[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74171-74174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20666]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2023-0466; FRL-12179-01-R4]


Air Plan Approval; Forsyth County, North Carolina; Removal of 
Excess Emissions Provisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
North Carolina Division of Air Quality (NCDAQ) on behalf of the Forsyth 
County Office of Environmental Assistance and Protection (FCEAP or 
Forsyth County) on November 28, 2022. The revision was submitted in 
response to a finding of substantial inadequacy and SIP call published 
on June 12, 2015, concerning excess emissions during startup, shutdown, 
and malfunction (SSM) events, and is intended to correct deficiencies 
in the Forsyth County portion of the North Carolina SIP identified by 
EPA in the SIP call. EPA is proposing to approve the SIP revision in 
accordance with requirements for SIP provisions under the Clean Air Act 
(CAA or Act). In addition, EPA is proposing to approve minor and 
administrative changes to certain regulatory provisions that have been 
revised by the local agency since EPA's last approval of those 
provisions.

DATES: Comments must be received on or before October 3, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2023-0466 at 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

[[Page 74172]]

multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Faith Goddard, 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) 562-8757. Ms. Goddard can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. EPA's 2015 SSM SIP Action

    On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying 
to Excess Emissions During Periods of Startup, Shutdown and 
Malfunction,'' hereinafter referred to as the ``2015 SSM SIP Action.'' 
See 80 FR 33840 (June 12, 2015). The 2015 SSM SIP Action clarified, 
restated, and updated EPA's interpretation that SSM exemption and 
affirmative defense SIP provisions are inconsistent with CAA 
requirements. The 2015 SSM SIP Action found that certain SIP provisions 
in 36 States, applicable in 45 statewide and local jurisdictions, 
including Forsyth County, North Carolina, were substantially inadequate 
to meet CAA requirements and issued a SIP call to those States to 
submit SIP revisions to address the inadequacies. EPA established an 
18-month deadline by which the affected States had to submit such SIP 
revisions. States were required to submit corrective revisions to their 
SIPs in response to the SIP calls by November 22, 2016.
    In the 2015 SSM SIP Action, EPA determined that Forsyth County Air 
Quality Control Ordinance and Technical Code Subchapter 3D, Section 
.0500, Rule 3D .0535, Excess Emissions Reporting and Malfunctions, 
paragraphs (c) and (g) (also referred to herein as ``Rule 3D .0535(c) 
and (g)''), are substantially inadequate to meet CAA requirements on 
the basis that they contain impermissible director's discretion 
provisions. See 80 FR 33840, 33964 (June 12, 2015). In the Forsyth 
County portion of the North Carolina SIP, Rule 3D .0535(c) and (g) 
provide exemptions for emissions exceeding otherwise applicable SIP 
emission limitations at the discretion of a local official during 
malfunctions at paragraph (c) and startup and shutdown at paragraph 
(g). The rationale underlying EPA's determination that these Forsyth 
County provisions are substantially inadequate to meet CAA requirements 
is detailed in the 2015 SSM SIP Action and the accompanying proposals.

B. 2022 Findings of Failure To Submit

    On January 12, 2022, pursuant to CAA section 110(k)(1), EPA 
finalized ``Findings of Failure To Submit State Implementation Plan 
Revisions in Response to the 2015 Findings of Substantial Inadequacy 
and SIP Calls To Amend Provisions Applying to Excess Emissions During 
Periods of Startup, Shutdown, and Malfunction,'' hereinafter referred 
to as the ``2022 Findings of Failure to Submit.'' See 87 FR 1680 
(January 12, 2022). The 2022 Findings of Failure to Submit found that 
twelve State and local agencies, including FCEAP, failed to submit 
timely corrective SIP revisions required by the 2015 SSM SIP Action. 
This action triggered certain CAA deadlines for EPA to impose sanctions 
if an affected agency did not submit a complete SIP revision addressing 
the outstanding deficiencies and to promulgate a Federal Implementation 
Plan (FIP) if EPA did not approve a required SIP submittal by February 
11, 2024.
    On November 28, 2022, in response to the 2015 SSM SIP Action and 
the 2022 Findings of Failure to Submit, NCDAQ submitted on behalf of 
FCEAP a revision to the Forsyth County portion of the North Carolina 
SIP. In its submittal, Forsyth County requests that EPA revise the 
Forsyth County portion of the North Carolina SIP by removing the 
substantive text of Rule 3D .0535(c) and (g) and adding language 
clarifying that paragraphs (c) and (g) are not included in EPA's SIP-
approved version of Rule 3D .0535 in the Forsyth County portion of the 
North Carolina SIP. Forsyth County also includes in the submittal minor 
and non-substantive administrative amendments to the remaining Rule 3D 
.0535 regulatory provisions, as revised since EPA's last approval on 
February 17, 2000.\1\
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    \1\ See 65 FR 8053.
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C. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)

    On March 1, 2024, the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) issued a decision in Environmental 
Committee of the Florida Electric Power Coordinating Group, Inc., v. 
EPA, 94 F.4th 77 (D.C. Cir. 2024). The case was a consolidated set of 
petitions for review of the 2015 SSM SIP Action. The court granted the 
petitions in part, vacating the SIP call with respect to SIP provisions 
that EPA identified as automatic exemptions, director's discretion 
provisions, and affirmative defenses that are functionally exemptions; 
and denied the petitions as to other provisions that EPA identified as 
overbroad enforcement discretion provisions or affirmative defense 
provisions that would preclude or limit a court from imposing relief in 
the case of violations. Although the court vacated the SIP call as to 
director's discretion provisions such as Rule 3D .0535(c) and (g), EPA 
is required, pursuant to CAA section 110(k)(3), to approve Forsyth 
County's submittal requesting removal of the substantive text of these 
provisions from the Forsyth County portion of the North Carolina SIP 
because the submittal meets all of the applicable CAA requirements. See 
42 U.S.C. 7410(k)(3). The D.C. Circuit's decision in Environmental 
Committee does not preclude State and/or local air jurisdictions from 
submitting SIP revisions requesting removal of certain provisions from 
their SIP where that removal makes the SIP more protective of air 
quality, as FCEAP did here.

II. Analysis of the November 28, 2022, Submittal

    Forsyth County requests that EPA remove the substantive text of 
Rule 3D .0535(c) and (g) from the Forsyth County portion of the North 
Carolina SIP and add language clarifying that Rule 3D .0535(c) and (g) 
are not included in the Forsyth County portion of the North Carolina 
SIP. Removing the substantive text of Rule 3D .0535(c) and (g) from the 
SIP would mean that emission limits incorporated into the Forsyth 
County portion of the North Carolina SIP would apply at all times, 
including periods of SSM. If removed from the Forsyth County portion of 
the North Carolina SIP, the substantive text of Rule 3D .0535(c) and 
(g) will apply to Forsyth County in its exercise of enforcement 
authority for local-law purposes only. These provisions would remain 
enforceable as local-only provisions, and language would be added to 
clarify that Rule 3D .0535(c) and (g) are not included in the Forsyth 
County portion of the North Carolina SIP. Because the substantive text 
of Rule 3D .0535(c) and (g) would not be part of the Forsyth County 
portion of the North Carolina SIP, citizens and EPA could seek 
injunctive relief or civil penalties for

[[Page 74173]]

excess emissions. Based on Forsyth County's request to revise Rule 3D 
.0535(c) and (g) in the Forsyth County portion of the North Carolina 
SIP, EPA proposes to approve Forsyth County's November 28, 2022, SIP 
revision because the requested revision is consistent with CAA 
requirements.
    Minor and non-substantive administrative amendments to Rule 3D 
.0535 have been adopted by Forsyth County since EPA's last approval on 
February 17, 2000,\2\ resulting in an inconsistency between the 
federally approved SIP and local rules (i.e., a ``SIP gap''). Forsyth 
County's November 28, 2022, SIP revision includes minor changes to Rule 
3D .0535(e) and (f) that revise malfunction abatement plan deadlines 
(at Rule 3D .0535(e)) and notification and source testing requirements 
(at Rule 3D .0535(f)), as well as non-substantive administrative 
changes to the remaining Rule 3D .0535 regulatory provisions that 
update the formatting of rule references and make minor edits that are 
generally clarifying in nature.\3\ Regarding the non-substantive SIP 
revisions, EPA proposes to approve these administrative changes because 
the November 28, 2022, SIP revision is consistent with CAA requirements 
and does not alter the meaning of the regulations.
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    \2\ See 65 FR 8053.
    \3\ The November 28, 2022, SIP revision includes the following 
typographical error: in Rule 3D .0535(b), as shown on page 10 of 75 
in the SIP submittal, a cross-reference to ``Subchapter 3Q .0700'' 
is revised to ``Section 3D-0700.'' The amendments to the state-
effective version of Rule 3D .0535(b), which start at page 6 of 75 
in the SIP submittal, show the revised cross-reference correctly as 
``Section 3Q-0700'' at page 7 of 75 in the SIP submittal.
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    Regarding Rule 3D .0535(e), Forsyth County revises malfunction 
abatement plan requirements by removing an obsolete sentence that 
reads, ``The owner or operator of any electric utility boiler unit 
required to have a malfunction abatement plan shall submit a 
malfunction abatement plan to the Director within 60 days of the 
effective date of this Rule.'' The existing subsequent sentence 
requires ``any other source'' required to have a malfunction abatement 
plan to submit that plan within six months of the Director's 
requirement to do so. Forsyth County revises Rule 3D .0535(e) such that 
it now States that ``any source'' required to have a malfunction 
abatement plan must submit that plan within six months of the 
Director's requirement to do so. Because Rule 3D .0535(d) still 
requires submission of malfunction abatement plans within 60 days for 
sources other than electric utility boilers, only the submission 
timeframe for electric utility boilers has increased, and EPA 
anticipates no associated impact on air quality.
    Forsyth County also revises the timeframe within which amendments 
can be submitted to remedy malfunction abatement plan deficiencies. The 
revised provision states that, if a malfunction abatement plan does not 
carry out objectives described in Rule 3D .0535(d) and is therefore 
disapproved, an amendment that corrects the deficiencies identified 
must be submitted ``within 30 days of receipt of the Director's 
notification of disapproval,'' whereas the existing provision requires 
a satisfactory amendment to be submitted ``within a time prescribed by 
the Director.'' EPA proposes to approve Forsyth County's changes to 
Rule 3D .0535(e) concerning malfunction abatement plan requirements 
because the November 28, 2022, SIP revision is consistent with CAA 
requirements and removes a sentence requiring the submission of an 
electric utility boiler unit malfunction abatement plan by an expired 
deadline and replaces an undefined timeframe for correcting the 
malfunction abatement plan to be prescribed by a local official with a 
definite timeframe of thirty days. Regarding the revised timeframe 
within which amendments can be submitted to remedy malfunction 
abatement plan deficiencies, EPA finds the revised provision to be more 
stringent.
    Regarding Rule 3D .0535(f), Forsyth County updates a corrective 
measures notification requirement. The revised provision states that, 
``after'' measures correcting excess emissions lasting more than four 
hours resulting from ``a malfunction, a breakdown of process or control 
equipment or any other abnormal conditions'' have been accomplished, 
the source owner or operator must notify a local official, whereas the 
existing provision requires the owner or operator to notify a local 
official ``immediately when . . . corrective measures have been 
accomplished.'' Rule 3D .0535(f)'s initial notification requirements at 
(f)(1) remain unchanged, as do its ultimate reporting requirements at 
(f)(3).\4\ EPA proposes to approve Forsyth County's change to Rule 3D 
.0535(f) concerning corrective measures notification requirements 
because EPA anticipates no associated impact on air quality and the 
revision is consistent with CAA requirements; the precise timing of the 
notification of the accomplishment of a particular corrective measure 
to a local official need not be exactly simultaneous with the 
accomplishment of such measure. EPA is not proposing at this time to 
act on a revised cross-reference to source testing requirements in the 
last sentence of Rule 3D .0535(f). The cross-referenced section, as 
revised, is not approved into the Forsyth County portion of the North 
Carolina SIP.
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    \4\ Rule 3D .0535(f)(1) contains initial excess emissions 
occurrence notification requirements, and Rule 3D .0535(f)(3) 
contains written reporting requirements for documenting excess 
emissions as described in prefatory text at paragraph (f).
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III. Proposed Action

    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). EPA is 
proposing to approve Forsyth County's November 28, 2022, SIP submission 
requesting changes to Forsyth County Air Quality Control Ordinance and 
Technical Code Subchapter 3D, Section .0500, Rule 3D .0535, Excess 
Emissions Reporting and Malfunctions, except for the change to the 
cross-referenced rule in Rule 3D .0535(f), into the Forsyth County 
portion of the North Carolina SIP. Specifically, EPA is proposing to 
remove the substantive text of Rule 3D .0535(c) and (g) from the 
Forsyth County portion of the North Carolina SIP, to add statements 
clarifying that Rule 3D .0535(c) and (g) are not included in the 
Forsyth County portion of the North Carolina SIP, and to otherwise 
approve the revised version of Rule 3D .0535 into the Forsyth County 
portion of the North Carolina SIP, except for the revised cross-
reference in the last sentence of Rule 3D .0535(f), which EPA is not 
proposing to act on at this time. EPA is proposing approval of the SIP 
revision because the Agency has determined that it is consistent with 
the requirements for SIP provisions under the CAA. EPA is not reopening 
the 2015 SSM SIP Action nor the 2022 Findings of Failure to Submit and 
is taking comment only on whether the SIP revision is consistent with 
CAA requirements.

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 through 
III of this preamble, EPA is proposing to incorporate by reference 
Forsyth County Air Quality Control Ordinance and Technical Code 
Subchapter 3D, Section .0500, Rule 3D .0535, Excess Emissions Reporting 
and Malfunctions, locally effective July 14, 2022, with the following 
exceptions: EPA is not proposing to incorporate the last

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sentence of Rule 3D .0535(f),\5\ and in Rule 3D .0535(c) and (g), is 
proposing to incorporate only the statements that each paragraph ``is 
not included in Forsyth County's portion of the State Implementation 
Plan.'' \6\ 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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    \5\ The July 14, 2022, local effective version of the last 
sentence of Rule 3D .0535(f) contains a change that incorporates a 
reference to regulations not approved into the SIP. If EPA takes 
final action to approve the November 28, 2022, SIP revision, the 
Agency will update the SIP table at 40 CFR 52.1770(c) to reflect the 
retention of the September 14, 1998, version of the aforementioned 
sentence.
    \6\ If EPA takes final action to approve the November 28, 2022, 
SIP revision, the SIP-approved version of Rule 3D .0535(c) will 
read, ``(Paragraph (c) is not included in Forsyth County's portion 
of the State Implementation Plan.),'' and the SIP-approved version 
of .0535(g) will read, ``(Paragraph (g) is not included in Forsyth 
County's portion of the State Implementation Plan.).'' The Agency 
would update the SIP table at 40 CFR 52.1770(c) to reflect this 
fact.
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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 CAA and applicable 
Federal regulations. 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 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this 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 rule 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.''
    The FCEAP did not evaluate EJ considerations as part of its SIP 
submittal; the CAA and applicable implementing regulations neither 
prohibit nor require such an evaluation. EPA did not perform an EJ 
analysis and did not consider EJ in this proposed action. Due to the 
nature of the proposed action being taken here, this proposed action is 
expected to have a neutral to positive impact on the air quality of the 
affected area. 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 environmental justice 
for communities with EJ concerns.

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.

    Dated: September 6, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-20666 Filed 9-11-24; 8:45 am]
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