[Federal Register Volume 87, Number 81 (Wednesday, April 27, 2022)]
[Proposed Rules]
[Pages 24930-24933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08899]



40 CFR Part 52

[EPA-R04-OAR-2021-0610; FRL-9081-01-R4]

Air Plan Approval; NC; NC BART Rule Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a North Carolina State Implementation Plan (SIP) revision, 
submitted through a letter dated April 13, 2021, proposing changes to 
North Carolina's SIP-approved rule addressing best available retrofit 
technology (BART) for regional haze. EPA proposes to approve North 
Carolina's SIP revision because the changes are consistent with Clean 
Air Act (CAA or Act) requirements.

DATES: Comments must be received on or before May 27, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0610, at http://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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Ms. Notarianni can be 
reached via telephone at (404) 562-9031 or electronic mail at 
[email protected].


I. Background

A. Regional Haze and Regional Haze SIPs

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particulate matter (PM2.5) 
(e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil 
dust) and their precursors (e.g., sulfur dioxide (SO2), 
nitrogen oxides (NOX), and in some cases, ammonia and 
volatile organic compounds). Fine particle precursors react in the 
atmosphere to form PM2.5 which impairs visibility by 
scattering and absorbing light. Visibility impairment (i.e., light 
scattering) reduces the clarity, color, and visible distance that one 
can see. PM2.5 can also cause serious health effects 
(including premature death, heart attacks, irregular heartbeat, 
aggravated asthma, decreased lung function, and increased respiratory 
symptoms) and mortality in humans and contributes to environmental 
effects such as acid deposition and eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the prevention of any future, and the remedying of any existing, 
anthropogenic impairment of visibility in 156 national parks and 
wilderness areas designated as mandatory Class I federal areas. 
Congress added section 169B to the CAA in 1990 to address regional haze 
issues, and EPA promulgated the Regional Haze Rule (RHR), codified at 
40 CFR 51.308,\1\ on July 1, 1999.\2\ The RHR established a requirement 
to submit a regional haze SIP which applies to all 50 states, the

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District of Columbia, and the Virgin Islands.\3\

    \1\ In addition to the generally applicable regional haze 
provisions at 40 CFR 51.308, EPA also promulgated regulations 
specific to addressing regional haze visibility impairment in Class 
I areas on the Colorado Plateau at 40 CFR 51.309. The latter 
regulations are therefore not relevant here.
    \2\ See 64 FR 35714 (July 1, 1999). On January 10, 2017, EPA 
promulgated revisions to the RHR that apply for the second and 
subsequent implementation periods. See 82 FR 3078.
    \3\ 40 CFR 51.300(b).

    To address regional haze visibility impairment, the RHR established 
an iterative planning process that requires states in which Class I 
areas are located and states from which emissions may reasonably be 
anticipated to cause or contribute to any impairment of visibility in a 
Class I area to periodically submit SIP revisions to address regional 
haze visibility impairment.\4\ Under the CAA, each SIP submission must 
contain ``a long-term (ten to fifteen years) strategy for making 
reasonable progress toward meeting the national goal,'' and the initial 
round of SIP submissions also had to address the statutory requirement 
that certain older, larger sources of visibility-impairing pollutants 
install and operate BART, as discussed further in Section I.B, 
below.\5\ States' first regional haze SIPs were due by December 17, 
2007, with subsequent SIP submissions containing revised long-term 
strategies originally due July 31, 2018, and every ten years 

    \4\ See 42 U.S.C. 7491(b)(2); 40 CFR 51.308(b) and (f); see also 
64 FR 35768 (July 1, 1999). EPA established in the RHR that all 
states either have Class I areas within their borders or ``contain 
sources whose emissions are reasonably anticipated to contribute to 
regional haze in a Class I area;'' therefore, all states must submit 
regional haze SIPs. See 64 FR 35721. In addition to each of the 50 
states, EPA also concluded that the Virgin Islands and District of 
Columbia contain a Class I area and/or contain sources whose 
emissions are reasonably anticipated to contribute regional haze in 
a Class I area. See 40 CFR 51.300(b) and (d)(3).
    \5\ See 42 U.S.C. 7491(b)(2)(A); 40 CFR 51.308(d) and (e).
    \6\ See 40 CFR 51.308(b). The 2017 RHR revisions changed the 
second period SIP due date from July 31, 2018, to July 31, 2021, and 
maintained the existing schedules for the subsequent implementation 
periods. See 40 CFR 51.308(f).


1. Statutory and Regulatory Requirements
    Section 169A of the CAA directs states to evaluate the use of 
retrofit controls at certain larger, often uncontrolled, older 
stationary sources in order to address visibility impacts from these 
sources. Specifically, section 169A(b)(2) of the CAA requires states to 
revise their SIPs to contain such measures as may be necessary to make 
reasonable progress towards the national visibility goal, including a 
requirement that certain categories of existing major stationary 
sources built between 1962 and 1977 procure, install, and operate 
``Best Available Retrofit Technology'' as determined by the state. On 
July 6, 2005, EPA published the Guidelines for BART Determinations 
Under the Regional Haze Rule at Appendix Y to 40 CFR part 51 
(hereinafter referred to as the ``BART Guidelines'') to assist states 
in the BART evaluation process. Under the RHR and the BART Guidelines, 
the BART evaluation process consists of three steps: (1) An 
identification of all BART-eligible sources, (2) an assessment of 
whether the BART-eligible sources are subject to BART, and (3) a 
determination of the BART controls.\7\

    \7\ See 40 CFR 51.308(e); BART Guidelines at I.F.

    States must conduct BART determinations for all ``BART-eligible'' 
sources that may reasonably be anticipated to cause or contribute to 
any visibility impairment in a Class I area, or in the alternative, 
adopt an emissions trading program or other alternative program as long 
as the alternative provides greater reasonable progress towards 
improving visibility than BART. In making a BART determination for a 
fossil fuel-fired electric generating plant with a total generating 
capacity in excess of 750 megawatts, a state must use the approach set 
forth in the BART Guidelines. A state is generally encouraged, but not 
required, to follow the BART Guidelines in other aspects.\8\

    \8\ For additional details regarding the three steps of the BART 
evaluation process, see, e.g., 85 FR 47134, 47136-37 (August 4, 

    A regional haze SIP must include source-specific BART emissions 
limits and compliance schedules for each source subject to BART. Once a 
state has made its BART determination, the BART controls must be 
installed and in operation as expeditiously as practicable, but no 
later than five years after the date of EPA approval of the regional 
haze SIP. See CAA section 169A(g)(4); 40 CFR 51.308(e)(1)(iv). In 
addition to what is required by the RHR, general SIP requirements 
mandate that the SIP must also include all regulatory requirements 
related to monitoring, recordkeeping, and reporting for the BART 
controls on the source. See CAA section 110(a)(2).
    States undertook the BART determination process during the first 
implementation period. The BART requirement was a one-time requirement. 
BART-eligible sources may need to be re-assessed for additional 
controls in future implementation periods under the CAA's reasonable 
progress provisions. States should treat BART-eligible sources the same 
as other reasonable progress sources going forward. See 81 FR 26942, 
26947 (May 4, 2016).
2. Summary of BART Sources in North Carolina
    In the State's December 17, 2007, regional haze plan for the first 
implementation period, North Carolina identified 17 BART-eligible 
sources (six electric generating units (EGUs) and eleven non-EGUs) in 
the State. The non-EGUs submitted BART-exemption modeling 
demonstrations for NOX, SO2, and particulate 
matter (PM) as applicable to individual facilities. Nine of the 11 non-
EGU sources demonstrated that they are not subject to BART by modeling 
less than the State's BART-exemption visibility impact threshold of 0.5 
deciviews. The EGUs relied on the Clean Air Interstate Rule (CAIR) \9\ 
as a BART alternative for NOX and SO2 and 
submitted BART-exemption modeling demonstrations for PM. All of the 
EGUs demonstrated that they are not subject to BART for PM by modeling 
less than the State's BART-exemption threshold. See 77 FR 11858, 11874 
(February 28, 2012).

    \9\ CAIR created regional cap-and-trade programs to reduce 
SO2 and NOX emissions in 28 eastern states 
(and the District of Columbia), including North Carolina, that 
contributed to downwind nonattainment or interfered with maintenance 
of the 1997 8-hour ozone national ambient air quality standards 
(NAAQS) or the 1997 PM2.5 NAAQS. CAIR is no longer in 
effect is no longer in effect and has since been replaced by the 
Cross-State Air Pollution Rule (CSAPR). CSAPR requires substantial 
reductions of SO2 and NOX emissions from EGUs 
in 27 states in the Eastern United States that significantly 
contribute to downwind nonattainment of the 1997 PM2.5 
and ozone NAAQS, 2006 PM2.5 NAAQS, and the 2008 8-hour 
ozone NAAQS. As discussed in Section II.B, below, EPA subsequently 
approved North Carolina's reliance on its Clean Smokestacks Act as a 
BART alternative in lieu of CAIR. See 81 FR 32652 (May 24, 2016).

    North Carolina found that two non-EGUs (Blue Ridge Paper and PCS 
Phosphate) had modeled visibility impacts greater than the State's 0.5 
deciview BART contribution threshold. Therefore, these two facilities 
were found subject to BART and submitted State permit applications 
including their proposed BART determinations. PCS Phosphate 
subsequently shut down its two sulfuric acid units subject to BART and 
these units were not further evaluated. For Blue Ridge Paper, North 
Carolina determined and EPA agreed that BART for the subject-to-BART 
units (two recovery furnaces, their associated smelt dissolving tanks, 
and the black liquor oxidation system) is the existing emissions 
control systems in place at the time of that determination. See 77 FR 
at 11874-75.

[[Page 24932]]

II. Summary and EPA's Evaluation of North Carolina's SIP Revision

A. Summary of North Carolina's SIP Revision

    Through a letter dated April 13, 2021, and submitted to EPA on 
April 14, 2021, North Carolina submitted a SIP revision to modify its 
SIP-approved rule at 15A North Carolina Administrative Code (NCAC) 02D 
.0543, Best Available Retrofit Technology (NC BART Rule), which applies 
to BART-eligible sources. EPA incorporated this rule into North 
Carolina's SIP as part of EPA's limited approval action on the State's 
regional haze plan for the first implementation period. See 77 FR 38185 
(June 27, 2012).
    The proposed revisions to the NC BART Rule include the following 
changes. The submission removes 15A NCAC 02D .0543(g) because it is 
outdated, requiring the submission of BART permit applications by 
September 1, 2006. The submission also removes 15A NCAC 02D .0543(i) 
which required owners or operators of BART-eligible sources required to 
adopt BART controls in North Carolina to have installed and begun 
operation of the BART controls by December 31, 2012. The revision also 
renumbers .0543(h) to .0543(g) and removes the statement that EGUs 
covered under and complying with 15A NCAC 02D .2400, Clean Air 
Interstate Rules, are considered to be in compliance with the BART 
requirements for NOX and SO2 under the NC BART 
Rule. Additionally, the revisions update the provisions for accessing 
EPA's Guidelines for Determining Best Available Retrofit Technology for 
Coal-fired Power Plants and Other Existing Stationary Facilities in a 
renumbered provision under 15A NCAC 02D .0543(h) (formerly provision 
(j)). The submission also includes non-substantive punctuation and 
wording changes.

B. EPA's Evaluation of North Carolina's SIP Revision

1. NC BART Rule Revisions
    North Carolina elected to adopt the NC BART Rule to establish BART 
requirements in response to federal requirements that states address 
BART in their initial regional haze SIPs. The CAA and RHR do not 
require states to develop state BART rules for incorporation into their 
SIPs. Thus, changes to the NC BART Rule are approvable as long as North 
Carolina continues to implement and enforce BART and the changes are 
otherwise consistent with federal BART requirements. EPA proposes to 
find that the rule changes are approvable for the reasons discussed 
    Regarding the removal of provisions under 15A NCAC 02D .0543, EPA 
preliminarily agrees that provisions (g) and (i) can be removed because 
the State-established due dates of September 1, 2006, and December 31, 
2012, for submission of BART permit applications and installation and 
operation of BART, respectively, have since passed and all subject 
sources have met those requirements. Furthermore, the rule continues to 
require the owner or operator of a BART-subject emissions unit to 
install, operate, and maintain BART as approved by the State after BART 
is incorporated into the unit's permit under 15A NCAC 02Q. See 15A NCAC 
02D .0543(f).
    EPA preliminarily concurs with the removal of the reference to 15A 
NCAC 02D .2400, Clean Air Interstate Rules, as a means to satisfy BART 
for SO2 and NOX for covered EGUs in North 
Carolina because EPA approved a SIP revision on October 31, 2014, 
allowing the State to rely on its Clean Smokestacks Act as an 
alternative to BART to satisfy BART requirements for BART-eligible EGUs 
formerly subject to CAIR. See 81 FR 32652 (May 24, 2016).\10\

    \10\ To view EPA's full analysis of the October 31, 2014, North 
Carolina SIP revision and additional details regarding the 
relationship between BART and EPA's transport rules, see the notice 
of proposed rulemaking at 81 FR 19519 (April 5, 2016).

    EPA preliminarily concurs with the remainder of the changes to the 
rule because they are editorial revisions that do not alter the 
substance of the NC BART Rule.
    For the reasons described above, EPA preliminarily concludes that 
the NC BART Rule changes do not alter the State's authority and ability 
to continue to implement and enforce BART in North Carolina, are 
consistent with federal BART requirements, and do not interfere with 
any applicable requirement concerning attainment and reasonable further 
progress or any other applicable CAA requirement.\11\

    \11\ See CAA Section 110(l).

2. Federal Land Manager (FLM) Review
    In accordance with 40 CFR 51.308(i)(4), Section 11 of the State's 
December 17, 2007, regional haze SIP contains procedures for continuing 
consultation between the State and FLMs on the implementation of the 
State's visibility protection program. North Carolina provided the SIP 
revision to the FLMs to review pursuant to the State's regional haze 
SIP and 40 CFR 51.308(i)(2), and the FLMs have not provided any 

III. Incorporation by Reference

    In this document, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with the requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference North Carolina rule 15A NCAC 02D .0543 entitled ``Best 
Available Retrofit Technology,'' state effective November 1, 2020, 
which removes outdated provisions and makes minor editorial changes. 
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).

IV. Proposed Action

    EPA proposes to approve the SIP revision containing changes to 15 
NCAC 02D .0543 because they are consistent with the BART requirements 
set forth in the RHR and CAA and the applicable requirements in CAA 
section 110.

V. 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 
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);
     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);

[[Page 24933]]

     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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: April 19, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-08899 Filed 4-26-22; 8:45 am]