[Federal Register Volume 80, Number 49 (Friday, March 13, 2015)]
[Proposed Rules]
[Pages 13312-13321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05647]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0795; FRL-9924-28-Region 4]
Approval and Promulgation of Implementation Plans; North Carolina
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the November 2, 2012, State Implementation Plan
(SIP) submission, provided by the North Carolina Department of
Environment and Natural Resources (NC DENR), Division of Air Quality
(NCDAQ) for inclusion into the North Carolina SIP. This proposal
pertains to the Clean Air Act (CAA or the Act) infrastructure
requirements for the 2008 8-hour ozone national ambient air quality
standards (NAAQS). The CAA requires that each state adopt and submit a
SIP for the implementation, maintenance, and enforcement of each NAAQS
promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. NCDAQ certified that the North Carolina SIP
contains provisions that ensure the 2008 8-hour ozone NAAQS is
implemented, enforced, and maintained in North Carolina (hereafter
referred to as an ``infrastructure SIP submission''). With the
exception of provisions pertaining to prevention of significant
deterioration (PSD) permitting, interstate transport, and state boards
requirements, EPA is proposing to approve North Carolina's
infrastructure SIP submission provided to EPA on November 2, 2012, as
satisfying the required infrastructure elements for the 2008 8-hour
ozone NAAQS.
DATES: Written comments must be received on or before April 3, 2015.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0795, 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-2014-0795,'' Air Regulatory Management
Section, (formerly the Regulatory Development Section), Air Planning
and Implementation Branch, (formerly the 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, Air
Regulatory Management Section, Air Planning and Implementation 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 a.m. to 4:30 p.m.,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2014-0795. 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 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 Air Regulatory Management Section, Air Planning and
Implementation 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 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Air Regulatory
Management Section, Air Planning and Implementation 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. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP
submissions?
IV. What is EPA's analysis of how North Carolina addressed the
elements of sections 110(a)(1) and (2) ``infrastructure''
provisions?
[[Page 13313]]
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On March 27, 2008, EPA promulgated a revised NAAQS for ozone based
on 8-hour average concentrations. EPA revised the level of the 8-hour
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. Pursuant to
section 110(a)(1) of the CAA, states are required to submit SIPs
meeting the applicable requirements of section 110(a)(2) within three
years after promulgation of a new or revised NAAQS or within such
shorter period as EPA may prescribe. Section 110(a)(2) requires states
to address basic SIP elements such as requirements for monitoring,
basic program requirements and legal authority that are designed to
assure attainment and maintenance of the NAAQS. States were required to
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than
March 2011.\1\
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\1\ In these infrastructure SIP submissions states generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Unless otherwise indicated, the Title 15A
regulations (also referred to as rules) of the North Carolina
Administrative Code (``15A NCAC'') cited throughout this rulemaking
have been approved into North Carolina's federally-approved SIP. The
North Carolina General Statutes (``NCGS'') cited throughout this
rulemaking, however, are not approved into the North Carolina SIP
unless otherwise indicated.
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This action is proposing to approve North Carolina's infrastructure
submission for the applicable requirements of the 2008 8-hour ozone
NAAQS, with the exception of the PSD permitting requirements for major
sources of section 110(a)(2)(C) and (J), the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through
4), and the state board requirements of 110(E)(ii). With respect to
North Carolina's infrastructure SIP submission related to provisions
pertaining to the PSD permitting requirements for major sources of
sections 110(a)(2)(C) and (J), the interstate transport requirements of
section 110(a)(2)(D)(i)(I) and (II), and the state board requirements
of 110(E)(ii), EPA is not proposing any action today regarding these
requirements. EPA will act on these portions of North Carolina's
submission in a separate action. For the aspects of North Carolina's
submittal proposed for approval today, EPA notes that the Agency is not
approving any specific rule, but rather proposing that North Carolina's
already approved SIP meets certain CAA requirements.
II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 2008 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 the 1997 8-hour
ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements of section 110(a)(2) are summarized below and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' \2\
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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 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. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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110(a)(2)(A): Emission Limits and Other Control Measures
110(a)(2)(B): Ambient Air Quality Monitoring/Data System
110(a)(2)(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \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)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
110(a)(2)(F): Stationary Source Monitoring and Reporting
110(a)(2)(G): Emergency Powers
110(a)(2)(H): SIP revisions
110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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\4\ As mentioned above, this element is not relevant to this
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 and Submission of Modeling
Data
110(a)(2)(L): Permitting fees
110(a)(2)(M): Consultation and Participation by Affected Local
Entities
III. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the SIP submission from North Carolina that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2008 8-hour ozone NAAQS. The requirement for states
to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``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
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
[[Page 13314]]
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. 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 program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\5\ For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\6\ See, e.g., ``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, at 25163-65 (May 12, 2005) (explaining relationship
between timing requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
\7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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\8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, 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. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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\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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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it
[[Page 13315]]
is clear that attainment plan SIP submissions required by part D would
not need to meet the portion of section 110(a)(2)(C) that pertains to
the PSD program required in part C of title I of the CAA, because PSD
does not apply to a pollutant for which an area is designated
nonattainment and thus subject to part D planning requirements. As this
example illustrates, each type of SIP submission may implicate some
elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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\11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
\13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the DC Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
greenhouse gases. By contrast, structural PSD program requirements do
not include provisions that are not required under EPA's regulations at
40 CFR 51.166 but are merely available as an option for the state, such
as the option to provide grandfathering of complete permit applications
with respect to the 2012 PM2.5 NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, among other things, the requirement that states
have a program to regulate minor new sources. Thus, EPA evaluates
whether the state has an EPA-approved minor new source review program
and whether the program addresses the pollutants relevant to that
NAAQS. In the context of acting on an infrastructure SIP submission,
however, EPA does not think it is necessary to conduct a review of each
and every provision of a state's existing minor source program (i.e.,
already in the existing SIP) for compliance with the requirements of
the CAA and EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such
[[Page 13316]]
potentially deficient provisions and may approve the submission even if
it is aware of such existing provisions.\14\ It is important to note
that EPA's approval of a state's infrastructure SIP submission should
not be construed as explicit or implicit re-approval of any existing
potentially deficient provisions that relate to the three specific
issues just described.
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\14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations 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. These provisions, 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 evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
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 to otherwise comply with the CAA.\15\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies 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 an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\17\
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\15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\16\ EPA has used 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 section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 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).
\17\ See, e.g., EPA's disapproval of 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, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's Analysis of How North Carolina addressed the elements
of sections 110(a)(1) and (2) ``infrastructure'' provisions?
The North Carolina infrastructure submission addresses the
provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A) Emission limits and other control measures: There
are several provisions within the North Carolina General Statutes
(NCGS) and the North Carolina Administrative Code (NCAC) that provide
NCDAQ with the necessary authority to adopt and enforce air quality
controls, which include enforceable emission limitations and other
control measures. NCGS 143-215.107(a)(5), ``Air quality standards and
classifications,'' provides North Carolina with the authority to
``develop and adopt emission control standards as in the judgment of
the Commission may be necessary to prohibit, abate, or control air
pollution commensurate with established air quality standards.'' Rules
15A NCAC 2D .0600 ``Monitoring: Recordkeeping: Reporting,'' 15A NCAC 2D
.1600 ``General Conformity,'' 15A NCAC 2D .2200 ``Special Orders,''
and, 15A NCAC 2D .2600 ``Source Testing,'' provide enforceable emission
limits and other control measures, means, and techniques.\18\ EPA has
made the preliminary determination that the provisions contained in
these statutes and regulations and North Carolina's practices are
adequate to protect the 2008 8-hour ozone NAAQS in the State.
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\18\ State rules 15A NCAC 2D .1600 ``General Conformity,'' and
15A NCAC 2D .2200 ``Special Orders,'' are state-approved rules and
not incorporated into the federally approved SIP.
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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 a separate
action.\19\ In the meantime, EPA encourages any state having a
deficient SSM provision to take steps to correct it as soon as
possible.
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\19\ On February 22, 2013, EPA published a proposed action in
the Federal Register entitled, ``State Implementation Plans:
Response to Petition for Rulemaking; Findings of Substantial
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown, and Malfunction;
Proposed Rule.'' See 78 FR 12459.
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Additionally, in this action, EPA is not proposing to approve or
disapprove
[[Page 13317]]
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: SIPs
are required to provide for the establishment and operation of ambient
air quality monitors; the compilation and analysis of ambient air
quality data; and the submission of these data to EPA upon request.
NCGS 143-215.107(a)(2), ``Air quality standards and classifications,''
along with the North Carolina Annual Monitoring Network Plan, provide
for an ambient air quality monitoring system in the State, which
includes the monitoring of ozone at appropriate locations throughout
the state using the EPA approved Federal Reference Method or equivalent
monitors. NCGS 143-215.107(a)(2) also provides North Carolina with the
statutory authority to ``determine by means of field sampling and other
studies, including the examination of available data collected by any
local, State or federal agency or any person, the degree of air
contamination and air pollution in the State and the several areas of
the State.'' Annually, States develop and submit to EPA for approval
statewide ambient monitoring network plans consistent with the
requirements of 40 CFR parts 50, 53, and 58. The annual network plan
involves an evaluation of any proposed changes to the monitoring
network, includes the annual ambient monitoring network design plan and
a certified evaluation of the agency's ambient monitors and auxiliary
support equipment.\20\ The latest monitoring network plan for North
Carolina was submitted to EPA on July 2, 2013, and on November 25,
2013, 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-2014-0795. EPA has made the preliminary determination that
North Carolina's SIP and practices are adequate for the ambient air
quality monitoring and data system related to the 2008 8-hour ozone
NAAQS.
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\20\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: This element consists of
three sub-elements; enforcement, state-wide regulation of new and
modified minor sources and minor modifications of major sources; and
preconstruction permitting of major sources and major modifications in
areas designated attainment or unclassifiable for the subject NAAQS as
required by CAA title I part C (i.e., the major source PSD program). To
meet these obligations, North Carolina cited regulations 15A NCAC 2D.
0500 ``Emissions Control Standards;'' 2D. 0530 ``Prevention of
Significant Deterioration;'' and, 2D. 0531 ``Sources in Nonattainment
Area,'' each of which pertain to the construction of any new major
stationary source or any project at an existing major stationary source
in an area designated as attainment or unclassifiable and 15A NCAC 2Q
.0300 ``Construction Operation Permits,'' which pertains to the
regulation of minor stationary sources. In this action, EPA is only
proposing to approve North Carolina's infrastructure SIP submission for
the 2008 8-hour ozone NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that provides for
the enforcement of emission limits and control measures such as oxides
of nitrogen (NOX) and volatile organic compounds (VOCs) and
the regulation of minor sources and modifications to assist in the
protection of air quality in nonattainment, attainment or
unclassifiable areas.
Enforcement: NCDAQ's above-described, SIP-approved regulations
provide for enforcement of ozone precursor (VOC and NOX)
emission limits and control measures and construction permitting for
new or modified stationary sources.
Preconstruction PSD Permitting for Major Sources: With respect to
North Carolina's infrastructure SIP submission related to the
preconstruction PSD permitting requirements for major sources of
section 110(a)(2)(C), EPA is not proposing any action today regarding
these requirements and instead will act on this portion of the
submission in a separate action.
Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program that regulates emissions of the 2008 8-hour ozone NAAQS.
Regulation 15A NCAC 2Q .0300 ``Construction Operation Permits,''
governs the preconstruction permitting of modifications and
construction of minor stationary sources.
EPA has made the preliminary determination that North Carolina's
SIP and practices are adequate for enforcement of control measures and
regulation of minor sources and modifications related to the 2008 8-
hour ozone NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport:
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components have two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state interfering
with measures required to prevent significant deterioration of air
quality in another state (``prong 3''), or to protect visibility in
another state (``prong 4''). With respect to North Carolina's
infrastructure SIP submissions related to the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II)
(prongs 1 through 4), EPA is not proposing any action today regarding
these requirements and instead will act on these portions of the
submissions in a separate action.
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions insuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement. 15A
NCAC 2D .0530 ``Prevention of Significant Deterioration'' and 15A NCAC
2D .0531 ``Sources of Nonattainment Areas'' provide how NCDAQ will
notify neighboring states of potential impacts from new or modified
sources consistent with the requirements of 40 CFR 51.166. This
regulation requires NCDAQ to provide an opportunity for a public
hearing to the public, which includes State or local air pollution
control agencies, ``whose lands may be affected by emissions from the
source or modification'' in North Carolina. In addition, North Carolina
does not have any pending obligation under sections 115 and 126 of the
CAA.
[[Page 13318]]
Accordingly, 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 2008 8-hour ozone NAAQS.
6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
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). EPA will act on sub-element (ii) in a
separate action. EPA's rationale for this proposal respecting sub-
elements (i) and (iii) is described in turn below.
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii),
North Carolina's infrastructure SIP submission cites several
regulations. Rule 15A NCAC 2Q. 0200 ``Permit Fees,'' provides the
mechanism by which stationary sources that emit air pollutants pay a
fee based on the quantity of emissions emitted. State statutes NCGS
143-215.3 ``General powers of Commission and Department: auxiliary
powers,'' and NCGS 143-215.107(a)(1) ``Air quality standards and
classifications'' provide NCDAQ with the statutory authority ``[t]o
prepare and develop, after proper study, a comprehensive plan or plans
for the prevention, abatement and control of air pollution in the State
or in any designated area of the State.'' As further evidence of the
adequacy of NCDAQ's resources, EPA submitted a letter to North Carolina
on February 28, 2014, outlining 105 grant commitments and the current
status of these commitments for fiscal year 2013. The letter EPA
submitted to North Carolina can be accessed at www.regulations.gov
using Docket ID No. EPA-R04-OAR-2014-0795. Annually, states update
these grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. North
Carolina satisfactorily met all commitments agreed to in the Air
Planning Agreement for fiscal year 2013, therefore North Carolina's
grants were finalized and closed out. Collectively, these rules and
commitments provide evidence that NCDAQ has adequate personnel,
funding, and legal authority to carry out the state's implementation
plan and related issues. EPA has made the preliminary determination
that North Carolina has adequate resources and authority to satisfy
sections 110(a)(2)(E)(i) and (iii) of the 2008 8-hour ozone NAAQS.
With respect to North Carolina's infrastructure SIP submission
related to the state board requirements of section 110(a)(2)(E)(ii),
EPA is not proposing any action today regarding this requirement and
will act on this portion of the submission in a separate action.
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: North
Carolina's infrastructure SIP 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. NCDAQ 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. North
Carolina meets these requirements through 15A NCAC 2D .0604
``Exceptions to Monitoring and Reporting Requirements,'' 15A NCAC 2D
.0605 ``General Recordkeeping and Reporting Requirements,'' 15A NCAC 2D
.0611 ``Monitoring Emissions from Other Sources,'' 15A NCAC 2D .0612
``Alternative Monitoring and Reporting Procedures,'' 15A NCAC 2D .0613
``Quality Assurance Program,'' and, 15A NCAC 2D .0614 ``Compliance
Assurance Monitoring.'' In addition, Rule 15A NCAC 2D .0605(c)
``General Recordkeeping and Reporting Requirements,'' allows for the
use of credible evidence in the event that the NCDAQ Director has
evidence that a source is violating an emission standard or permit
condition, the Director may require that the owner or operator of any
source submit to the Director any information necessary to determine
the compliance status of the source. In addition, EPA is unaware of any
provision preventing the use of credible evidence in the North Carolina
SIP.
Stationary sources are required to submit periodic emissions
reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions
Reporting.'' North Carolina is also required to submit emissions data
to EPA for purposes of the National Emissions Inventory (NEI). The NEI
is EPA's central repository for air emissions data. EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data. See
73 FR 76539. The AERR shortened the time states had to report emissions
data from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--NOx, sulfur dioxide,
ammonia, 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
2011 NEI on June 3, 2014. 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
obligations for the 2008 8-hour ozone NAAQS.
8. 110(a)(2)(G) Emergency powers: This section requires that states
demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. North
Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300 ``Air
Pollution Emergencies'' as identifying air pollution emergency episodes
and preplanned abatement strategies, and provides the means to
implement emergency air pollution episode measures. If NC DENR finds
that such a ``condition of . . . air pollution exists and that it
creates an emergency requiring immediate action to protect the public
health and safety or to protect fish and wildlife, the Secretary of the
Department [NC DENR] with the concurrence of the Governor, shall order
persons causing or contributing to the . . . air pollution in question
to reduce or discontinue immediately the emission of air contaminants
or the discharge of wastes. In addition, NCGS 143-215.3(a)(12) provides
NC DENR with the authority to declare an emergency when it finds that a
generalized condition of water or air pollution which is causing
imminent
[[Page 13319]]
danger to the health or safety of the public. This statute also allows,
in the absence of a generalized condition of air pollution, should the
Secretary find ``that the emissions from one or more air contaminant
sources . . . is causing imminent danger to human health and safety or
to fish and wildlife, he may with the concurrence of the Governor order
the person or persons responsible for the operation or operations in
question to immediately reduce or discontinue the emissions of air
contaminants . . . or to take such other measures as are, in his
judgment, necessary.'' EPA also notes that NCDAQ maintains a Web site
that provides the public with notice of the health hazards associated
with ozone NAAQS exceedances, measures the public can take to help
prevent such exceedances, and the ways in which the public can
participate in the regulatory process. See http://www.ncair.org/news/.
EPA has made the preliminary determination that North Carolina's SIP
and practices are adequate to satisfy the emergency powers obligations
of the 2008 8-hour ozone NAAQS.
9. 110(a)(2)(H) SIP revisions: NCDAQ is responsible for adopting
air quality rules and revising SIPs as needed to attain or maintain the
NAAQS in North Carolina. Statutes NCGS 143-215.107(a)(1) and (a)(10)
grants NCDAQ the authority to implement the CAA, and as such, provide
NCDAQ the authority to prepare and develop, after proper study, a
comprehensive plan for the prevention of air pollution. These
provisions also provide NCDAQ the ability and authority to respond to
calls for SIP revisions, and North Carolina has provided a number of
SIP revisions over the years for implementation of the NAAQS.
Accordingly, 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 2008 8-hour ozone NAAQS,
when necessary.
10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve North Carolina's infrastructure SIP for the 2008 8-hour ozone
NAAQS with respect to the general requirement in section 110(a)(2)(J)
to include a program in the SIP that complies with the applicable
consultation requirements of section 121, and the public notification
requirements of section 127. With respect to North Carolina's
infrastructure SIP submission related to the preconstruction PSD
permitting, EPA is not proposing any action today regarding these
requirements and instead will act on these portions of the submission
in a separate action. EPA's rationale for its proposed action regarding
applicable consultation requirements of section 121 and the public
notification requirements of section 127 is described below.
Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
federal land managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. 15A NCAC
2D.1600 ``General Conformity,'' 15A NCAC 2D .2000 ``Transportation
Conformity,'' and 15A NCAC 2D .0531 ``Sources in Nonattainment Areas,''
along with the Regional Haze SIP Plan provide for consultation with
government officials whose jurisdictions might be affected by SIP
development activities. These consultation procedures were developed in
coordination with the transportation partners in the State and are
consistent with the approaches used for development of mobile
inventories for SIPs. Implementation of transportation conformity as
outlined in the consultation procedures requires NCDAQ to consult with
federal, state and local transportation and air quality agency
officials on the development of motor vehicle emissions budgets. The
Regional Haze SIP provides for consultation between appropriate state,
local, and tribal air pollution control agencies as well as the
corresponding Federal Land Managers. EPA has made the preliminary
determination that North Carolina's SIP and practices adequately
demonstrate that the State meets applicable requirements related to
consultation with government officials for the 2008 8-hour ozone NAAQS
when necessary.
Public notification (127 public notification): Rule 15A NCAC 2D
.0300 ``Air Pollution Emergencies'' provides North Carolina with the
authority to declare an emergency and notify the public accordingly
when it finds that a generalized condition of water or air pollution
which is causing imminent danger to the health or safety of the public.
In addition, the North Carolina SIP process affords the public an
opportunity to participate in regulatory and other efforts to improve
air quality by holding public hearings for interested persons to appear
and submit written or oral comments. Rule 15A NCAC 2D .0530
``Prevention of Significant Deterioration,'' requires the owners and
operators of major stationary sources and major modifications to apply
for and receive, as appropriate, a permit as described in Rule 15A NCAC
02Q .0300. Rule 15A NCAC 02Q. 0306 provides for public notice for
comments with an opportunity to request a public hearing on the draft
permits required pursuant to Rule 15A NCAC 2D. 0530. EPA also notes
that NCDAQ maintains a Web site that provides the public with notice of
the health hazards associated with ozone NAAQS exceedances, measures
the public can take to help prevent such exceedances, and the ways in
which the public can participate in the regulatory process. See http://www.ncair.org/ news/.
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 2008 8-hour ozone NAAQS when
necessary.
Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process. NC
DENR referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under Part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR
does not need to rely on its regional haze program to fulfill its
obligations under section 110(a)(2)(J). As such, EPA has made the
preliminary determination that the visibility protection element of
section 110(a)(2)(J) does not need to be addressed in North Carolina's
infrastructure SIP related to the 2008 8-hour ozone NAAQS.
11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to the USEPA can be made. 15A NCAC 2D .0530 ``Prevention of
Significant Deterioration'' and 15A NCAC 2D .0531 ``Sources in
Nonattainment Areas,'' require that air modeling be conducted in
accordance with 40 CFR part 51, appendix W ``Guideline on Air Quality
Models.'' These regulations demonstrate that North Carolina has the
authority to
[[Page 13320]]
perform air quality modeling and to provide relevant data for the
purpose of predicting the effect on ambient air quality of the 2008 8-
hour ozone NAAQS. Additionally, North Carolina supports a regional
effort to coordinate the development of emissions inventories and
conduct regional modeling for several NAAQS, including the 2008 8-hour
ozone NAAQS, for the Southeastern states. Taken as a whole, North
Carolina's air quality regulations demonstrate that NCDAQ has the
authority to provide relevant data for the purpose of predicting the
effect on ambient air quality of the 2008 8-hour ozone NAAQS. EPA has
made the preliminary determination that North Carolina's SIP and
practices adequately demonstrate the State's ability to provide for air
quality and modeling, along with analysis of the associated data,
related to the 2008 8-hour ozone NAAQS when necessary.
12. 110(a)(2)(L) Permitting fees: This element necessitates that
the SIP require the owner or operator of each major stationary source
to pay to the permitting authority, as a condition of any permit
required under the CAA, a fee sufficient to cover (i) the reasonable
costs of reviewing and acting upon any application for such a permit,
and (ii) if the owner or operator receives a permit for such source,
the reasonable costs of implementing and enforcing the terms and
conditions of any such permit (not including any court costs or other
costs associated with any enforcement action), until such fee
requirement is superseded with respect to such sources by the
Administrator's approval of a fee program under title V.
To satisfy these requirements, North Carolina's infrastructure SIP
submission cites NCGS 143-215.3 ``General powers of Commission and
Department; auxiliary Powers,'' which directs NCDAQ to require a
processing fee in an amount sufficient for the reasonable cost of
reviewing and acting upon PSD and NNSR permits. Regulation 15A NCAC 2Q
.0200 ``Permit Fees,'' implements this directive and requires the owner
or operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under the CAA, a
sufficient fee to cover the costs of the permitting program.
Additionally, North Carolina has a fully approved title V operating
permit program that covers the cost of implementation and enforcement
of PSD and NNSR permits after they have been issued. EPA has made the
preliminary determination that North Carolina's practices adequately
provide for permitting fees related to the 2008 8-hour ozone NAAQS,
when necessary.
13. 110(a)(2)(M) Consultation and Participation by Affected Local
Entities: This element requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. North Carolina 15A NCAC 2D .0530 ``Prevention of
Significant Deterioration,'' and NCGS 150B-21.1 and -21.2 authorize and
require NCDAQ to advise, consult, cooperate and enter into agreements
with other agencies of the state, the Federal Government, other states,
interstate agencies, groups, political subdivisions, and industries
affected by the provisions of this act, rules, or policies of the
Department. Furthermore, NCDAQ has demonstrated consultation with, and
participation by, affected local entities through its work with local
political subdivisions during the developing of its Transportation
Conformity SIP, Regional Haze Implementation Plan, and the 8-Hour Ozone
Attainment Demonstration for the North Carolina portion of the
Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the
preliminary determination that North Carolina's SIP and practices
adequately demonstrate consultation with affected local entities
related to the 2008 8-hour ozone NAAQS, when necessary.
V. Proposed Action
With the exception of the PSD permitting requirements for major
sources of section 110(a)(2)(C) and (J), the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through
4), and the state board requirements of section 110(a)(E)(ii), EPA is
proposing to approve that NCDAQ's infrastructure SIP submissions,
submitted November 2, 2012, for the 2008 8-hour ozone NAAQS have met
the above described infrastructure SIP requirements. EPA is proposing
to approve these portions of North Carolina's infrastructure SIP
submission for the 2008 8-hour ozone NAAQS because these aspects of the
submission are consistent with section 110 of the CAA. EPA will address
those portions of North Carolina's infrastructure SIP submission not
acted upon through this notice in a separate action.
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).
[[Page 13321]]
In addition, the North Carolina SIP is not approved to apply on any
Indian reservation land or in any other area where EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it
impose substantial direct costs on tribal governments or preempt tribal
law.
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: February 20, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-05647 Filed 3-12-15; 8:45 am]
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