Approval and Promulgation of Implementation Plans North Carolina: Prevention of Significant Deterioration and Nonattainment New Source Review Rules, 49313-49318 [2011-20167]
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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2005–0534–201113; FRL–
9449–8]
Approval and Promulgation of
Implementation Plans North Carolina:
Prevention of Significant Deterioration
and Nonattainment New Source
Review Rules
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA is taking final action to
approve revisions to the North Carolina
State Implementation Plan (SIP)
submitted by the State of North Carolina
in three submittals dated November 30,
2005, March 16, 2007, and June 20,
2008. The revisions modify North
Carolina’s Prevention of Significant
Deterioration (PSD) and Nonattainment
New Source Review (NNSR) permitting
regulations in the SIP to address
changes to the federal New Source
Review (NSR) regulations, which were
promulgated by EPA on December 31,
2002, and reconsidered with minor
changes on November 7, 2003
(collectively, these two final actions are
referred to as the ‘‘2002 NSR Reform
Rules’’). In addition, the revisions
address an update to the NSR
regulations promulgated by EPA on
November 29, 2005 (hereafter referred to
as the Ozone Implementation NSR
Update) relating to the implementation
of the 1997 8-hour ozone National
Ambient Air Quality Standards
(NAAQS). EPA proposed to approve
these revisions on September 9, 2008,
and received adverse comments. In this
final action, EPA is also responding to
the adverse comments.
DATES: This rule will be effective
September 9, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2005–0534. All documents in the docket
are listed on the https://
www.regulations.gov Web site. Although
listed in the index, some information
may not be publicly available, i.e.,
Confidential Business Information or
other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
form. Publicly available docket
materials are available either
electronically through https://
www.regulations.gov or in hard copy at
the Regulatory Development Section,
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Air Planning Branch, Air, Pesticides and
Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 to 4:30,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: For
information regarding the North
Carolina SIP, contact Ms. Twunjala
Bradley, Regulatory Development
Section, Air Planning Branch, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region 4, 61 Forsyth Street,
SW., Atlanta, Georgia 30303–8960. Ms.
Bradley’s telephone number is (404)
562–9352; e-mail address:
bradley.twunjala@epa.gov. For
information regarding NSR Reform,
contact Ms. Yolanda Adams, Air
Permits Section, at the same address
above. Ms. Adam’s telephone number is:
(404) 562–9214; e-mail address:
adams.yolanda@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, references
to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are
intended to mean the Environmental
Protection Agency. The supplementary
information is arranged as follows:
I. What action is EPA taking?
II. What is the background for EPA’s action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is taking final action to approve
revisions to the North Carolina SIP
regarding the State’s NSR programs. On
November 30, 2005, March 16, 2007,
and June 20, 2008, the State of North
Carolina, through the North Carolina
Department of Environment and Natural
Resources (NC DENR), submitted
revisions to the North Carolina SIP. The
SIP revisions consist of changes to
North Carolina Air Quality Rules,
Subchapter 2D. Specifically, the
November 30, 2005, proposed SIP
revision includes changes to Regulation
15A North Carolina Administrative
Code (NCAC) 2D .0531, ‘‘Sources in
Nonattainment Areas.’’ The March 16,
2007, proposed SIP revision includes
changes to Regulation 15A NCAC 2D
.0530, ‘‘Prevention of Significant
Deterioration.’’ The June 20, 2008,
proposed SIP revision 1 includes
1 The June 20, 2008, SIP revision also included
changes to NCAC Subchapter 2D, Section .2400,
Clean Air Interstate Rule (CAIR). EPA took final
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additional changes to Regulations 15A
NCAC 2D .0530, and .0531. NC DENR
submitted these revisions in response to
EPA’s December 31, 2002, November 7,
2003, and November 29, 2005, revisions
to the federal NSR program. Pursuant to
section 110 of the Clean Air Act (CAA
or Act), EPA is taking final action to
approve these SIP revisions.
II. What is the background for EPA’s
action?
On December 31, 2002 (67 FR 80186),
EPA published final rule changes to 40
Code of Federal Regulations (CFR) parts
51 and 52, regarding the CAA’s PSD and
NNSR programs. On November 7, 2003
(68 FR 63021), EPA published a notice
of final action on the reconsideration of
the December 31, 2002, final rule
changes. The December 31, 2002, and
the November 7, 2003, final actions are
collectively referred to as the ‘‘2002
NSR Reform Rules.’’ 2 For additional
information on the 2002 NSR Reform
Rules, see 67 FR 80186 (December 31,
2002). For information on the
subsequent revisions to these rules, see
https://www.epa.gov/nsr.
Also relevant to NC DENR’s SIP
revisions, on November 29, 2005 (70 FR
71612), EPA promulgated
implementation provisions for the 1997
8-hour NAAQS which made changes to
the NSR regulations. These included,
among other changes, a requirement that
emissions of nitrogen oxides (NOx) be
considered a precursor to ozone. These
rules are commonly referred to as the
Ozone Implementation NSR Update.
On November 30, 2005, March 16,
2007, and June 20, 2008, NC DENR
submitted SIP revisions to EPA for the
purpose of revising the State’s NSR
permitting provisions to adopt EPA’s
2002 NSR Reform Rules and the Ozone
Implementation NSR Update. These SIP
revisions incorporate by reference (IBR)
the federal NSR rules at 40 CFR 51.166
and 51.165, as amended on June 13,
2007, with several changes. See EPA’s
analysis of the State’s NSR SIP revisions
in the September 9, 2008, proposed
rulemaking. See 73 FR 52226. Copies of
North Carolina’s revised NSR rules, as
well as the State’s Technical Support
Document, can be obtained from the
docket, as discussed in the ADDRESSES
section above.
On September 9, 2008 (73 FR 52226),
EPA proposed to approve the abovereferenced SIP revisions. In response to
action approving the CAIR portion of the June 20,
2008, SIP revision on November 30, 2009. See 74
FR 62496.
2 For more information on the 2002 NSR Reform
Rules, and its supporting technical documents, see,
https://www.epa.gov/nsr/actions.html#2002 (last
visited February 16, 2011).
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a request for an extension of the public
comment period for EPA’s September 9,
2008, proposed rulemaking, EPA
extended the public comment period
through November 10, 2008 (73 FR
58084). EPA received adverse comments
from the National Resource Defense
Council (NRDC) and the Duke Energy
Corporation (DEC) regarding North
Carolina’s NSR Reform Rule changes.
No adverse comments were received for
North Carolina’s rule changes to adopt
the provisions of the Ozone
Implementation NSR Update. EPA’s
response to these comments is below in
section III of this final rulemaking.
EPA’s analysis of the State’s NSR SIP
revisions is contained in the September
9, 2008, proposed rulemaking, and
briefly summarized as follows. See 73
FR 52226.
EPA’s evaluation of the North
Carolina SIP submittals included a lineby-line comparison of the proposed
revisions with the federal requirements.
As a general matter, state agencies may
meet the requirements of 40 CFR part
51, and the 2002 NSR Reform Rules,
with different but equivalent
regulations. As mentioned above, North
Carolina chose to IBR the federal rules
with several changes. The definition of
‘‘baseline actual emissions’’ at
subchapter 2D .0530(b)(1) and
.0531(a)(1) was changed 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. North
Carolina rules treat EUSGUs and nonEUSGUs the same by allowing a look
back of only 5 years. However, North
Carolina 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. In addition, North Carolina
rules require EUSGUs to adjust
downward the baseline emissions to
account for reductions required under
the North Carolina Clean Smokestack
Act (CSA) (a state law mandating
emission reductions from certain
EUSGUs). North Carolina’s rules also
include some changes from the federal
rules regarding recordkeeping and
reporting; plant-wide applicability
limits; and clarifications regarding the
use of emissions reductions from the
CSA. One such clarification is that any
allowances for emissions reductions
achieved under the CSA are not
available to the subject facilities, nor
any other sources, and may not be used
to offset emissions and avoid
installation of best available control
technology or lowest achievable
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emissions rate on new natural gas-fired
units. A full discussion of the
differences between the North Carolina
rules and the federal rules is available
in the proposal action. See 73 FR 52226.
III. Response to Comments
EPA received two sets of adverse
comments on the September 9, 2008,
proposed rulemaking to approve North
Carolina’s November 30, 2005, March
16, 2007, and June 20, 2008, SIP
revisions. Specifically, adverse
comments were received from NRDC
and DEC. A complete set of these
comments is provided in the docket for
today’s rulemaking. EPA’s response to
these adverse comments is provided
below.
A. EPA’s Response to NRDC Comments
NRDC commented on EPA’s proposed
rulemaking to approve North Carolina’s
NSR rule changes. Specifically, NRDC
primarily commented on the
requirements of the federal NSR rules,
not North Carolina’s application of the
federal requirements in its own rules.
Notably, NRDC participated in litigation
challenging EPA’s 2002 promulgation of
the NSR Reform Rules, where similar
arguments were made by NRDC and
dismissed by the D.C. Circuit Court.
New York v. EPA, 413 F.3d 3 (DC Cir.
2005). NRDC’s comments, including
exhibits, do not raise any specific
concerns with North Carolina’s rules,
but rather, reiterate arguments made by
NRDC to the D.C. Circuit regarding
sections 110(l) and 193 of the CAA.3
While NRDC’s comments provide
citations to eleven portions of the North
Carolina rules, the comments make no
attempt to specifically explain or
demonstrate how those identified
provisions are inconsistent with either
section 110(l) or section 193 of the CAA.
Furthermore, NRDC provides no
evidence supporting its allegations that
approval of the specific provisions
would result in a violation of the CAA
or otherwise be ‘‘arbitrary, capricious,
an abuse of discretion, and otherwise
not in accordance with law.’’ NRDC
Comments at 2.
The NRDC comments include a list of
31 exhibits which the comment letter
3 NRDC notes that, ‘‘[t]he 2002 rule provisions
considered by the D.C. Circuit in New York v. EPA
were EPA regulations, not state ones. The court thus
had no occasion to decide whether EPA could
approve any state’s versions of any of the 2002 rule
provisions consistently with section 110(l) of the
Act.’’ NRDC Comments at 3. The North Carolina
rules at issue here track the federally approved
rules (upheld by the DC Circuit) (which NRDC
admits—NRDC Comments at 4) and NRDC
supported all its comments with information
related to the challenge of EPA’s 2002 NSR Reform
Rules. NRDC provided no North Carolina-specific
support for its comments.
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incorporates by reference into the
comments. NRDC Comments at 1. The
31 exhibits appear to all be related to
the DC Circuit Court case New York v.
EPA, and were either submitted to that
Court for review, or are relevant to that
adjudication. To the extent that these
exhibits were provided to the DC
Circuit, those issues were previously
resolved by the Court and/or already
responded to by EPA in its responsive
court papers. Any other documents
included in the 31 exhibits that were
not provided to the DC Circuit Court do
not provide EPA with any comments
specific to the North Carolina rules at
issue.
Despite the lack of North Carolinaspecific discussion in NRDC’s letter,
EPA has responded to the few
comments that appear related to the
September 9, 2008, proposed
rulemaking to approve North Carolina’s
SIP revision pertaining to EPA’s 2002
NSR Reform Rules.4
Comment 1: In summary, NRDC
stated that finalizing the EPA September
9, 2008, proposed rulemaking to
approve North Carolina’s November 30,
2005, March 16, 2007, and June 20,
2008, SIP revisions would violate
section 110(l) of the Act. NRDC
comments at 1–6. As support for its
conclusion, NRDC asserted that ‘‘[t]he
2002 NSR Reform Rule provisions that
were not vacated by the DC Circuit in
New York v. EPA [citation omitted]
allow previously-prohibited emissionsincreases to occur.’’ NRDC comments at
4. Further, that ‘‘North Carolina
nevertheless has made no
‘demonstration that the emissions that
are allowed by its revised rule but are
prohibited by the current SIP would not
interfere with attainment or other
applicable requirements.’ ’’ As a result,
NRDC stated that, ‘‘it cannot be said of
North Carolina’s plan that it ‘will cause
no degradation of air quality.’ ’’ NRDC
comments at 5. NRDC also stated that
EPA has not made any findings that
North Carolina’s rule will not cause
degradation of air quality or interfere
with any applicable requirements
concerning attainment and reasonable
further progress, or any other applicable
requirements of the CAA. NRDC
comments at 5.
Response 1: EPA’s 2002 NSR Reform
Rules were upheld by the DC Circuit
4 Similar comments were filed by Sierra Club on
the Wisconsin NSR Reform SIP revision. EPA’s
response to comments in that matter may be
reviewed at https://www.regulations.gov—document
ID EPA–R05–OAR–2006–0609–0009. EPA was
successful in defending a challenge to approval of
Wisconsin’s NSR Reform SIP revision. See NRDC v.
Jackson, Nos. 09–1405 & 10–2123 (7th Cir., Jun. 16,
2011), 2011 US App LEXIS 12116.
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Court which reviewed them, with the
exception of the pollution control
project and clean unit provisions (and
the remanded matters). The three
significant changes in NSR Reform that
were upheld by the DC Circuit were: (1)
Plant-wide applicability limits (PALs),
(2) the 2-in-10 baseline, and (3) the
actual-to-projected actual emission test.
The Supplemental Environmental
Analysis of the Impact of the 2002 Final
NSR Improvement Rules (November 21,
2002) (Supplemental Analysis)
discussed each of these three changes
individually, and addresses some of the
issues raised by NRDC.
With regard to PALs, the
Supplemental Analysis explained,
‘‘[t]he EPA expects that the adoption of
PAL provisions will result in a net
environmental benefit. Our experience
to date is that the emissions caps found
in PAL-type permits result in real
emissions reductions, as well as other
benefits.’’ Supplemental Analysis at 6.
EPA further explained that,
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‘‘Although it is impossible to predict how
many and which sources will take PALs, and
what actual reductions those sources will
achieve for what pollutants, we believe that,
on a nationwide basis, PALs are certain to
lead to tens of thousands of tons of
reductions of [volatile organic compounds]
from source categories where frequent
operational changes are made, where these
changes are time-sensitive, and where there
are opportunities for economical air
pollution control measures. These reductions
occur because of the incentives that the PAL
creates to control existing and new units in
order to provide room under the cap to make
necessary operational changes over the life of
the PAL.’’
Supplemental Analysis at 7. The
Supplemental Analysis, and particularly
Appendix B, provided additional details
regarding EPA’s analysis of PALs and
anticipated associated emission
decreases.
With regard to the 2-in-10 baseline,
EPA concluded that, ‘‘[t]he EPA believes
that the environmental impact from the
change in baseline EPA is now
finalizing will not result in any
significant change in benefits derived
from the NSR program.’’ Supplemental
Analysis at 13. This is mainly because
‘‘the number of sources receiving
different baselines likely represents a
very small fraction of the overall NSR
permit universe, excludes new sources
and coal fired power plants, and
because the baseline may shift in either
direction, we conclude that any overall
consequences would be negligible.’’
Supplemental Analysis at 14.
Additional information regarding the 2in-10 baseline changes is available in
the Supplemental Analysis, Appendix
F.
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With regard to the actual-to-projected
actual test, EPA concluded, ‘‘we believe
that the environmental impacts of the
switch to the actual-to-projected actual
test are likely to be environmentally
beneficial. However, as with the change
to the baseline, we believe the vast
majority of sources, including new
sources, new units, electric utility steam
generating units, and units that actually
increase emissions as a result of a
change, will be unaffected by this
change. Thus, the overall impacts of the
NSR changes are likely to be
environmentally beneficial, but only to
a small extent.’’ Supplemental Analysis
at 14 (see also Supplemental Analysis
Appendix G).
Section 110(l) of the CAA states, in
relevant part, that ‘‘[t]he Administrator
shall not approve a revision of a plan if
the revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress * * * or any other applicable
requirement of this chapter.’’ CAA, 42
U.S.C. 7410(l). In ‘‘Approval and
Promulgation of Implementation Plans;
New Source Review; State of Nevada,
Clark County Department of Air Quality
and Environmental Management,’’ 69
FR 54006 (September 7, 2004), EPA
stated that section 110(l) does not
preclude SIP relaxations. Rather, EPA
stated that section 110(l) only requires
that the ‘‘relaxations not interfere with
specified requirements of the Act
including requirements for attainment
and reasonable further progress,’’ and
that, therefore, a state can relax its SIP
provisions if it is able to show that it can
attain or maintain the NAAQS and meet
any applicable reasonable further
progress goals or other specific
requirements. See 69 FR at 54011–12.
North Carolina’s November 30, 2005,
March 16, 2007, and June 20, 2008, SIP
revisions track the federal NSR Reform
Rules, with changes, as described in
North Carolina’s SIP revisions. EPA
evaluated North Carolina’s rules
consistent with its evaluation of the
federal rules, and determined that North
Carolina’s rules were equivalent to or
more stringent than the 2002 NSR
Reform Rules. Overall, as summarized
above, EPA expects that changes in air
quality as a result of implementing
North Carolina’s rules as updated by the
aforementioned SIP revisions is
consistent with EPA’s position on the
federal NSR Reform Rules—that there
will be somewhere between neutral and
providing modest contribution to
reasonable further progress between the
NSR Reform and pre-Reform provisions.
EPA’s analysis for the environmental
impacts of the three components of the
NSR Reform rules (discussed earlier) is
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informative of how North Carolina’s
adoption of NSR Reform (based on the
federal rules) will affect emissions. EPA
has no reason to believe that the
environmental impacts will be different
from those discussed in the
Supplemental Analysis for the NSR
Reform Rules, and thus, approval of the
November 30, 2005, March 16, 2007,
and June 20, 2008, SIP revisions related
to NSR Reform would not be contrary to
section 110(l) of the CAA.5
Comment 2: NRDC cites to eleven
general portions of North Carolina’s
rules as provisions that would violate
section 110(l). These provisions are:
Regulation 15A North Carolina
Administrative Code (NCAC),
Subchapter 2D .0530, subsections (a),
(b), (g), (i), (u), and (v) (from North
Carolina’s PSD rules); and Subchapter
2D .0531, subsections (a), (c), (n), (o),
and (p) (from North Carolina’s NNSR
rules).
Response 2: With regard to the
comments, NRDC provides no evidence
supporting its contention that these
specific provisions violate section
110(l). The first provision noted by
NRDC, 15A NCAC 02D .0530(a) states
the general purpose of the rule to
implement North Carolina’s PSD
program, which does include some
changes per the SIP revisions at issue.
Nonetheless, without further specificity,
it is not clear why or how NRDC
believes this provision is a violation of
section 110(l). In addition, NRDC has
provided no North Carolina-specific
documentation that indicates that EPA’s
analysis and conclusions regarding the
impact of NSR Reform, in the
Supplemental Analysis, is not
applicable to North Carolina’s rules,
which are equivalent to or more
stringent than the federal rules.
In evaluating North Carolina’s
November 30, 2005, March 16, 2007,
and June 20, 2008, SIP revisions, EPA
compared North Carolina’s rules with
the existing federal rules and
determined that North Carolina’s rules
were equivalent to or more stringent
than the NSR Reform (federal) rules.
EPA also considered North Carolina’s
changes to the federal NSR Reform
provisions. These changes were
discussed in EPA’s September 9, 2008,
proposed rulemaking to approve North
Carolina’s three SIP revisions related to
NSR Reform, and are discussed in North
Carolina’s final submittal (including
5 In reviewing EPA’s approval of a Wisconsin SIP
amendment that adopted the 2002 NSR Reform
rules, a federal appeals court recently held that EPA
could rely on the Supplemental Analysis in support
of its approval. See NRDC v. Jackson, Nos. 09–1405
& 10–2123 (7th Cir., Jun. 16, 2011), 2011 US App
LEXIS 12116.
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North Carolina’s response to comments
received during the State public
process), which are included in the
docket for today’s final action. As was
explained in EPA’s September 9, 2008,
proposed rulemaking, EPA agrees with
North Carolina’s conclusion that the
changes are at least equivalent to the
Federal rules. See 73 FR 52228–52229.
EPA also considered the Supplemental
Analysis in reviewing North Carolinas’s
three SIP revisions related to NSR
Reform, and NRDC’s comments. EPA
concluded that approval of North
Carolina’s SIP revisions would not be
contrary to section 110(l) of the CAA.
Absent more explicit information
demonstrating that North Carolina’s
plan for implementation of a specific
provision of its rules would interfere
with any applicable requirement of the
CAA and thus should be disapproved
under section 110(l), EPA is concluding
that North Carolina’s Technical Support
Document and the Supplemental
Analysis supports approval. As a result,
there is no basis on which to determine
that approval of North Carolina’s rules
would violate section 110(l).
Comment 3: NRDC states that NSR is
a ‘‘control requirement’’ and thus the
requirements of section 193 apply to the
NSR rules at issue in North Carolina’s
November 30, 2005, March 16, 2007,
and June 20, 2008, SIP revisions. NRDC
comments at 7. NRDC further alleges
that North Carolina’s revisions ‘‘ensure
that emissions will not be reduced as
much as under the pre-existing rules. In
fact, the modifications allow emissions
to increase in North Carolina’s
nonattainment areas.’’ NRDC comments
at 9. Finally, NRDC states that ‘‘because
section 193 lies within part D,’’ ‘‘if EPA
approves North Carolina’s revised plan,
that action will additionally exceed the
agency’s authority under section
110(k)(3) and violate section 100(l).’’
(Note, the last citation to 100(l) appears
to be a typographical error and should
read 110(l).) NRDC comments at 10.
Response 3: EPA’s response to the
section 193 issues raised by NRDC
involves many of the same elements of
the response above to the section 110(l)
comments, which is also incorporated
by reference here. Section 193 states (in
relevant part), that ‘‘[n]o control
requirement in effect, or required to be
adopted by an order, settlement
agreement, or plan in effect before
November 15, 1990, in any area which
is a nonattainment area for any air
pollutant may be modified after
November 15, 1990, in any manner
unless the modification insures
equivalent or greater emission
reductions of such air pollutant.’’
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Assuming for purposes of this
discussion that section 193 does apply
to the instant action, as was discussed
earlier in this notice, EPA has
previously determined and explained in
the Supplemental Analysis, that
implementation of the 2002 NSR Reform
Rule provisions still in effect (that is,
those not vacated by the DC Circuit) are
expected to have at least a neutral
environmental benefit. While North
Carolina’s rules do include some
changes from the Federal rules, in the
September 9, 2008, proposed
rulemaking, EPA explained the basis for
its evaluation that the differences do not
make North Carolina’s NSR program
less stringent than the federal program.
EPA has no information indicating that
findings associated with EPA’s
Supplemental Analysis would not apply
in North Carolina—that is, that North
Carolina’s SIP revisions would have at
least a neutral environmental benefit.
See e.g., NRDC v. Jackson, Nos. 09–1405
& 10–2123 (7th Cir., Jun. 16, 2011), 2011
US App LEXIS 12116 (upholding EPA’s
reliance on the Supplemental Analysis
where there was no information
indicating an alternative outcome or
analysis). Therefore, even if section 193
did apply to this action, EPA does not
agree with commenter’s assertions that
the SIP revisions approved in this action
raise a section 193 concern.
In addition, the core of NRDC’s
argument seems to revolve around the
DC Circuit Court decision in South
Coast Air Quality Management District
v. EPA, 472 F.3d 882 (DC Cir. 2006)
(finding that NSR associated with the 1hour ozone NAAQS included control
requirements). At issue in South Coast
v.EPA was EPA’s determination
regarding the revocation of the entire 1hour ozone program (and corresponding
SIP elements), including all the 1-hour
nonattainment NSR elements, and
whether such elements would continue
to be required as part of SIPs
implementing the new (at that time) 8hour ozone NAAQS. The facts in the
South Coast v. EPA case are
distinguishable from the instant matter
where the North Carolina SIP is merely
being updated to include changes to the
Federal NSR program. EPA is not
removing the entirety of North
Carolina’s NNSR program from the SIP
as it pertains to a particular NAAQS.
Rather, EPA is simply approving North
Carolina’s SIP revisions that adopt rules
equivalent to or more stringent than the
federal rules; and as discussed earlier in
this notice, EPA developed a
Supplemental Analysis to support
adoption of the federal rules. The North
Carolina SIP will continue to operate
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with the full suite of NSR related
elements, including a comprehensive
minor source program.
B. EPA’s Response to DEC Comments
DEC also commented on EPA’s
September 9, 2008, proposed
rulemaking to approve North Carolina’s
NSR rule. DEC primarily commented on
the requirements that electric utilities
adjust downward the baseline emissions
to account for reductions achieved and
paid for as a result of the North Carolina
CSA. Below summarizes DEC’s
comment and EPA’s response.
Comment 4: DEC indicated that EPA
should not approve these provisions
into North Carolina’s SIP because: (1)
They are not required by the CAA and
the federal NSR regulations; (2) they
have nothing to do with air quality
concerns; and (3) the General Assembly
of North Carolina adopted legislation
which provides specific exceptions from
the requirement to adjust baseline
emissions downward based on the CSA.
Response 4: As a point of background,
on August 21, 2009, North Carolina
provided a SIP revision to EPA
requesting that EPA incorporate the
provisions of the CSA into the SIP. The
submittal was necessary to ensure
attainment and maintenance of the
NAAQS within North Carolina (North
Carolina has relied, and continues to
rely, on the CSA reductions to
demonstrate attainment with more than
one NAAQS). As part of redesignation
submittals for at least two areas in North
Carolina, for the 1997 annual PM2.5
NAAQS, North Carolina is relying on
the CSA as containing ‘‘permanent and
enforceable’’ measures that ensure
maintenance for that NAAQS. That
reliance necessitated that North
Carolina submit to EPA the CSA for
approval into the SIP. On June 22, 2011,
EPA proposed to approve the CSA into
the North Carolina SIP. See 76 FR
36468.
As was explained in the proposal
action, North Carolina’s rules include a
requirement that EUSGUs adjust
downward the baseline emissions to
account for reductions required under
the North Carolina Clean Smokestack
Act. DEC’s comments appear to suggest
that because the CSA reductions are not
required, this provision should not be
approved into the SIP. Further, that the
North Carolina legislature took action to
eliminate this provision for at least a
certain period of time. Consistent with
the background information provided
above, because North Carolina is in fact
relying on the CSA reductions for
attainment and maintenance of NAAQS
for various areas around North Carolina,
the provision is actually necessary to
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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations
ensure that the reductions remain
permanent and enforceable. While there
remains some flexibility in how those
reductions are achieved per the CSA,
once achieved, they must be permanent.
With regard to the action taken by the
legislature on July 17, 2006 (the text of
which DEC included as part of its
comments), the language itself in Senate
Bill 1587 only applies between April 21,
2005, and August 1, 2006. Because that
time period has lapsed, there is nothing
apparent in Senate Bill 1587 that could
impact approval of the SIP revisions
currently being approved today. The
comment letter does not explain why a
provision that lapsed on August 1, 2006,
would apply to today’s rulemaking and
PSD applicability going forward from
the effective date of today’s rule. As a
general matter, EPA does not necessarily
agree with DEC’s legal arguments;
however, given that Senate Bill 1587
does not apply currently, these
differences need not be resolved at this
time. The NSR reform rules being
approved today would apply to the
facilities at issue under the CSA once
today’s action is final and effective, per
the provisions of the State rules now
being incorporated into the SIP.
IV. Final Action
EPA is taking final action to approve
revisions to the North Carolina SIP for
Regulations 15A NCAC 2D .0530 and
.0531, as submitted by the NC DENR on
November 30, 2005, March 16, 2007,
and June 20, 2008. These SIP revisions
address changes to North Carolina’s PSD
and NNSR programs. EPA is approving
these revisions into the North Carolina
SIP because they are consistent with
section 110 of the CAA and its
implementing regulations.
V. Statutory and Executive Order
Reviews.
mstockstill on DSK4VPTVN1PROD with RULES
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act 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
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those imposed by state law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• 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).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
PO 00000
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Fmt 4700
Sfmt 4700
49317
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by October 11, 2011. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: July 25, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
Subpart II—North Carolina
2. Section 52.1770(c), Table 1, is
amended under Subchapter 2D, Section
.0500, by revising the entries for ‘‘Sect
.0530’’ and ‘‘Sect .0531’’ to read as
follows:
■
§ 52.1770
*
Identification of plan.
*
*
(c) * * *
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*
*
49318
Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations
TABLE 1—EPA-APPROVED NORTH CAROLINA REGULATIONS
State citation
State
effective
date
Title/subject
EPA approval date
Explanation
Subchapter 2D Air Pollution Control Requirements
*
*
*
*
*
*
*
*
*
Section .0500 Emission Control Standards
*
*
*
*
*
Sect .0530 .....................
Prevention of Significant
Deterioration.
5/1/2008
8/10/2011 [Insert citation
of publication].
Sect .0531 .....................
Sources in Nonattainment Areas.
5/1/2008
8/10/2011 [Insert citation
of publication].
*
*
*
*
*
*
*
*
*
*
DATES: This order is effective August 10,
2011. Objections and requests for
hearings must be received on or before
October 11, 2011, and must be filed in
accordance with the instructions
provided in 40 CFR part 178 (see also
Unit I.C. of the SUPPLEMENTARY
INFORMATION).
[FR Doc. 2011–20167 Filed 8–9–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 180
EPA has established a
docket for this action under docket
identification (ID) number EPA–HQ–
OPP–2009–0629. To access the
electronic docket, go to https://www.
regulations.gov, select ‘‘Advanced
Search,’’ then ‘‘Docket Search.’’ Insert
the docket ID number where indicated
and select the ‘‘Submit’’ button. Follow
the instructions on the regulations.gov
Web site to view the docket index or
access available documents. All
documents in the docket are listed in
the docket index available in
regulations.gov. Although listed in the
index, some information is not publicly
available, e.g., Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
ADDRESSES:
[EPA–HQ–OPP–2009–0629; FRL–8882–5]
Import Tolerances; Order Denying
ABC’s Petition to Revoke Import
Tolerances for Various Pesticides
mstockstill on DSK4VPTVN1PROD with RULES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Order.
SUMMARY: In this Order, EPA denies a
petition requesting that EPA revoke all
pesticide ‘‘import’’ tolerances for
cadusafos, cyproconazole, diazinon,
dithianon, diquat, dimethoate,
fenamiphos, mevinphos, methomyl,
naled, phorate, terbufos, and dichlorvos
(DDVP) under section 408(d) of the
Federal Food, Drug, and Cosmetic Act
(FFDCA). The petition was filed on July
23, 2009, by the American Bird
Conservancy (ABC).
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Frm 00040
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Sfmt 4700
15 NCAC .0530 incorporates by reference the
regulations found at 40 CFR 51.166, with
changes, as of June 13, 2007. This EPA action is approving the incorporation by reference with the exception of the phrase ‘‘except ethanol production facilities producing
ethanol by natural fermentation under the
North American Industry Classification System
(NAICS) codes 325193 or 312140,’’ (as
amended at 40 CFR 51.166(b)(1)(i)(a),
(b)(1)(iii)(t), and (i)(1)(ii)(t).
15 NCAC .0531 incorporates by reference the
regulations found at 40 CFR 51.165, with
changes, as of June 13, 2007. This EPA action is approving the incorporation by reference with the exception of the phrase ‘‘except ethanol production facilities producing
ethanol by natural fermentation under the
North American Industry Classification System
(NAICS) codes 325193 or 312140,’’ (as
amended at 40 CFR 51.165(a)(1)(iv)(C)(20)
and (a)(4)(xx).
*
*
available only in hard copy form.
Publicly available docket materials are
available in the electronic docket at
https://www.regulations.gov, or, if only
available in hard copy, at the OPP
Regulatory Public Docket in Rm. S–
4400, One Potomac Yard (South Bldg.),
2777 S. Crystal Dr., Arlington, VA. The
Docket Facility is open from 8:30 a.m.
to 4 p.m., Monday through Friday,
excluding legal holidays. The Docket
Facility telephone number is (703) 305–
5805.
FOR FURTHER INFORMATION CONTACT:
Richard Dumas, Pesticide Re-evaluation
Division (7508P), Office of Pesticide
Programs, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460–0001; telephone
number: (703) 308–8015; e-mail
address: dumas.richard@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
In this document EPA denies a
petition by the American Bird
Conservancy (ABC) to revoke pesticide
tolerances. This action may also be of
interest to agricultural producers, food
E:\FR\FM\10AUR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Rules and Regulations]
[Pages 49313-49318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20167]
[[Page 49313]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2005-0534-201113; FRL-9449-8]
Approval and Promulgation of Implementation Plans North Carolina:
Prevention of Significant Deterioration and Nonattainment New Source
Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is taking final action to approve revisions to the North
Carolina State Implementation Plan (SIP) submitted by the State of
North Carolina in three submittals dated November 30, 2005, March 16,
2007, and June 20, 2008. The revisions modify North Carolina's
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR) permitting regulations in the SIP to address
changes to the federal New Source Review (NSR) regulations, which were
promulgated by EPA on December 31, 2002, and reconsidered with minor
changes on November 7, 2003 (collectively, these two final actions are
referred to as the ``2002 NSR Reform Rules''). In addition, the
revisions address an update to the NSR regulations promulgated by EPA
on November 29, 2005 (hereafter referred to as the Ozone Implementation
NSR Update) relating to the implementation of the 1997 8-hour ozone
National Ambient Air Quality Standards (NAAQS). EPA proposed to approve
these revisions on September 9, 2008, and received adverse comments. In
this final action, EPA is also responding to the adverse comments.
DATES: This rule will be effective September 9, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2005-0534. All documents in the docket
are listed on the https://www.regulations.gov Web site. Although listed
in the index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through https://www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: For information regarding the North
Carolina SIP, contact Ms. Twunjala Bradley, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-8960. Ms. Bradley's telephone
number is (404) 562-9352; e-mail address: bradley.twunjala@epa.gov. For
information regarding NSR Reform, contact Ms. Yolanda Adams, Air
Permits Section, at the same address above. Ms. Adam's telephone number
is: (404) 562-9214; e-mail address: adams.yolanda@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document, references to
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What action is EPA taking?
II. What is the background for EPA's action?
III. Response to Comments
IV. Final Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is taking final action to approve revisions to the North
Carolina SIP regarding the State's NSR programs. On November 30, 2005,
March 16, 2007, and June 20, 2008, the State of North Carolina, through
the North Carolina Department of Environment and Natural Resources (NC
DENR), submitted revisions to the North Carolina SIP. The SIP revisions
consist of changes to North Carolina Air Quality Rules, Subchapter 2D.
Specifically, the November 30, 2005, proposed SIP revision includes
changes to Regulation 15A North Carolina Administrative Code (NCAC) 2D
.0531, ``Sources in Nonattainment Areas.'' The March 16, 2007, proposed
SIP revision includes changes to Regulation 15A NCAC 2D .0530,
``Prevention of Significant Deterioration.'' The June 20, 2008,
proposed SIP revision \1\ includes additional changes to Regulations
15A NCAC 2D .0530, and .0531. NC DENR submitted these revisions in
response to EPA's December 31, 2002, November 7, 2003, and November 29,
2005, revisions to the federal NSR program. Pursuant to section 110 of
the Clean Air Act (CAA or Act), EPA is taking final action to approve
these SIP revisions.
---------------------------------------------------------------------------
\1\ The June 20, 2008, SIP revision also included changes to
NCAC Subchapter 2D, Section .2400, Clean Air Interstate Rule (CAIR).
EPA took final action approving the CAIR portion of the June 20,
2008, SIP revision on November 30, 2009. See 74 FR 62496.
---------------------------------------------------------------------------
II. What is the background for EPA's action?
On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52,
regarding the CAA's PSD and NNSR programs. On November 7, 2003 (68 FR
63021), EPA published a notice of final action on the reconsideration
of the December 31, 2002, final rule changes. The December 31, 2002,
and the November 7, 2003, final actions are collectively referred to as
the ``2002 NSR Reform Rules.'' \2\ For additional information on the
2002 NSR Reform Rules, see 67 FR 80186 (December 31, 2002). For
information on the subsequent revisions to these rules, see https://www.epa.gov/nsr.
---------------------------------------------------------------------------
\2\ For more information on the 2002 NSR Reform Rules, and its
supporting technical documents, see, https://www.epa.gov/nsr/actions.html#2002 (last visited February 16, 2011).
---------------------------------------------------------------------------
Also relevant to NC DENR's SIP revisions, on November 29, 2005 (70
FR 71612), EPA promulgated implementation provisions for the 1997 8-
hour NAAQS which made changes to the NSR regulations. These included,
among other changes, a requirement that emissions of nitrogen oxides
(NOx) be considered a precursor to ozone. These rules are commonly
referred to as the Ozone Implementation NSR Update.
On November 30, 2005, March 16, 2007, and June 20, 2008, NC DENR
submitted SIP revisions to EPA for the purpose of revising the State's
NSR permitting provisions to adopt EPA's 2002 NSR Reform Rules and the
Ozone Implementation NSR Update. These SIP revisions incorporate by
reference (IBR) the federal NSR rules at 40 CFR 51.166 and 51.165, as
amended on June 13, 2007, with several changes. See EPA's analysis of
the State's NSR SIP revisions in the September 9, 2008, proposed
rulemaking. See 73 FR 52226. Copies of North Carolina's revised NSR
rules, as well as the State's Technical Support Document, can be
obtained from the docket, as discussed in the ADDRESSES section above.
On September 9, 2008 (73 FR 52226), EPA proposed to approve the
above-referenced SIP revisions. In response to
[[Page 49314]]
a request for an extension of the public comment period for EPA's
September 9, 2008, proposed rulemaking, EPA extended the public comment
period through November 10, 2008 (73 FR 58084). EPA received adverse
comments from the National Resource Defense Council (NRDC) and the Duke
Energy Corporation (DEC) regarding North Carolina's NSR Reform Rule
changes. No adverse comments were received for North Carolina's rule
changes to adopt the provisions of the Ozone Implementation NSR Update.
EPA's response to these comments is below in section III of this final
rulemaking. EPA's analysis of the State's NSR SIP revisions is
contained in the September 9, 2008, proposed rulemaking, and briefly
summarized as follows. See 73 FR 52226.
EPA's evaluation of the North Carolina SIP submittals included a
line-by-line comparison of the proposed revisions with the federal
requirements. As a general matter, state agencies may meet the
requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with
different but equivalent regulations. As mentioned above, North
Carolina chose to IBR the federal rules with several changes. The
definition of ``baseline actual emissions'' at subchapter 2D
.0530(b)(1) and .0531(a)(1) was changed 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.
North Carolina rules treat EUSGUs and non-EUSGUs the same by allowing a
look back of only 5 years. However, North Carolina 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. In addition, North Carolina rules require
EUSGUs to adjust downward the baseline emissions to account for
reductions required under the North Carolina Clean Smokestack Act (CSA)
(a state law mandating emission reductions from certain EUSGUs). North
Carolina's rules also include some changes from the federal rules
regarding recordkeeping and reporting; plant-wide applicability limits;
and clarifications regarding the use of emissions reductions from the
CSA. One such clarification is that any allowances for emissions
reductions achieved under the CSA are not available to the subject
facilities, nor any other sources, and may not be used to offset
emissions and avoid installation of best available control technology
or lowest achievable emissions rate on new natural gas-fired units. A
full discussion of the differences between the North Carolina rules and
the federal rules is available in the proposal action. See 73 FR 52226.
III. Response to Comments
EPA received two sets of adverse comments on the September 9, 2008,
proposed rulemaking to approve North Carolina's November 30, 2005,
March 16, 2007, and June 20, 2008, SIP revisions. Specifically, adverse
comments were received from NRDC and DEC. A complete set of these
comments is provided in the docket for today's rulemaking. EPA's
response to these adverse comments is provided below.
A. EPA's Response to NRDC Comments
NRDC commented on EPA's proposed rulemaking to approve North
Carolina's NSR rule changes. Specifically, NRDC primarily commented on
the requirements of the federal NSR rules, not North Carolina's
application of the federal requirements in its own rules. Notably, NRDC
participated in litigation challenging EPA's 2002 promulgation of the
NSR Reform Rules, where similar arguments were made by NRDC and
dismissed by the D.C. Circuit Court. New York v. EPA, 413 F.3d 3 (DC
Cir. 2005). NRDC's comments, including exhibits, do not raise any
specific concerns with North Carolina's rules, but rather, reiterate
arguments made by NRDC to the D.C. Circuit regarding sections 110(l)
and 193 of the CAA.\3\
---------------------------------------------------------------------------
\3\ NRDC notes that, ``[t]he 2002 rule provisions considered by
the D.C. Circuit in New York v. EPA were EPA regulations, not state
ones. The court thus had no occasion to decide whether EPA could
approve any state's versions of any of the 2002 rule provisions
consistently with section 110(l) of the Act.'' NRDC Comments at 3.
The North Carolina rules at issue here track the federally approved
rules (upheld by the DC Circuit) (which NRDC admits--NRDC Comments
at 4) and NRDC supported all its comments with information related
to the challenge of EPA's 2002 NSR Reform Rules. NRDC provided no
North Carolina-specific support for its comments.
---------------------------------------------------------------------------
While NRDC's comments provide citations to eleven portions of the
North Carolina rules, the comments make no attempt to specifically
explain or demonstrate how those identified provisions are inconsistent
with either section 110(l) or section 193 of the CAA. Furthermore, NRDC
provides no evidence supporting its allegations that approval of the
specific provisions would result in a violation of the CAA or otherwise
be ``arbitrary, capricious, an abuse of discretion, and otherwise not
in accordance with law.'' NRDC Comments at 2.
The NRDC comments include a list of 31 exhibits which the comment
letter incorporates by reference into the comments. NRDC Comments at 1.
The 31 exhibits appear to all be related to the DC Circuit Court case
New York v. EPA, and were either submitted to that Court for review, or
are relevant to that adjudication. To the extent that these exhibits
were provided to the DC Circuit, those issues were previously resolved
by the Court and/or already responded to by EPA in its responsive court
papers. Any other documents included in the 31 exhibits that were not
provided to the DC Circuit Court do not provide EPA with any comments
specific to the North Carolina rules at issue.
Despite the lack of North Carolina-specific discussion in NRDC's
letter, EPA has responded to the few comments that appear related to
the September 9, 2008, proposed rulemaking to approve North Carolina's
SIP revision pertaining to EPA's 2002 NSR Reform Rules.\4\
---------------------------------------------------------------------------
\4\ Similar comments were filed by Sierra Club on the Wisconsin
NSR Reform SIP revision. EPA's response to comments in that matter
may be reviewed at https://www.regulations.gov--document ID EPA-R05-
OAR-2006-0609-0009. EPA was successful in defending a challenge to
approval of Wisconsin's NSR Reform SIP revision. See NRDC v.
Jackson, Nos. 09-1405 & 10-2123 (7th Cir., Jun. 16, 2011), 2011 US
App LEXIS 12116.
---------------------------------------------------------------------------
Comment 1: In summary, NRDC stated that finalizing the EPA
September 9, 2008, proposed rulemaking to approve North Carolina's
November 30, 2005, March 16, 2007, and June 20, 2008, SIP revisions
would violate section 110(l) of the Act. NRDC comments at 1-6. As
support for its conclusion, NRDC asserted that ``[t]he 2002 NSR Reform
Rule provisions that were not vacated by the DC Circuit in New York v.
EPA [citation omitted] allow previously-prohibited emissions-increases
to occur.'' NRDC comments at 4. Further, that ``North Carolina
nevertheless has made no `demonstration that the emissions that are
allowed by its revised rule but are prohibited by the current SIP would
not interfere with attainment or other applicable requirements.' '' As
a result, NRDC stated that, ``it cannot be said of North Carolina's
plan that it `will cause no degradation of air quality.' '' NRDC
comments at 5. NRDC also stated that EPA has not made any findings that
North Carolina's rule will not cause degradation of air quality or
interfere with any applicable requirements concerning attainment and
reasonable further progress, or any other applicable requirements of
the CAA. NRDC comments at 5.
Response 1: EPA's 2002 NSR Reform Rules were upheld by the DC
Circuit
[[Page 49315]]
Court which reviewed them, with the exception of the pollution control
project and clean unit provisions (and the remanded matters). The three
significant changes in NSR Reform that were upheld by the DC Circuit
were: (1) Plant-wide applicability limits (PALs), (2) the 2-in-10
baseline, and (3) the actual-to-projected actual emission test. The
Supplemental Environmental Analysis of the Impact of the 2002 Final NSR
Improvement Rules (November 21, 2002) (Supplemental Analysis) discussed
each of these three changes individually, and addresses some of the
issues raised by NRDC.
With regard to PALs, the Supplemental Analysis explained, ``[t]he
EPA expects that the adoption of PAL provisions will result in a net
environmental benefit. Our experience to date is that the emissions
caps found in PAL-type permits result in real emissions reductions, as
well as other benefits.'' Supplemental Analysis at 6. EPA further
explained that,
``Although it is impossible to predict how many and which
sources will take PALs, and what actual reductions those sources
will achieve for what pollutants, we believe that, on a nationwide
basis, PALs are certain to lead to tens of thousands of tons of
reductions of [volatile organic compounds] from source categories
where frequent operational changes are made, where these changes are
time-sensitive, and where there are opportunities for economical air
pollution control measures. These reductions occur because of the
incentives that the PAL creates to control existing and new units in
order to provide room under the cap to make necessary operational
changes over the life of the PAL.''
Supplemental Analysis at 7. The Supplemental Analysis, and particularly
Appendix B, provided additional details regarding EPA's analysis of
PALs and anticipated associated emission decreases.
With regard to the 2-in-10 baseline, EPA concluded that, ``[t]he
EPA believes that the environmental impact from the change in baseline
EPA is now finalizing will not result in any significant change in
benefits derived from the NSR program.'' Supplemental Analysis at 13.
This is mainly because ``the number of sources receiving different
baselines likely represents a very small fraction of the overall NSR
permit universe, excludes new sources and coal fired power plants, and
because the baseline may shift in either direction, we conclude that
any overall consequences would be negligible.'' Supplemental Analysis
at 14. Additional information regarding the 2-in-10 baseline changes is
available in the Supplemental Analysis, Appendix F.
With regard to the actual-to-projected actual test, EPA concluded,
``we believe that the environmental impacts of the switch to the
actual-to-projected actual test are likely to be environmentally
beneficial. However, as with the change to the baseline, we believe the
vast majority of sources, including new sources, new units, electric
utility steam generating units, and units that actually increase
emissions as a result of a change, will be unaffected by this change.
Thus, the overall impacts of the NSR changes are likely to be
environmentally beneficial, but only to a small extent.'' Supplemental
Analysis at 14 (see also Supplemental Analysis Appendix G).
Section 110(l) of the CAA states, in relevant part, that ``[t]he
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress * * * or any other applicable
requirement of this chapter.'' CAA, 42 U.S.C. 7410(l). In ``Approval
and Promulgation of Implementation Plans; New Source Review; State of
Nevada, Clark County Department of Air Quality and Environmental
Management,'' 69 FR 54006 (September 7, 2004), EPA stated that section
110(l) does not preclude SIP relaxations. Rather, EPA stated that
section 110(l) only requires that the ``relaxations not interfere with
specified requirements of the Act including requirements for attainment
and reasonable further progress,'' and that, therefore, a state can
relax its SIP provisions if it is able to show that it can attain or
maintain the NAAQS and meet any applicable reasonable further progress
goals or other specific requirements. See 69 FR at 54011-12.
North Carolina's November 30, 2005, March 16, 2007, and June 20,
2008, SIP revisions track the federal NSR Reform Rules, with changes,
as described in North Carolina's SIP revisions. EPA evaluated North
Carolina's rules consistent with its evaluation of the federal rules,
and determined that North Carolina's rules were equivalent to or more
stringent than the 2002 NSR Reform Rules. Overall, as summarized above,
EPA expects that changes in air quality as a result of implementing
North Carolina's rules as updated by the aforementioned SIP revisions
is consistent with EPA's position on the federal NSR Reform Rules--that
there will be somewhere between neutral and providing modest
contribution to reasonable further progress between the NSR Reform and
pre-Reform provisions. EPA's analysis for the environmental impacts of
the three components of the NSR Reform rules (discussed earlier) is
informative of how North Carolina's adoption of NSR Reform (based on
the federal rules) will affect emissions. EPA has no reason to believe
that the environmental impacts will be different from those discussed
in the Supplemental Analysis for the NSR Reform Rules, and thus,
approval of the November 30, 2005, March 16, 2007, and June 20, 2008,
SIP revisions related to NSR Reform would not be contrary to section
110(l) of the CAA.\5\
---------------------------------------------------------------------------
\5\ In reviewing EPA's approval of a Wisconsin SIP amendment
that adopted the 2002 NSR Reform rules, a federal appeals court
recently held that EPA could rely on the Supplemental Analysis in
support of its approval. See NRDC v. Jackson, Nos. 09-1405 & 10-2123
(7th Cir., Jun. 16, 2011), 2011 US App LEXIS 12116.
---------------------------------------------------------------------------
Comment 2: NRDC cites to eleven general portions of North
Carolina's rules as provisions that would violate section 110(l). These
provisions are: Regulation 15A North Carolina Administrative Code
(NCAC), Subchapter 2D .0530, subsections (a), (b), (g), (i), (u), and
(v) (from North Carolina's PSD rules); and Subchapter 2D .0531,
subsections (a), (c), (n), (o), and (p) (from North Carolina's NNSR
rules).
Response 2: With regard to the comments, NRDC provides no evidence
supporting its contention that these specific provisions violate
section 110(l). The first provision noted by NRDC, 15A NCAC 02D
.0530(a) states the general purpose of the rule to implement North
Carolina's PSD program, which does include some changes per the SIP
revisions at issue. Nonetheless, without further specificity, it is not
clear why or how NRDC believes this provision is a violation of section
110(l). In addition, NRDC has provided no North Carolina-specific
documentation that indicates that EPA's analysis and conclusions
regarding the impact of NSR Reform, in the Supplemental Analysis, is
not applicable to North Carolina's rules, which are equivalent to or
more stringent than the federal rules.
In evaluating North Carolina's November 30, 2005, March 16, 2007,
and June 20, 2008, SIP revisions, EPA compared North Carolina's rules
with the existing federal rules and determined that North Carolina's
rules were equivalent to or more stringent than the NSR Reform
(federal) rules. EPA also considered North Carolina's changes to the
federal NSR Reform provisions. These changes were discussed in EPA's
September 9, 2008, proposed rulemaking to approve North Carolina's
three SIP revisions related to NSR Reform, and are discussed in North
Carolina's final submittal (including
[[Page 49316]]
North Carolina's response to comments received during the State public
process), which are included in the docket for today's final action. As
was explained in EPA's September 9, 2008, proposed rulemaking, EPA
agrees with North Carolina's conclusion that the changes are at least
equivalent to the Federal rules. See 73 FR 52228-52229. EPA also
considered the Supplemental Analysis in reviewing North Carolinas's
three SIP revisions related to NSR Reform, and NRDC's comments. EPA
concluded that approval of North Carolina's SIP revisions would not be
contrary to section 110(l) of the CAA.
Absent more explicit information demonstrating that North
Carolina's plan for implementation of a specific provision of its rules
would interfere with any applicable requirement of the CAA and thus
should be disapproved under section 110(l), EPA is concluding that
North Carolina's Technical Support Document and the Supplemental
Analysis supports approval. As a result, there is no basis on which to
determine that approval of North Carolina's rules would violate section
110(l).
Comment 3: NRDC states that NSR is a ``control requirement'' and
thus the requirements of section 193 apply to the NSR rules at issue in
North Carolina's November 30, 2005, March 16, 2007, and June 20, 2008,
SIP revisions. NRDC comments at 7. NRDC further alleges that North
Carolina's revisions ``ensure that emissions will not be reduced as
much as under the pre-existing rules. In fact, the modifications allow
emissions to increase in North Carolina's nonattainment areas.'' NRDC
comments at 9. Finally, NRDC states that ``because section 193 lies
within part D,'' ``if EPA approves North Carolina's revised plan, that
action will additionally exceed the agency's authority under section
110(k)(3) and violate section 100(l).'' (Note, the last citation to
100(l) appears to be a typographical error and should read 110(l).)
NRDC comments at 10.
Response 3: EPA's response to the section 193 issues raised by NRDC
involves many of the same elements of the response above to the section
110(l) comments, which is also incorporated by reference here. Section
193 states (in relevant part), that ``[n]o control requirement in
effect, or required to be adopted by an order, settlement agreement, or
plan in effect before November 15, 1990, in any area which is a
nonattainment area for any air pollutant may be modified after November
15, 1990, in any manner unless the modification insures equivalent or
greater emission reductions of such air pollutant.''
Assuming for purposes of this discussion that section 193 does
apply to the instant action, as was discussed earlier in this notice,
EPA has previously determined and explained in the Supplemental
Analysis, that implementation of the 2002 NSR Reform Rule provisions
still in effect (that is, those not vacated by the DC Circuit) are
expected to have at least a neutral environmental benefit. While North
Carolina's rules do include some changes from the Federal rules, in the
September 9, 2008, proposed rulemaking, EPA explained the basis for its
evaluation that the differences do not make North Carolina's NSR
program less stringent than the federal program. EPA has no information
indicating that findings associated with EPA's Supplemental Analysis
would not apply in North Carolina--that is, that North Carolina's SIP
revisions would have at least a neutral environmental benefit. See
e.g., NRDC v. Jackson, Nos. 09-1405 & 10-2123 (7th Cir., Jun. 16,
2011), 2011 US App LEXIS 12116 (upholding EPA's reliance on the
Supplemental Analysis where there was no information indicating an
alternative outcome or analysis). Therefore, even if section 193 did
apply to this action, EPA does not agree with commenter's assertions
that the SIP revisions approved in this action raise a section 193
concern.
In addition, the core of NRDC's argument seems to revolve around
the DC Circuit Court decision in South Coast Air Quality Management
District v. EPA, 472 F.3d 882 (DC Cir. 2006) (finding that NSR
associated with the 1-hour ozone NAAQS included control requirements).
At issue in South Coast v.EPA was EPA's determination regarding the
revocation of the entire 1-hour ozone program (and corresponding SIP
elements), including all the 1-hour nonattainment NSR elements, and
whether such elements would continue to be required as part of SIPs
implementing the new (at that time) 8-hour ozone NAAQS. The facts in
the South Coast v. EPA case are distinguishable from the instant matter
where the North Carolina SIP is merely being updated to include changes
to the Federal NSR program. EPA is not removing the entirety of North
Carolina's NNSR program from the SIP as it pertains to a particular
NAAQS. Rather, EPA is simply approving North Carolina's SIP revisions
that adopt rules equivalent to or more stringent than the federal
rules; and as discussed earlier in this notice, EPA developed a
Supplemental Analysis to support adoption of the federal rules. The
North Carolina SIP will continue to operate with the full suite of NSR
related elements, including a comprehensive minor source program.
B. EPA's Response to DEC Comments
DEC also commented on EPA's September 9, 2008, proposed rulemaking
to approve North Carolina's NSR rule. DEC primarily commented on the
requirements that electric utilities adjust downward the baseline
emissions to account for reductions achieved and paid for as a result
of the North Carolina CSA. Below summarizes DEC's comment and EPA's
response.
Comment 4: DEC indicated that EPA should not approve these
provisions into North Carolina's SIP because: (1) They are not required
by the CAA and the federal NSR regulations; (2) they have nothing to do
with air quality concerns; and (3) the General Assembly of North
Carolina adopted legislation which provides specific exceptions from
the requirement to adjust baseline emissions downward based on the CSA.
Response 4: As a point of background, on August 21, 2009, North
Carolina provided a SIP revision to EPA requesting that EPA incorporate
the provisions of the CSA into the SIP. The submittal was necessary to
ensure attainment and maintenance of the NAAQS within North Carolina
(North Carolina has relied, and continues to rely, on the CSA
reductions to demonstrate attainment with more than one NAAQS). As part
of redesignation submittals for at least two areas in North Carolina,
for the 1997 annual PM2.5 NAAQS, North Carolina is relying
on the CSA as containing ``permanent and enforceable'' measures that
ensure maintenance for that NAAQS. That reliance necessitated that
North Carolina submit to EPA the CSA for approval into the SIP. On June
22, 2011, EPA proposed to approve the CSA into the North Carolina SIP.
See 76 FR 36468.
As was explained in the proposal action, North Carolina's rules
include a requirement that EUSGUs adjust downward the baseline
emissions to account for reductions required under the North Carolina
Clean Smokestack Act. DEC's comments appear to suggest that because the
CSA reductions are not required, this provision should not be approved
into the SIP. Further, that the North Carolina legislature took action
to eliminate this provision for at least a certain period of time.
Consistent with the background information provided above, because
North Carolina is in fact relying on the CSA reductions for attainment
and maintenance of NAAQS for various areas around North Carolina, the
provision is actually necessary to
[[Page 49317]]
ensure that the reductions remain permanent and enforceable. While
there remains some flexibility in how those reductions are achieved per
the CSA, once achieved, they must be permanent.
With regard to the action taken by the legislature on July 17, 2006
(the text of which DEC included as part of its comments), the language
itself in Senate Bill 1587 only applies between April 21, 2005, and
August 1, 2006. Because that time period has lapsed, there is nothing
apparent in Senate Bill 1587 that could impact approval of the SIP
revisions currently being approved today. The comment letter does not
explain why a provision that lapsed on August 1, 2006, would apply to
today's rulemaking and PSD applicability going forward from the
effective date of today's rule. As a general matter, EPA does not
necessarily agree with DEC's legal arguments; however, given that
Senate Bill 1587 does not apply currently, these differences need not
be resolved at this time. The NSR reform rules being approved today
would apply to the facilities at issue under the CSA once today's
action is final and effective, per the provisions of the State rules
now being incorporated into the SIP.
IV. Final Action
EPA is taking final action to approve revisions to the North
Carolina SIP for Regulations 15A NCAC 2D .0530 and .0531, as submitted
by the NC DENR on November 30, 2005, March 16, 2007, and June 20, 2008.
These SIP revisions address changes to North Carolina's PSD and NNSR
programs. EPA is approving these revisions into the North Carolina SIP
because they are consistent with section 110 of the CAA and its
implementing regulations.
V. Statutory and Executive Order Reviews.
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 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 action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
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).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 11, 2011. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: July 25, 2011.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. Section 52.1770(c), Table 1, is amended under Subchapter 2D, Section
.0500, by revising the entries for ``Sect .0530'' and ``Sect .0531'' to
read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
[[Page 49318]]
Table 1--EPA-Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective EPA approval date Explanation
date
----------------------------------------------------------------------------------------------------------------
Subchapter 2D Air Pollution Control Requirements
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Section .0500 Emission Control Standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Sect .0530....................... Prevention of 5/1/2008 8/10/2011 [Insert 15 NCAC .0530
Significant citation of incorporates by
Deterioration. publication]. reference the
regulations found
at 40 CFR 51.166,
with changes, as of
June 13, 2007. This
EPA action is
approving the
incorporation by
reference with the
exception of the
phrase ``except
ethanol production
facilities
producing ethanol
by natural
fermentation under
the North American
Industry
Classification
System (NAICS)
codes 325193 or
312140,'' (as
amended at 40 CFR
51.166(b)(1)(i)(a),
(b)(1)(iii)(t), and
(i)(1)(ii)(t).
Sect .0531....................... Sources in 5/1/2008 8/10/2011 [Insert 15 NCAC .0531
Nonattainment Areas. citation of incorporates by
publication]. reference the
regulations found
at 40 CFR 51.165,
with changes, as of
June 13, 2007. This
EPA action is
approving the
incorporation by
reference with the
exception of the
phrase ``except
ethanol production
facilities
producing ethanol
by natural
fermentation under
the North American
Industry
Classification
System (NAICS)
codes 325193 or
312140,'' (as
amended at 40 CFR
51.165(a)(1)(iv)(C)
(20) and
(a)(4)(xx).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2011-20167 Filed 8-9-11; 8:45 am]
BILLING CODE 6560-50-P
