[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Proposed Rules]
[Pages 51946-51955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18172]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2021-0867; FRL-9377-01-R4]


Air Plan Approval; North Carolina; Prevention of Significant 
Deterioration for Mecklenburg County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a portion of a State Implementation Plan (SIP) revision to the 
Mecklenburg County portion of the North Carolina SIP, hereinafter 
referred to as the Mecklenburg County Local Implementation Plan (LIP). 
The revision was submitted through the North Carolina Division of Air 
Quality (NCDAQ), on behalf of Mecklenburg County Air Pollution Control 
(MCAQ), via a letter dated April 24, 2020, which was received by EPA on 
June 19, 2020. This SIP revision includes changes to Mecklenburg County 
Air Pollution Control Ordinance (MCAPCO) rules incorporated into the 
LIP regarding Prevention of Significant Deterioration (PSD) permitting 
to address changes to the Federal new source review (NSR) regulations 
in recent years. EPA is proposing to approve these changes pursuant to 
the Clean Air Act (CAA or Act).

DATES: Comments must be received on or before September 23, 2022.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0867 at 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

[[Page 51947]]

making effective comments, please visit https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: D. Brad Akers, 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. Mr. Akers can be 
reached via electronic mail at [email protected] or via telephone at 
(404) 562-9089.

SUPPLEMENTARY INFORMATION:
I. Background and Overview of Mecklenburg LIP
II. Background on PSD Updates
    A. 2002 NSR Reform Rules
    B. Fine Particulate Matter (PM2.5) NAAQS
    C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
    D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
    E. Equipment Replacement Provision
    F. Ethanol Rule
III. Analysis of Mecklenburg's April 24, 2020 Submittal
    A. 2002 NSR Reform Rules
    B. Fine Particulate Matter (PM2.5) NAAQS
    C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
    D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
    E. Equipment Replacement Provision
    F. Ethanol Rule
IV. Incorporation by Reference
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview of Mecklenburg LIP

    The Mecklenburg LIP was submitted to EPA on June 14, 1990, and EPA 
approved the plan on May 2, 1991. See 56 FR 20140. Mecklenburg County 
is now requesting that EPA approve changes to the LIP for, among other 
things, general consistency with the North Carolina SIP.\1\ Mecklenburg 
County prepared three submittals in order to update the LIP and reflect 
regulatory and administrative changes that NCDAQ made to the North 
Carolina SIP since EPA's 1991 LIP approval.\2\ The three submittals 
were submitted as follows: NCDAQ transmitted the October 25, 2017, 
submittal to EPA but later withdrew it from review through a letter 
dated February 15, 2019. On April 24, 2020, NCDAQ resubmitted the 
October 25, 2017, update to EPA and submitted the January 21, 2016, and 
January 14, 2019, updates. Each of these submittals were properly 
noticed to the public in compliance with 40 CFR 51.102.
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    \1\ Hereinafter, the terms ``North Carolina SIP'' and ``SIP'' 
refer to the North Carolina regulatory portion of the North Carolina 
SIP (i.e., the portion that contains SIP-approved North Carolina 
regulations).
    \2\ The Mecklenburg County, North Carolina revision that is 
dated April 24, 2020, and received by EPA on June 19, 2020, is 
comprised of three previous submittals--one dated January 21, 2016; 
one dated October 25, 2017; and one dated January 14, 2019.
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    This proposed rulemaking would modify the LIP by updating the PSD 
program rules incorporated into the LIP in Rule 2.0530, Prevention of 
Significant Deterioration, and by adding into the LIP rule 2.0544, 
Prevention of Significant Deterioration Requirements for Greenhouse 
Gases.

II. Background on PSD Updates

    The PSD program is a preconstruction permitting program that 
requires ``major'' stationary sources of air pollution to obtain a PSD 
permit prior to beginning construction in areas classified as either in 
attainment with the National Ambient Air Quality Standards (NAAQS) or 
unclassifiable.\3\ See CAA section 165. EPA requires PSD SIPs to meet 
the standards codified at 40 CFR 51.166.\4\ Over the years, EPA has 
updated these rules, and as a result of these amendments, states and 
localities similarly are required to update their SIP-approved rules to 
ensure compliance with the PSD standards set forth at 40 CFR 51.166.
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    \3\ A separate NSR preconstruction permitting program applies to 
nonattainment areas pursuant to CAA section 173. NSR permits in 
nonattainment areas are referred to as nonattainment NSR (NNSR) 
permits.
    \4\ Related rules setting forth the Federal PSD program for 
areas without an approved PSD permitting program are codified at 40 
CFR 52.21.
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    In this Notice of Proposed Rulemaking (NPRM), EPA is proposing to 
approve Mecklenburg's PSD rule revisions as meeting the requirements of 
the CAA and 40 CFR 51.166. EPA most recently approved Mecklenburg's PSD 
rules on May 2, 1991, with a local effective date of June 14, 1990. See 
56 FR 20140. Since then, EPA's PSD permitting rules have undergone a 
number of changes. For historical context, this NPRM first provides a 
summary of significant amendments to EPA's PSD permitting rules made 
after the date of approval of Mecklenburg's LIP-approved PSD permitting 
rules. The NPRM then discusses the PSD rules contained in the proposed 
SIP revision.

A. 2002 NSR Reform Rules

    On December 31, 2002, EPA published final rule revisions to 40 CFR 
parts 51 and 52, regarding the CAA's PSD and Nonattainment New Source 
Review (NNSR) programs. See 67 FR 80186 (hereinafter referred to as the 
2002 NSR Rule). The revisions included five changes to the major NSR 
program that would reduce regulatory burdens, maximize operating 
flexibility, improve environmental quality, provide additional 
certainty, and promote administrative efficiency. Initially, these 
updates to the Federal NSR program included the revision of baseline 
actual emissions and adoption of actual-to-projected-actual emissions 
methodology, plant-wide applicability limits (PALs), Clean Units, and 
pollution control projects (PCPs). The final rule also codified a 
longstanding policy regarding the calculation of baseline emissions for 
electric utility steam generating units and the definition of 
``regulated NSR pollutant'' that clarifies which pollutants are 
regulated under the Act for purposes of major NSR.
    Following publication of the 2002 NSR Rule, EPA received numerous 
petitions requesting reconsideration of several aspects of the final 
rule, along with portions of EPA's 1980 NSR Rules.\5\ On July 30, 2003, 
EPA granted petitions for reconsideration of six issues presented by 
the petitioners and opened a new comment period for the public.\6\ As a 
result of the reconsideration, on November 7, 2003 (68 FR 63021), EPA 
published the NSR Reform Reconsideration Rule, which made two 
clarifications to EPA's underlying NSR rules. These two clarifications 
included: (1) adding the definition of ``replacement unit'' to indicate 
that it is considered an existing unit in terms of major NSR 
applicability, and (2) specifying that the PAL baseline calculation 
procedures for newly constructed units do not apply to modified units. 
The 2002 NSR Rule and the NSR Reform Reconsideration Rule are 
hereinafter collectively referred to as the ``2002 NSR Reform Rules.''
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    \5\ See 45 FR 52676 (August 7, 1980) for EPA's 1980 NSR Rules.
    \6\ For full details on the six issues reconsidered by EPA, 
refer to the July 30, 2003, publication. See 68 FR 44624.
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    The 2002 NSR Reform Rules were challenged in the U.S. Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit), and the 
court issued a decision on the challenges on June 24, 2005. See New 
York v. EPA, 413 F.3d 3 (DC Cir. 2005). In summary, the D.C. Circuit 
vacated portions of EPA's NSR Reform Rules pertaining to Clean Units 
and PCPs, remanded a portion of the rules regarding recordkeeping and 
the term ``reasonable possibility'' found in 40 CFR 52.21(r)(6), 40 CFR 
51.166(r)(6), and 40 CFR 51.165(a)(6) to EPA, and either upheld or did 
not comment on the other provisions included as part of the 2002 NSR 
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to 
revise the 2002 NSR Reform

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Rules to exclude the portions that were vacated by the D.C. Circuit.
    Meanwhile, EPA continued to move forward with its evaluation of the 
portion of its NSR Reform Rules that were remanded by the D.C. Circuit. 
On March 8, 2007 (72 FR 10445), EPA responded to the Court's remand 
regarding the recordkeeping provisions by proposing two alternative 
options to clarify what constitutes ``reasonable possibility'' and when 
the ``reasonable possibility'' recordkeeping requirements apply. The 
``reasonable possibility'' standard identifies the circumstances under 
which a major stationary source must keep records for modifications 
that do not trigger major NSR. EPA later finalized these changes on 
December 21, 2007 (72 FR 72607).
    Separately from the petitions received that led to the 2002 NSR 
Reconsideration Rule, EPA received another petition for reconsideration 
on July 11, 2003. Specifically, the petitioner requested EPA to 
reconsider the inclusion of ``fugitive emissions'' when assessing 
whether a proposed physical or operational change qualified as a 
``major modification.'' On November 13, 2007, EPA granted the petition 
for reconsideration, and on December 19, 2008, finalized the revision 
of the language to clarify which types of sources were required to 
include ``fugitive emissions'' in their calculations. See 73 FR 77882 
(hereinafter referred to as the Fugitive Emissions Rule).
    Finally, on February 17, 2009, EPA received a petition for 
reconsideration of the Fugitive Emissions Rule. Due to this petition, 
and after several stays,\7\ EPA established an indefinite stay of the 
Fugitive Emissions Rule language on March 30, 2011 (76 FR 17548). This 
indefinite stay also clarified EPA's intent to ``correct ambiguity'' in 
the March 31, 2010 stay. With the March 30, 2011, stay, EPA specified 
which portions of 40 CFR 51.165, 40 CFR 51.166, and 40 CFR 52.21 were 
stayed indefinitely, which were reinstated, and which were revised, in 
order to revert the Federal rules to the regulatory language that 
existed prior to the Fugitive Emissions Rule.\8\
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    \7\ EPA originally established a three-month stay that became 
effective September 30, 2009 (74 FR 50115), which was later extended 
for an additional three months, effective December 31, 2009. See 74 
FR 65692. In order to allow for more time for reconsideration and 
for public comment on any potential revisions to the Fugitive 
Emissions Rule, EPA established a longer 18-month stay that became 
effective on March 31, 2010. See 75 FR 16012.
    \8\ In this NPRM, EPA is not proposing to act on certain 
provisions addressing the treatment of fugitive emissions, as 
provided in EPA's December 19, 2008, rule. See 73 FR 77882. 
Specifically, EPA is not acting on the incorporation by reference of 
40 CFR 51.166(b)(2)(v), nor 51.166(b)(3)(iii)(d), which were 
subsequently stayed indefinitely in a March 30, 2011, final rule. 
See 76 FR 17548.
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    In summary, after several court decisions and public petitions, the 
Federal major NSR program (found in 40 CFR 51.165, 51.166, and 52.21) 
no longer includes the provisions related to Clean Units or PCPs that 
were part of the 2002 NSR reform rules. Additionally, an indefinite 
stay has been placed on the Fugitive Emissions Rule. Mecklenburg County 
is adopting most of the surviving provisions from the 2002 NSR Reform 
Rules, with changes. More details on Mecklenburg County's adoption of 
the 2002 NSR Reform Rules and EPA's analysis of its submittal can be 
found in section III.A of this NPRM.

B. Fine Particulate Matter (PM2.5) NAAQS

1. Implementation of NSR for the PM2.5 NAAQS and 
Grandfathering Provisions
    On May 16, 2008 (73 FR 28321), EPA published the ``Implementation 
of the New Source Review (NSR) Program for Particulate Matter Less than 
2.5 Micrometers (PM2.5)'' Final Rule (hereinafter referred 
to as the NSR PM2.5 Rule). The NSR PM2.5 Rule 
revised the NSR program requirements to establish the framework for 
implementing preconstruction permit review for the PM2.5 
NAAQS in both attainment and nonattainment areas. As indicated in the 
NSR PM2.5 Rule, major stationary sources seeking permits 
must begin directly satisfying the PM2.5 requirements, as of 
the effective date of the rule, rather than relying on PM10 
as a surrogate, with two exceptions. The first exception was a 
``grandfathering'' provision in the Federal PSD program at 40 CFR 
52.21(i)(1)(xi). This grandfathering provision applied to sources that 
had applied for, but had not yet received, a final and effective PSD 
permit before the July 15, 2008, effective date of the May 2008 final 
rule. The second exception was that states with SIP-approved PSD 
programs could continue to implement a policy in which PM10 
served as a surrogate for PM2.5 for up to three years (until 
May 2011) or until the individual revised state PSD programs for 
PM2.5 are approved by EPA, whichever came first.\9\
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    \9\ After EPA promulgated the NAAQS for PM2.5 in 
1997, the Agency issued a guidance document entitled ``Interim 
Implementation of New Source Review Requirements for 
PM2.5,'' which allowed for the regulation of 
PM10 as a surrogate for PM2.5 until 
significant technical issues were resolved (the ``PM10 
Surrogate Policy''). John S. Seitz, EPA, October 23, 1997.
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    On February 11, 2010 (75 FR 6827), EPA proposed to repeal the 
grandfathering provision for PM2.5 contained in the Federal 
PSD program at 40 CFR 52.21(i)(1)(xi) and to end early the 
PM10 Surrogate Policy applicable in states that have a SIP-
approved PSD program. In support of this proposal, EPA explained that 
the PM2.5 implementation issues that led to the adoption of 
the PM10 Surrogate Policy in 1997 had been largely resolved 
to a degree sufficient for sources and permitting authorities to 
conduct meaningful permit related PM2.5 analyses. On May 18, 
2011 (76 FR 28646), EPA took final action to repeal the 
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). 
This final action ended the use of the 1997 PM10 Surrogate 
Policy for PSD permits under the Federal PSD program at 40 CFR 52.21. 
In effect, any PSD permit applicant previously covered by the 
grandfathering provision (for sources that completed and submitted a 
permit application before July 15, 2008) \10\ that did not have a final 
and effective PSD permit before the effective date of the repeal will 
not be able to rely on the 1997 p.m.10 Surrogate Policy to 
satisfy the PSD requirements for PM2.5 unless the 
application includes a valid surrogacy demonstration.
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    \10\ Sources that applied for a PSD permit under the Federal PSD 
program on or after July 15, 2008, are already excluded from using 
the 1997 p.m.10 Surrogate Policy as a means of satisfying 
the PSD requirements for PM2.5. See 73 FR 28321.
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    The NSR PM2.5 Rule also established the following NSR 
requirements for PSD to implement the PM2.5 NAAQS: (1) 
required NSR permits to address directly emitted PM2.5 and 
precursor pollutants; (2) established significant emission rates for 
direct PM2.5 and precursor pollutants (including sulfur 
dioxide (SO2) and nitrogen oxides (NOX)); and (3) 
required states to account for gases that condense to form particles 
(``condensables'') in PM2.5 and PM10 emission 
limits in PSD or NNSR permits.
2. PM2.5 Condensables Correction
    Among the changes included in the NSR PM2.5 Rule 
mentioned above, EPA also revised the definition of ``regulated NSR 
pollutant'' for PSD to add a paragraph providing that ``particulate 
matter (PM) emissions, PM2.5 emissions and PM10 
emissions shall include gaseous emissions from a source or activity 
which condense to form particulate matter at ambient temperatures'' and 
that on or after January 1, 2011, ``such condensable particulate matter 
shall be accounted for in applicability determinations and in

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establishing emissions limitations for PM, PM2.5 and 
PM10 in permits.'' See 73 FR 28321 at 28348 (May 16, 2008). 
A similar paragraph added to the NNSR rule did not include 
``particulate matter (PM) emissions.'' See 40 CFR 
51.165(a)(1)(xxxvii)(D).
    On October 25, 2012 (77 FR 65107), EPA took final action to amend 
the definition, promulgated in the 2008 NSR PM2.5 Rule, of 
``regulated NSR pollutant'' contained in the PM condensable provision 
at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and appendix S to 40 CFR 
part 51 (hereinafter referred to as the PM2.5 Condensables 
Correction Rule). The PM2.5 Condensables Correction Rule 
removed the inadvertent requirement in the NSR PM2.5 Rule 
that the measurement of condensable particulate matter be included as 
part of the measurement and regulation of ``particulate matter 
emissions'' under the PSD program. The term ``particulate matter 
emissions'' includes only filterable particles that are larger than 
PM10.
3. PM2.5 PSD Increments, Significant Impact Levels (SILs), 
and Significant Monitoring Concentration (SMC) Rule
    On October 20, 2010 (75 FR 64863), EPA published a final rule 
entitled ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter less than 2.5 Micrometers (PM2.5),'' 
amending the requirements for PM2.5 under the Federal PSD 
program (also referred to as the PM2.5 PSD-Increments-SILs-
SMC Rule). The final rule established the following: (1) 
PM2.5 increments pursuant to section 166(a) of the CAA to 
prevent significant deterioration of air quality in areas attaining the 
NAAQS; (2) PM2.5 Significant Impact Levels (SILs) for PSD 
and NNSR; and (3) Significant Monitoring Concentration (SMC) for PSD 
purposes.
    Subsequently, in response to a challenge to the PM2.5 
SILs and SMC provisions of the PM2.5 PSD-Increment-SILs-SMC 
Rule, the D.C. Circuit vacated and remanded to EPA the portions of the 
rule addressing PM2.5 SILs, except for the PM2.5 
SILs promulgated in EPA's NNSR rules at 40 CFR 51.165(b)(2). See Sierra 
Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013). The D.C. Circuit also 
vacated the parts of the rule establishing a PM2.5 SMC for 
PSD purposes. Id. EPA removed these vacated provisions in a December 9, 
2013 (78 FR 73698), final rule.
    The PM2.5 SILs promulgated in EPA's NNSR regulations at 
40 CFR 51.165(b)(2) were not vacated by the D.C. Circuit because, 
unlike the SILs promulgated in the PSD regulations (40 CFR 51.166, 
52.21), the SILs promulgated in the NNSR regulations at 40 CFR 
51.165(b)(2) do not serve to exempt a source from conducting a 
cumulative air quality analysis. Rather, the SILs promulgated at 40 CFR 
51.165(b)(2) establish levels at which a proposed new major source or 
major modification located in an area designated as attainment or 
unclassifiable for any NAAQS would be considered to cause or contribute 
to a violation of a NAAQS in any area. For this reason, the D.C. 
Circuit left the PM2.5 SILs at 40 CFR 51.165(b)(2) in place.
    Mecklenburg County is adopting the Federal provisions relevant to 
PSD permitting for PM2.5 in the April 24, 2020, submittal. 
This update to Mecklenburg's PSD regulations is necessary and is 
consistent with North Carolina's rules and the Federal rules. See 
section III.B of this NPRM for more details on the adoption of 
provisions to implement PM2.5 for PSD permitting.

C. 1997 8-Hour Ozone NAAQS Phase 2 Rule

    On November 29, 2005 (70 FR 71612), EPA published a final rule 
entitled ``Final Rule To Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule To Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline'' 
(hereinafter referred to as the Phase 2 Rule). The Phase 2 Rule 
addressed control and planning requirements as they applied to areas 
designated nonattainment for the 1997 8-hour ozone NAAQS \11\ such as 
reasonably available control technology, reasonably available control 
measures, reasonable further progress, modeling and attainment 
demonstrations, NSR, and the impact to reformulated gasoline for the 
1997 8-hour ozone NAAQS transition. Additionally, regarding the NSR 
permitting requirements which are relevant to this proposed action, the 
Phase 2 Rule included the following provisions: (1) recognized 
NOX as an ozone precursor for PSD purposes; and (2) 
established significant emission rates for the ozone precursors 
volatile organic compounds (VOCs) and NOX in the PSD 
regulations.\12\
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    \11\ On July 18, 1997, EPA promulgated a revised 8-hour ozone 
NAAQS of 0.08 parts per million (ppm)--also referred to as the 1997 
8-hour ozone NAAQS. On April 30, 2004, EPA designated areas as 
unclassifiable/attainment, nonattainment, and unclassifiable for the 
1997 8-hour ozone NAAQS. In addition, on April 30, 2004 (69 FR 
23951), as part of the framework to implement the 1997 8-hour ozone 
NAAQS, EPA promulgated an implementation rule in two phases (Phases 
I and II). The Phase I Rule (effective on June 15, 2004), provided 
the implementation requirements for designating areas under subpart 
1 and subpart 2 of the CAA.
    \12\ This action also established significant emission rates for 
PM10 and carbon monoxide in EPA's Federal NNSR 
regulations. MCAQ has not transmitted any changes to its LIP-
approved NNSR program at Rule 2.0531, Sources in Nonattainment 
Areas, in the April 24, 2020, LIP revision. There are no designated 
nonattainment areas in Mecklenburg County at this time.
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    The April 24, 2020, LIP revision adopts the relevant PSD provisions 
of 40 CFR 51.166, thus recognizing NOX as a precursor to 
ozone alongside VOCs. The adoption of these provisions is consistent 
with the Federal PSD provisions as well as North Carolina's rules. More 
details on Mecklenburg County's adoption of the Ozone Phase 2 Rule 
provisions for PSD and EPA's analysis of its submittal can be found in 
section III.C of this NPRM.

D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule

    On January 2, 2011, emissions of greenhouse gases (GHGs) were, for 
the first time, covered by the PSD and title V operating permit 
programs.\13\ To establish a process for phasing in the permitting 
requirements for stationary sources of GHGs under the CAA's PSD and 
title V programs, on June 3, 2010, EPA published a final rule entitled 
``Prevention of Significant Deterioration and Title V Greenhouse Gas 
Tailoring Rule'' (hereinafter referred to as the ``GHG Tailoring 
Rule''). See 75 FR 31514. In Step 1 of the GHG Tailoring Rule, which 
took effect on January 2, 2011, EPA limited application of PSD and 
title V requirements to sources and modifications of GHG emissions, but 
only if they were subject to PSD or title V ``anyway'' due to their 
emissions of pollutants other than GHGs. These sources and 
modifications covered under Step 1 are commonly referred to as ``anyway 
sources'' and ``anyway modifications,'' respectively.
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    \13\ See 75 FR 17004 (April 2, 2010).
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    In Step 2 of the GHG Tailoring Rule, which took effect on July 1, 
2011, the PSD and title V permitting requirements extended beyond the 
sources and modifications covered under Step 1 to apply to sources that 
were classified as major sources based solely on their GHG emissions or 
potential to emit GHGs. Step 2 also applied PSD permitting requirements 
to modifications of otherwise major sources that would increase only 
GHG emissions above the threshold in the Federal PSD regulations. EPA 
generally described the

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sources and modifications covered by PSD under Step 2 of the Tailoring 
Rule as ``Step 2 sources and modifications'' or ``GHG-only sources and 
modifications.''
    Subsequently, EPA published Step 3 of the GHG Tailoring Rule on 
July 12, 2012. See 77 FR 41051. In the rule, EPA decided against 
further phase-in of the PSD and title V requirements for sources 
emitting lower levels of GHG emissions. Thus, the thresholds for 
determining PSD and title V applicability based on emissions of GHGs 
remained the same as established in Steps 1 and 2 of the Tailoring 
Rule.
    On June 23, 2014, the U.S. Supreme Court addressed the application 
of stationary source permitting requirements to GHG emissions in 
Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (UARG). The 
Supreme Court upheld EPA's regulation of GHG Step 1--or ``anyway'' 
sources--but held that EPA may not treat GHGs as air pollutants for the 
purpose of determining whether a source is a major source (or is 
undergoing a major modification) and thus require the source to obtain 
a PSD or title V permit. Therefore, the Court invalidated the PSD and 
title V permitting requirements for GHG Step 2 sources and 
modifications.
    In accordance with the Supreme Court's decision, on April 10, 2015, 
the D.C. Circuit issued an Amended Judgment vacating the regulations 
that implemented Step 2 of the GHG Tailoring Rule, but not the 
regulations that implement Step 1 of the GHG Tailoring Rule. See 
Coalition for Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7 
(D.C. Cir. 2015). The Amended Judgment specifically vacated the EPA 
regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR 
52.21(b)(49)(v)) ``to the extent they require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emissions increase from a modification.'' Id. at 7-8.
    In response, EPA promulgated a good cause final rule on August 19, 
2015, entitled ``Prevention of Significant Deterioration and Title V 
Permitting for Greenhouse Gases: Removal of Certain Vacated Elements.'' 
See 80 FR 50199 (August 19, 2015) (hereinafter referred to as the 
``Good Cause GHG Rule''). The rule removed from the Federal regulations 
the portions of the PSD permitting provisions for Step 2 sources that 
were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and 
52.21(b)(49)(v)). Therefore, EPA no longer has the authority to conduct 
PSD permitting for Step 2 sources, nor can the Agency approve 
provisions submitted by a state for inclusion in its SIP providing this 
authority. On October 3, 2016, EPA proposed to revise provisions in the 
PSD permitting regulations applicable to GHGs to address the GHG 
applicability threshold for PSD in order to fully conform with UARG and 
the Amended Judgment, but those revisions have not been finalized. See 
81 FR 68110.
    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 (also known as 
biogenic CO2 emissions). See 76 FR 43490. During this three-
year period, stationary sources that combust biomass and constructed or 
modified a facility would have avoided the application of PSD to 
biogenic CO2 emissions resulting from construction or 
modification. The deferral applied only to biogenic CO2 
emissions and did not affect other GHGs emitted from the combustion of 
biomass fuel and decomposition of biogenic material or non-GHG 
pollutants. Additionally, the deferral only applied to biogenic 
CO2 emissions in the PSD and Title V programs; it did not 
apply to any other EPA programs, such as the GHG Reporting Program.\14\
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    \14\ See https://www.epa.gov/ghgreporting for information on the 
GHG Reporting Program.
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    On July 12, 2013, the D.C. Circuit vacated the Biomass Deferral 
Rule, but on November 14, 2013, issued an order delaying the vacatur of 
the Biomass Deferral Rule until the U.S. Supreme Court made a final 
decision in the UARG case related to the GHG Tailoring Rule. See Center 
for Biological Diversity v. EPA, 722 F.3d 401. After a final decision 
was made by the Supreme Court on June 23, 2014, in UARG, EPA did not 
immediately take formal action to remove the Biomass Deferral Rule from 
the CFR. On July 19, 2021, EPA removed the vacated text of the Biomass 
Deferral Rule from 40 CFR 51.166(b)(48)(ii)(a), 52.21(b)(49)(ii)(a), 
70.2(2), and 71.2(2). See 86 FR 37918.
    The April 24, 2020, LIP revision adopts the PSD plan requirements 
of 40 CFR 51.166, and adopts other relevant provisions directly to 
implement PSD for greenhouse gases, consistent with the Federal PSD 
provisions as well as North Carolina's rules. See section III.D of this 
NPRM for more details.

E. Equipment Replacement Provision

    Under Federal regulations, certain activities are not considered to 
be a physical change or a change in the method of operation at a 
source, and thus do not trigger NSR review. One category of such 
activities is routine maintenance, repair and replacement (RMRR). On 
October 27, 2003 (68 FR 61248), EPA published a rule entitled 
``Prevention of Significant Deterioration (PSD) and Non-Attainment New 
Source Review (NSR): Equipment Replacement Provision of the Routine 
Maintenance, Repair and Replacement Exclusion'' (hereinafter referred 
to as the ``ERP Rule''). The ERP Rule provided criteria for determining 
whether an activity falls within the RMRR exemption. The ERP Rule also 
provided a list of equipment replacement activities that are exempt 
from NSR permitting requirements, while ensuring that industries 
maintain safe, reliable, and efficient operations that will have little 
or no impact on emissions. Under the ERP Rule, a facility undergoing 
equipment replacement would not be required to undergo NSR review if 
the facility replaced any component of a process unit with an identical 
or functionally equivalent component. The rule included several 
modifications to the NSR rules to explain what would qualify as an 
identical or functionally equivalent component.
    Shortly after the October 27, 2003, rule, several parties filed 
petitions for review of the ERP Rule in the D.C. Circuit. The court 
stayed the effective date of the rule pending resolution of the 
petitions. A collection of environmental groups, public interest 
groups, and states, subsequently filed a petition for reconsideration 
with EPA, requesting that the Agency reconsider certain aspects of the 
ERP Rule. EPA granted the petition for reconsideration on July 1, 2004 
(69 FR 40278).\15\ After reconsideration, EPA published its final 
response on June 10, 2005 (70 FR 33838), which stated that the Agency 
would not change any aspects of the ERP. On March 17, 2006, the D.C. 
Circuit acted on the petitions for review and vacated the ERP Rule.\16\ 
EPA removed the vacated language from the

[[Page 51951]]

Federal rules in a final rule published on July 19, 2021 (86 FR 37918).
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    \15\ The reconsideration granted by EPA opened a new 60-day 
public comment period, including a new public hearing, on three 
issues of the ERP: (1) the basis for determining that the ERP was 
allowable under the CAA; (2) the basis for selecting the cost 
threshold (20 percent of the replacement cost of the process unit) 
that was used in the final rule to determine if a replacement was 
routine; and (3) a simplified procedure for incorporating a Federal 
Implementation Plan into state plans to accommodate changes to the 
NSR rules.
    \16\ New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
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    Rule 2.0530 in the April 24, 2020, Mecklenburg submittal adopts the 
requirements of 40 CFR 51.166 as amended July 1, 2014, with exceptions. 
Likewise, Rule 2.0544 of the April 24, 2020, Mecklenburg submittal 
adopts the requirements of 40 CFR 51.166 as amended July 20, 2011, with 
exceptions. In this NPRM, EPA is not proposing to act on the 
incorporation by reference of language to implement the ERP, as 
provided in EPA's October 27, 2003, rule. See 68 FR 61248. 
Specifically, EPA is not acting on the incorporation by reference of 
the 2003 changes to 40 CFR 51.166(b)(2)(iii)(a), the incorporation by 
reference of 40 CFR 51.166(b)(53) through (56), nor the incorporation 
by reference of 40 CFR 51.166(y). These provisions were in the Federal 
rule as of July 1, 2014; but, previously vacated by the D.C. 
Circuit.\17\ EPA subsequently removed the vacated provisions from the 
CFR. See 86 FR 37918 (July 19, 2021).
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    \17\ See footnote 16.
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F. Ethanol Rule

    Under the CAA, there are two possible thresholds for determining 
whether a source is a major emitting facility that is potentially 
subject to the construction permitting requirements under the PSD 
program; one threshold is 100 tons per year (tpy) per pollutant, and 
the other is 250 tpy per pollutant. Section 169(1) of the CAA lists 
twenty-eight source categories that qualify as major emitting 
facilities if their emissions equal or exceed the 100 tpy threshold. If 
the source does not fall within one of twenty-eight source categories 
listed in section 169, then the 250 tpy threshold is applicable.
    One of the source categories in the list of twenty-eight source 
categories, to which the 100 tpy threshold applies, is chemical process 
plants. Since the Standard Industrial Classification (SIC) code for 
chemical process plants includes facilities primarily engaged in 
manufacturing ethanol fuel, EPA and states had previously considered 
such facilities to be subject to the 100 tpy thresholds.
    As a result of this classification, pursuant to EPA's major NSR 
regulations, chemical process plants were also required to include 
fugitive emissions for determining the potential emissions of such 
sources. Thus, prior to promulgation of the 2007 Ethanol Rule, the 
classification of fuel and industrial ethanol facilities as chemical 
process plants had the effect of requiring these plants to include 
fugitive emissions when determining whether their emissions exceed the 
applicability thresholds for the PSD and NNSR permit programs.
    On May 1, 2007, EPA published the 2007 Ethanol Rule (72 FR 24060), 
which amended EPA's PSD and NNSR regulations to exclude ethanol 
manufacturing facilities that produce ethanol by natural fermentation 
processes from the ``chemical process plants'' category under the 
regulatory definition of ``major stationary source.'' This change to 
EPA's NSR regulations affected the threshold used to determine PSD 
applicability for these ethanol production facilities, clarifying that 
such facilities were subject to the 250 tpy major source threshold. The 
2007 Ethanol Rule also included changes to other provisions which 
established that ethanol facilities need not count fugitive emissions 
when determining whether such a source is ``major'' under the Federal 
PSD, NNSR, and Title V permitting programs.
    On July 2, 2007, the National Resources Defense Council (NRDC) 
petitioned the D.C. Circuit to review the 2007 Ethanol Rule. On that 
same day, EPA received a petition for administrative reconsideration 
and request for stay of the 2007 Ethanol Rule from NRDC. On March 27, 
2008, EPA denied NRDC's 2007 administrative petition for 
reconsideration.
    On March 2, 2009, EPA received a second petition for 
reconsideration and request for stay from NRDC. In 2009, NRDC also 
filed a petition for judicial review challenging EPA's March 27, 2008, 
denial of NRDC's 2007 administrative petition in the D.C. Circuit. This 
challenge was consolidated with NRDC's challenge to the 2007 Ethanol 
Rule. In August of 2009, the D.C. Circuit granted a joint motion to 
hold the case in abeyance, and the case has remained in abeyance.
    On October 21, 2019, EPA partially granted and partially denied 
NRDC's 2009 administrative petition for reconsideration. See 84 FR 
59743 (November 6, 2019). Specifically, EPA granted the request for 
reconsideration with regard to NRDC's claim that the 2007 Ethanol Rule 
did not appropriately address the CAA section 193 anti-backsliding 
requirements for nonattainment areas. EPA denied the remainder of the 
requests for reconsideration on the grounds that NRDC failed to 
establish that reconsideration was warranted under CAA section 
307(d)(7)(B).
    Mecklenburg County's incorporation by reference of Federal PSD 
provisions as of July 1, 2014, includes the 2007 Ethanol Rule's changes 
to the treatment of ethanol production facilities. See section III.F of 
this NPRM and EPA's technical support document in the docket for this 
proposed action for more details.

III. Analysis of Mecklenburg's April 24, 2020 Submittal

    MCAQ adopts the Federal PSD requirements of 40 CFR 51.166 with 
several changes, consistent with the State of North Carolina's PSD 
provisions.\18\ MCAPCO Rule 2.0530 adopts certain provisions of the 
version of 40 CFR 51.166 effective on July 1, 2014, with certain 
revisions described in this document, and Rule 2.0544 adopts certain 
provisions of the version of the Federal rule effective on July 20, 
2011, with certain revisions described in this document. EPA's analysis 
of several features of the April 24, 2020, LIP revision related to 
Mecklenburg County's PSD program at Rules 2.0530 and 2.0544 is included 
in the following subsections.
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    \18\ See, e.g., 76 FR 49313 (August 10, 2011); 76 FR 64240 
(October 18, 2011); 81 FR 63107 (September 14, 2016); 83 FR 45827 
(September 11, 2018); 84 FR 38876 (August 8, 2019); and 85 FR 57707 
(September 16, 2020).
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A. 2002 NSR Reform Rules

    This SIP revision addresses baseline actual emissions, actual-to-
projected actual applicability tests, PALs, recordkeeping requirements, 
and reporting requirements.\19\ Rule 2.0530 adopts the Federal PSD 
requirements at 40 CFR 51.166, as amended July 1, 2014, with certain 
revisions described in this document. These revisions include a non-
substantive update to the definition of ``baseline actual emissions;'' 
an amendment pursuant to the PAL adjustment provision at 
51.166(w)(10)(iv)(a); and streamlined language to adopt the 
recordkeeping and reporting requirements at 51.166(r)(6).
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    \19\ As noted in section II.A, EPA is not proposing to act on 
the incorporation by reference of EPA's indefinitely stayed fugitive 
emissions provisions at 40 CFR 51.166(b)(2)(v) and 
51.166(b)(3)(iii)(d).
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    As a general matter, state and local agencies may meet the 
requirements of 40 CFR part 51 with different but equivalent (or more 
stringent) regulations. As mentioned above, MCAQ chose to adopt the 
Federal rules with several changes, consistent with North Carolina's 
SIP-approved PSD provisions. The definition of ``baseline actual 
emissions'' at Rule 2.0530(b)(1) was changed from the Federal 
provisions to remove the provision allowing emissions units that are 
not electric utility steam generating units (EUSGUs) to look back 10 
years to select the baseline period. Mecklenburg

[[Page 51952]]

County rules treat EUSGUs and non-EUSGUs the same by allowing a look-
back of only five years. However, Mecklenburg County rules provide the 
option of allowing a different time period, not to exceed 10 years, if 
the owner or operator demonstrates that it is more representative of 
normal source operation as required by 40 CFR 51.166(b)(47)(i). In 
addition, Mecklenburg County rules require EUSGUs to adjust downward 
the baseline emissions to account for reductions required under the 
North Carolina Clean Smokestacks Act, which is a North Carolina law 
that 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 N.C. Gen. Stat. section 143-215.107D; N.C. Gen. Stat. 
section 62-133.6.
    With regard to the PAL adjustment provision at 
51.166(w)(10)(iv)(a), the Federal regulations provide the option that 
if the emissions level is equal to or greater than 80 percent of the 
PAL level, the reviewing authority may renew the PAL at the same level 
or it may set the PAL at a different level considering other factors 
per 40 CFR 51.166(w)(10)(iv)(b). Rule 2.0530(i) instead requires that 
the PAL be renewed at the same level if emissions are equal to or 
greater than 80 percent of the PAL.
    With regard to the remanded portions of the 2002 NSR Reform Rules 
related to recordkeeping and EPA's December 21, 2007, clarifications of 
the term ``reasonable possibility'' (72 FR 72607), Mecklenburg County 
did not adopt all the provisions at 40 CFR 51.166(r)(6) or adopt the 
Federal ``reasonable possibility'' standard. Instead, Mecklenburg 
County adopted recordkeeping and reporting requirements at paragraph 
2.0530(u) that apply to all modifications that use the actual-to-
projected-actual applicability test. Therefore, the Mecklenburg County 
provisions meet the minimum recordkeeping and reporting requirements of 
the Federal rule.
    In addition to incorporating the Federal rules by reference with 
several changes, Mecklenburg County's rule revisions include two 
additional provisions that do not directly relate to the 2002 NSR 
Reform rules, including: (1) incorporating by reference 40 CFR 
52.21(r)(2) to clarify the period of validity of approval to construct; 
and (2) requiring that all new natural gas-fired EUSGUs install best 
available control technology or lowest achievable emission rate, as 
appropriate. This second requirement was included in the North Carolina 
rules originally for clarity and consistency with restrictions on use 
of allowances imposed by an agreement resulting from provisions of the 
North Carolina Clean Smokestacks Act, and Mecklenburg County adopted 
the same provision to be consistent with the State.\20\
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    \20\ Any allowances for emissions reductions achieved under the 
North Carolina Clean Smokestacks Act are not available to the 
subject facilities for Federal Clean Air Act programs because they 
are ``state only'' reductions, and such reductions may not be used 
to offset emissions and avoid installation of BACT or LAER on new 
natural gas-fired units. See generally https://deq.nc.gov/about/divisions/air-quality/air-quality-outreach/news/clean-air-legislation/clean-smokestacks-act (last accessed March 23, 2022).
---------------------------------------------------------------------------

    EPA believes that approval of these changes would not have a 
negative impact on air quality in the Mecklenburg County area. With 
these proposed changes, the local regulations will now be consistent 
with the State's current SIP-approved PSD program, which already 
underwent updates concerning the 2002 NSR Reform Rules on August 10, 
2011. See 76 FR 49313.

B. Fine Particulate Matter (PM2.5) NAAQS

    The April 24, 2020, submittal adopts the PM2.5 
provisions necessary to implement PSD for the PM2.5 NAAQS. 
First, regarding the 2008 NSR PM2.5 Rule, the incorporation 
by reference date of July 1, 2014, captures the requirement for PSD 
permits to address directly emitted PM2.5 and precursor 
pollutants as codified at 40 CFR 51.166(b)(49). This incorporation by 
reference date also includes the PSD requirement that condensable 
PM10 and PM2.5 emissions be accounted for in PSD 
applicability determinations and in establishing emissions limitations 
for permitting, as codified at section 51.166(b)(49) and corrected in 
EPA's October 25, 2012 PM2.5 Condensable Correction Rule (77 
FR 65107). The significant emission rates for direct PM2.5 
and its precursors of SO2 and NOX are adopted at 
Rule 2.0530(b)(4), which references 40 CFR 51.166(b)(23)(i), and which 
also notes that VOCs and ammonia are not significant precursors to 
PM2.5 in attainment and unclassifiable areas where Rule 
2.0530 would apply. This is consistent with Federal language on 
PM2.5 precursor pollutants at 40 CFR 51.166(b)(23)(i) and 
51.166(b)(49)(i)(b)(4).
    Next, Rule 2.0530(e)'s adoption of the July 1, 2014, requirements 
of 40 CFR 51.166(c) include required elements of EPA's PM2.5 
PSD-Increments-SILs-SMC Rule. Specifically, adopting the Federal rule 
as of July 1, 2014, includes the PM2.5 increments at 40 CFR 
51.166(c)(1). Additionally, by adopting the definitions contained in 40 
CFR 51.166(b) as of July 1, 2014, Rule 2.0530(b) has the effect of 
adding to the Mecklenburg County LIP the required definitions of 
``major source baseline date,'' ``minor source baseline date,'' and 
``baseline area.''
    Finally, Rule 2.0530 does not include (1) the grandfathering 
provisions from the PM2.5 NSR Rule, or (2) the 
PM2.5 SILs and SMC provisions from the PM2.5 
Increments-SILs-SMC Rule, as the July 1, 2014, date captures EPA's May 
18, 2011, and December 9, 2013, actions to remove these provisions, 
respectively. See 76 FR 28646 and 78 FR 73698. Therefore, EPA has 
preliminarily determined that Mecklenburg County's incorporation by 
reference of EPA's PSD regulations as of July 1, 2014, is consistent 
with current Federal provisions to implement PM2.5 for PSD.

C. 1997 8-Hour Ozone NAAQS Phase 2 Rule

    Mecklenburg County adopts the PSD provisions from the Ozone Phase 2 
Rule, as noted in section II.C of this NPRM. Consistent with North 
Carolina's rules and the Federal rules, Rule 2.0530(b) adopts the same 
language regarding the Phase 2 Rule via the incorporation by reference 
of 40 CFR 51.166(b)(1)(ii), 51.166(b)(2)(ii), 51.166(b)(23)(i), and 
51.166(b)(49)(i), which effectively recognizes VOCs and NOx as 
precursors to ozone for purposes of PSD. Therefore, EPA has 
preliminarily determined that MCAQ's proposed LIP revision is 
consistent with the Ozone Phase 2 Rule.

D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule

    The April 24, 2020, SIP revision establishes thresholds for 
determining which new stationary sources and modification projects 
become subject to permitting requirements for GHG emissions under 
Mecklenburg County's PSD program. This SIP revision updates MCAQ's 
existing PSD program to include a new rule applicable to GHGs only. 
Specifically, the revision incorporates a new PSD rule into Mecklenburg 
County's LIP, at MCAPCO Rule 2.0544, Prevention of Significant 
Deterioration Requirements for Greenhouse Gases, to address the 
thresholds for GHG permitting applicability. This new regulation adopts 
the provisions of 40 CFR 51.166 as effective on July 26, 2011, to 
specifically include the Federal Tailoring Rule requirements still in 
place and defined at 40 CFR 51.166. For all other regulated NSR 
pollutants, the provisions of Rule 2.0530 apply.

[[Page 51953]]

    Additionally, Rule 2.0544(a) reflects the effects of the 2014 UARG 
decision on PSD permitting requirements for GHG-only, or Step 2, 
sources, by including the following language: ``A major stationary 
source or major modification shall not be required to obtain a 
prevention of significant deterioration (PSD) permit on the sole basis 
of its greenhouse gas emissions. For all other regulated NSR 
pollutants, the provisions of MCAPCO Regulation 2.0530 of this [sic] 
apply.''
    The Rule also includes a mechanism at Rule 2.0554(d) to 
automatically incorporate any changes to the Federal GHG global warming 
potentials into the definition of ``subject to regulation'' 
incorporated by reference from 40 CFR 51.166(b)(48) that may occur 
after the incorporation by reference (``IBR'') date. In order to 
determine if a source is subject to regulation for GHGs, a source's 
total GHG emissions are calculated using the global warming potentials 
published in Table A-1 of Subpart A of 40 CFR part 98.\21\ MCAQ's 
submittal ensures that any future changes EPA makes to Table A-1 are 
concurrently incorporated into the Mecklenburg County LIP-approved PSD 
program for greenhouse gases without the need for further LIP 
revisions.
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    \21\ GHGs, as defined in the definition of ``subject to 
regulation'' at 40 CFR 51.166(b)(48), is the aggregate of six 
different gases: carbon dioxide, nitrous oxide, methane, 
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. To 
calculate the total GHG emissions for a source: (1) the mass amount 
of emissions, in tpy, of each individual GHG is multiplied by its 
global warming potential found in Table A-1 of Subpart A of 40 CFR 
part 98, and (2) the resulting values for each individual GHG are 
added. This results in the total GHG emissions for the source 
expressed in tpy of CO2 equivalent (tpy CO2e).
---------------------------------------------------------------------------

    The July 20, 2011, version of the definition of ``subject to 
regulation'' at 40 CFR 51.166(b)(48) includes the text of the Biomass 
Deferral Rule, discussed in section II.D of this NPRM, at 
51.166(b)(48)(ii)(a). However, MCAQ submitted a letter on February 4, 
2022, through NCDAQ, clarifying its intent for EPA not to adopt the 
since-vacated text of the Biomass Deferral Rule into the federally-
approved LIP. The letter withdraws this portion of the adoption of PSD 
provisions in its submittal from EPA consideration.
    In the February 4, 2022, supplemental letter, Mecklenburg County 
also clarifies that while Rule 2.0544's definition of ``baseline actual 
emissions'' does not include the term ``immediately'' at subparagraph 
2.0544(b)(1), MCAQ will enforce the provision as if the term were 
present based on MCAQ's interpretation and North Carolina's 
interpretation that this word is extraneous. This rule previously 
included the term ``immediately'' in its locally effective version, as 
follows:

    For an existing emissions unit, baseline actual emissions means 
the average rate, in tons per year, at which the emissions unit 
actually emitted the pollutant during any consecutive 24-month 
period selected by the owner or operator within the 5-year period 
immediately preceding the date that a complete permit application is 
received by the Department for a permit required under this Rule. 
The Director shall allow a different time period, not to exceed 10 
years immediately preceding the date that a complete permit 
application is received by the Department, if the owner or operator 
demonstrates that it is more representative of normal source 
operation. . . .

    Without the term ``immediately,'' this provision reads as follows:

    For an existing emissions unit, baseline actual emissions mean 
the average rate, in tons per year, at which the emissions unit 
actually emitted the pollutant during any consecutive 24-month 
period selected by the owner or operator within the 5-year period 
preceding the date that a complete permit application is received by 
the Department for a permit required under this Rule. The Director 
shall allow a different time period, not to exceed 10 years 
preceding the date that a complete permit application is received by 
the Department, if the owner or operator demonstrates that it is 
more representative of normal source operation. . . .

    The term ``immediately'' was eliminated from the State's analogous 
rule at 15A North Carolina Administrative Code Rule 02D .0544 
subparagraph (b)(1) as the result of a technical correction from the 
North Carolina Rules Review Commission to remove this word as 
extraneous text. North Carolina previously submitted a letter 
clarifying that the State intends to enforce its provision at 15A North 
Carolina Administrative Code Rule 02D .0544 subparagraph (b)(1) as if 
the term ``immediately'' were present in the rule. MCAQ's February 4, 
2022, letter notes that MCAQ intends to be consistent with the State 
and therefore also intends to enforce subparagraph 2.0544(b)(1) as if 
the term ``immediately'' were present. EPA also notes that the 
definition of ``baseline actual emissions,'' as included in Rule 
2.0530(b)(1) for other regulated NSR pollutants, includes the term 
``immediately.'' Therefore, MCAQ would be enforcing 2.0544(b)(1) 
consistent with how the term is defined at 2.0530(b)(1). EPA's proposed 
action to incorporate the definition of ``baseline actual emissions'' 
is based on Mecklenburg County's interpretation of this subparagraph as 
explained in the February 4, 2022, letter.\22\
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    \22\ EPA incorporated this language into the SIP on August 8, 
2019 (84 FR 38876).
---------------------------------------------------------------------------

    EPA has preliminarily determined that MCAQ's proposed LIP revision 
is consistent with the Tailoring Rule. Furthermore, EPA has 
preliminarily determined that this revision to Mecklenburg County's LIP 
is consistent with section 110 of the CAA. Therefore, EPA is proposing 
to incorporate Rule 2.0544 into the Mecklenburg County LIP, excluding 
the language of the Biomass Deferral Rule from the incorporation by 
reference of 40 CFR 51.166.\23\
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    \23\ If EPA finalizes this proposed action, it will include a 
note in the table in paragraph (c)(3) of 40 CFR 52.1770 identifying 
the exclusion of the Biomass Deferral Rule language from the LIP-
approved version of Rule 2.0544.
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E. Equipment Replacement Provision

    As noted in section II.E of this NPRM, the April 24, 2020, 
submittal adopts the Federal PSD plan requirements contained within 40 
CFR 51.166 as amended July 1, 2014, with certain revisions, into Rule 
2.0530, Prevention of Significant Deterioration. The language of the 
ERP was vacated by court order before July 1, 2014, and therefore, as 
noted in section II.E of this NPRM, EPA is not proposing to act on the 
incorporation by reference of the 2003 changes to 40 CFR 
51.166(b)(2)(iii)(a), the incorporation by reference of paragraphs 40 
CFR 51.166(b)(53) through (56), nor the incorporation by reference of 
40 CFR 51.166(y) in Rule 2.0530 or Rule 2.0544.

F. Ethanol Rule

    MCAPCO Rule 2.0530 is consistent with EPA's PSD program 
requirements in 40 CFR 51.166, as amended in the 2007 Ethanol Rule.\24\ 
EPA prepared a Technical Support Document (TSD) related to the 2007 
Ethanol Rule adoption that is available as part of the docket to this 
proposed rulemaking that contains an analysis of the potential impact 
of the SIP revision on air quality and whether approval of the SIP 
revision will interfere with attainment

[[Page 51954]]

or maintenance of the national ambient air quality standards (or 
standards) or any other CAA requirement. As discussed therein, there 
are no existing ethanol plants in Mecklenburg County. The one existing 
ethanol plant in the State is mapped in the TSD along with the ambient 
air monitors to demonstrate the relationship between ethanol production 
and air quality.
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    \24\ The term ``major stationary source'' is defined in 40 CFR 
51.166(b)(1)(i)(a) as ``[a]ny of the following stationary sources of 
air pollutants which emits, or has the potential to emit, 100 tons 
per year or more of any regulated NSR pollutant: . . . Chemical 
process plants (which does not include ethanol production facilities 
that produce ethanol by natural fermentation included in NAICS codes 
325193 or 312140).'' Additionally, 40 CFR 51.166(b)(1)(iii) excludes 
fugitive emissions from ethanol production facilities from the 
``chemical process plants'' category such that fugitive emissions 
are not considered in determining whether the facility is subject to 
PSD. Because Mecklenburg County's incorporation by reference of 40 
CFR 51.166 includes the ethanol exclusion, ethanol facilities 
emitting less than 250 tpy of a regulated air pollutant are not 
subject to PSD, and fugitive emissions from ethanol facilities are 
not considered in determining whether the facility is subject to 
PSD.
---------------------------------------------------------------------------

    Emissions for four criteria pollutants are analyzed in the TSD. EPA 
also graphed air quality trends in the TSD in Mecklenburg County, since 
the date of promulgation of the 2007 Ethanol Rule, until 2021, for all 
criteria pollutants associated with ethanol production. The air quality 
trends reveal air quality improved for generally every pollutant 
monitored. Additionally, there has been no ethanol production in or 
near Mecklenburg County, North Carolina.
    EPA also describes requirements for MCAQ's minor source NSR program 
in the TSD because the facilities that would be below the 250 tpy PSD 
major source threshold under this rulemaking will still need to obtain 
minor source construction permits. EPA further analyzes the impact of 
increasing the threshold to 250 tpy on ozone and PM precursors. As the 
analysis for ozone and secondary PM in the TSD demonstrates that 
sources below the 250 tpy threshold will not cause any interference 
with attainment or maintenance of the standard in Mecklenburg County.
    Based on EPA's analysis in the TSD, EPA's exclusion of these 
facilities from MCAQ's PSD program, as proposed herein, would not 
interfere with any applicable requirement concerning attainment and 
reasonable further progress (as defined in section 171 of the CAA) or 
any other applicable requirement of the CAA. Therefore, this proposed 
action is consistent with CAA section 110(l).

IV. 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 requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the following Mecklenburg County Rules: 2.0530, Prevention of 
Significant Deterioration, effective October 17, 2017; \25\ and 2.0544, 
Prevention of Significant Deterioration Requirements for Greenhouse 
Gases, effective December 15, 2015.\26\ 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 in the 
preamble of this document for more information).
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    \25\ EPA is not proposing to incorporate by reference the 
provisions of the Equipment Replacement Rule and Fugitive Emissions 
Rule contained in 40 CFR 51.166(b)(2)(iii)(a), 40 CFR 
51.166(b)(2)(v), 51.166(b)(3)(iii)(d), 40 CFR 51.166(b)(53) through 
(56), and 40 CFR 51.166(y) as those CFR provisions existed on July 
1, 2014.
    \26\ EPA is not proposing to incorporate by reference the 
provisions of the Biomass Deferral Rule contained in 40 CFR 
51.166.(b)(48)(ii)(a) as that CFR provision existed on July 20, 
2011.
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V. Proposed Action

    EPA is proposing to approve the aforementioned changes to the 
Mecklenburg County LIP. Specifically, EPA is proposing to incorporate 
updates to PSD permitting provisions in Rule 2.0530, Prevention of 
Significant Deterioration, and incorporate new Rule 2.0544, Prevention 
of Significant Deterioration Requirements for Greenhouse Gases, with 
the exception of those provisions described in footnotes 25 and 26 of 
this document. EPA believes that approval of these changes and 
additions, including all amendments mentioned in the preceding 
sections, would not have a negative impact on air quality in the 
Mecklenburg County area. With these proposed changes and additions, the 
local regulations will now be consistent with the State's current SIP-
approved PSD program and Federal PSD rules. Additionally, these updates 
include important provisions such as recognizing NOX as a 
precursor to ozone, incorporating provisions to regulate 
PM2.5, and incorporating provisions to regulate GHGs for the 
purposes of PSD. Therefore, EPA is proposing to approve the April 24, 
2020, LIP revision changes to Mecklenburg County's PSD permitting 
program, pursuant to the Act and EPA's implementing regulations.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. This action merely 
proposes to approve local law as meeting Federal requirements and does 
not impose additional requirements beyond those imposed by local 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);
     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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

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


[[Page 51955]]


    Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-18172 Filed 8-23-22; 8:45 am]
BILLING CODE 6560-50-P