Approval and Promulgation of Implementation Plans; North Carolina Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient Air Quality Standards, 68453-68458 [2015-28098]
Download as PDF
<![CDATA[
68453
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
EPA APPROVED LOUISIANA REGULATIONS IN THE LOUISIANA SIP—Continued
State citation
State approval
date
Title/subject
*
*
*
Section 509 ............................. Prevention of Significant Deterioration.
*
12/20/2012
EPA Approval date
*
11/5/2015 [Insert Federal
Register citation].
Comments
*
*
SIP does not include provisions for permitting of
GHGs as effective on 04/
20/2011 at LAC
33:III.509(B) definition of
‘‘carbon dioxide equivalent
emissions’’, ‘‘greenhouse
gases’’, ‘‘major stationary
source’’, and ‘‘significant’’.
SIP does not include the
PM2.5 SMC at LAC
33:III.509(I)(5)(a) from the
12/20/2012 adoption. LAC
33:III.509(I)(5)(a) is SIP-approved as of 10/20/2007
adoption.
Chapter 6—Regulations on Control of Emissions Reduction Credits Banking
*
*
*
Section 603 ............................. Applicability ............................
*
10/20/2007
Section 605 .............................
Definitions ..............................
10/20/2007
Section 607 .............................
Determination of Creditable
Emission Reductions.
ERC Balance Sheet ...............
10/20/2007
Schedule for Submitting Applications.
10/20/2007
Section 613 .............................
Section 615 .............................
*
*
*
*
*
*
*
*
[FR Doc. 2015–28097 Filed 11–4–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0795; FRL–9936–60–
Region 4]
Approval and Promulgation of
Implementation Plans; North Carolina
Infrastructure Requirements for the
2008 8-Hour Ozone National Ambient
Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve portions of the November 2,
2012, State Implementation Plan (SIP)
submission, provided by the North
Carolina Department of Environment
and Natural Resources (NC DENR),
Division of Air Quality (NCDAQ) for
inclusion into the North Carolina SIP.
jstallworth on DSK7TPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:34 Nov 04, 2015
Jkt 238001
10/20/2007
*
*
11/5/2015 [Insert Federal
Register citation].
11/5/2015 [Insert Federal
Register citation].
11/5/2015 [Insert Federal
Register citation].
11/5/2015 [Insert Federal
Register citation].
11/5/2015 [Insert Federal
Register citation].
This final action pertains to the Clean
Air Act (CAA or the Act) infrastructure
requirements for the 2008 8-hour ozone
national ambient air quality standards
(NAAQS). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, which is
commonly referred to as an
‘‘infrastructure’’ SIP. NCDAQ certified
that the North Carolina SIP contains
provisions that ensure the 2008 8-hour
ozone NAAQS is implemented,
enforced, and maintained in North
Carolina. With the exception of
provisions pertaining to prevention of
significant deterioration (PSD)
permitting, interstate transport
requirements, and state boards
requirements, EPA is taking final action
to approve North Carolina’s
infrastructure SIP submission provided
to EPA on November 2, 2012, as
satisfying the required infrastructure
elements for the 2008 8-hour ozone
NAAQS.
DATES:
This rule is effective December 7,
2015.
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
*
*
*
*
*
EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2014–0795. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not 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
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
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 a.m. to
4:30 p.m., excluding Federal holidays.
ADDRESSES:
E:\FR\FM\05NOR1.SGM
05NOR1
68454
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Nacosta C. Ward, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms. Ward
can be reached via telephone at (404)
562–9140 or via electronic mail at
ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
jstallworth on DSK7TPTVN1PROD with RULES
I. Background
Upon promulgation of a new or
revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address
basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance for that new NAAQS.
Section 110(a) of the CAA generally
requires states to make a SIP submission
to meet applicable requirements in
order to provide for the implementation,
maintenance, and enforcement of a new
or revised NAAQS within three years
following the promulgation of such
NAAQS, or within such shorter period
as EPA may prescribe. For additional
information on the infrastructure SIP
requirements, see the proposed
rulemaking published on March 13,
2015. (80 FR 13312)
On March 13, 2015, EPA proposed to
approve portions of North Carolina’s
November 2, 2012, 2008 8-hour ozone
NAAQS infrastructure SIP submission
with the exception of the PSD
permitting requirements for major
sources of section 110(a)(2)(C) and (J),
the interstate transport requirements of
section 110(a)(2)(D)(i)(I) and (II) (prongs
1 through 4), and the state board
requirements of 110(E)(ii). See 80 FR
13312.
II. Response to Comments
EPA received one set of comments on
the March 13, 2015, proposed
rulemaking to approve portions of North
Carolina’s infrastructure SIP submission
intended to meet the CAA requirements
for the 2008 8-hour ozone NAAQS. A
summary of the comments and EPA’s
responses are provided below.
As an initial matter, the Commenter
included interpretations of section
110(a)(2)(A) of the CAA in a background
section, but this section did not include
comments specific to EPA’s March 13,
2015 proposed action on the North
Carolina infrastructure SIP submittal.
EPA provided an analysis of these same
interpretations of section 110(a)(2)(A) in
an October 16, 2014, rulemaking
regarding the infrastructure SIP of
Maryland for 2008 8-hour ozone
NAAQS. (See 79 FR 62010) and we are
VerDate Sep<11>2014
14:34 Nov 04, 2015
Jkt 238001
incorporating those responses by
reference. Specifically, please see EPA’s
Response 2, which addresses the
Commenter’s interpretation regarding
CAA plain language; Response 3, which
addresses the Commenter’s
interpretation of the legislative history
of the CAA; Response 5, which
addresses the Commenter’s
interpretation of EPA regulations (40
CFR 51.112); Response 6, which
addresses the Commenter’s
interpretation of EPA interpretations of
section 110 in infrastructure SIP
rulemakings; and Response 4, which
addresses the Commenter’s
interpretation of Supreme Court and
appellate court decisions.
Comment 1: The Commenter contends
that North Carolina’s infrastructure
submission ‘‘fails to include stringent
enough emission limits and other
restrictions on sources of ozone
precursors, like nitrogen oxides
(‘‘NOX’’), to ensure that areas not
designated nonattainment will attain
and maintain the 2008 eight-hour ozone
NAAQS.’’ Based on this contention, the
Commenter then asserts that ‘‘North
Carolina’s I–SIP does not meet the basic
infrastructure requirements under
section 110(a)(2) and must be
disapproved.’’
Response 1: EPA disagrees with the
Commenter’s contention that NC DAQ’s
2008 8-hour ozone infrastructure SIP
submission is not approvable with
respect to section 110(a)(2)(A) because it
fails to include enforceable emission
limitations sufficient to ensure
attainment and maintenance of the 2008
8-hour ozone NAAQS in attainment
areas. In light of the structure of the
CAA, EPA’s long-standing position
regarding infrastructure SIPs is that they
are general planning SIPs to ensure that
the state has adequate resources and
authority to implement a NAAQS in
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state.
EPA’s interpretation that
infrastructure SIPs are more general
planning SIPs is consistent with the
statute as understood in light of its
history and structure. When Congress
enacted the CAA in 1970, it did not
include provisions requiring states and
EPA to label areas as attainment or
nonattainment. Rather, states were
required to include all areas of the state
in ‘‘air quality control regions’’ (AQCRs)
and section 110 set forth the core
substantive planning provisions for
these AQCRs. At that time, Congress
anticipated that states would be able to
address air pollution quickly pursuant
to the very general planning provisions
PO 00000
Frm 00034
Fmt 4700
Sfmt 4700
in section 110 and could bring all areas
into compliance with the NAAQS
within five years. Moreover, at that
time, section 110(a)(2)(A)(i) specified
that the section 110 plan provide for
‘‘attainment’’ of the NAAQS and section
110(a)(2)(B) specified that the plan must
include ‘‘emission limitations,
schedules, and timetables for
compliance with such limitations, and
such other measures as may be
necessary to insure attainment and
maintenance [of the NAAQS].’’ In 1977,
Congress recognized that the existing
structure was not sufficient and many
areas were still violating the NAAQS. At
that time, Congress for the first time
added provisions requiring states and
EPA to identify whether areas of the
state were violating the NAAQS (i.e.,
were nonattainment) or were meeting
the NAAQS (i.e., were attainment) and
established specific planning
requirements in section 172 for areas
not meeting the NAAQS. In 1990, many
areas still had air quality not meeting
the NAAQS and Congress again
amended the CAA and added yet
another layer of more prescriptive
planning requirements for each of the
NAAQS, with the primary provisions
for ozone in section 182. At that same
time, Congress modified section 110 to
remove references to the section 110 SIP
providing for attainment, including
removing pre-existing section
110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as
section 110(a)(2)(A). Additionally,
Congress replaced the clause ‘‘as may be
necessary to insure attainment and
maintenance [of the NAAQS]’’ with ‘‘as
may be necessary or appropriate to meet
the applicable requirements of this
chapter.’’ Thus, the CAA has
significantly evolved in the more than
40 years since it was originally enacted.
While at one time section 110 did
provide the only detailed SIP planning
provisions for states and specified that
such plans must provide for attainment
of the NAAQS, under the structure of
the current CAA, section 110 is only the
initial stepping-stone in the planning
process for a specific NAAQS. And,
more detailed, later-enacted provisions
govern the substantive planning
process, including planning for
attainment of the NAAQS. EPA believes
that section 110(a)(2)(A) is reasonably
interpreted to require states to submit
SIPs that reflect the first step in their
planning for attaining and maintaining
a new or revised NAAQS and that they
contain enforceable control measures
and a demonstration that the state has
the available tools and authority to
E:\FR\FM\05NOR1.SGM
05NOR1
jstallworth on DSK7TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
develop and implement plans to attain
and maintain the NAAQS.
As stated in EPA’s proposed approval
for this rule, to meet section
110(a)(2)(A), North Carolina submitted a
list of existing emission reduction and
other control measures in the SIP that
control emissions of volatile organic
compounds (VOCs) and NOX. The
submission also identifies North
Carolina’s statutory authority to adopt
emission control standards to meet
established air quality standards such as
the 2008 ozone NAAQS. Therefore, EPA
believes North Carolina’s submission
appropriately reflects the first step in
the State’s planning process for
attaining and maintaining the 2008
ozone NAAQS and meets the
requirements of section 110(a)(2)(A)
because the SIP contains enforceable
control measures for ozone precursors
and the submission provides that North
Carolina has the tools to develop and
implement measures as may be needed
to attain and maintain the 2008 8-hour
ozone standard.
Comment 2: The Commenter contends
that recent monitoring of the 2008 ozone
NAAQS in areas not designated
nonattainment confirms that North
Carolina’s existing emission limitations
are insufficient to attain and maintain
the NAAQS. The Commenter
specifically contends that the
exceedances of the ozone NAAQS with
2010–2012 data, in areas [Forsyth and
Guilford counties] not designated
nonattainment under the standard
demonstrate that North Carolina’s
existing emissions limitations cannot
ensure attainment and maintenance of
the eight-hour ozone standard.
Response 2: EPA disagrees with the
Commenter’s contention that NCDAQ’s
2008 8-hour ozone infrastructure SIP
submission is not approvable with
respect to section 110(a)(2)(A) because
of the monitor design values noted by
the Commenter. While EPA shares the
Commenter’s concern regarding any
county monitoring violations of the
NAAQS, such concerns are outside the
scope of what is germane to an
evaluation of section 110(a)(2)(A) for an
infrastructure SIP submission. With
regard to the 2010–2012 design values
for Forsyth and Guilford Counties as
mentioned by the Commenter, Forsyth
and Guilford Counties attained the 2008
8-hour ozone NAAQS with 2011–2013
data and continue to attain with
preliminary 2013–2015 data.
Regardless, EPA does not believe that
this 2010–2012 monitoring data
referenced by the Commenter provides
an appropriate basis upon which to
disapprove North Carolina’s
infrastructure SIP as it relates to section
VerDate Sep<11>2014
14:34 Nov 04, 2015
Jkt 238001
110(a)(2)(A) requirements. Pursuant to
section 110(a)(2)(A), an infrastructure
SIP submission must include
enforceable emission limitations and
other control measures, means, or
techniques (including economic
incentives such as fees, marketable
permits, and auctions of emissions
rights), as well as schedules and
timetables for compliance, as may be
necessary or appropriate to meet the
applicable requirements of the Act. The
Commenter, however, seems to believe
that in the context of an infrastructure
SIP submission, section 110(a)(2)(A)
requires the state to submit control
measures sufficient to demonstrate
attainment in an area designated
attainment but that has a recent
monitored violation of the NAAQS. EPA
does not believe that this is a reasonable
interpretation of the provision with
respect to infrastructure SIP
submissions. Rather, EPA believes that
the proper inquiry at this juncture is
whether the state has met the basic
structural SIP requirements appropriate
at the point in time EPA is acting upon
it. The CAA provides states with three
years to develop infrastructure SIPs and
states cannot reasonably be expected to
address the annual change in an area’s
design value for each year over that
period, nor to predict the air quality
data in periods after development and
submission of the SIPs.
Further, the Act provides states and
EPA with other tools to address
concerns that arise with respect to
violations of the NAAQS in a designated
attainment area, such as the authority to
redesignate areas pursuant to section
107(d)(3), the authority to issue a ‘‘SIP
Call’’ pursuant to section 110(k)(5), or
the general authority to approve SIP
revisions that can address such
violations of the NAAQS through other
appropriate measures. As described
above, EPA believes that North
Carolina’s infrastructure submission is
sufficient because it appropriately
addresses the structural SIP
requirements of section 110(a)(2)(A) by
including enforceable emission control
measures and the authority to adopt and
implement additional measures, if
needed.
Comment 3: The Commenter contends
that North Carolina’s infrastructure SIP
must ensure that proper mass
limitations and short term averaging
periods are imposed on certain specific
large sources of NOX such as power
plants. Moreover, the Commenter
contends that emission limits must
apply at all times, including during
periods of start-up, shutdown, and
malfunction (SSM), to ensure that all
areas of North Carolina attain and
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
68455
maintain the 2008 eight-hour ozone
NAAQS. Absent such limits, the
Commenter contends that an I–SIP
submission may not be approved.
Specifically the Commenter contends
that enforceable emission limitations for
the State’s coal fired EGUs [electric
generating units] should be set on a
pounds per hour (‘‘lb/hr’’) basis, based
on, at most, a corresponding 0.07 lb/
MMBtu limit. The Commenter further
contends that setting a lb/hr limit will
ensure consistent protection of the
ambient air quality regardless of
whether the nominal maximum heat
input capacity for the unit is accurate or
changes in the future and addresses the
issue of variations in mass emissions
during startup and shutdown so that
even if the NOX emission rate in lb/
MMBtu is higher during startup and
shutdown (for instance when selective
catalytic reduction technology is not
being engaged), hourly emissions of
NOX would not cause or contribute to
violations of the NAAQS.
Response 3: EPA appreciates the
commenter’s support of North
Carolina’s pursuit of additional NOX
emission limitations at coal-fired power
plants in North Carolina. However, EPA
does not believe that approval of the
infrastructure SIP is contingent on the
State adopting additional controls for
the State’s coal fired EGUs. Congress
established the CAA such that each state
has primary responsibility for assuring
air quality within the state and
determining an emission reduction
program for its areas subject to EPA
approval, with such approval dependent
upon whether the SIP as a whole meets
the applicable requirements of the CAA.
See Commonwealth of Virginia, et al., v.
EPA, 108 F.3d 1397, 1410 (D.C. Cir.
1997) (citing Natural Resources Defense
Council, Inc. v. Browner, 57 F.3d 1122,
1123 (D.C. Cir. 1995)). EPA cannot
condition approval of the North
Carolina infrastructure SIP upon
inclusion of a particular emission
reduction program as long as the SIP
otherwise meets the requirements of the
CAA. As explained in the proposal and
in this final action, North Carolina does
not need to adopt additional emission
control requirements in order to meet
the requirements in section 110(a)(2)(A).
Furthermore, we disagree with the
commenter’s contention that EPA
cannot approve an infrastructure SIP
submission without ensuring that it
contains emission limits applicable at
all times, including during periods of
SSM. For the reasons stated in the
proposal, EPA does not believe that an
action on a state’s infrastructure SIP is
necessarily the appropriate type of
action to address this type of deficiency.
E:\FR\FM\05NOR1.SGM
05NOR1
68456
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
jstallworth on DSK7TPTVN1PROD with RULES
See 80 FR at 13315–17. Rather, as
described in the proposal, EPA believes
that the authority Congress provided to
EPA under section 110(k)(5), for
example, allows EPA to take
appropriately tailored action. Indeed,
EPA recognizes that a number of states
have existing SSM provisions contrary
to the CAA and EPA guidance and, in
the time since the proposal for this
action, has finalized a separate action
addressing those state regulations. See
‘‘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,’’ 80 FR
33840 (June 12, 2015) (SSM SIP Action
of 2015). In the SSM SIP Action of 2015,
EPA concluded that certain SIP
provisions in 36 states (applicable in 45
statewide and local jurisdictions) are
substantially inadequate to meet CAA
requirements and thus issued a ‘‘SIP
call’’ for each of those 36 states pursuant
to CAA section 110(k)(5).1 North
Carolina’s unlawful SSM provisions are
covered by that action. See, e.g., id. at
33964. EPA continues to believe that
existing, unlawful provisions related to
excess emissions during SSM events
should be addressed through more
appropriate authorities provided by
Congress; not in piecemeal fashion, in
the context of reviewing a state’s
infrastructure SIP submission.
Comment 4: The Commenter contends
that, to comply with section 110(a) and
avoid additional nonattainment
designations for areas impacted by
ozone levels above the standard, ‘‘EPA
must disapprove North Carolina’s
infrastructure SIP to ensure that large
sources of NOX and VOCs cannot cause
or contribute to exceedances of the 8hour ozone NAAQS and, thereby
prohibit implementation, attainment,
and maintenance of the NAAQS
throughout all areas of the State, in
violation of CAA section 110(a)(1) and
(2)(A).’’ The commenter states that the
inadequacies of the SIP are highlighted
by recent monitoring data.
Response 4: EPA disagrees that it
must disapprove North Carolina’s
submittal to ensure that large sources of
1 The SSM SIP Action of 2015 also embodies
EPA’s updated SSM Policy as it applies to SIP
provisions and provides guidance to states for
compliance with CAA requirements for SIP
provisions applicable to excess emissions during
SSM events. EPA has encouraged any state with
deficient SSM provisions to correct those
provisions as soon as possible (as some states
already have), but in no case longer than the 18month timeframe provided in the SSM SIP Action
of 2015.
VerDate Sep<11>2014
14:34 Nov 04, 2015
Jkt 238001
NOX and VOC do not contribute to
exceedances of the 8-hour ozone
NAAQS such that additional areas
would need to be designated
nonattainment in the future. In essence,
this comment suggests that as part of the
110(a)(2)(A) SIP, the state must
demonstrate that all areas of the state
will maintain the standard in the future.
As explained previously, we disagree
that the language and structure of the
CAA mandate such a result. The CAA
recognizes that air quality may change
over time, such as an area slipping from
attainment to nonattainment or
changing from nonattainment to
attainment and has provisions
addressing such changes. These include
provisions providing for redesignation
in section 107(d) and provisions in
section 110(k)(5) allowing EPA to call
on the state to revise its SIP, as
appropriate.
Under CAA section 110(a)(2)(H), the
State must demonstrate in its
infrastructure SIP submission that it has
the authority to revise of its SIP,
including as needed to address any
finding by EPA that the SIP is
substantially inadequate to attain the
NAAQS. To satisfy CAA section
110(a)(2)(H), North Carolina’s submittal
cites to statutory authority that allows
the state to adopt standards and plans
to implement the requirements of the
CAA and Federal implementing
regulations, and to specifically establish
lower emissions limits if needed to
attain or maintain the ozone NAAQS.
Therefore, the CAA provides
appropriate tools to address changes in
air quality over time and North
Carolina’s submittal also appropriately
addresses the elements needed to
address any changes in air quality over
time.
Comment 5: The Commenter contends
that ozone concentrations will be
exacerbated by ongoing climate change
and that North Carolina’s existing
emission limits are not stringent enough
to adequately protect the public from
the dangers posed by exposure to
elevated ozone concentrations. The
Commenter contends that this
underscores the need for North Carolina
to impose tighter emission limits if it
hopes to attain and maintain the current
NAAQS for ozone in areas not currently
designated nonattainment.
Response 5: EPA agrees that climate
change is a serious environmental issue;
however, for the reasons provided in the
previous responses, we disagree that
states are required to anticipate and
plan for possible future nonattainment
within each area of the state as part of
the infrastructure SIP.
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
We note that given the potential wideranging impacts of climate change on air
quality planning, EPA is developing
climate adaptation implementation
plans to assess the key vulnerabilities to
our programs (including how climate
change might affect attainment of
national ambient air quality standards)
and to identify priority actions to
minimize these vulnerabilities. With
respect to climate impacts on future
ozone levels, EPA’s Office of Air and
Radiation has identified as a priority
action the need to adjust air quality
modeling tools and guidance as
necessary to account for climate-driven
changes in meteorological conditions
and meteorologically-dependent
emissions. These efforts are just
beginning.
Additionally, as previously stated
regarding tighter emission limits, EPA
believes that section 110(a)(2)(A) is
reasonably interpreted to require states
to submit SIPs that reflect the first step
in their planning for attaining and
maintaining a new or revised NAAQS
and that they contain enforceable
control measures and a demonstration
that the state has the available tools and
authority to develop and implement
plans to attain and maintain the
NAAQS. As explained above, to the
extent that climate change or any other
factor exacerbates air quality in the
future, the CAA provides the
appropriate tools to assess and address
these conditions.
III. Today’s Action
In this rulemaking, EPA is taking final
action to approve the portions of North
Carolina’s infrastructure submission as
demonstrating that the State meets the
applicable requirements of sections
110(a)(1) and (2) of the CAA for the
2008 8-hour ozone NAAQS, with the
exception of the PSD permitting
provisions in sections 110(a)(2)(C),
prong 3 of D(i) and (J), the interstate
transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1
through 4), and the state board
requirements of section 110(E)(ii).
IV. Final Action
With the exceptions described above,
EPA is taking final action to approve
North Carolina’s November 2, 2012,
infrastructure SIP submission because it
addresses the required infrastructure
elements for the 2008 8-hour ozone
NAAQS. NCDAQ has addressed the
elements of the CAA 110(a)(1) and (2)
SIP requirements pursuant to section
110 of the CAA to ensure that the 2008
8-hour ozone NAAQS is implemented,
enforced, and maintained in North
Carolina.
E:\FR\FM\05NOR1.SGM
05NOR1
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and 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.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this 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 Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
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 January 4, 2016. 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
68457
shall not postpone the effectiveness of
such rule or action. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking. 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, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: October 22, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
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. In § 52.1770, the table in paragraph
(e) is amended by adding an entry for
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2008 8-Hour
Ozone National Ambient Air Quality
Standards’’ at the end of the table to
read as follows:
■
§ 52.1770
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS
jstallworth on DSK7TPTVN1PROD with RULES
Provision
*
110(a)(1) and (2) Infrastructure Requirements for the
2008 8-Hour Ozone National Ambient Air Quality
Standards.
VerDate Sep<11>2014
State effective
date
*
16:39 Nov 04, 2015
11/2/2012
Jkt 238001
EPA Approval date
*
*
11/5/2015 [Insert Federal
Register citation].
PO 00000
Frm 00037
Fmt 4700
Federal
Register
citation
................
Sfmt 9990
Explanation
*
*
*
With the exception of sections: 110(a)(2)(C) and (J)
concerning
PSD
permitting
requirements;
110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4) concerning
interstate
transport
requirements;
110(a)(2)(E)(ii) concerning state board requirements.
E:\FR\FM\05NOR1.SGM
05NOR1
68458
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations
[FR Doc. 2015–28098 Filed 11–4–15; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2009–0807; FRL–9936–54–
Region 5]
Air Plan Approval; Ohio; Test Methods;
Error Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is determining that a
portion of an October 26, 2010, action
was in error and is making a correction
pursuant to section 110(k)(6) of the
Clean Air Act. The October 26, 2010,
EPA action approved various revisions
to Ohio regulations in the EPA approved
state implementation plan (SIP). The
revisions were intended to consolidate
air quality standards into a new chapter
of rules and to adjust the cross
references accordingly in various related
Ohio rules. These changes included a
specific revision to the cross reference
in the Ohio rule pertaining to methods
for measurements for comparison with
the particulate matter air quality
standards. This final correction action
removes any misperception that EPA
approved any revision to the pertinent
rule other than the revised cross
reference. This action will therefore
assure that the codification of the
October 26, 2010, action is in accord
with the actual substance of the action.
DATES: This final rule is effective on
December 7, 2015.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2009–0807. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
i.e., 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
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
jstallworth on DSK7TPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:39 Nov 04, 2015
Jkt 238001
recommend that you telephone John
Summerhays, Environmental Scientist,
at (312) 886–6067 before visiting the
Region 5 office.
FOR FURTHER INFORMATION CONTACT: John
Summerhays, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–6067,
summerhays.john@epa.gov.
SUPPLEMENTARY INFORMATION: This
supplementary information section is
arranged as follows:
I. Summary of EPA’s Proposed Rulemaking
II. Comments and EPA’s Responses
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. Summary of EPA’s Proposed
Rulemaking
On June 4, 2003, Ohio submitted a
variety of revisions to the EPA approved
version of Ohio Administrative Code
(OAC) 3745–17 in the state’s SIP, which
regulates particulate matter and opacity
from affected sources. While EPA
subsequently approved many of these
revisions, EPA published action on June
27, 2005, proposing to disapprove
specific submitted revisions in OAC
3745–17–03(B) that in EPA’s view
relaxed existing SIP opacity limitations
without an adequate analysis under
section 110(l) or section 193 of the
Clean Air Act.1 Consistent with this
proposed disapproval, the version of
OAC 3745–17–03(B) submitted by the
state on June 4, 2003, was not, and is
not, an approved provision of the Ohio
SIP.
On September 10, 2009, for purposes
of consolidating its existing SIP rules
identifying applicable air quality
standards, and to adjust the cross
references between rules accordingly,
Ohio submitted additional revisions to
several of its existing rules to EPA for
approval into the SIP. Most notably,
these rule revisions included a
modification to the existing cross
reference in OAC 3745–17–03(A), which
was necessary because the ambient
particulate matter measurement method
identified in this paragraph was for
purposes of assessing attainment with
the ambient air quality standards now
located in OAC 3745–25–02, rather than
in OAC 3745–17–02.
On October 26, 2010, at 75 FR 65572,
EPA published a direct final action
approving the relevant revisions in the
September 10, 2009, submission. In the
preamble and in the codification of the
October 26, 2010, action, EPA
1 See
PO 00000
70 FR 36901 (June 27, 2005).
Frm 00038
Fmt 4700
Sfmt 4700
erroneously listed the approved SIP
revisions as including the entirety of
OAC 3745–17–03, rather than specifying
more precisely that the approval as it
pertained to OAC 3745–17–03 applied
only to the revised cross reference in
OAC 3745–17–03(A). This error left the
misimpression that EPA had approved
other significant substantive revisions in
OAC 3745–17–03, including those in
OAC 3745–17–03(B) that EPA had
previously proposed to disapprove. The
codification in the October 26, 2010,
action with respect to OAC 3745–17–03
should have been explicitly limited to
OAC 3745–17–03(A), to reflect the EPA
approval of only the revised cross
reference.
EPA subsequently recognized that the
codification erroneously left the
misimpression that it had approved
more of OAC 3745–17–03 than the
revision of the cross reference in OAC
3745–17–03(A). On April 3, 2013, at 78
FR 19990, EPA published action to
correct the error. EPA took this action
pursuant to its general rulemaking
authority under Administrative
Procedures Act section 553. Two parties
challenged EPA’s April 3, 2013, action,
and one of these parties also filed a
petition for reconsideration of that
action, objecting that EPA failed to
correct the error in the October 26, 2010,
action in accordance with the
procedures of section 110(k)(6) of the
Clean Air Act.
EPA responded to the petition for
reconsideration by agreeing to take this
action pursuant to section 110(k)(6), as
requested by the petitioner.
Accordingly, EPA published proposed
rulemaking on February 7, 2014, using
its authority under section 110(k)(6) to
correct errors in its rulemaking of
October 26, 2010.2 Given the
petitioners’ expressed interest in
commenting on EPA’s action, EPA
elected to use its authority under
section 110(k)(6) for this action because,
under these circumstances, it would
provide the best mechanism to correct
the apparent misunderstandings
concerning the error in the October 26,
2010, action.
EPA’s February 7, 2014, proposal
provides an extensive description of the
error in its October 26, 2010,
rulemaking, provided in subsections
entitled, ‘‘What was the error in
description and codification?’’, ‘‘What
precipitated this error?’’, and ‘‘Why was
it evident that this was an error?’’ It is
not necessary to repeat that detailed
explanation here. EPA proposed to
correct the error to remove any
misimpression in its October 26, 2010,
2 See
E:\FR\FM\05NOR1.SGM
79 FR 7412 (Feb. 7, 2014).
05NOR1
]]>Agencies
[Federal Register Volume 80, Number 214 (Thursday, November 5, 2015)]
[Rules and Regulations]
[Pages 68453-68458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28098]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0795; FRL-9936-60-Region 4]
Approval and Promulgation of Implementation Plans; North Carolina
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve portions of the November 2, 2012, State
Implementation Plan (SIP) submission, provided by the North Carolina
Department of Environment and Natural Resources (NC DENR), Division of
Air Quality (NCDAQ) for inclusion into the North Carolina SIP. This
final action pertains to the Clean Air Act (CAA or the Act)
infrastructure requirements for the 2008 8-hour ozone national ambient
air quality standards (NAAQS). The CAA requires that each state adopt
and submit a SIP for the implementation, maintenance, and enforcement
of each NAAQS promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. NCDAQ certified that the North Carolina SIP
contains provisions that ensure the 2008 8-hour ozone NAAQS is
implemented, enforced, and maintained in North Carolina. With the
exception of provisions pertaining to prevention of significant
deterioration (PSD) permitting, interstate transport requirements, and
state boards requirements, EPA is taking final action to approve North
Carolina's infrastructure SIP submission provided to EPA on November 2,
2012, as satisfying the required infrastructure elements for the 2008
8-hour ozone NAAQS.
DATES: This rule is effective December 7, 2015.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2014-0795. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not 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 www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation 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 a.m. to 4:30 p.m.,
excluding Federal holidays.
[[Page 68454]]
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Ms. Ward can be reached via telephone at (404) 562-9140 or
via electronic mail at ward.nacosta@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and
(2) of the CAA require states to address basic SIP requirements,
including emissions inventories, monitoring, and modeling to assure
attainment and maintenance for that new NAAQS. Section 110(a) of the
CAA generally requires states to make a SIP submission to meet
applicable requirements in order to provide for the implementation,
maintenance, and enforcement of a new or revised NAAQS within three
years following the promulgation of such NAAQS, or within such shorter
period as EPA may prescribe. For additional information on the
infrastructure SIP requirements, see the proposed rulemaking published
on March 13, 2015. (80 FR 13312)
On March 13, 2015, EPA proposed to approve portions of North
Carolina's November 2, 2012, 2008 8-hour ozone NAAQS infrastructure SIP
submission with the exception of the PSD permitting requirements for
major sources of section 110(a)(2)(C) and (J), the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through
4), and the state board requirements of 110(E)(ii). See 80 FR 13312.
II. Response to Comments
EPA received one set of comments on the March 13, 2015, proposed
rulemaking to approve portions of North Carolina's infrastructure SIP
submission intended to meet the CAA requirements for the 2008 8-hour
ozone NAAQS. A summary of the comments and EPA's responses are provided
below.
As an initial matter, the Commenter included interpretations of
section 110(a)(2)(A) of the CAA in a background section, but this
section did not include comments specific to EPA's March 13, 2015
proposed action on the North Carolina infrastructure SIP submittal. EPA
provided an analysis of these same interpretations of section
110(a)(2)(A) in an October 16, 2014, rulemaking regarding the
infrastructure SIP of Maryland for 2008 8-hour ozone NAAQS. (See 79 FR
62010) and we are incorporating those responses by reference.
Specifically, please see EPA's Response 2, which addresses the
Commenter's interpretation regarding CAA plain language; Response 3,
which addresses the Commenter's interpretation of the legislative
history of the CAA; Response 5, which addresses the Commenter's
interpretation of EPA regulations (40 CFR 51.112); Response 6, which
addresses the Commenter's interpretation of EPA interpretations of
section 110 in infrastructure SIP rulemakings; and Response 4, which
addresses the Commenter's interpretation of Supreme Court and appellate
court decisions.
Comment 1: The Commenter contends that North Carolina's
infrastructure submission ``fails to include stringent enough emission
limits and other restrictions on sources of ozone precursors, like
nitrogen oxides (``NOX''), to ensure that areas not
designated nonattainment will attain and maintain the 2008 eight-hour
ozone NAAQS.'' Based on this contention, the Commenter then asserts
that ``North Carolina's I-SIP does not meet the basic infrastructure
requirements under section 110(a)(2) and must be disapproved.''
Response 1: EPA disagrees with the Commenter's contention that NC
DAQ's 2008 8-hour ozone infrastructure SIP submission is not approvable
with respect to section 110(a)(2)(A) because it fails to include
enforceable emission limitations sufficient to ensure attainment and
maintenance of the 2008 8-hour ozone NAAQS in attainment areas. In
light of the structure of the CAA, EPA's long-standing position
regarding infrastructure SIPs is that they are general planning SIPs to
ensure that the state has adequate resources and authority to implement
a NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state.
EPA's interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure. When Congress enacted the CAA in 1970, it
did not include provisions requiring states and EPA to label areas as
attainment or nonattainment. Rather, states were required to include
all areas of the state in ``air quality control regions'' (AQCRs) and
section 110 set forth the core substantive planning provisions for
these AQCRs. At that time, Congress anticipated that states would be
able to address air pollution quickly pursuant to the very general
planning provisions in section 110 and could bring all areas into
compliance with the NAAQS within five years. Moreover, at that time,
section 110(a)(2)(A)(i) specified that the section 110 plan provide for
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the
plan must include ``emission limitations, schedules, and timetables for
compliance with such limitations, and such other measures as may be
necessary to insure attainment and maintenance [of the NAAQS].'' In
1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of the state were violating the NAAQS (i.e.,
were nonattainment) or were meeting the NAAQS (i.e., were attainment)
and established specific planning requirements in section 172 for areas
not meeting the NAAQS. In 1990, many areas still had air quality not
meeting the NAAQS and Congress again amended the CAA and added yet
another layer of more prescriptive planning requirements for each of
the NAAQS, with the primary provisions for ozone in section 182. At
that same time, Congress modified section 110 to remove references to
the section 110 SIP providing for attainment, including removing pre-
existing section 110(a)(2)(A) in its entirety and renumbering
subparagraph (B) as section 110(a)(2)(A). Additionally, Congress
replaced the clause ``as may be necessary to insure attainment and
maintenance [of the NAAQS]'' with ``as may be necessary or appropriate
to meet the applicable requirements of this chapter.'' Thus, the CAA
has significantly evolved in the more than 40 years since it was
originally enacted. While at one time section 110 did provide the only
detailed SIP planning provisions for states and specified that such
plans must provide for attainment of the NAAQS, under the structure of
the current CAA, section 110 is only the initial stepping-stone in the
planning process for a specific NAAQS. And, more detailed, later-
enacted provisions govern the substantive planning process, including
planning for attainment of the NAAQS. EPA believes that section
110(a)(2)(A) is reasonably interpreted to require states to submit SIPs
that reflect the first step in their planning for attaining and
maintaining a new or revised NAAQS and that they contain enforceable
control measures and a demonstration that the state has the available
tools and authority to
[[Page 68455]]
develop and implement plans to attain and maintain the NAAQS.
As stated in EPA's proposed approval for this rule, to meet section
110(a)(2)(A), North Carolina submitted a list of existing emission
reduction and other control measures in the SIP that control emissions
of volatile organic compounds (VOCs) and NOX. The submission
also identifies North Carolina's statutory authority to adopt emission
control standards to meet established air quality standards such as the
2008 ozone NAAQS. Therefore, EPA believes North Carolina's submission
appropriately reflects the first step in the State's planning process
for attaining and maintaining the 2008 ozone NAAQS and meets the
requirements of section 110(a)(2)(A) because the SIP contains
enforceable control measures for ozone precursors and the submission
provides that North Carolina has the tools to develop and implement
measures as may be needed to attain and maintain the 2008 8-hour ozone
standard.
Comment 2: The Commenter contends that recent monitoring of the
2008 ozone NAAQS in areas not designated nonattainment confirms that
North Carolina's existing emission limitations are insufficient to
attain and maintain the NAAQS. The Commenter specifically contends that
the exceedances of the ozone NAAQS with 2010-2012 data, in areas
[Forsyth and Guilford counties] not designated nonattainment under the
standard demonstrate that North Carolina's existing emissions
limitations cannot ensure attainment and maintenance of the eight-hour
ozone standard.
Response 2: EPA disagrees with the Commenter's contention that
NCDAQ's 2008 8-hour ozone infrastructure SIP submission is not
approvable with respect to section 110(a)(2)(A) because of the monitor
design values noted by the Commenter. While EPA shares the Commenter's
concern regarding any county monitoring violations of the NAAQS, such
concerns are outside the scope of what is germane to an evaluation of
section 110(a)(2)(A) for an infrastructure SIP submission. With regard
to the 2010-2012 design values for Forsyth and Guilford Counties as
mentioned by the Commenter, Forsyth and Guilford Counties attained the
2008 8-hour ozone NAAQS with 2011-2013 data and continue to attain with
preliminary 2013-2015 data.
Regardless, EPA does not believe that this 2010-2012 monitoring
data referenced by the Commenter provides an appropriate basis upon
which to disapprove North Carolina's infrastructure SIP as it relates
to section 110(a)(2)(A) requirements. Pursuant to section 110(a)(2)(A),
an infrastructure SIP submission must include enforceable emission
limitations and other control measures, means, or techniques (including
economic incentives such as fees, marketable permits, and auctions of
emissions rights), as well as schedules and timetables for compliance,
as may be necessary or appropriate to meet the applicable requirements
of the Act. The Commenter, however, seems to believe that in the
context of an infrastructure SIP submission, section 110(a)(2)(A)
requires the state to submit control measures sufficient to demonstrate
attainment in an area designated attainment but that has a recent
monitored violation of the NAAQS. EPA does not believe that this is a
reasonable interpretation of the provision with respect to
infrastructure SIP submissions. Rather, EPA believes that the proper
inquiry at this juncture is whether the state has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon it. The CAA provides states with three years to develop
infrastructure SIPs and states cannot reasonably be expected to address
the annual change in an area's design value for each year over that
period, nor to predict the air quality data in periods after
development and submission of the SIPs.
Further, the Act provides states and EPA with other tools to
address concerns that arise with respect to violations of the NAAQS in
a designated attainment area, such as the authority to redesignate
areas pursuant to section 107(d)(3), the authority to issue a ``SIP
Call'' pursuant to section 110(k)(5), or the general authority to
approve SIP revisions that can address such violations of the NAAQS
through other appropriate measures. As described above, EPA believes
that North Carolina's infrastructure submission is sufficient because
it appropriately addresses the structural SIP requirements of section
110(a)(2)(A) by including enforceable emission control measures and the
authority to adopt and implement additional measures, if needed.
Comment 3: The Commenter contends that North Carolina's
infrastructure SIP must ensure that proper mass limitations and short
term averaging periods are imposed on certain specific large sources of
NOX such as power plants. Moreover, the Commenter contends
that emission limits must apply at all times, including during periods
of start-up, shutdown, and malfunction (SSM), to ensure that all areas
of North Carolina attain and maintain the 2008 eight-hour ozone NAAQS.
Absent such limits, the Commenter contends that an I-SIP submission may
not be approved. Specifically the Commenter contends that enforceable
emission limitations for the State's coal fired EGUs [electric
generating units] should be set on a pounds per hour (``lb/hr'') basis,
based on, at most, a corresponding 0.07 lb/MMBtu limit. The Commenter
further contends that setting a lb/hr limit will ensure consistent
protection of the ambient air quality regardless of whether the nominal
maximum heat input capacity for the unit is accurate or changes in the
future and addresses the issue of variations in mass emissions during
startup and shutdown so that even if the NOX emission rate
in lb/MMBtu is higher during startup and shutdown (for instance when
selective catalytic reduction technology is not being engaged), hourly
emissions of NOX would not cause or contribute to violations
of the NAAQS.
Response 3: EPA appreciates the commenter's support of North
Carolina's pursuit of additional NOX emission limitations at
coal-fired power plants in North Carolina. However, EPA does not
believe that approval of the infrastructure SIP is contingent on the
State adopting additional controls for the State's coal fired EGUs.
Congress established the CAA such that each state has primary
responsibility for assuring air quality within the state and
determining an emission reduction program for its areas subject to EPA
approval, with such approval dependent upon whether the SIP as a whole
meets the applicable requirements of the CAA. See Commonwealth of
Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing
Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123
(D.C. Cir. 1995)). EPA cannot condition approval of the North Carolina
infrastructure SIP upon inclusion of a particular emission reduction
program as long as the SIP otherwise meets the requirements of the CAA.
As explained in the proposal and in this final action, North Carolina
does not need to adopt additional emission control requirements in
order to meet the requirements in section 110(a)(2)(A).
Furthermore, we disagree with the commenter's contention that EPA
cannot approve an infrastructure SIP submission without ensuring that
it contains emission limits applicable at all times, including during
periods of SSM. For the reasons stated in the proposal, EPA does not
believe that an action on a state's infrastructure SIP is necessarily
the appropriate type of action to address this type of deficiency.
[[Page 68456]]
See 80 FR at 13315-17. Rather, as described in the proposal, EPA
believes that the authority Congress provided to EPA under section
110(k)(5), for example, allows EPA to take appropriately tailored
action. Indeed, EPA recognizes that a number of states have existing
SSM provisions contrary to the CAA and EPA guidance and, in the time
since the proposal for this action, has finalized a separate action
addressing those state regulations. See ``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,'' 80 FR 33840 (June 12,
2015) (SSM SIP Action of 2015). In the SSM SIP Action of 2015, EPA
concluded that certain SIP provisions in 36 states (applicable in 45
statewide and local jurisdictions) are substantially inadequate to meet
CAA requirements and thus issued a ``SIP call'' for each of those 36
states pursuant to CAA section 110(k)(5).\1\ North Carolina's unlawful
SSM provisions are covered by that action. See, e.g., id. at 33964. EPA
continues to believe that existing, unlawful provisions related to
excess emissions during SSM events should be addressed through more
appropriate authorities provided by Congress; not in piecemeal fashion,
in the context of reviewing a state's infrastructure SIP submission.
---------------------------------------------------------------------------
\1\ The SSM SIP Action of 2015 also embodies EPA's updated SSM
Policy as it applies to SIP provisions and provides guidance to
states for compliance with CAA requirements for SIP provisions
applicable to excess emissions during SSM events. EPA has encouraged
any state with deficient SSM provisions to correct those provisions
as soon as possible (as some states already have), but in no case
longer than the 18-month timeframe provided in the SSM SIP Action of
2015.
---------------------------------------------------------------------------
Comment 4: The Commenter contends that, to comply with section
110(a) and avoid additional nonattainment designations for areas
impacted by ozone levels above the standard, ``EPA must disapprove
North Carolina's infrastructure SIP to ensure that large sources of
NOX and VOCs cannot cause or contribute to exceedances of
the 8-hour ozone NAAQS and, thereby prohibit implementation,
attainment, and maintenance of the NAAQS throughout all areas of the
State, in violation of CAA section 110(a)(1) and (2)(A).'' The
commenter states that the inadequacies of the SIP are highlighted by
recent monitoring data.
Response 4: EPA disagrees that it must disapprove North Carolina's
submittal to ensure that large sources of NOX and VOC do not
contribute to exceedances of the 8-hour ozone NAAQS such that
additional areas would need to be designated nonattainment in the
future. In essence, this comment suggests that as part of the
110(a)(2)(A) SIP, the state must demonstrate that all areas of the
state will maintain the standard in the future. As explained
previously, we disagree that the language and structure of the CAA
mandate such a result. The CAA recognizes that air quality may change
over time, such as an area slipping from attainment to nonattainment or
changing from nonattainment to attainment and has provisions addressing
such changes. These include provisions providing for redesignation in
section 107(d) and provisions in section 110(k)(5) allowing EPA to call
on the state to revise its SIP, as appropriate.
Under CAA section 110(a)(2)(H), the State must demonstrate in its
infrastructure SIP submission that it has the authority to revise of
its SIP, including as needed to address any finding by EPA that the SIP
is substantially inadequate to attain the NAAQS. To satisfy CAA section
110(a)(2)(H), North Carolina's submittal cites to statutory authority
that allows the state to adopt standards and plans to implement the
requirements of the CAA and Federal implementing regulations, and to
specifically establish lower emissions limits if needed to attain or
maintain the ozone NAAQS. Therefore, the CAA provides appropriate tools
to address changes in air quality over time and North Carolina's
submittal also appropriately addresses the elements needed to address
any changes in air quality over time.
Comment 5: The Commenter contends that ozone concentrations will be
exacerbated by ongoing climate change and that North Carolina's
existing emission limits are not stringent enough to adequately protect
the public from the dangers posed by exposure to elevated ozone
concentrations. The Commenter contends that this underscores the need
for North Carolina to impose tighter emission limits if it hopes to
attain and maintain the current NAAQS for ozone in areas not currently
designated nonattainment.
Response 5: EPA agrees that climate change is a serious
environmental issue; however, for the reasons provided in the previous
responses, we disagree that states are required to anticipate and plan
for possible future nonattainment within each area of the state as part
of the infrastructure SIP.
We note that given the potential wide-ranging impacts of climate
change on air quality planning, EPA is developing climate adaptation
implementation plans to assess the key vulnerabilities to our programs
(including how climate change might affect attainment of national
ambient air quality standards) and to identify priority actions to
minimize these vulnerabilities. With respect to climate impacts on
future ozone levels, EPA's Office of Air and Radiation has identified
as a priority action the need to adjust air quality modeling tools and
guidance as necessary to account for climate-driven changes in
meteorological conditions and meteorologically-dependent emissions.
These efforts are just beginning.
Additionally, as previously stated regarding tighter emission
limits, EPA believes that section 110(a)(2)(A) is reasonably
interpreted to require states to submit SIPs that reflect the first
step in their planning for attaining and maintaining a new or revised
NAAQS and that they contain enforceable control measures and a
demonstration that the state has the available tools and authority to
develop and implement plans to attain and maintain the NAAQS. As
explained above, to the extent that climate change or any other factor
exacerbates air quality in the future, the CAA provides the appropriate
tools to assess and address these conditions.
III. Today's Action
In this rulemaking, EPA is taking final action to approve the
portions of North Carolina's infrastructure submission as demonstrating
that the State meets the applicable requirements of sections 110(a)(1)
and (2) of the CAA for the 2008 8-hour ozone NAAQS, with the exception
of the PSD permitting provisions in sections 110(a)(2)(C), prong 3 of
D(i) and (J), the interstate transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board
requirements of section 110(E)(ii).
IV. Final Action
With the exceptions described above, EPA is taking final action to
approve North Carolina's November 2, 2012, infrastructure SIP
submission because it addresses the required infrastructure elements
for the 2008 8-hour ozone NAAQS. NCDAQ has addressed the elements of
the CAA 110(a)(1) and (2) SIP requirements pursuant to section 110 of
the CAA to ensure that the 2008 8-hour ozone NAAQS is implemented,
enforced, and maintained in North Carolina.
[[Page 68457]]
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
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 January 4, 2016. 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. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: October 22, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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. In Sec. 52.1770, the table in paragraph (e) is amended by adding an
entry for ``110(a)(1) and (2) Infrastructure Requirements for the 2008
8-Hour Ozone National Ambient Air Quality Standards'' at the end of the
table to read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Federal
Provision State effective EPA Approval date Register Explanation
date citation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
110(a)(1) and (2) Infrastructure 11/2/2012 11/5/2015 [Insert ............... With the exception of
Requirements for the 2008 8- Federal Register sections: 110(a)(2)(C)
Hour Ozone National Ambient Air citation]. and (J) concerning PSD
Quality Standards. permitting
requirements;
110(a)(2)(D)(i)(I) and
(II) (prongs 1 through
4) concerning
interstate transport
requirements;
110(a)(2)(E)(ii)
concerning state board
requirements.
----------------------------------------------------------------------------------------------------------------
[[Page 68458]]
[FR Doc. 2015-28098 Filed 11-4-15; 8:45 am]
BILLING CODE 6560-50-P
