[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Proposed Rules]
[Pages 46049-46051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11457]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0454; EPA-R04-OAR-2019-0638; EPA-R04-OAR-2020-0186; 
FRL-11971-01-R4]


Air Plan Approval; North Carolina; Permitting Provisions 
Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
correct the erroneous incorporation of cross-references into the North 
Carolina State Implementation Plan (SIP) using the Clean Air Act (CAA 
or Act) error correction provision. EPA has determined that portions of 
its May 23, 2019, July 17, 2020, and March 1, 2021, final SIP 
rulemaking actions were in error and that it is appropriate to correct 
those actions by removing specific cross-references in the permitting 
rules from the SIP.

DATES: Comments must be received on or before June 27, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0454 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 making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets.
    There are three dockets supporting this action, EPA-R04-OAR-2017-
0454, EPA-R04-OAR-2019-0638, and EPA-R04-OAR-2020-0186. Docket No. EPA-
R04-OAR-2017-0454 includes a March 24, 2006, SIP submittal from North 
Carolina and EPA's original approval of the cross-references to North 
Carolina

[[Page 46050]]

General Statutes that are proposed for removal in this Notice of 
Proposed Rulemaking (NPRM). Docket Nos. EPA-R04-OAR-2019-0638 and EPA-
R04-OAR-2020-0186 include a July 10, 2019, SIP submittal from North 
Carolina with additional ministerial and minor changes to the 
provisions at issue in this NPRM. All comments regarding information in 
any of these dockets are to be made in Docket No. EPA-R04-OAR-2017-
0454. For the full EPA public comment policy, information about CBI or 
multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epadockets.

FOR FURTHER INFORMATION CONTACT: Steven Scofield, Multi-Air Pollutant 
Coordination 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. The telephone number is 
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On May 23, 2019, July 17, 2020, and March 1, 2021,\1\ EPA approved 
revisions to 15A North Carolina Administrative Code (NCAC) 02Q .0101, 
02Q .0103, and 02Q .0301 into the North Carolina SIP.\2\ These 
revisions include cross-references to North Carolina General Statutes 
143-215.108 and 143-215.108A; however, these cross-referenced 
provisions are not incorporated into the SIP. EPA has determined these 
prior approvals of the cross-referenced provisions were in error and is 
proposing to remove these cross-references from 15A NCAC 02Q.0101, 
02Q.0103 and 02Q.0301 of the SIP. Because the cross-referenced 
provisions are not incorporated into the SIP, changes to those 
provisions can change the SIP without the submission of a SIP revision 
and subsequent EPA action to approve such a change, which is 
inconsistent with the CAA. Specifically, CAA section 110(l) requires 
each SIP revision submitted by a state to undergo reasonable public 
notice and hearing and prevents EPA from approving a SIP revision that 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress, or any other applicable requirement of 
the CAA.\3\ Changes to the statutory provisions cross-referenced in the 
SIP could change the SIP without fulfilling public notice and hearing 
requirements and without EPA evaluation of the revision pursuant to the 
requirements of section 7410(l) and any other CAA requirements 
applicable to the specific SIP provision at issue.
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    \1\ See 84 FR 23725, 85 FR 43461, and 86 FR 11875.
    \2\ The revisions were submitted by the North Carolina Division 
of Air Quality in submissions dated March 24, 2006, and July 10, 
2019.
    \3\ CAA sections 110(a)(1) and (2) also require each SIP 
submitted by a state to undergo reasonable public notice and 
hearing.
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II. What is EPA's authority to correct errors in SIP rulemakings?

    Section 110(k)(6) of the CAA authorizes EPA to revise a state's SIP 
when it ``determines that [its] action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof) . . . was in 
error.'' Once EPA has made the determination that it erred, it ``may in 
the same manner as the approval, disapproval, or promulgation revise 
such action as appropriate without requiring any further submission 
from the State.'' Ala. Envtl. Council v. EPA, 711 F.3d 1277, 1286 (11th 
Cir. 2013). This determination and the basis must be provided to the 
state and the public. Section 110(k)(6) of the CAA has been interpreted 
by courts as a ``broad provision [that] was enacted to provide the EPA 
with an avenue to correct its own erroneous actions and grant the EPA 
the discretion to decide when to act pursuant to the provision.'' Miss. 
Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015). 
EPA can take action under section 110(k)(6) to correct an error only if 
the error existed at the time the SIP was originally approved. See 
Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J., 
dissenting).

III. Which provisions are EPA proposing to remove?

A. Section 02Q .0101, Required Air Quality Permits

    EPA approved changes to 15A North Carolina Administrative Code 
(NCAC) 02Q section .0101, Required Air Quality Permits, to include a 
cross-reference to a North Carolina General Statute that is not 
incorporated into the SIP. Specifically, on May 23, 2019, EPA approved 
revisions to subparagraph (b)(1) that added the phrase ``With the 
exception allowed by G.S. 143-215.108A''.\4\ Subsequently, on July 17, 
2020, EPA approved other changes to paragraph (b), including 
consolidating the subparagraphs into one paragraph .0101(b) and making 
other ministerial edits which do not otherwise change the meaning of 
the provision. This July 17, 2020, revision also included the same 
language cross-referencing G.S. 143-215.108A. EPA is proposing to 
correct both the May 23, 2019, and July 17, 2020, final actions by 
removing the phrase in paragraph .0101(b), ``With the exception allowed 
by G.S. 143-215.108A.'' The effect of this change, if finalized, would 
merely remove the cross-reference to the statute and would not modify 
specific exemptions from permitting and other changes otherwise 
approved in EPA's May 23, 2019, and July 17, 2020, actions.
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    \4\ The full text of 15A NCAC 02Q .0101(b)(1) (now renumbered to 
02Q .0101(b)) in the SIP reads: ``Stationary Source Construction and 
Operation Permit: With the exception allowed by G.S. 143-215.108A, 
the owner or operator of a new, modified, or existing facility or 
source shall not begin construction or operation without first 
obtaining a construction and operation permit pursuant to 15A NCAC 
02Q .0300. Title V facilities are subject to the Title V procedures 
pursuant to 15A NCAC 02Q .0500 including the acid rain procedures 
pursuant to 15A NCAC 02Q .0400. A facility may also be subject to 
the air toxic procedures pursuant to 15A NCAC 2Q .0700.''
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B. Section 02Q .0103, Definitions

    EPA approved changes to 15A NCAC 02Q .0103, Definitions, that 
include a cross-reference to a North Carolina General Statute that is 
not incorporated into the SIP. Specifically, on July 18, 2017, EPA 
approved revisions to the definition of ``construction'' at paragraph 
(9) that added subparagraphs (a) through (d). Newly added subparagraph 
(9)(d) included the phrase ``for which a permit is required by G.S. 
143-215.108.'' \5\ Subsequently, on July 17, 2020, EPA approved a 
change to this phrase to read ``for which a permit is required pursuant 
to G.S. 143-215.108.'' EPA also approved changes to paragraph .0103(9) 
in the July 17, 2020, action which do not alter the meaning of the 
definition. EPA is proposing to correct both the July 18, 2017, and 
July 17, 2020, final actions by removing the phrase in subparagraph 
(9)(d), ``pursuant to G.S. 143-215.108.'' The effect of this change, if 
finalized, would merely remove the cross-reference to the statute and 
would not modify specific exemptions from permitting and other changes 
otherwise approved in EPA's May 23, 2019, and July 17, 2020, 
actions.\6\
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    \5\ The full text of 15A NCAC 02Q .0103(9)(d) in the SIP 
currently reads: ``building ancillary structures, including fences 
and office buildings that are not a necessary component of an air 
contaminant source, equipment or associated air cleaning device for 
which a permit is required pursuant to G.S. 143-215.108'' and is one 
of four items listed in the definition of ``construction'' that 
shall not be considered part of construction activity.
    \6\ In the May 23, 2019, action, EPA approved changes to 
definition of ``construction'' in 15A NCAC 02Q .0103, Definitions, 
that identified certain activities excluded from the term 
``construction'' and those exclusions remain in the SIP.

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[[Page 46051]]

C. Section 02Q .0301, Applicability

    EPA approved changes to 15A NCAC 02Q .0301, Applicability, that 
include a cross-reference to a North Carolina General Statute that is 
not incorporated into the SIP. Specifically, on May 23, 2019, EPA 
approved a revision to 15A NCAC 02Q .0301(a) that added the phrase ``or 
as allowed under G.S. 143-215.108A''.\7\ Subsequently, on March 1, 
2021, EPA approved a change to this phrase to read ``or as allowed 
pursuant to G.S. 143-215.108A.'' EPA also approved changes to paragraph 
.0301(a) with the March 1, 2021, action which are ministerial and do 
not alter the meaning of the provision. EPA is proposing to correct 
both the May 23, 2019, and March 1, 2021, final actions by removing the 
phrase in paragraph (a), ``or as allowed pursuant to G.S. 143-
215.108A.'' The removal of the cross-reference at 02Q .0301 would 
merely remove the cross-reference to the statute and would not modify 
specific exemptions from permitting and other changes otherwise 
approved in EPA's May 23, 2019, and March 1, 2021, actions.
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    \7\ The full text of 15A NCAC 02Q .0301(a) of the SIP currently 
reads: ``Except for the permit exemptions allowed pursuant to 15A 
NCAC 02Q .0102 and 15A NCAC 02Q .0900, or as allowed pursuant G.S. 
143-215 108A, the owner or operator of a new, modified, or existing 
facility or source shall not begin construction or operation without 
first obtaining a construction and operation permit pursuant to 15A 
NCAC 02Q .0300; however, Title V facilities shall be subject to the 
Title V procedures pursuant to 15A NCAC 02Q .0500 including the acid 
rain procedures pursuant to 15A NCAC 02Q .0400 for Title IV 
sources.''
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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, and as discussed in Sections I and III 
of this preamble, EPA is proposing to incorporate by reference 15A NCAC 
Section 02Q Rule .0101, Required Air Quality Permits, except for the 
phrase ``With the exception allowed by G.S. 143-215.108A'' in 
subparagraph (b); Rule .0103, Definitions, except for the phrase 
``pursuant to G.S. 143-215.108'' in subparagraph (9)(d); and Rule 
.0301, Applicability, except for the phrase ``or as allowed pursuant 
G.S. 143-215.108A'' in paragraph (a), all state effective April 1, 
2018.\8\ 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).
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    \8\ If EPA finalizes this proposed action, the ``Explanation'' 
column for these rules under 40 CFR 52.1770(c) will be revised to 
exclude these cross-references to the statutory provisions.
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V. Proposed Action

    Pursuant to the error correction provision of section 110(k)(6) of 
the CAA, EPA is proposing to remove portions of 15A NCAC section 02Q 
.0101, Required Air Quality Permits, section 02Q .0103, Definitions, 
and section 02Q .0301, Applicability, with the cross-references to 
North Carolina General Statutes as described above because the 
inclusion of these cross-references in the SIP is inconsistent with the 
CAA.

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 CAA 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. Accordingly, this 
proposed 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 14094 (88 FR 21879, April 11, 2023);
     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 subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a state program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     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.
    In addition, 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 rulemaking does not have Tribal implications and will not 
impose substantial direct costs on Tribal governments or preempt Tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    EPA did not perform an EJ analysis and did not consider EJ in this 
proposed action. Consideration of EJ is not required as part of this 
proposed action, and there is no information in the record inconsistent 
with the stated goal of E.O. 12898 of achieving EJ for people of color, 
low-income populations, and Indigenous peoples.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

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

    Dated: May 20, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-11457 Filed 5-24-24; 8:45 am]
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