[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Rules and Regulations]
[Pages 66133-66136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27747]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2018-0432; FRL-9988-25-Region 4]
Air Plan Approval; North Carolina: NOX Rule Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of a State Implementation Plan (SIP) revision submitted by the
State of North Carolina, through the North Carolina Division of Air
Quality (NCDAQ) on June 5, 2017, as supplemented on June 28, 2018. This
submittal seeks to revise the State's SIP-approved rules regarding
nitrogen oxides (NOX) emissions from large stationary
combustion sources. This action is being taken pursuant to section 110
of the Clean Air Act (CAA or Act).
DATES: This rule will be effective January 25, 2019.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2018-0432. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through 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
[[Page 66134]]
official hours of business are Monday through Friday 8:30 a.m. to 4:30
p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Jane Spann, Air Regulatory Management
Section, Air Planning and Implementation Branch, Pesticides and Toxics
Management Division, Region 4, U.S. Environmental Protection Agency, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Spann can be
reached by phone at (404) 562-9029 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. This Action
Pursuant to section 110 of the CAA, EPA is approving changes to the
North Carolina SIP. EPA has evaluated the relevant portions of North
Carolina's June 5, 2017, SIP revision, as supplemented on June 28,
2018, and has determined that they meet the applicable requirements of
the CAA and EPA regulations.\1\ In this final rulemaking, EPA is also
responding to comments received on the proposed rulemaking.
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\1\ On June 5, 2017, NCDAQ submitted a SIP revision addressing
regulations under 15A North Carolina Administrative Code (NCAC) 02D
Sections .1407--``Boilers and Indirect-Fired Process Heaters'' and
.1408--``Stationary Combustion Turbines'' that is separate from the
SIP revision that EPA is finalizing today. On August 14, 2002, and
again on November 19, 2008, NCDAQ submitted amendments to Sections
.1407 and .1408 along with many other rule amendments. NCDAQ's
intention, as outlined in its June 5, 2017, SIP submittal for
Sections .1407 and .1408, was to withdraw the November 19, 2008,
submittal related to these rules. However, EPA already approved the
portion of the November 19, 2008, submittal related to Sections
.1407 and .1408 on May 9, 2013. See 78 FR 27065. Therefore, no
further action is needed on the June 5, 2017 SIP submittal
containing Sections .1407 and .1408 as the latest version of these
rules have been previously incorporated into the federally-approved
SIP.
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II. Background
On September 18, 2001, North Carolina submitted rule sections
regarding the control of NOX emissions from large stationary
combustion sources to EPA for approval into its SIP.\2\ North Carolina
submitted rule changes under 15A North Carolina Administrative Code
(NCAC) 02D .1400--``Nitrogen Oxides'' at the following Sections:
.1401--``Definitions''; .1403--``Compliance Schedules''; .1413--
``Sources Not Otherwise Listed in This Section''; .1414--``Tune-up
Requirements''; and .1423--``Large Internal Combustion Engines'' as
well as other rules not related to today's proposed action.\3\ The
submittal also included Section .1406--``Utility Boilers (Repealed)''
with no regulatory text. EPA approved the September 18, 2001, SIP
revision on December 27, 2002, with the exception of Section .1406 and
the addition of Sections .1413 and .1414, among others. EPA did not act
on Section .1406 because the rule contained no regulatory text and
because Section .1406 was not in the SIP, thus there was nothing to
repeal. See 67 FR 78987 for further information.
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\2\ See Section .1402--``Applicability'' and the definition of
``source'' in Section .1401 for the scope of this rule section.
\3\ In the table of North Carolina regulations federally
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred
to as ``Subchapter 2D Air Pollution Control Requirements.''
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On August 14, 2002, North Carolina submitted a SIP revision to EPA
containing changes under Subchapter 2D to its Section .1400
NOX rules. The submission included changes to Sections
.1401--``Definitions''; .1403--``Compliance Schedules''; .1413--
``Sources Not Otherwise Listed in This Section''; .1414--``Tune-up
Requirements''; and .1423--``Large Internal Combustion Engines'' as
well as changes to other rules not related to today's proposed action.
The submittal again included Section .1406--``Utility Boilers
(Repealed)'' with no regulatory text. North Carolina took these rule
changes to hearing on May 21, 2001, and June 5, 2001. EPA did not act
on the August 14, 2002, submittal.
On June 5, 2017, North Carolina withdrew its August 14, 2002, SIP
submittal and resubmitted the changes to Sections .1401, .1403, .1413,
.1414, and .1423 contained in the 2002 submittal along with the repeal
of Section .1406. The June 5, 2017, submittal relies on the hearing
record associated with the August 14, 2002, submittal because the rule
text is identical. On June 28, 2018, North Carolina supplemented its
June 5, 2017, submittal to acknowledge that Sections .1413 and .1414
are not in the SIP.
In a notice of proposed rulemaking (NPRM) published on November 5,
2018, EPA proposed approval of the June 5, 2017, SIP submission, as
supplemented June 28, 2018. See 83 FR 55335. Comments on the NPRM were
due on or before November 26, 2018. EPA received supporting comments
and adverse comments on the proposed rule. The Agency has summarized
and responded to the potentially adverse comments below (the commenters
are hereinafter collectively referred to as ``the Commenter'').
III. Response to Comment
Comment 1: The Commenter states that the world has vastly changed
since the enactment of the Clean Air Act and that the ``science used
through the NC DAQ has changed along with it.'' The Commenter further
states that the ``State Implementation Plan though the Clean Air Act
has been untouched since 2001, and if this is the third of these
attempts it is vital to comply with some of the requests. Climate
change policy as matured in North Carolina, and this is another part of
that development.''
Response 1: It is unclear how the comment relates to the proposal
or how the Commenter would like EPA to change the proposed rule. EPA
has modified the North Carolina SIP numerous times since 2001 in
response to SIP revisions submitted by the State and is taking action
to further modify the SIP as described in the NPRM. See 40 CFR
52.1770(c) and (e). Furthermore, the SIP revision at issue is focused
on the control of NOX emissions and does not expressly
address climate change.
Comment 2: The Commenter notes that North Carolina replaced the
phrase ``optimization of'' with ``utilization'' in the definition of
``reasonable effort'' in Section .1401. According to the Commenter,
``it seems as though North Carolina is trying to avoid an efficient use
of the abatement technology,'' ``avoiding the Clean Air Act's goal,''
and ``not putting in maximum effort to abate NOX.''
Response 2: The criterion for EPA approval in this instance is
whether, under CAA section 110(l), the SIP revision would interfere
with any applicable requirement concerning attainment and reasonable
further progress or any other applicable CAA requirement. As discussed
in the NPRM, EPA does not believe that approval would violate section
110(l) given the limited applicability of the provision, the continued
requirement to follow manufacturers' recommendations or other similar
guidance, the fact that it was state effective in 2002, and the lack of
nonattainment areas in the State for any criteria pollutant.
Comment 3: Regarding Section .1413--Sources Not Otherwise Listed in
This Section, the Commenter states that it is important to specify RACT
in the SIP ``as it shows the EPA is requiring all sources of
NOX combustion to specify their usage of RACT.'' The
Commenter states that the rule ``could go a step further and the EPA
could mandate Best Available Control Technology [BACT]. This makes it
seem like North Carolina is trying to slide around the rule and not
implement the best-case scenario in terms of abatement.''
Response 3: EPA agrees that it should incorporate Section .1413
into the SIP as a strengthening measure. As a point of clarification,
the rule does not require
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``all sources of NOX combustion to specify their usage of
RACT.'' The rule requires certain sources of NOX--other than
boilers, indirect-fired process heaters, stationary combustion
turbines, and stationary internal combustion engines--at facilities
with a potential to emit of 100 tons per year or more of NOX
or 560 pounds per calendar day or more from May 1 through September 30
to apply RACT.
Regarding the comments concerning BACT, EPA cannot mandate the use
of this control technology under this circumstance. BACT is a CAA
requirement for major new or modified stationary sources subject to the
Prevention of Significant Deterioration (PSD) program under Title I,
Part C of the Act. North Carolina did not submit Section .1413 to EPA
to satisfy the State's PSD obligations under the CAA, and EPA has
already approved North Carolina's PSD program at 15A NCAC 02D .0530,
including its BACT provisions, as meeting CAA requirements and
incorporated the program into the SIP. See, e.g., 47 FR 7836 (February
23, 1982).
Comment 4: Regarding Section .1403--Compliance Schedules, the
Commenter notes that EPA is not acting on this rule because it already
approved a previous submission. The Commenter then states that EPA
``should look into this rule further, as the last effective revision
for this rule was in 2002. Schedules change, and this could be another
example of the EPA not being strict enough in implementing the Clean
Air Act's statutes on North Carolina.''
Response 4: It is unclear how the Commenter would like EPA to
change the proposed rule, and EPA does not agree that the last
effective revision for Section .1403 was in 2002. North Carolina last
modified Section .1403 on July 1, 2007, and EPA approved that version
of the rule into the SIP on May 9, 2013. See 78 FR 27065. Because the
2007 version of the rule (approved by EPA in 2013) superseded the July
15, 2002, version contained in the June 5, 2017, SIP revision, EPA is
not taking action on the portion of the submittal regarding Section
.1403.
Comment 5: The Commenter states that the SIP revisions ``do a good
job in creating a better understanding of North Carolina's abatement
efforts, however the EPA could revisit rules of the previous
submissions. They have chosen to not take action on several rules, but
these rules .1403, .1406 and .1423 could better strengthen the SIP if
they were updated and better evaluated.''
Response 5: It is unclear how the Commenter would like EPA to
change the proposed rule or how Sections .1403, .1406, and .1423 could
strengthen the SIP ``if they were updated and better evaluated.'' As
discussed in Response 4, EPA has already incorporated the most recent
state-effective version of Section .1403 into the SIP. EPA is not
acting on Section .1406--Utility Boilers (Repealed) because the rule
contains no regulatory text and because EPA never incorporated Section
.1406 into the SIP. EPA is not acting on Section .1423 at this time.
Any future action on that rule will occur in a separate rulemaking. To
the extent that the Commenter wants EPA to revisit rules of previous
SIP submissions, EPA notes that this action is limited to the June 5,
2017 SIP revision and that previous SIP submissions on these rules are
no longer before the Agency for review.
IV. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference North Carolina
regulations under Subchapter 2D Air Pollution Control Requirements,
Section .1401--``Definitions,'' modified to clarify which definitions
outside of the rule apply to Section .1400, including definitions from
the CFR, add a definition for ``combustion turbine,'' modify the
definition of ``reasonable effort,'' ``emergency generator,''
``emergency use internal combustion engines,'' ``fossil fuel fired,''
``ozone season,'' ``seasonal energy input'' and ``seasonal energy
output,'' and renumber the paragraphs within the rule, state effective
on July 15, 2002; Section .1413--``Sources Not Otherwise Listed in This
Section,'' which includes rules for NOX sources not
otherwise listed in section .1400, state effective on July 18, 2002;
and Section .1414--``Tune-Up Requirements,'' which includes tune-up
requirements for certain boilers, indirect-fired process heaters and
stationary internal combustion engines, state effective on July 18,
2002. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 4
Office (please contact the person identified in the FOR FURTHER
INFORMATION CONTACT section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the State implementation plan, have been incorporated by reference by
EPA into that plan, are fully federally enforceable under sections 110
and 113 of the CAA as of the effective date of the final rulemaking of
EPA's approval, and will be incorporated by reference in the next
update to the SIP compilation.\4\
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\4\ See 62 FR 27968 (May 22, 1997).
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V. Final Action
Pursuant to section 110 of the CAA, EPA is approving the
aforementioned changes to the North Carolina SIP.
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. This action merely
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
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
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appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898 (59 FR 7629, February 16, 1994).
The 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by February 25, 2019. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
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.
Dated: December 6, 2018.
Mary S. Walker,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. In Sec. 52.1770, the table in paragraph (c)(1) is amended by:
0
a. Revising the entry ``Section .1401''.
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b. Adding the entries ``Section .1413'' and ``Section .1414'' in
numerical order.
The additions and revision read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
(1) EPA-Approved North Carolina Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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Subchapter 2D Air Pollution Control Requirements
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* * * * * * *
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Section .1400 Nitrogen Oxides
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Section .1401................. Definitions........... 7/15/2002 12/26/2018, [insert ....................
Federal Register
citation].
* * * * * * *
Section .1413................. Sources Not Otherwise 7/18/2002 12/26/2018, [insert ....................
Listed in This Federal Register
Section. citation].
Section .1414................. Tune-Up Requirements.. 7/18/2002 12/26/2018, [insert ....................
Federal Register
citation].
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[FR Doc. 2018-27747 Filed 12-21-18; 8:45 am]
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