[Federal Register Volume 84, Number 108 (Wednesday, June 5, 2019)]
[Proposed Rules]
[Pages 26031-26041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11758]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0303; FRL-9994-66-Region 4]
SIP Call Withdrawal and Air Plan Approval; NC: Large Internal
Combustion Engines NOX Rule Changes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Environmental Protection Agency (EPA) Region 4 (Region 4) is
proposing to approve a portion of a State Implementation Plan (SIP)
revision submitted by the state of North Carolina, through the North
Carolina Division of Air Quality (NC DAQ), in a letter dated June 5,
2017, which changes North Carolina's SIP-approved rule regarding
nitrogen oxides (NOX) emissions from large internal
[[Page 26032]]
combustion engine sources. In so doing, Region 4 is first considering
adopting an alternative policy regarding startup, shutdown, and
malfunction (SSM) exemption provisions in SIPs that departs from EPA's
2015 national policy on this subject and, accordingly, if that policy
is adopted, is also proposing to withdraw the SIP call issued to North
Carolina for exemptions contained in the existing SIP-approved
provisions for SSM events.
DATES: Comments must be received on or before August 5, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2019-0303 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Joel Huey, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. Mr. Huey can be reached by phone at (404) 562-9104 or via
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
The following topics are discussed in this preamble:
I. Background on SIPs
II. EPA's SSM SIP Policy
III. Alternative Policy Under Consideration on Exemption Provisions
in SIPs
IV. Region 4's Evaluation of the North Carolina SIP and Proposal
With Respect to the North Carolina SIP Call
V. Region 4's Proposal To Approve North Carolina's June 5, 2017, SIP
Revision
A. Summary of North Carolina's June 5, 2017, SIP Revision
Changes to Rule .1423
B. Region 4's Analysis of North Carolina's June 5, 2017, SIP
Revision Changes to Rule .1423
VI. Incorporation by Reference
VII. Proposed Action
VIII. Statutory and Executive Order Reviews
I. Background on SIPs
Pursuant to Clean Air Act (CAA or Act) section 110, states adopt
and periodically revise SIPs with a goal of attaining and maintaining
the national ambient air quality standards (NAAQS).\1\ A SIP or SIP
revision contains state regulatory or statutory requirements and is
submitted by the state to EPA for approval. If EPA determines the SIP
submission meets the applicable requirements of the CAA, EPA must
approve the submission. Upon EPA's approval of the submission, the SIP
provisions that EPA approves become federally enforceable.
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\1\ See 40 CFR part 50.
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Certain events trigger the need for a state to revise or update its
SIP. For example, ``infrastructure'' SIP revisions are required after
EPA promulgates a new or revised NAAQS. Revisions to the SIP are
required after an area is designated or redesignated nonattainment for
a NAAQS. A state may be required to revise its SIP after EPA revises
its rules to clarify certain requirements of the CAA. A state may also
revise its SIP on its own initiative due to revisions to state law or
the need to update its regulations. EPA must act on each submitted SIP
revision in accordance with applicable CAA requirements.
If EPA determines at any time that a SIP is substantially
inadequate to attain or maintain the relevant NAAQS, to mitigate
interstate pollutant transport, or to otherwise comply with CAA
requirements, EPA will issue a ``SIP call'' pursuant to CAA section
110(k)(5) requiring the state to revise the SIP to address the
inadequacy.
In this action, Region 4 is proposing to approve a SIP revision
submitted by NC DAQ, through a letter dated June 5, 2017, which seeks
to change North Carolina's SIP-approved rule regarding NOX
emissions from large internal combustion engine sources at 15A N.C.
Admin. Code 02D .1423. Relevant to this action, in 2015 EPA restated
its national policy prohibiting the inclusion of provisions in SIPs
that exempt excess emissions during periods of SSM and issued a SIP
call to North Carolina to address two specific provisions in the
State's implementation plan that provide discretion to the state agency
to exempt emissions from being considered a violation of an otherwise
applicable appropriate rule, in certain circumstances.\2\ Also
relevant, the June 5, 2017, SIP submission revises a different
provision in the NC code that was not included in the 2015 SSM SIP call
but which includes a sub-provision that automatically exempts from
regulation periods of startup, shutdown and malfunction, not to exceed
36 consecutive hours, and scheduled maintenance activities.\3\
Accordingly, in order to approve the June 5, 2017, SIP revision, Region
4 is first considering adopting an alternative policy with respect to
SSM exemption provisions in SIPs. If Region 4 adopts an alternative
policy, Region 4 is also proposing to withdraw the SIP call issued to
North Carolina based on the alternative policy under consideration
regarding SSM exemptions, the rationale for which is discussed in
Section III in this document. Region 4's proposed approval of the
NOX emissions SIP revision is described in Section V in this
document.
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\2\ See 80 FR 33839, 33964 (June 12, 2015). EPA issued a SIP
call regarding provisions 15A N.C. Admin. Code 2D .0535(c) and 15A
N.C. Admin. Code 2D .0535(g).
\3\ 15A N.C. Admin. Code 02D .1423 was not included in the 2015
SSM SIP call because, in that action, EPA elected to review the
specific provisions identified by Sierra Club in its petition
regarding the SSM SIP call. 80 FR at 33880.
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II. EPA's SSM SIP Policy
In the final SSM SIP Call Action of 2015,\4\ EPA updated and
restated its national policy regarding provisions in SIPs that exempt
periods of SSM events from otherwise applicable emission limitations.
Referencing previously issued guidance documents and regulatory
actions, the Agency expressed its interpretation of the CAA that SIP
provisions cannot include exemptions from emission limitations for
emissions during SSM events.\5\ EPA's position in the 2015 SSM SIP Call
was that the general definitions provision of the CAA providing that an
emission limitation must apply to a source ``continuously'' means that
an approved SIP cannot include periods during which emissions from
sources are legally or functionally exempt from regulation.
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\4\ See 80 FR 33839 (June 12, 2015).
\5\ Id. at 33976.
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In the 2015 SSM SIP Call Action, the Agency defined the term
``automatic exemption'' as a generally applicable SIP provision that
does not consider periods of excess emissions as violations of an
applicable emission limitation if certain conditions existed during the
exceedance period.\6\ The Agency defined a ``director's discretion
[[Page 26033]]
provision'' as a regulatory provision that authorizes a state
regulatory official to grant exemptions or variances from otherwise
applicable emission limitations or to otherwise excuse noncompliance
with applicable emission limitations, where the regulatory official's
determination would be binding on EPA and the public.\7\ The Agency
defined ``emission limitation'' in the SIP context, relying on the
general definition set forth in CAA section 302(k), as a legally
binding restriction on emissions from a source or source category, such
as a numerical emission limitation, a numerical emission limitation
with higher or lower levels applicable during specific modes of source
operation, a specific technological control measure requirement, a work
practice standard, or a combination of these things as components of a
comprehensive and continuous emission limitation.\8\ As stated in the
2015 SSM SIP Call Action, the Agency took the position that an emission
limitation ``must be applicable to the source continuously, i.e.,
cannot include periods during which emissions from the source are
legally or functionally exempt from regulation.'' \9\
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\6\ Id. at 33977.
\7\ Id.
\8\ Id.
\9\ Id.
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Relying substantially on its interpretation of the general
definition of emission limitation in CAA section 302(k)--specifically,
that that definition provides that emission limitations must limit
emissions of air pollutants ``on a continuous basis''--the Agency
explained its position that exemptions from emission limitations in
SIPs, whether automatic or discretionary, were not permissible in
SIPs.\10\ EPA explained that even a brief exemption from an otherwise
applicable limit would render the emission limitation non-
continuous.\11\
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\10\ Id.
\11\ Id.
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With respect to discretionary exemptions, the Agency took the
position that a regulatory official's grant of an exemption pursuant to
a ``director's discretion'' exemption could result in air agency
personnel modifying a SIP requirement without going through the CAA
statutory process for SIP revisions.\12\ In the 2015 SSM SIP Call
Action, the Agency did allow that some director's discretion exemptions
could be included in SIPs, if those exemptions were structured such
that variances or deviations from the otherwise applicable emission
limitation or SIP requirement were not valid as a matter of federal law
unless and until EPA approved the exercise of the director's discretion
as a SIP revision.\13\
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\12\ Id. at 33918 (referencing CAA sections 110(k)(3), which
establishes the framework for EPA to fully or partially approve SIP
submittals, and 110(l) and 193, which specify that revisions to SIPs
must be submitted to EPA and can approved only if the Administrator
determines that the revisions meet specific requirements, including
non-interference with attainment and reasonable further progress and
equivalent or greater emission reductions in nonattainment areas).
See also id. at 33977-78.
\13\ Id. at 33978.
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In the 2015 SSM SIP Call Action, EPA relied on Sierra Club v.
Johnson, 551 F.3d 1019 (D.C. Cir. 2008), as further support for the
Agency's position on excluding SSM exemption provisions in SIPs.\14\ In
Sierra Club, the D.C. Circuit evaluated the validity of an SSM
exemption in a CAA section 112 rule. Reading CAA sections 112 and
302(k) together, the D.C. Circuit found that ``the SSM exemption
violates the CAA's requirement that some section 112 standard apply
continuously.'' \15\ In 2015, EPA interpreted the 2008 Sierra Club
decision regarding section 112 requirements and applied the reasoning
of that decision to the requirements of CAA section 110, specifically
CAA section 110(a)(2)(A), which provides that SIPs shall include
``enforceable emission limitations and other control measures, means,
or techniques . . . as may be necessary or appropriate to meet the
applicable requirements of this chapter.'' \16\ EPA's application of
the Sierra Club decision to section 110 SIP requirements was based on
an understanding that the D.C. Circuit was interpreting the definition
of ``emission limitation'' in CAA section 302(k) that applies generally
to the Act. Following this reasoning, EPA determined that Sierra Club
was consistent with the Agency's position, as expressed in previously
issued guidance documents and regulatory actions that prohibited
exemption provisions for otherwise applicable emission limits in SIPs
(such as automatic exemptions granted for startup, shutdown, and
malfunction events).
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\14\ See, e.g., id. at 33852, 33874, 33892-94.
\15\ 551 F.3d at 1027-28.
\16\ 42 U.S.C. 7410(a)(2)(A) (emphasis added).
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III. Alternative Policy Under Consideration on Exemption Provisions in
SIPs
In reviewing the North Carolina SIP revision at issue, as well as
the existing SIP provisions and other SIP revisions pending in the
Region, Region 4 is considering the national policy regarding SSM
exemptions in SIPs included in the 2015 SSM SIP Call Action, described
previously, and is evaluating whether there is a reasonable alternative
way to consider SSM provisions in SIPs that allows such exemptions if
the SIP considered as a whole is protective of the NAAQS.\17\ The
compilation of state and federal requirements in the SIP result from
the federal-state partnership that is the foundation of the CAA, as
well as the various requirements of the Act. Although some SIPs may
contain SSM exemptions for limited periods applicable to discrete
standards, SIPs are composed of numerous planning requirements that are
collectively NAAQS-protective by design. In some cases, these
overlapping requirements provide additional protection of the standard
that may lead Region 4 to reasonably conclude that the SIP adequately
provides for attainment and maintenance of the NAAQS, even if the SIP
allows exemptions to specific emissions limits for discrete periods,
such as SSM events. Such redundancy helps ensure that the NAAQS are
both attained and maintained, a goal of Congress when it created the
SIP adoption and approval process.\18\ All of these factors could be
appropriate to consider when evaluating whether a SIP is adequate to
attain and maintain the NAAQS.
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\17\ The 2015 SSM Action explained that while a SIP may contain
provisions that apply during periods of SSM, the applicability of
those provisions was not plain on the face of the SIP provision. See
generally 80 FR at 33943. As explained in this document, EPA Region
4 is considering whether it is reasonable to take a broader
perspective of its evaluation of SIPs and provisions that ensure
attainment and maintenance of the NAAQS.
\18\ See, e.g., H.R. Rep. 91-1783 at 193-95 (1970).
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As discussed previously, the 2015 SSM SIP Call Action updated and
restated EPA's SSM policy that SIPs containing any type of SSM
exemptions were not approvable because exemptions from emission
limitations created the possibility that a state could not ensure
attainment or maintenance of the NAAQS for one or more criteria
pollutants. This policy is predicated on the idea that an emission
limitation or standard could not apply continuously if the SIP
permitted exemptions for any period of time from the emission
limitation or standard. Under this policy, the lack of continuous
control was viewed as creating a substantial risk that exemptions could
permit excess emissions that could ultimately result in a NAAQS
violation. However, as will be discussed further in this section,
Region 4 is considering whether the general requirements in CAA section
110 to attain and maintain the NAAQS and the
[[Page 26034]]
inherent flexibilities of the SIP development process create a
framework in which a state may be able to ensure attainment and
maintenance of the NAAQS notwithstanding the presence of SSM exemptions
in the SIP.
As an initial matter, the D.C. Circuit's decision in Sierra Club
does not, on its face, apply to SIPs and actions taken under CAA
section 110. In the 2015 SSM SIP Call Action at 80 FR 33839, EPA took
the position that the legal reasoning of the D.C. Circuit's Sierra Club
decision applied equally to SSM exemptions contained in CAA section 112
rules and in CAA section 110 approved SIPs and relied on that
interpretation to support the Agency's position that SSM exemptions
were inconsistent with CAA requirements. At the time, the Agency's
interpretation was that CAA section 302(k) applied broadly and required
that emission limitations under the CAA be continuous as a general
matter. See 80 FR at 33874. Further consideration of the facts
surrounding the SIP revision submitted by the state of North Carolina
has shown that an alternative reading of the application of the Sierra
Club decision to CAA section 110 is possible and appropriate. Simply
stated, while the Sierra Club decision did not allow sources to be
exempt from complying with CAA section 112 emission limitations during
periods of SSM, that finding is not necessarily binding on CAA section
110 and EPA's consideration of SIPs under section 110.
The D.C. Circuit in Sierra Club specifically referred to CAA
section 112 when it framed Petitioners' argument and found that the
Agency ``constructively reopened consideration of the exemption from
section 112 emission standards during SSM events.'' \19\ The court's
analysis reads the definition of emission limitation and standard at
CAA section 302(k) in the context of CAA section 112: ``When sections
112 and 302(k) are read together then, Congress has required that there
must be continuous section 112-compliant standards.'' \20\ Further,
specific to CAA section 112 rules, the court explained, ``[i]n
requiring that sources regulated under section 112 meet the strictest
standards, Congress gave no indication that it intended the application
of MACT standards to vary based on different time periods.'' \21\ In
Sierra Club, the court found that when EPA promulgates standards
pursuant to CAA section 112, CAA section 112-compliant standards must
apply continuously. The stringency of section 112 was thus an important
element of the court's decision,\22\ and the court did not make any
statement explicitly applying its holding beyond CAA section 112.
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\19\ Sierra Club, 551 F.3d at 1026.
\20\ Id. at 1027.
\21\ Id. at 1028.
\22\ See id. at 1027 (``Section 112(d) provides that
`[e]missions standards' promulgated thereunder must require MACT
standards.'') and 1028 (explaining that Congress intended that
``sources regulated under section 112 meet the strictest
standards.'').
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While EPA chose to rely on the Sierra Club decision in the 2015 SSM
SIP Call Action, the decision itself does not speak to whether the
rationale articulated with respect to SSM exemptions in CAA section 112
rules applies to SIPs approved under CAA section 110. As will be
discussed below, there may be a reasonable basis to conclude the Sierra
Club decision does not need to be extended to section 110. CAA section
112 sets forth a prescriptive standard-setting framework; CAA section
110 does not. CAA sections 112 and 110 have different goals and
establish different approaches for EPA implementation. Given the Sierra
Club decision's singular focus on CAA section 112 standards, and the
vastly different purposes and implementation approaches between CAA
sections 110 and 112, there may be a reasonable basis for interpreting
the decision as only applying to CAA section 112.
CAA section 112 is fundamentally different from CAA section
110(a)(2)(A). Importantly, the court in Sierra Club recognized that
Congress intended ``that sources regulated under section 112 meet the
strictest standards.'' \23\ Under CAA section 112, once a source
category is listed for regulation pursuant to CAA section 112(c), the
statute directs EPA to use a specific and exacting process to establish
nationally applicable, category-wide, technology-based emissions
standards under section 112(d).\24\ Under section 112(d), EPA must
establish emission standards for major sources that ``require the
maximum degree of reduction in emissions of the hazardous air
pollutants subject to this section'' that EPA determines is achievable
taking into account certain statutory factors. EPA refers to these
rules as ``maximum achievable control technology'' or ``MACT''
standards. The MACT standards for existing sources must be at least as
stringent as the average emissions limitation achieved by the best
performing 12 percent of existing sources in the category (for which
the Administrator has emissions information) or the best performing
five sources for source categories with less than 30 sources. See CAA
section 112(d)(3)(A) and (B). This level of minimum stringency is
referred to as the MACT floor. For new sources, MACT standards must be
at least as stringent as the control level achieved in practice by the
best controlled existing similar source. See CAA section 112(d)(3). EPA
also must analyze more stringent ``beyond-the-floor'' control options,
which consider not only the maximum degree of reduction in emissions of
a hazardous air pollutant (HAP), but must take into account costs,
energy, and non-air quality health and environmental impacts when doing
so.\25\
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\23\ Id. at 1028.
\24\ EPA can also set work practices under CAA section 112(h).
\25\ See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 857-
58 (D.C. Cir. 2001).
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In contrast, the CAA sets out a fundamentally different regime with
respect to section 110 SIPs, reflecting the principle that SIP
development and implementation is customizable for each state's
circumstances and relies on the federal-state partnership.\26\ The CAA
sets forth the minimum requirements to attain, maintain, and enforce
air quality standards, while allowing each state to identify and
effectuate an approach that is appropriate for the sources and air
quality challenges specific to each state.\27\ It is important to note
that the NAAQS are levels EPA has identified as safe concentrations of
particular pollutants and serve as the targets for regional air-quality
planning; they are fundamentally different in nature than the source-
specific standards EPA issues under section 112. It may not be
appropriate to directly translate the D.C. Circuit's concern that the
latter standards must apply ``continuously'' to regulate emissions from
a particular source to the context of section 110, where a state's plan
may contain a broad range of measures, including limits on multiple
sources and source categories' emissions of multiple pollutants--all
targeted towards attainment and maintenance of a standard that does not
itself directly apply to any one source. Importantly, regardless of how
a state constructs its SIP, the NAAQS
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themselves are nationally uniform and continuously applicable.
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\26\ See, e.g., Virginia v. EPA, 108 F.3d 1397, 1408 (D.C. Cir.
1997) (``EPA `identifies the end to be achieved, while the states
choose the particular means for realizing that end.''') (quoting Air
Pollution Control Dist. v. EPA, 739 F.2d 1071, 1074 (D.C. Cir.
1984)). See also, e.g., H.R. Rep. No. 95-294, 95th Cong. 1st Sess.
at 213 (explaining that for nonattainment areas, Congress intended
to ``give the States more flexibility in determining how to protect
public health while still permitting reasonable new growth'') (May
12, 1977).
\27\ See Virginia v. EPA, 108 F.3d at 1408.
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The Fourth Circuit has acknowledged that ``[s]tates are accorded
flexibility in determining how their SIPs are structured'' to ensure
that the state meets the NAAQS.\28\ Further, the U.S. Supreme Court has
recognized that the CAA gives a state ``wide discretion'' to formulate
its plan pursuant to CAA section 110 and went so far as to say that
``the State has virtually absolute power in allocating emission
limitations so long as the national standards are met.'' \29\ The U.S.
Supreme Court has also explained, ``so long as the ultimate effect of a
State's choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever
mix of emission limitations it deems best suited to its particular
situation.'' \30\ State and federal government divide this
responsibility, which results in a balance of state and federal rights
and responsibilities. States typically have primary responsibility for
determining how and to what extent to regulate sources within the state
to comply with NAAQS.\31\ In fact, EPA has implemented guidance
addressing a number of requirements in CAA section 110 and specifically
explained that SIPs could satisfy the requirements of CAA section
110(a)(2)(A) by simply ``identify[ing] existing EPA-approved SIP
provisions or new SIP provisions . . . that limit emissions of
pollutants relevant to the subject NAAQS.'' \32\ Given their
understanding of emission sources and air quality within their
jurisdiction, states are uniquely suited and often well-equipped to
determine how best to implement the NAAQS. Just as the environmental
and public health concerns faced by each state vary, so too do the
requirements in each state's implementation plan.
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\28\ North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 299
(4th Cir. 2010).
\29\ See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 250 & 267
(1976). See also id. at 269 (``Congress plainly left with the
States, so long as the national standards were met, the power to
determine which sources would be burdened by regulation and to what
extent.'').
\30\ Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79
(1975).
\31\ See, e.g., Mirant Potomac River, LLC v. EPA, 577 F.3d 223,
227 (4th Cir. 2009) (``Under Title I, states have the primary
responsibility for assuring that air quality within their borders
meets the NAAQS. Title I requires each state to create a State
Implementation Plan . . . to meet the NAAQS.'').
\32\ See September 13, 2013, Memorandum from Stephen D. Page,
``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' at
page 18.
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The statutory text of CAA section 110(a)(2)(A) reflects this
cooperative relationship, providing more flexibility than the text of
CAA section 112, as outlined earlier in this section. CAA section
110(a)(2)(A) generally requires that each SIP shall include
``enforceable emission limitations and other control measures, means,
or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements of this chapter.'' \33\ EPA has never
interpreted this provision to require the type of exacting analysis set
forth in CAA section 112, and it may be reasonable for EPA to decide
not to apply such an interpretation given the flexibility Congress gave
states in section 110. The U.S. Supreme Court has recognized that
principles of statutory construction are not so rigid as to necessarily
require that the same terminology has the exact same meaning in
different parts of the same statute.\34\ Terms can have ``different
shades of meaning,''reflecting ``different implementation strategies''
even when used in the same statute.\35\ Emphasizing that ``[c]ontext
counts,'' the Court explained that ``[t]here is . . . no effectively
irrebuttable presumption that the same defined term in different
provisions of the same statute must be interpreted identically.'' \36\
It is reasonable for the distinct purposes of CAA sections 110 and 112
to guide our interpretation of those provisions, the terms used in
those provisions and how the statute-wide definition of those terms may
be applied in the different context of those two provisions. In other
words, the requirement that the ``emissions standards'' that EPA issues
under section 112, see, e.g., section 112(c)(2), apply continuously
may, as the D.C. Circuit held, prevent EPA from providing SSM
exemptions in those standards. However, at the same time, it may be
reasonable to interpret the concept of continuous ``emission
limitations'' in a SIP to not be focused on implementation of each,
individual limit, but rather whether the approved SIP, as a whole,
operates continuously to ensure attainment and maintenance of the
NAAQS.
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\33\ 42 U.S.C. 7410(a)(2)(A).
\34\ See Envtl. Defense v. Duke Energy Corp., 549 U.S. 561, 574
(2007).
\35\ Id. at 574 (citations omitted).
\36\ Id. at 575-76.
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In addition, CAA section 110(a)(2)(A) requires that SIPs must
``include enforceable emission limitations and other control measures,
means, or techniques . . . as may be necessary or appropriate to meet
the applicable requirements of this chapter.'' \37\ Region 4 is
considering whether a state may provide exemptions from emission
limits, during which times the emission limit may not apply
continuously because the limit is not in effect, so long as the SIP
contains a set of emission limitations, control means, or other means
or techniques, which, taken as a whole, meet the requirements of
attaining and maintaining the NAAQS under Subpart A. A state may be
able to demonstrate that a combination of emission limits that apply
``as may be necessary or appropriate'' during normal operations but not
during SSM periods and ``other control measures, means, or techniques''
that may exist and remain applicable during periods of SSM in which the
exemptions apply--such as general duty provisions in the SIP, work
practice standards, best management practices, or alternative emission
limits--are protective of the NAAQS. Additionally, SIPs typically
include entirely separate provisions, such as minor source and major
source new source review provisions regulating construction or
modification of stationary sources, that also effectively limit
emissions of NAAQS pollutants within the state. Thus, as the U.S.
Supreme Court explained in Duke Energy that a term may be interpreted
differently when used in different parts of the same statute, the CAA
definition of an emission limitation in section 302(k), when read in
the context of section 110, could mean states may, at their discretion,
provide exemptions from specific numerical emission limits during
periods when it is not practicable or necessary for such limits to
apply, so long as the SIP contains other provisions that remain in
effect and ensure the NAAQS are protected. Region 4 is considering
whether, in some cases, it may be appropriate to approve SIPs
containing such exemption provisions if it is reasonable to conclude
that the state's overlapping protective requirements sufficiently
ensure overall attainment and maintenance of the NAAQS.
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\37\ 42 U.S.C. 7410(a)(2)(A) (emphasis added).
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EPA has a statutory duty to approve SIP submissions that meet all
applicable CAA requirements. If it is reasonable to conclude that a
SIP's approach to exemptions is consistent with the requirement to
protect attainment and maintenance of the NAAQS, Region 4 is
considering that states may include, and EPA may approve, such
exemptions in their implementation plans. In such cases, it is
recognized that exemptions from emission limitations may provide
flexibility to states as they develop
[[Page 26036]]
robust approaches to air quality protection through a set of planning
requirements.
In light of these considerations, there may be instances where
automatic exemptions from emission limits for SSM events in a state's
implementation plan do not preclude attainment and maintenance of the
NAAQS, and thus do not preclude approvability; conversely, if the
specific details of an SSM exemptions are such that the Agency cannot
reasonably determine that the SIP adequately ensures attainment and
maintenance of the NAAQS, the subject SIP revision should not be
approved. Any such finding regarding automatic exemptions would require
an evaluation of the specific SIP at issue. A finding that automatic
exemptions do not interfere with attainment and maintenance of the
NAAQS would rely on an evaluation of whether the SIP as a whole
contains provisions to ensure that the NAAQS will be sufficiently
protected while also providing for exempt periods, and a state could
submit information for EPA to evaluate when making such a finding. In
addition to reviewing any information provided by the state, EPA can
consider other available evidence and provide additional analysis, as
necessary, when reviewing SSM emission limitation exemptions in SIPs.
If Region 4 adopts the policy outlined in this section, based on
the analysis provided in Section IV below, Region 4 is considering
changing the finding from the 2015 SSM SIP Call Action at 80 FR 33840
that certain SIP provisions included in the North Carolina SIP are
substantially inadequate to meet CAA requirements. If Region 4 adopts
this alternative policy, Region 4 proposes to find that the subject SIP
provisions are not inconsistent with CAA requirements.
If adopted, the alternative SSM policy is a policy statement and,
thus, would constitute guidance within Region 4. As guidance, this
would not bind states, EPA, or other parties, but it would reflect
Region 4's interpretation of the CAA requirements. The evaluation of
any SIP provision, and that SIP provision's interaction with the SIP as
a whole, must be done through notice-and-comment rulemaking.
IV. Region 4's Evaluation of the North Carolina SIP and Proposal With
Respect to the North Carolina SIP Call
North Carolina's SIP contains provisions that provide exemptions
for emissions exceeding otherwise applicable SIP emission limitations
at the discretion of the state agency during malfunctions (15A Admin.
Code 2D .0535(c)) and during startup and shutdown (15A Admin. Code 2D
.0535(g)). In this action, Region 4 is considering adopting an
alternative policy regarding SSM exemptions and proposing to find the
North Carolina provisions are not substantially inadequate to meet CAA
requirements. Therefore, if Region 4 adopts this policy as described
previously, Region 4 also proposes to withdraw the SIP call originally
issued to North Carolina and published on June 12, 2015.\38\ As
explained more fully below, after considering the SIP as a whole,
Region 4 has identified numerous provisions in the North Carolina SIP
intended to assure that air quality standards will be achieved. Any
provisions providing exemptions for periods of SSM do not alter the
applicability of these general SIP provisions.
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\38\ See 80 FR at 33964.
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On June 12, 2015, EPA found 15A N.C. Admin. Code 2D .0535(c) and
15A N.C. Admin. Code 2D .0535(g) were substantially inadequate to meet
CAA requirements because they provide exemptions during malfunctions
and during startup and shutdown, respectively, for emissions exceeding
otherwise applicable SIP emissions limitations at the discretion of the
state agency. EPA therefore issued a SIP call pursuant to section
110(k)(5) to North Carolina with respect to these provisions. Region 4
is considering these provisions in light of the considerations set
forth above and proposes to withdraw the SIP call for North Carolina
with respect to these two provisions. As explained, a holistic review
of a SIP may show that there are protective provisions that ensure
attainment and maintenance of the NAAQS even though a SIP includes SSM
exemptions, and we believe that this result is not precluded by the
D.C. Circuit decision in Sierra Club v. Johnson.
In analyzing the air quality protections provided by the entirety
of the North Carolina SIP, Region 4 believes there may be a reasonable
basis to conclude that the SIP provides numerous overlapping planning
requirements that are protective of air quality and each individual
criteria pollutant NAAQS. In fact, both of the provisions that were
included in the 2015 SSM SIP Call for North Carolina include
substantial protection of air quality standards within the SIP-called
provision itself.
First, the exemption provided at 2D .0535(g) requires that owners
or operators use best available control practices when operating
equipment to minimize emissions during start-up and shutdown periods.
Specifically, it states:
Start-up and shut-down excess emissions during start-up and shut-
down shall be considered a violation of the appropriate rule if the
owner or operator cannot demonstrate that the excess emissions are
unavoidable when requested to do so by the Director. The Director may
specify for a particular source the amount, time, and duration of
emissions that are allowed during start-up or shut-down. The owner or
operator shall, to the extent practicable, operate the source and any
associated air pollution control equipment or monitoring equipment in a
manner consistent with best practicable air pollution control practices
to minimize emissions during start-up and shut-down. (Emphasis added).
Even though this provision includes an exemption, it also provides
a backstop that requires sources to use the best practicable air
pollution control practices to minimize the risk that emissions during
startup or shutdown periods that could cause an exceedance or violation
of the NAAQS.
Second, the exemption provided at 2D .0535(c) outlines seven
criteria that the director will consider when evaluating whether the
source qualifies for an emissions limit exemption during a malfunction.
Specifically, it states:
Any excess emissions that do not occur during start-up or shut
down shall be considered a violation of the appropriate rule unless
the owner or operator of the source of the excess emissions
demonstrates to the director, that the excess emissions are the
result of a malfunction. To determine if the excess emissions are
the result of a malfunction, the director shall consider, along with
any other pertinent information, the following:
(1) The air cleaning device, process equipment, or process has
been maintained and operated, to the maximum extent practicable, in
a manner consistent with good practice for minimizing emissions;
(2) Repairs have been made in an expeditious manner when the
emission limits have been exceeded;
(3) The amount and duration of the excess emissions, including
any bypass have been minimized to the maximum extent practicable;
(4) All practical steps have been taken to minimize the impact
of the excess emissions on ambient air quality;
(5) The excess emissions are not part of a recurring pattern
indicative of inadequate design, operation, or maintenance;
(6) The requirements of Paragraph (f) of the Regulation have
been met; and
(7) If the source is required to have a malfunction abatement
plan, it has followed that plan.
All malfunctions shall be repaired as expeditiously as
practicable. However, the director shall not excuse excess emissions
[[Page 26037]]
caused by malfunctions from a source for more than 15 percent of the
operating time during each calendar year.
The existence of these specific criteria themselves provide
additional protections of the NAAQS because factors considered by the
director include whether sources minimize emissions and limit the
extent of emissions which could occur to the greatest extent
practicable. Additionally, the provision itself establishes bounds on a
source's ability to employ this exemption, since it prohibits the
director from excusing excess emissions from a source due to
malfunctions for more than 15 percent of the operating time. This
limitation reasonably minimizes the risk that excess emissions from
malfunctions would contribute to a NAAQS exceedance or violation.
Apart from the SIP-called provisions discussed previously, the
North Carolina SIP also contains numerous overlapping requirements
providing for protection of air quality and the NAAQS, which generally
control emissions of NAAQS pollutants. First, 15A N.C. Admin. Code 02D
.0502, which is included in the North Carolina SIP and addresses
emission control standards generally, provides: ``The purpose of the
emission control standards set out in this Section is to establish
maximum limits on the rate of emission air contaminants into the
atmosphere. All sources shall be provided with the maximum feasible
control.'' See 40 CFR 52.1770(c)(1). The requirement for ``maximum
feasible control'' on all sources applies at all times, including
periods of startup and shutdown. Thus, by requiring sources to be
subject to emission control standards established at the maximum
feasible level of control, the SIP ensures that air quality in the
State will be protected to the highest degree possible. This guiding
purpose broadly applies to the emission control standards in Section
.0500 of the North Carolina SIP. North Carolina confirmed as much in
their comment letter on EPA's 2015 SSM policy, explaining that the
State's requirement that sources implement ``maximum feasible control''
is one of the provisions of the SIP that ``provide assurances that air
quality and emission standards will be achieved.'' In light of the
flexibility in CAA section 110(a)(2)(A) and SIP development generally,
we think it is reasonable for North Carolina to develop an overall
emissions control approach that requires all sources to implement
maximum feasible controls even though sources may be exempt from
particular, otherwise applicable emission standards during some smaller
subset of SSM periods.
Second, the North Carolina SIP includes general provisions that
require sources not to operate in such a way as to cause NAAQS
violations. 15A N.C. Admin. Code 02D .0501(e) directs all sources to
operate in a manner that does not cause any ambient air quality
standard to be exceeded at any point beyond the premises on which the
source is located, despite the SIP containing SSM exemptions for
emission limitations. 15A N.C. Admin. Code 2D. 0501(e) states:
In addition to any control or manner of operation necessary to
meet emission standards in this Section, any source of air pollution
shall be operated with such control or in such manner that the
source shall not cause the ambient air quality standards of Section
.0400 of this Subchapter to be exceeded at any point beyond the
premises on which the source is located. When controls more
stringent than named in the applicable emission standards in this
Section are required to prevent violation of the ambient air quality
standards or are required to create an offset, the permit shall
contain a condition requiring these controls.
Accordingly, even if the SIP contains exemptions from specific
emission limits during SSM events, this provision ensures that the
source at issue must ensure that none of its emissions cause a NAAQS
exceedance or violation.
Third, the North Carolina SIP provides additional assurances that
sources will prevent and correct equipment failures that could result
in excess emissions by requiring utility boilers (and any source with a
history of excess emissions, as determined by the director) to have a
malfunction abatement plan approved by the director. Utility boilers in
North Carolina contribute to a significant portion of the point source
pollutant emissions in the State.\39\ 15A N.C. Admin. Code 02D .0535(d)
states:
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\39\ For example, utility boilers in North Carolina contribute
approximately 24 percent of PM10 emissions, 66 percent of
SO2 emissions, and 47 percent of NOX emissions
from total point sources in the State. See spreadsheet titled ``NC
2014 NEI Summary'' in the docket for this action.
All electric utility boiler units subject to a rule in this
section shall have a malfunction abatement plan approved by the
director. In addition, the director may require any source that he
has determined to have a history of excess emissions to have a
malfunction abatement plan approved by the director. The malfunction
plans of electric utility boiler units and of other sources required
to have them shall be implemented when a malfunction or other
breakdown occurs. The purpose of the malfunction abatement plan is
to prevent, detect, and correct malfunctions or equipment failures
---------------------------------------------------------------------------
that could result in excess emissions. . . .
The provision also identifies minimum requirements for a
malfunction abatement plan. Although specific to electric utility
boilers (and other sources as required by the Director), this SIP
provision ensures that subject units are taking steps to prevent,
detect, and correct malfunctions, even if an SSM exemption applies.
This provision serves to limit any excess emissions that could result
from such events, thus limiting the chance that excess emissions would
result in a NAAQS exceedance or violation.
Fourth, the North Carolina SIP provides general provisions to
reduce airborne pollutants and to prevent NAAQS exceedances beyond
facility property lines, despite the SIP containing SSM exemptions for
emission limitations, for particulates from sand, gravel, or crushed
stone operations (at 15A N.C. Admin. Code 2D .0510(a)) and from
lightweight aggregate operations (at .0511(a)):
The owner or operator of a [. . .] operation shall not cause,
allow, or permit any material to be produced, handled, transported
or stockpiled without taking measures to reduce to a minimum any
particulate matter from becoming airborne to prevent exceeding the
ambient air quality standards beyond the property line for
particulate matter, both PM10 and total suspended
particulates.
And in a similar manner, the North Carolina SIP includes general
provisions to reduce airborne pollutants and to prevent NAAQS
exceedances beyond facility property lines for particulates from wood
products finishing plants (at 15A N.C. Admin. Code 2D .0512):
A person shall not cause, allow, or permit particulate matter
caused by the working, sanding, or finishing of wood to be
discharged from any stack, vent, or building into the atmosphere
without providing, as a minimum for its collection, adequate duct
work and properly designed collectors, or such other devices as
approved by the commission, and in no case shall the ambient air
quality standards be exceeded beyond the property line.
Accordingly, even if the SIP contains exemptions from specific
emission limits during SSM events, these provisions ensure that the
source at issue must ensure that none of its emissions cause a NAAQS
exceedance or violation.
Fifth, the North Carolina SIP provides a general requirement at 15A
N.C. Admin. Code 2D .0521(g) for sources that operate COMS that ``[i]n
no instance shall excess [opacity] emissions exempted under this
Paragraph cause or contribute to a violation of any emission standard
in this Subchapter or 40 CFR part 60, 61, or 63 or any ambient air
quality
[[Page 26038]]
standard in Section 15A N.C. Admin. Code 2D.0400 or 40 CFR part 50.''
Each of these provisions ensures that emissions are minimized to
protect air quality, independent of an SSM exemption that may also
apply. Further, as recognized by this provision, federal standards in
40 CFR parts 60, 61, and 63 applicable to the source apply and regulate
sources emissions and operation, regardless of any SSM exemption in the
SIP.
Finally, we note that the SIP includes an overall strategy for
bringing all areas into compliance with the NAAQS for all pollutants
regulated by the CAA. On September 26, 2011 (76 FR 59250), Region 4
approved into the SIP significant NOX and SO2
emission limitations from the North Carolina Clean Smokestacks Act
(NCCSA). This state law became effective in 2007 and set caps on
NOX and SO2 emissions from public utilities
operating coal-fired power plants in the State that cannot be met by
purchasing emissions credits. See 40 CFR 52.1781(h). The NCCSA resulted
in permanent emission reductions that helped nonattainment areas in the
State achieve attainment of the 1997 Annual PM2.5 NAAQS.\40\
Thus, even if a source could avail itself of an SSM exemption for
certain emissions, its total emissions must fit within the utility-wide
cap for the State provided under a law adopted as part of a
comprehensive plan for improving air quality in North Carolina.
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\40\ See Approval and Promulgation of Implementation Plans and
Designation of Areas for Air Quality Planning Purposes; North
Carolina: Redesignation of the Hickory-Morganton-Lenoir 1997 Annual
Fine Particulate Matter Nonattainment Area to Attainment; Proposed
Rule, 76 FR 58210,58217 (September 20, 2011), and Approval and
Promulgation of Implementation Plans and Designation of Areas for
Air Quality Planning Purposes; North Carolina: Redesignation of the
Greensboro-Winston Salem-High Point 1997 Annual Fine Particulate
Matter Nonattainment Area to Attainment; Proposed Rule, 76 FR
59345,59352 (September 26, 2011).
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In addition to the general SSM exemption issues discussed
previously, in the 2015 SSM SIP Call Action, EPA also raised concerns
that North Carolina's 15A N.C. Admin. Code 2D .0535(c) and 15A N.C.
Admin. Code 2D .0535(g) are examples of what EPA referred to as
``director's discretion'' exemptions. These SIP provisions identify
between five and seven criteria that the Director of North Carolina
Department of Environmental Quality will evaluate to determine whether
excess emissions resulting from a malfunction or startup and shutdown,
respectively, are a violation of the given standard. In the 2015 SSM
SIP Call Action, EPA took the position that these director's discretion
provisions were also problematic because they allow air agency
personnel to modify existing SIP requirements under certain conditions,
which essentially constituted a variance from an otherwise applicable
emission limitation. EPA considered director's discretion provisions to
effectively permit impermissible SIP revisions by allowing air agency
personnel to make unilateral decisions on an ad hoc basis regarding
excess emissions during SSM events and, thus, as not in compliance with
the necessary process required for SIP revisions.\41\
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\41\ See 80 FR at 33977 and 33978.
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Acknowledging those concerns, we now consider finding that
director's discretion SSM exemptions may not necessarily make a SIP
substantially inadequate to meet CAA requirements.\42\ As explained,
supra in section III, in certain circumstances, Region 4 is considering
adopting a policy that automatic exemptions during periods of SSM may
not be inherently inconsistent with CAA section 110(a)(2)(A). Because
automatic SSM exemptions may not necessarily render the SIP inadequate,
Region 4 is considering also finding that director's discretion
exemptions also may not necessarily render the SIP inadequate. Further,
consistent with the perspective being evaluated by Region 4 that SIPs
can generally protect against NAAQS violations and that SIP provisions
containing SSM exemptions may not be inconsistent with CAA
requirements, Region 4 has reviewed EPA's 2015 interpretation and is
considering that director's discretion provisions may not constitute an
improper SIP revision. If a director's discretion provision establishes
a framework for when and how an air agency director may determine that
SSM excess emissions do not constitute a violation, and that framework
was approved into the SIP after going through a public process, any
action by the director consistent with the provision would simply be
acting in accordance with the SIP-approved provisions; it would not be
an unlawful revision of the SIP.
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\42\ See Texas v. EPA, 690 F.3d 670 (5th Cir. 2012); Luminant
Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) (vacating and
remanding EPA's disapproval of discretionary SIP provisions).
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Given the specific criteria contained within them, director's
discretion provisions would likely excuse emissions in more limited
circumstances than automatic exemptions. Accordingly, the same
reasoning that supports our potential position that automatic
exemptions in SIPs may not be inconsistent with the CAA also informs
our potential position that the director's discretion provisions in the
North Carolina SIP that were SIP-called in the 2015 SSM SIP Call may
not be inconsistent with the CAA. This potential finding would be
predicated on a holistic finding that included consideration of all of
the provisions in the North Carolina SIP. Relevant to this evaluation,
as discussed previously, the North Carolina SIP includes provisions
that provide for sources to be operated in a manner that does not cause
an exceedance or violation of the NAAQS, and that requirement is not
displaced by this director's discretion exemption. The North Carolina
director's discretion provisions outline the conditions under which air
agency personnel can make a factual decision that SSM emissions do not
constitute a violation, and that limitation is part of Region 4's
holistic consideration of the SIP. The SIP, as approved, provides air
agency personnel with the framework and authority to exempt excess
emissions from being a violation. Because that allowance is approved
into the SIP, and the SIP provisions went through a public comment
period prior to EPA's final action to approve the SIP, Region 4 is
evaluating whether acting in accordance with these approved provisions
would not constitute unlawful SIP revisions.
As part of the 2015 SSM SIP Call Action, EPA issued CAA section
110(k)(5) SIP calls to a number of states, including North Carolina
regarding provisions 15A N.C. Admin. Code 2D .0535(c) and 15A N.C.
Admin. Code 2D .0535(g).\43\ In the 2015 SSM SIP Call Action, the
Agency explained that it would evaluate any pending SIP submission or
previously approved submission through notice-and-comment rulemaking
and, as part of that action, determine whether a given SIP provision is
consistent with CAA requirements and applicable regulations.\44\
Proposed re-evaluations on those issues are part of this notice-and-
comment action.
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\43\ See 80 FR at 33964.
\44\ Id. at 33976.
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As discussed, the North Carolina SIP contains numerous provisions
that work in concert and provide redundancy to protect against a NAAQS
exceedance or violation, even if an SSM exemption provision also
applies. Therefore, based on an analysis of the multiple provisions
contained in the North Carolina SIP that are designed to be protective
of the NAAQS, Region 4 proposes to conclude that it is reasonable for
the North Carolina air agency director to be able to exclude qualifying
periods of excess emissions
[[Page 26039]]
during periods of SSM without posing a significant risk to attainment
or maintenance of the NAAQS. Consistent with the alternative policy
being considered, set forth above, Region 4 has reviewed the
applicability of the SIP call previously issued to North Carolina,
including EPA's specific evaluation of the State's subject SIP, and, if
that policy is adopted, proposes to withdraw the SIP call that was
issued in the 2015 SSM SIP action with respect to 15A N.C. Admin. Code
2D .0535(c) and 15A N.C. Admin. Code 2D .0535(g).
EPA's CAA regulations allow EPA Regions to take actions that
interpret the CAA in a manner inconsistent with national policy when
the Region seeks and obtains concurrence from the relevant EPA
Headquarters office. Pursuant to EPA's regional consistency regulations
at 40 CFR 56.5(b), the Acting Region 4 Regional Administrator sought
and obtained concurrence from the relevant office in EPA's Office of
Air and Radiation to propose an action that outlines an alternative
policy that is inconsistent with the national EPA policy, most recently
articulated in the 2015 SSM SIP Action, on provisions exempting
emissions exceeding otherwise applicable SIP limitations during periods
of unit startup, shutdown and malfunction at the discretion of the
state agency and propose action consistent with that alternative
policy. The concurrence request memorandum is included in the public
docket for this action.
V. Region 4's Proposal To Approve North Carolina's June 5, 2017, SIP
Revision
On September 18, 2001, North Carolina submitted a new rule section
regarding the control of NOX emissions from large stationary
combustion sources to Region 4 for approval into its SIP.\45\ The rule
section--15A N.C. Admin. Code 02D .1400--contains Rule .1423 (``Large
Internal Combustion Engines'') as well as other rules not related to
today's proposed action. On August 14, 2002, North Carolina submitted
to Region 4 a SIP revision with changes to its Section 1400
NOX rules, including several changes to Rule .1423. Region 4
did not act on the August 14, 2002, submittal. However, on December 27,
2002, Region 4 approved the portion of North Carolina's September 18,
2001, SIP revision incorporating Rule .1423. See 67 FR 78987.
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\45\ See Rule .1402--``Applicability'' and the definition of
``source'' in Rule .1401 for the scope of this rule section.
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On June 5, 2017, North Carolina withdrew its August 14, 2002, SIP
revision and resubmitted identical changes to Rule .1423 as a SIP
revision as well as the changes to the other rules contained in the
original 2002 SIP revision.46 47 The State provided this
resubmission in response to a Region 4 request for a version of the
rule that highlights, using redline-strikethrough text, the State's
proposed revisions to the federally approved rule. The June 5, 2017,
SIP revision relies on the hearing record associated with the August
14, 2002, SIP revision \48\ because the revised rule text is the same.
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\46\ Region 4 is considering the other rule changes through a
separate rulemaking.
\47\ On June 28, 2018, North Carolina supplemented its June 5,
2017, submittal to acknowledge that Rules .1413 and .1414 are not in
the SIP. This supplement is not relevant to this action.
\48\ North Carolina held public hearings on May 21, 2001, and
June 5, 2001, to accept comments on the rule changes contained in
the August 14, 2002, SIP revision.
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A. Summary of North Carolina's June 5, 2017, SIP Revision Changes to
Rule .1423
As mentioned previously, North Carolina's June 5, 2017, SIP
revision includes several changes to Rule .1423. These changes relate
to the rule paragraphs on Applicability, Emission limitation,
Adjustment, Compliance determination and monitoring, Reporting
requirements, and Recordkeeping requirements, as described below.
Rule .1423(a), ``Applicability.'' North Carolina modified
Rule .1423(a) by clarifying that Rule .1423 does not apply to an
internal combustion (IC) engine of the four specific types listed in
the rule if it is subject to prevention of significant deterioration
(PSD) or nonattainment new source review (NNSR).
Rule .1423(b), ``Emission limitation.'' North Carolina
corrected Rule .1423(b) by stating that the owner or operator of a
stationary IC engine ``shall not cause'' NOX emissions in
excess of the rule limits instead of ``shall cause'' NOX
emissions in excess of those limits.
Rule .1423(c), ``Adjustment.'' North Carolina corrected
Rule .1423(c) by changing the word ``Paragraphs'' to ``Paragraph.''
Rule .1423(d), ``Compliance determination and
monitoring.'' North Carolina modified subparagraph (1) of Rule .1423(d)
(Rule .1423(d)(1)) and subparagraph (2) of Rule .1423(d) (Rule
.1423(d)(2)) as follows:
--Rule .1423(d)(1) is revised to add that data obtained from a
continuous emissions monitoring system (CEMS) and used to determine
compliance with this rule must meet the applicable requirements
specified in ``.1404 of this Section'' as well as the applicable part
60 requirements.
--Rule .1423(d)(2) is revised to change the conditions in which an
owner or operator of a subject IC engine may use an alternative
compliance determination method. Rather than being based on the State
finding that the procedure can ``measure emissions of nitrogen oxides
as accurately and precisely as the continuous emission monitoring
system required under Subparagraph (1) of this Paragraph,'' the revised
language reads ``show the compliance status of the engine.''
Rule .1423(e), ``Reporting requirements.'' North Carolina
modified Rule .1423(e) by adding the missing word ``shall'' to clarify
that the owner or operator of a subject source must submit
NOX emission reports and by revising the language to clarify
that the ozone season ends September 30 of each year.
Rule .1423(f), ``Recordkeeping requirements.'' North
Carolina modified Rule .1423(f)(7)(A) to clarify that, when
NOX standards are exceeded by a unit equipped with a CEMS,
records must be kept that identify the reason for the ``excess
emissions,'' the action taken to correct the ``excess emissions,'' and
the action taken to prevent similar future ``excess emissions'' from
occurring.
B. Region 4's Analysis of North Carolina's June 5, 2017, SIP Revision
Changes to Rule .1423
Region 4 has reviewed North Carolina's changes to Rule .1423,
``Large Internal Combustion Engines,'' in the State's June 5, 2017, SIP
revision and is proposing to approve these changes as discussed below.
Rule .1423(a), ``Applicability.'' Rule .1423(a) states
that Rule .1423 applies to four listed types of IC engines that are
subject to Rule .1418 (``New Electric Generating Units, Large Boilers,
and Large I/C Engines'') and that were permitted after October 30,
2000. North Carolina's June 5, 2017, revision modifies Rule .1423(a) to
clarify that Rule .1423 applies to those IC engines which are ``not
subject to Rule .0530 (prevention of significant deterioration) or Rule
.0531 (nonattainment area major new source review).'' This revision
reflects the current language of Rule .1418, which requires that IC
engines subject to PSD/NNSR must, in most cases, comply with those SIP
provisions
[[Page 26040]]
rather than the requirements of Rule .1423.\49\
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\49\ Rule .1418 establishes NOX emission limits for,
among other types of units, new large internal combustion engines
permitted after October 31, 2000. This rule provides that a new
large internal combustion engine must comply with Rule .1423 if it
is not covered under Rule .0530 (PSD) or .0531 (NNSR). This rule
also stipulates that if a new large internal combustion engine is
covered under Rule .0530 (PSD), it shall comply with the Rule .1423
requirements or the best available control technology requirements
of .0530 (PSD), whichever requires the greater degree of reduction.
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Rule .1423(b), ``Emission limitations.'' North Carolina
corrected Rule .1423(b) by stating that the owner or operator of a
stationary IC engine ``shall not cause'' (rather than ``shall cause'')
NOX emissions in excess of the specified NOX
limits. This change corrects a typographical error and is consistent
with applicable requirements of the CAA and its implementing
regulations.
Rule .1423(c), ``Adjustment.'' North Carolina corrected
Rule .1423(c) by changing the word ``Paragraphs'' to ``Paragraph.''
This change corrects a typographical error and is consistent with
applicable requirements of the CAA and its implementing regulations.
Rule .1423(d)(1), ``Compliance determination and
monitoring.'' North Carolina modified Rule .1423(d)(1) to ensure that
CEMS data used for determination of compliance with this rule meet
applicable SIP requirements as well as Federal requirements. Rule
.1423(d)(1) of the State's current federally approved SIP provides that
the owner or operator of a subject IC engine shall determine compliance
using ``a [CEMS] which meets the applicable requirements of Appendices
B and F of 40 CFR part 60, excluding data obtained during periods
specified in Paragraph (g) of this Rule.'' The rule revision inserts
``and .1404 of this Section'' following the word ``Rule'' in this text
to ensure that the CEMS used to obtain compliance data must meet the
applicable requirements specified in Rule .1404 (in particular,
Paragraphs (d)(2) and (f)(2) of Rule .1404) as well as the applicable
part 60 requirements since those provisions specify additional federal
requirements for obtaining CEMS data. In a letter dated February 22,
2019 (included in the docket for this proposed rulemaking), NC DAQ
stated:
The DAQ's intention in 15A N.C. Admin. Code 02D .1423(D)(1) is
to cross-reference 15A N.C. Admin. Code 02D .1404, Recordkeeping:
Reporting: Monitoring:, Paragraphs (d)(2) and (f)(2) since these
provisions specify additional federal requirements for continuous
emissions monitoring systems. The DAQ does not interpret the new
cross-reference to 15A N.C. Admin. Code 02D .1404 to be part of the
preceding exclusionary language.
Paragraph (g) of Rule .1423 provides that the emission standards
therein do not apply during periods of ``(1) start-up and shut-down
periods and periods of malfunction, not to exceed 36 consecutive hours;
(2) regularly scheduled maintenance activities.'' As discussed in
Section IV in this document, Region 4 proposes to find that the
provisions of Rule .1423(g), when considered in conjunction with other
elements in the North Carolina SIP, are sufficient to provide adequate
protection of the NAAQS. North Carolina has bounded the time during
which a source can employ this exemption, minimizing the potential that
any excess emissions during these periods would cause or contribute to
a NAAQS exceedance or violation. Therefore, the exemption, which allows
for emission standards of the rule to not apply during periods of
startup, shutdown, and malfunction of up to 36 consecutive hours, or
maintenance, is not inconsistent with the requirements of the CAA
section 110.
Rule .1423(d)(2), ``Compliance determination and
monitoring.'' North Carolina modified Rule .1423(d)(2) to standardize
the existing exclusions with those of other rules of the approved SIP.
Rule .1423(d)(2) of the State's current federally approved SIP
provides, as an alternative to CEMS, that a source may determine
compliance using ``an alternate calculat[ion] and recordkeeping
procedure based on actual emissions testing and correlation with
operating parameters.'' The current rule qualifies this option as
follows:
To use the alternative procedures under Subparagraph (2) of this
Paragraph, the owner or operator shall demonstrate to the Director
that the alternative procedure can measure emissions of nitrogen
oxides as accurately and precisely as the continuous emission
monitoring system required under Subparagraph (1) of this Paragraph.
The installation, implementation, and use of this alternate
procedure shall be approved by the Director before it may be used.
The Director may approve the alternative procedure if he finds that
it can measure emissions of nitrogen oxides as accurately and
precisely as the continuous emission monitoring system required
under Subparagraph (1) of this Paragraph.
The rule revision deletes the first sentence of this qualification
language and revises the condition of the third sentence to provide
that the Director may approve the alternative procedure if he finds
that it can ``show the compliance status of the engine'' (rather than a
finding that the alternative procedure can ``measure emissions of
nitrogen oxides as accurately and precisely as the continuous emission
monitoring system required under Subparagraph (1) of this Paragraph'').
Region 4 notes that this language revision is consistent with language
already approved in the SIP at Rule .1409(e) for certain internal
combustion engines.
Rule .1423(e), ``Reporting requirements.'' North Carolina
modified Rule .1423(e) by adding the missing word ``shall'' to clarify
that owner or operator of a subject source must submit NOX
emission reports and by revising language to clarify that the ozone
season ends September 30 of each year. These changes are needed to
correct a typographical error and to add clarity to the existing
provision.
Rule .1423(f), ``Recordkeeping requirements.'' North
Carolina modified subparagraph (7)(A) of Rule .1423(f) by replacing the
word ``exceedance'' with ``excess emissions'' in three instances. The
change clarifies that, when NOX standards are exceeded by a
unit equipped with a CEMS, records must be kept that identify the
reason for the ``excess emissions,'' the action taken to correct the
``excess emissions,'' and the action taken to prevent similar future
``excess emissions'' from occurring. This change provides clarification
to the regulated community since ``excess emissions'' is defined in the
State's rules on NOX emissions, under Rule .1401
(``Definitions''), and ``exceedance'' is not.
Region 4 is proposing, if the policy outlined supra in section III
is adopted, to determine that these changes to the North Carolina SIP
are consistent with CAA requirements.
VI. Incorporation by Reference
In this document, Region 4 is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, Region 4 is proposing to
incorporate by reference the North Carolina regulation 15 N.C. Admin.
Code 02D .1423--``Large Internal Combustion Engines,'' modified to
clarify applicability, correct typos, standardize exclusions, clarify
that alternative compliance methods must show compliance status of the
engine, clarify by adding the word ``shall'' and revising language to
better define ozone season, and clarify that CEMS records must identify
the reason for, the action taken to correct, and the action taken to
prevent excess emissions, state effective on July 15, 2002.
[[Page 26041]]
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).
VII. Proposed Action
Region 4 is proposing to withdraw the SIP call issued to North
Carolina for 15A N.C. Admin. Code 2D .0535(c) and 15A N.C. Admin. Code
2D .0535(g) pursuant to CAA section 110(k)(5), originally published on
June 12, 2015. In connection with this proposed withdrawal, Region 4
proposes to find that these state regulatory provisions included in the
North Carolina SIP are not substantially inadequate to meet CAA
requirements.
Pursuant to section 110 of the CAA, Region 4 is proposing to
approve the aforementioned changes to Rule .1423 and incorporate these
changes into the North Carolina SIP. Region 4 has evaluated the changes
to Rule .1423 as included in North Carolina's June 5, 2017, SIP
revision, and is proposing to determine that they meet the applicable
requirements of the CAA and its implementing regulations.
VIII. 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 they meet the criteria of the CAA. This action merely proposes
to approve 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 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
Results from on a new interpretation 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).
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.
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: May 20, 2019.
Mary S. Walker,
Acting Regional Administrator, Region 4.
[FR Doc. 2019-11758 Filed 6-4-19; 8:45 am]
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