)(2) to address current deficiencies in the 
North Carolina SIP as outlined in EPA's December 15, 2011, proposed 
rulemaking. This letter of commitment meets the requirements of 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 (by February 6, 
2013) will result in today's conditional approval becoming a 
disapproval. North Carolina's January 11, 2012, letter can be accessed 
at http://www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-
0352. A summary of the background for today's final action is provided 
below. See EPA's December 15, 2011, proposed rulemaking at 76 FR 77952 
for more detail.
    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 already mentioned, 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 final rulemaking are listed below \2\ 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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    \2\ 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 are 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 final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) but does provide detail on how North Carolina's SIP 
addresses 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.\3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\4\
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    \4\ 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 response 
to the remand of CAIR, EPA has recently finalized a new rule to 
address the interstate transport of NOX and 
SOX in the eastern United States. See 76 FR 48208 (August 
8, 2011) (``the Transport Rule''). This rule was recently stayed by 
the DC Circuit Court of Appeals. 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.\5\
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    \5\ 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.

II. This Action

    EPA is taking final action to approve North Carolina's 
infrastructure submission as demonstrating that the State meets the 
applicable requirements of sections 110(a)(1) and (2) of the CAA for 
the 1997 8-hour ozone NAAQS, with the exception of CAA section 
110(a)(2)(E)(ii). EPA is taking final action to conditionally approve 
sub-element 110(a)(2)(E)(ii). Section 110(a)

[[Page 5705]]

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. 
North Carolina, through DAQ, certified that the North Carolina SIP 
contains provisions that ensure the 1997 8-hour ozone NAAQS is 
implemented, enforced, and maintained in North Carolina. EPA received 
no adverse comments on its December 15, 2011, proposed approval of 
North Carolina's December 12, 2007, infrastructure submission and 
proposed conditional approval of 110(a)(2)(E)(ii).
    North Carolina's infrastructure submission, provided to EPA on 
December 12, 2007, and clarified on June 20, 2008, addressed all the 
required infrastructure elements for the 1997 8-hour ozone NAAQS, with 
the exception of CAA section 110(a)(2)(E)(ii). EPA has determined that 
North Carolina's December 12, 2007 submission, as clarified through the 
State's June 20, 2008 submission, is consistent with section 110 of the 
CAA, with the exception of CAA section 110(a)(2)(E)(ii).
    On January 11, 2012, North Carolina submitted a letter of 
commitment to EPA to adopt specific enforceable measures related to 
both CAA sections 128(a)(1) and 128(a)(2) to address the current 
deficiencies in the North Carolina SIP related to CAA section 
110(a)(2)(E)(ii) as outlined in EPA's December 15, 2011, proposed 
rulemaking. As a result of North Carolina's January 11, 2012, 
submission, EPA has determined that conditional approval is appropriate 
because the State has explicitly committed to address current 
deficiencies in the North Carolina SIP related to sub-element 
110(a)(2)(E)(ii) consistent with the requirements of CAA section 
110(k)(4).
    EPA is conditionally approving the January 11, 2012, submittal with 
respect to the CAA requirement of sub-element 110(a)(2)(E)(ii). North 
Carolina must submit to EPA by February 6, 2013, SIP revisions adopting 
specific enforceable measures related to both CAA sections 128(a)(1) 
and 128(a)(2) as described in the State's letter of commitment 
described above. If the State fails to actually submit these revisions 
by February 6, 2013, today's conditional approval will automatically 
become a disapproval on that date and EPA will issue a finding of 
disapproval. EPA is not required to propose the finding of disapproval. 
If the conditional approval is converted to a disapproval, the final 
disapproval triggers the Federal Implementation Plan requirement under 
section 110(c). However, if the State meets its commitment within the 
applicable timeframe, the conditionally approved submission will remain 
a part of the SIP until EPA takes final action approving or 
disapproving the new submittal. If EPA disapproves the new submittal, 
today's conditionally approved submittal will also be disapproved at 
that time. If EPA approves the new submittal, North Carolina's 
infrastructure SIP will be fully approved in its entirety and replace 
the conditionally approved element in the SIP.

III. Final Action

    EPA is taking final action to approve North Carolina's December 12, 
2007, submission for the 1997 8-hour ozone NAAQS and conditionally 
approve North Carolina's January 11, 2012, submission because these 
submissions are consistent with section 110 of the CAA. NC DENR has 
addressed the elements of the CAA 110(a)(1) and (2) SIP requirements 
pursuant to EPA's October 2, 2007, guidance to ensure that the 1997 8-
hour ozone NAAQS are implemented, enforced, and maintained in North 
Carolina.

IV. 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 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 April 6, 2012. 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 section 307(b)(2)).

[[Page 5706]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: January 27, 2012.
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(e), is amended by adding a new entry ``North 
Carolina 110(a)(1) and (2) Infrastructure Requirements for the 1997 8-
Hour Ozone National Ambient Air Quality Standards'' at the end of the 
table to read as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (e) * * *

                              EPA-Approved North Carolina Non-Regulatory Provisions
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                                                     State       EPA approval
                   Provision                    effective date       date           Federal Register citation
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                                                  * * * * * * *
North Carolina 110(a)(1) and (2)                    12/12/2007        2/6/2012  [Insert citation of
 Infrastructure Requirements for the 1997 8-                                     publication].
 Hour Ozone National Ambient Air Quality
 Standards.
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0
3. Section 52.1773 is added to read as follows:


Sec.  52.1773  Conditional approval.

    Conditional Approval--Submittal from the State of North Carolina, 
through the Department of Environment and Natural Resources (NC DENR), 
Division of Air Quality, dated December 12, 2007, to address the Clean 
Air Act (CAA) infrastructure requirements for the 1997 ozone National 
Ambient Air Quality Standards. On January 11, 2012, NC DENR 
supplemented their December 12, 2007, submission with a commitment to 
address the requirements of CAA section 110(a)(2)(E)(ii) of the CAA 
which requires state compliance with section 128 of the CAA. EPA is 
conditionally approving North Carolina's submittal with respect to CAA 
section 110(a)(2)(E)(ii).

[FR Doc. 2012-2602 Filed 2-3-12; 8:45 am]
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