[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Proposed Rules]
[Pages 43196-43205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18051]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1015; FRL- 9703-6]


Approval and Promulgation of Implementation Plans; North 
Carolina; 110(a)(1) and (2) Infrastructure Requirements for the 1997 
Annual and 2006 Fine Particulate Matter 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 conditionally approve 
in part, the State Implementation Plan (SIP) revisions, 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 requirements of sections 
110(a)(1) and (2) of the Clean Air Act (CAA or the Act) for the 1997 
annual and 2006 24-hour fine particulate matter (PM2.5) 
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 annual and 2006 24-hour PM2.5 NAAQS are 
implemented, enforced, and maintained in North Carolina (hereafter 
referred to as ``infrastructure submissions''). EPA is proposing to 
determine that North Carolina's infrastructure submissions, provided to 
EPA on April 1, 2008, and on September 21, 2009, addressed all the 
required infrastructure elements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS with the exception of sections 110(a)(2)(C), 
110(a)(2)(E)(ii) and 110(a)(2)(J). With respect to sections 
110(a)(2)(C) related to PSD requirements, 110(a)(2)(E)(ii) and 
110(a)(2)(J) related to PSD requirements, EPA is proposing to 
conditionally approve these requirements.

DATES: Written comments must be received on or before August 23, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-1015, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2010-1015,'' 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, Chief, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office'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.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2010-1015. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The 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 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

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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 
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 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: Sean Lakeman, 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) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

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 (62 FR 38652), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, SIPs meeting the requirements of sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and 
(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 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5 
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 annual 
PM2.5 NAAQS. On March 10, 2005, 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 PM2.5 NAAQS by October 5, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state for the 1997 
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled 
``Completeness Findings for Section 110(a) State Implementation Plans 
Pertaining to the Fine Particulate Matter (PM2.5) 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 PM2.5 NAAQS (see 
73 FR 62902). For those states that did receive findings, 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 to address the outstanding SIP elements unless, 
prior to that time, the affected states submitted, and EPA approved, 
the required SIPs.
    The findings 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 submissions were received by EPA on April 1, 
2008, for the 1997 annual PM2.5 NAAQS, and on September 21, 
2009, for the 2006 24-hour PM2.5 NAAQS. The submissions were 
determined to be complete on October 1, 2008, and March 21, 2010, 
respectively. North Carolina was among other states that did not 
receive findings of failure to submit because it had provided a 
complete submission to EPA to address the infrastructure elements for 
the 1997 PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
submittal related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's final action either approving, disapproving, or approving in 
part and disapproving in part the North Carolina 2006 24-hour 
PM2.5 NAAQS Infrastructure SIP submittal addressing the 
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except 
for section 110(a)(2)(C) the nonattainment area requirements and 
section 110(a)(2)(D)(i)(II) visibility requirements, by September 30, 
2012. On July 20, 2011, EPA published a final rulemaking disapproving 
the interstate transport requirements for section 110(a)(2)(D)(i) for 
the 2006 24-hour PM2.5 NAAQS for North Carolina. See 76 FR 
43167.
    Today's action is proposing to approve in part, and to 
conditionally approve in part North Carolina's infrastructure 
submissions for both the 1997 annual and 2006 24-hour PM2.5 
NAAQS for sections 110(a)(2)(A)-(H), (M), with the exception of 
sections 110(a)(2)(C) related to PSD requirements, section 
110(a)(2)(D)(i) interstate transport requirements, 110(a)(2)(E)(ii) and 
110(a)(2)(J) related to PSD requirements. With respect to sections 
110(a)(2)(E)(ii), and sections 110(a)(2)(C) and 110(a)(2)(J) as they 
relate to PSD requirements, EPA is proposing to conditionally approve 
North Carolina's infrastructure SIP as it relates to these 
requirements. Today's

[[Page 43198]]

action is not approving any specific rule, but rather proposing that 
North Carolina's already approved SIP meets--or in the case of the 
elements proposed for conditional approval will meet--, with changes, 
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 annual and 2006 24-hour 
PM2.5 NAAQS, some states may need to adopt language specific 
to the PM2.5 NAAQS to ensure that they have adequate SIP 
provisions to implement the PM2.5 NAAQS.
    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'' and September 25, 2009, 
memorandum entitled ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (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) 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.\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 and 2006 
PM2.5 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 D.C. Circuit Court of Appeals, without vacatur, back to EPA. See 
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this 
remand, EPA took final action to approve North Carolina SIP 
revision, which was submitted to comply with CAIR. See 72 FR 56914 
(October 5, 2007). In so doing, North Carolina CAIR SIP revision 
addressed the interstate transport provisions in section 
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. In response to 
the remand of CAIR, EPA has recently finalized a new rule to address 
the interstate transport of nitrogen oxides and sulfur oxides in the 
eastern United States. See 76 FR 48208 (August 8, 2011) (Transport 
Rule). That rule was recently stayed by the D.C. 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.\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,'' and 
the September 25, 2009, memorandum entitled ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine 
Particle (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 (SSM) at sources, that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; 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 
separately: (i) Existing provisions for minor source new source review 
(NSR) programs that may be inconsistent with the requirements of the 
CAA and EPA's regulations that pertain to such programs (minor source 
NSR); and (ii) existing provisions for Prevention of Significant 
Deterioration (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 and 2006 PM2.5 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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    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

[[Page 43199]]

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, NSR 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 implementation plan 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 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

[[Page 43200]]

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 the 
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 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,

[[Page 43201]]

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 PM2.5 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?

    North Carolina's 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 PM2.5 and address the required 
control measures, means and techniques for compliance with the 
PM2.5 NAAQS. EPA has made the preliminary determination that 
the provisions contained in these regulations and North Carolina's 
practices are adequate to protect the PM2.5 annual and 24-
hour 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 deficient SSM provisions 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 www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-1015. EPA has made the preliminary determination that North 
Carolina's SIP and practices are adequate for the ambient air quality 
monitoring and data systems related to the 1997 annual and 2006 24-hour 
PM2.5 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 under section 107(d)(1)(A)(ii) or (iii) 
of the CAA. These provisions are designed to ensure that sources in 
areas attaining the NAAQS at the time of designations prevent any 
significant deterioration in air quality. NCAC 2D.0531 also sets the 
permitting requirements for areas in or around nonattainment areas. On 
July 10, 2012, North Carolina submitted a letter to EPA to provide the 
schedule to

[[Page 43202]]

address outstanding requirements related to the PM2.5 
standard for its PSD program and committing to providing the necessary 
SIP revision to address its SIP deficiencies related to the NSR 
PM2.5 Rule requirements. Based on North Carolina's 
commitment, EPA is proposing to conditionally approve North Carolina's 
110(a)(2)(C) infrastructure SIP consistent with section 110(k)(4) of 
the Act. EPA intends to move forward with finalizing the conditional 
approval consistent with section 110(k)(4) of the Act.
    In this action, EPA is also proposing to conditionally approve 
North Carolina's infrastructure SIP for the 1997 annual and 2006 24-
hour PM2.5 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 itself 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.
    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, describe how the State will 
notify neighboring states of potential impacts from new or modified 
sources. North Carolina does not have any pending obligation under 
sections 115 and 126 of the CAA. 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 annual 
and 2006 24-hour PM2.5 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. 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 conditionally approve 
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 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 the preliminary 
determination that North Carolina has adequate resources for 
implementation of the 1997 annual and 2006 24-hour PM2.5 
NAAQS. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are 
met when EPA performs a completeness determination for each SIP 
submittal. This determination ensures that each submittal provides 
evidence that adequate personnel, funding, and legal authority under 
State Law has been used to carry out the state's implementation plan 
and related issues. North Carolina's authority is included in all 
prehearings and final SIP submittal packages submitted for approval by 
EPA. EPA has made the preliminary determination that North Carolina has 
adequate resources for implementation of the 1997 annual and 2006 24-
hour PM2.5 NAAQS.
    As discussed above, with respect to sub-element 110(a)(2)(E)(ii), 
EPA is proposing to conditionally approve North Carolina's 
infrastructure SIP as to this requirement. North Carolina's April 1, 
2008, and September 21, 2009, infrastructure certification letters 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.
    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 is based upon the 
State's commitment to adopt 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), 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

[[Page 43203]]

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).\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\ Pursuant to a recent North Carolina law, which became 
effective no later than June 15, 2012, final decisions on contested 
cases involving permits and enforcement orders are made by 
individual Administrative Law Judges in the North Carolina Office of 
Administrative Hearings. See North Carolina Session Law 2011-398, 
Section 18. However, NC DENR remains the permit-issuing authority.
    \20\ Pursuant to section 55.2 of N.C. Session Law 2011-398, the 
North Carolina Office of Administrative Hearings is directed 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 addressed 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 committed 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.
    As a result, EPA is proposing to conditionally approve North 
Carolina's infrastructure SIP with respect to element 110(a)(2)(E)(ii) 
consistent with section 110(k)(4) of the CAA. North Carolina's above-
described commitments are contained in the State's January 11, 2012, 
letter of commitment submitted to EPA in connection with North 
Carolina's infrastructure submittal for purposes of the 1997 Ozone 
NAAQS. The letter North Carolina submitted can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0352. In the 
letter of commitment, North Carolina committed to adopt specific 
enforceable measures related to both CAA sections 128(a)(1) and 
128(a)(2) to address deficiencies in the North Carolina SIP related to 
CAA section 110(a)(2)(E)(ii). Notably, changes to North Carolina rules 
regarding the 1997 Ozone NAAQS are the same types of changes that would 
be required as part of today's proposed conditional approval for the 
1997 annual and 2006 24-hour PM2.5 NAAQS. EPA previously 
finalized a conditional approval regarding sub-element 110(a)(2)(E)(ii) 
for the 1997 Ozone NAAQS. 77 FR 5703 (February 6, 2012).
    Consistent with the State's January 11, 2012, commitment, 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). If the State fails to submit these revisions by February 
6, 2013, a final conditional approval would then 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.
    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 (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--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon 
monoxide, particulate matter, and volatile organic compounds. Many 
states also voluntarily report emissions of hazardous air pollutants. 
North Carolina made its latest update to the NEI on December 19, 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 annual and 
2006 24-hour PM2.5 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. On 
September 25, 2009, EPA released the guidance entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particulate (PM2.5) National Ambient Air Quality 
Standards (NAAQS).'' This guidance clarified that ``to address the 
section 110(a)(2)(G) element, states with air quality control regions 
identified as either Priority I, IA, or Priority II by the `Prevention 
of Air Pollution Emergency Episodes' rule at 40 CFR 51.150, must 
develop emergency episode contingency plans.'' EPA's September 25, 
2009, guidance also states that ``until the Agency finalized changes to 
the emergency episode regulation to establish for PM2.5 
specific levels for classifying areas as Priority I, IA, or II for 
PM2.5, and to establish a significant harm level (SHL) * * 
*,'' it recommends that states with a 24-Hour PM2.5 
concentration above 140 [micro]g/m\3\ (using the most recent three 
years of

[[Page 43204]]

data) develop an emergency episode plan. For states where this level 
has not been exceeded, the state can certify that it has appropriate 
general emergency powers to address PM2.5 related episodes, 
and that no specific emergency episode plans are needed at this time. 
On September 19, 2008, DAQ submitted a letter to EPA verifying that it 
is a Class III Priority Area and is exempt from adopting emergency 
episode plan for PM2.5 NAAQS. EPA has made the preliminary 
determination that North Carolina's SIP and practices are adequate for 
emergency powers related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: As previously discussed, DAQ 
is responsible for adopting air quality rules and revising SIPs as 
needed to attain or maintain the NAAQS. North Carolina 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 PM 
NAAQS. Specific to the 1997 annual and 2006 24-hour PM2.5 
NAAQS, North Carolina's submissions have included:
     August 21, 2009, Hickory PM2.5 Attainment 
Demonstration;
     August 21, 2009, Triad PM2.5 Attainment 
Demonstration;
     December 18, 2009, Triad PM2.5 Redesignation 
Request and Maintenance Plan; and,
     December 18, 2009, Hickory PM2.5 Redesignation 
Request and 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 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    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). Additionally, DAQ submitted a regional haze plan which outlines 
its consultation practices with Federal Land Managers. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately demonstrate consultation with government officials related 
to the 1997 annual and 2006 24-hour PM2.5 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 
PM2.5 and other pollutant forecasting, including an air 
quality monitoring Web site providing PM2.5 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 annual and 2006 24-
hour PM2.5 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 PM to assist in the protection of air quality in NCAC 
2D.0530, Prevention of Significant Deterioration, and 2D.0531, Sources 
in a Nonattainment Area, which describe the permit requirements for new 
major sources or major modifications of existing sources in areas 
classified as attainment or unclassifiable under section 
107(d)(1)(A)(ii) or (iii) of the CAA. This ensures that sources in 
areas attaining the NAAQS at the time of designations prevent any 
significant deterioration in air quality. NCAC 2D.0531 also sets the 
permitting requirements for areas in or around nonattainment areas. As 
with infrastructure element 110(a)(2)(C), infrastructure element 
110(a)(2)(J) of North Carolina's SIP does not include provisions to 
meet all the requirements for NSR/PSD related to the PM2.5 
standard. As noted above, on July 10, 2012, North Carolina submitted a 
letter to EPA to provide the schedule to address outstanding 
requirements related to the PM2.5 standard for its PSD 
program and committing to providing the necessary SIP revision to 
address the PM2.5 NSR/PSD requirements for which the SIP is 
currently deficient. As a result, EPA is proposing to conditionally 
approve North Carolina's infrastructure SIP with respect to element 
110(a)(2)(J) in accordance with section 110(k)(4) of the Act. EPA 
intends to move forward with finalizing the conditional approval 
consistent with section 110(k)(4) of the Act.
    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.
    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 1997 annual and 
2006 24-hour PM2.5 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 annual and 2006 24-hour PM2.5 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) 
above. 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 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local 
entities:

[[Page 43205]]

NCAC 2Q.0307, Public Participation Procedures requires that DAQ notify 
the public of an application, a 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 and Regional Haze 
Implementation Plan. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate consultation 
with affected local entities related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.

V. Proposed Action

    EPA is now proposing two related types of actions. First, EPA is 
proposing to determine that the North Carolina SIP is currently 
adequate, as explained in North Carolina's April 1, 2008, and September 
21, 2009, submittals, to meet the requirements of CAA 110(a)(1) and 
(2)(A)-(B), (D)-(H), (K)-(M), pursuant to EPA's October 2, 2007, and 
September 25, 2009, guidance to ensure that the 1997 annual and 2006 
24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in North Carolina. Second, EPA is proposing to conditionally 
approve North Carolina's infrastructure submissions for both the 1997 
annual and 2006 24-hour PM2.5 NAAQS with regard to CAA 
sections 110(a)(2)(C), 110(a)(2)(E)(ii) and 110(a)(2)(J).

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);
     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, Particulate Matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 13, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-18051 Filed 7-23-12; 8:45 am]
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