[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Rules and Regulations]
[Pages 38876-38878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16781]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2018-0257; FRL-9997-84-Region 4]


Air Plan Approval; North Carolina: PSD Requirements for GHGs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing 
approval of two State Implementation Plan (SIP) revisions dated July 
30, 2012, and January 12, 2018, submitted by the State of North 
Carolina through the North Carolina Department of Environmental Quality 
(NCDEQ). These SIP revisions are related to the State's Prevention of 
Significant Deterioration (PSD) permitting program requirements for 
greenhouse gases (GHGs). EPA has determined that the July 30, 2012, and 
January 12, 2018, SIP revisions are consistent with the Clean Air Act 
(CAA or Act).

DATES: This rule will be effective September 9, 2019.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2018-0257. 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 and Radiation Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Andres Febres, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air and 
Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Febres can be 
reached by telephone at (404) 562-8966 or via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. What is the EPA finalizing today?

    EPA received two SIP revisions from NCDEQ, dated July 30, 2012, and 
January 12, 2018, that include changes to North Carolina's SIP-approved 
air quality rule at 15 North Carolina Administrative Code (NCAC) 02D 
.0544--Prevention of Significant Deterioration Requirements for 
Greenhouse Gases.1 2 3 The 2012 and 2018 revisions include 
several administrative and typographical changes to the rule, as well 
as a modification to the date associated with the incorporation by 
reference (IBR) of 40 CFR 51.166 that was initially meant to capture 
EPA's final action entitled ``Deferral for CO2 Emissions 
From Bioenergy and Other Biogenic Sources Under the Prevention of 
Significant Deterioration (PSD) and Title V Programs'' (hereinafter 
referred to as the ``Biomass Deferral Rule'').\4\ In a March 4, 2019, 
letter, North Carolina asked EPA to approve changes to the IBR-related 
paragraph in Section .0544, including the date modification, but to 
exclude the adoption of the Biomass Deferral Rule from the IBR.\5\
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    \1\ EPA notes that the Agency received the SIP revisions on 
August 3, 2012, and February 2, 2018, respectively.
    \2\ In the table of North Carolina regulations approved into the 
SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred to as 
``Subchapter 2D Air Pollution Control Requirements.''
    \3\ The PSD permitting program is established in part C of title 
I of the CAA and applies in areas that meet the National Ambient Air 
Quality Standards (NAAQS)--``attainment areas''--as well as areas 
where there is insufficient information to determine if the area 
meets the NAAQS--``unclassifiable areas.'' EPA's regulations 
governing PSD implementation are located at 40 CFR 51.166 and 52.21.
    \4\ On July 20, 2011, EPA finalized the Biomass Deferral Rule, 
which deferred for a period of three years, the application of PSD 
and Title V permitting requirements to carbon dioxide 
(CO2) emissions from bioenergy and other biogenic 
stationary sources. See 76 FR 43490. Although the United States 
Court of Appeals for the District of Columbia Circuit vacated the 
Biomass Deferral Rule in 2013, EPA has not taken formal action to 
remove the Rule from the CFR at 40 CFR 51.166(b)(48)(ii)(a), 
52.21(b)(49)(ii)(a), 70.2(2), and 71.2(2). For more information see 
the notice of proposed rulemaking associated with this final 
rulemaking on North Carolina's July 30, 2012, and January 12, 2018 
SIP revisions at 84 FR 23750 (May 23, 2019).
    \5\ The March 4, 2019, supplemental letter is located in the 
docket for this rulemaking.
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    The 2018 submittal also seeks to remove the PSD requirements for 
major stationary sources based solely on their GHG emissions; add a new 
paragraph--paragraph (d)--regarding the global warming potential for 
GHGs; and re-letter several paragraphs in the rule due to the addition 
of the new paragraph (e.g., changing paragraph (d) in the existing SIP-
approved rule to paragraph (e)).\6\ The revisions removing PSD 
requirements based solely on GHG emissions are in response to court 
decisions invalidating and vacating the Federal regulations that 
applied PSD permitting requirements to major sources based solely on 
their GHG emissions.\7\
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    \6\ In North Carolina's January 12, 2018, SIP revision cover 
letter, the State also mentions changes to rule 15 NCAC 02D Section 
.0502--Applicability, which relates to title V permitting 
requirements for GHGs. This rule is mentioned because it was 
approved, together with Section .0544, by the North Carolina Rules 
Review Commission, but the redline strikeout changes were not 
included as part of the January 12, 2018 SIP package. Additionally, 
North Carolina explains in its letter that they do not wish for EPA 
to review these changes because they are not part of the SIP but 
rather part of the State's title V operating permit program.
    \7\ See Utility Air Regulatory Group (UARG) v. EPA, 134 S. Ct. 
2427 (2014); Coalition for Responsible Regulation, Inc. v. EPA, 606 
Fed. Appx. 6, 7 (D.C. Cir. 2015).
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    The changes to the North Carolina SIP that are the subject of this 
final rulemaking, as well as EPA's analysis of the changes and 
rationale for approving them, are described in further detail in a 
notice of proposed rulemaking (NPRM) published on May 23, 2019 (84 FR 
23750). Comments on the NPRM were due on or before June 24, 2019. EPA 
received no comments on the proposed action and is now taking final 
action to approve these revisions.

II. 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, under 
Subchapter 2D, Air Pollution Control Requirements, of the North 
Carolina SIP, Section .0544--Prevention of Significant Deterioration 
Requirements for Greenhouse Gases, state-effective September 1, 
2015.\8\ EPA

[[Page 38877]]

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.\9\
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    \8\ As discussed above and in the NPRM, EPA is excluding the 
Biomass Deferral Rule from the July 20, 2011 IBR of 40 CFR 51.166, 
found in Section .0544(o). The rule text is found at 40 CFR 
51.166(b)(48)(ii)(a) and reads as follows: ``For purposes of this 
paragraph (b)(48)(ii)(a), prior to July 21, 2014, the mass of the 
greenhouse gas carbon dioxide shall not include carbon dioxide 
emissions resulting from the combustion or decomposition of non-
fossilized and biodegradable organic material originating from 
plants, animals, or micro-organisms (including products, by-
products, residues and waste from agriculture, forestry and related 
industries as well as the non-fossilized and biodegradable organic 
fractions of industrial and municipal wastes, including gases and 
liquids recovered from the decomposition of non-fossilized and 
biodegradable organic material).''
    \9\ 62 FR 27968 (May 22, 1997).
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III. Final Action

    EPA is finalizing approval of North Carolina's July 30, 2012, and 
January 12, 2018, SIP revisions that revise the PSD requirements for 
GHGs under 15 NCAC 02D .0544--Prevention of Significant Deterioration 
Requirements for Greenhouse Gases as described above and in the NPRM. 
Specifically, EPA is approving language under paragraph (a) that will 
prevent the regulation of GHG-only sources; the adoption of new 
paragraph (d), regarding the definition of global warming potential for 
GHGs, and the re-lettering of Section .0544 following the new paragraph 
(d); the deletion of the term ``immediately'' from paragraph (b)(1); 
the adoption of paragraph (o), excluding incorporation of the Biomass 
Deferral Rule into the July 20, 2011 IBR of 40 CFR 51.166; and adoption 
of various administrative edits such as the addition of acronyms and 
typographical corrections throughout the rule. EPA believes that these 
changes are consistent with the requirements of the CAA and therefore 
is approving the aforementioned changes into the SIP.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 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 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 October 7, 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, Carbon monoxide, 
Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: July 29, 2019.
Mary S. Walker,
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

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2. Section 52.1770(c), Table (1) is amended under ``Subchapter 2D Air 
Pollution Control Requirements'' by revising the entry for ``Section 
.0544'' to read as follows:


Sec.  52.1770   Identification of plan.

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    (c) * * *

[[Page 38878]]



                                   (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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                                    Section .0500 Emission Control Standards
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                                                  * * * * * * *
Section .0544...............  Prevention of              9/1/2015  8/8/2019, [Insert    The July 20, 2011
                               Significant                          citation of          incorporation by
                               Deterioration                        publication].        reference date of 40
                               Requirements for                                          CFR 51.166 found in
                               Greenhouse Gases.                                         paragraph (o) does not
                                                                                         incorporate the text of
                                                                                         the federal Biomass
                                                                                         Deferral Rule at
                                                                                         51.166(b)(48)(ii)(a).
 
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[FR Doc. 2019-16781 Filed 8-7-19; 8:45 am]
 BILLING CODE 6560-50-P