Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard, 47115-47123 [2016-17071]

Download as PDF Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2015–0362; FRL–9949–26– Region 4] Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard Environmental Protection Agency. ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), Division of Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North Carolina SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2) 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 submission. NCDAQ certified that the North Carolina SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in North Carolina. EPA is proposing to find that portions of North Carolina’s infrastructure SIP submission, provided to EPA on August 23, 2013, satisfy certain infrastructure elements for the 2010 1-hour NO2 NAAQS. DATES: Written comments must be received on or before August 19, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2015–0362 at http:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally mstockstill on DSK3G9T082PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Richard Wong, 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. Mr. Wong can be reached via telephone at (404) 562–8726 or via electronic mail at wong.richard@epa.gov. SUPPLEMENTARY INFORMATION: I. Background and Overview On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.1 This action is proposing to approve North Carolina’s infrastructure submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of 1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Unless otherwise indicated, the Title 15A regulations of the North Carolina Administrative Code (‘‘15A NCAC’’) cited throughout this rulemaking have either been approved, or submitted for approval into North Carolina’s federally-approved SIP. The North Carolina General Statutes (‘‘NCGS’’) cited throughout this rulemaking, however, are not approved into the North Carolina SIP unless otherwise indicated. PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 47115 section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of 110(E)(ii). On November 3, 2015, EPA took final action to approve North Carolina’s August 23, 2013, infrastructure SIP submission regarding the state board requirements of section 110(a)(2)(E)(ii), for the 2010 1-hour NO2 NAAQS. See 80 FR 67645. Therefore, EPA is not proposing any action today pertaining to section 110(a)(2)(E)(ii). With respect to North Carolina’s infrastructure SIP submission related to the provisions pertaining to the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), EPA is not proposing any action at this time. For the aspects of North Carolina’s submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that North Carolina’s already approved SIP meets certain CAA requirements. II. What elements are required under sections 110(a)(1) and (2)? Section 110(a) of the CAA requires states to submit SIPs 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. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state’s existing SIP already contains. In the case of the 2010 1-hour NO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for ‘‘infrastructure’’ SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the E:\FR\FM\20JYP1.SGM 20JYP1 47116 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules subject of this proposed rulemaking are listed below and in EPA’s September 13, 2013, memorandum entitled ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).’’ 2 • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 3 • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 4 • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting Fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA’s approach to the review of infrastructure SIP submissions? mstockstill on DSK3G9T082PROD with PROPOSALS EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour NO2 NAAQS. The requirement for states to make a SIP submission of this type 2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C). 3 This rulemaking only addresses requirements for this element as they relate to attainment areas. 4 As mentioned above, this element is not relevant to this proposed rulemaking. VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ‘‘within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),’’ and these SIP submissions are to provide for the ‘‘implementation, maintenance, and enforcement’’ of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA’s taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ‘‘[e]ach such plan’’ submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ‘‘infrastructure SIP’’ submissions. Although the term ‘‘infrastructure SIP’’ does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ‘‘nonattainment SIP’’ or ‘‘attainment plan SIP’’ submissions to address the nonattainment planning requirements of part D of title I of the CAA, ‘‘regional haze SIP’’ submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other 5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. PO 00000 Frm 00068 Fmt 4702 Sfmt 4702 statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ‘‘each’’ SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ‘‘a 6 See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 25162, at 25163–65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). 7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules mstockstill on DSK3G9T082PROD with PROPOSALS plan’’ to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9 Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states’ attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state’s infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10 8 See, e.g., ‘‘Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,’’ 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA’s 2008 PM2.5 NSR rule), and ‘‘Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). 9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007 submittal. 10 For example, implementation of the 1997 PM 2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the ‘‘applicable requirements’’ of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.11 EPA most 11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the PO 00000 Frm 00069 Fmt 4702 Sfmt 4702 47117 recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).12 EPA developed this document to provide states with upto-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. 12 ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),’’ Memorandum from Stephen D. Page, September 13, 2013. 13 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state’s CAA obligations. E:\FR\FM\20JYP1.SGM 20JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 47118 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules the structure of an individual state’s permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM2.5) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP submission focuses on assuring that the state’s implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state’s existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA’s regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state’s infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state’s existing SIP. These issues include: (i) Existing VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA’s policies addressing such excess emissions (‘‘SSM’’); (ii) existing provisions related to ‘‘director’s variance’’ or ‘‘director’s discretion’’ that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s ‘‘Final NSR Improvement Rule,’’ 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (‘‘NSR Reform’’). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.14 It is important to note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state’s existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ‘‘implementation, maintenance, and enforcement’’ of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure 14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. PO 00000 Frm 00070 Fmt 4702 Sfmt 4702 SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ‘‘SIP call’’ whenever the Agency determines that a state’s implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.16 Significantly, EPA’s determination that an action on a state’s infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those 15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,’’ 74 FR 21639 (April 18, 2011). 16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ‘‘Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,’’ 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). E:\FR\FM\20JYP1.SGM 20JYP1 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules IV. What is EPA’s analysis of how North Carolina addressed the elements of the sections 110(a)(1) and (2) ‘‘Infrastructure’’ provisions? North Carolina’s infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below. 1. 110(a)(2)(A): Emission limits and other control measures: Section 110(a)(2)(A) requires that each implementation plan 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. These requirements are met through several North Carolina Administrative Code (NCAC) regulations. Specifically, 15A NCAC 2D .0500 Emission Control Standards establishes emission limits for NO2. The following rules address additional control measures, means and techniques: 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source Testing. In addition, NCGS 143– 215.107(a)(5), Air quality standards and classifications, provides the North Carolina Environmental Management Commission (EMC) with the statutory authority, ‘‘To develop and adopt emission control standards as in the judgment of the Commission may be necessary to prohibit, abate, or control air pollution commensurate with established air quality standards.’’ EPA has made the preliminary determination that the cited provisions are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2010 1-hour NO2 NAAQS in the State. In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown’’ (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18 Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director’s discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director’s discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. 2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. NCGS 143–215.107(a)(2), Air quality standards and classifications, provides the EMC with the statutory authority ‘‘To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.’’ Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, and includes the annual ambient monitoring network design plan and a certified evaluation of the state’s ambient monitors and auxiliary support 17 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). 18 On June 12, 2015, EPA published a final action entitled, ‘‘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.’’ See 80 FR 33840. mstockstill on DSK3G9T082PROD with PROPOSALS deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director’s discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.17 VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 PO 00000 Frm 00071 Fmt 4702 Sfmt 4702 47119 equipment.19 The latest monitoring network plan for North Carolina was submitted to EPA on July 23, 2015, and on November 19, 2015, EPA approved this plan. North Carolina’s approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA–R04–OAR–2015– 0362. NCGS 143–215.107(a)(2), EPA regulations, along with North Carolina’s Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. EPA has made the preliminary determination that North Carolina’s SIP and practices are adequate for the ambient air quality monitoring and data system requirements related to the 2010 1-hour NO2 NAAQS. 3. 110(a)(2)(C) Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). To meet these obligations, North Carolina cited the following regulations: 15A NCAC 2D. 0500 Emissions Control Standards; 15A NCAC 2D. 0530 Prevention of Significant Deterioration; 15A NCAC 2D. 0531 Sources in Nonattainment Areas; 15A NCAC 2Q .0300 Construction Operation Permits; and 15A NCAC 2Q .0500 Title V Procedures. Collectively, these regulations enable North Carolina to regulate sources contributing to the 2010 1-hour NO2 NAAQS through enforceable permits. North Carolina also cited to the following statutory provisions as supporting this element: NCGS 143– 215.108, Control of sources of air pollution; permits required; NCGS 143– 215.107(a)(7), Air quality standards and classifications; and NCGS 143–215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief. In this action, EPA is proposing to approve North Carolina’s infrastructure SIP for the 2010 1-hour NO2 NAAQS with respect to the general requirement 19 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. E:\FR\FM\20JYP1.SGM 20JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 47120 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules in section 110(a)(2)(C) to include a program in the SIP for enforcement of NO2 emissions controls and measures and the regulation of minor sources and modifications to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas. Enforcement: NC DAQ’s abovedescribed, SIP-approved regulations provide for enforcement of NO2 emission limits and control measures through enforceable permits. In addition, North Carolina cited NCGS 143–215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief, which provides NC DENR with the statutory authority to seek civil and criminal penalties, and injunctive relief to enforce air quality rules. Preconstruction PSD Permitting for Major Sources: With respect to North Carolina’s infrastructure SIP submission related to the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), EPA is not proposing any action today regarding these requirements and instead will act on this portion of the submission in a separate action. Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1hour NO2 NAAQS. Regulation 15A NCAC 2Q .0300 Construction Operation Permits governs the preconstruction permitting of minor modifications and construction of minor stationary sources. EPA has made the preliminary determination that North Carolina’s SIP is adequate for enforcement of control measures and regulation of minor sources and construction or modifications related to the 2010 1-hour NO2 NAAQS. 4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as ‘‘prongs,’’ that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (‘‘prong 1’’), and interfering with maintenance of the NAAQS in another state (‘‘prong 2’’). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 from interfering with measures required to prevent significant deterioration of air quality in another state (‘‘prong 3’’), or to protect visibility in another state (‘‘prong 4’’). With respect to North Carolina’s infrastructure SIP in relation to the interstate transport requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 4), EPA is not proposing any action today regarding these requirements. 5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement. Regulations 15A NCAC 2D .0530, Prevention of Significant Deterioration, and 15A NCAC 2D .0531, Sources of Nonattainment Areas, provide how NCDAQ will notify neighboring states of potential impacts from new or modified sources consistent with the requirements of 40 CFR 51.166. These regulations require NC DAQ to provide an opportunity for a public hearing to the public, which includes state or local air pollution control agencies, ‘‘whose lands may be affected by emissions from the source or modification’’ in North Carolina. In addition, North Carolina does not have any pending obligation under sections 115 and 126 of the CAA. Accordingly, EPA has made the preliminary determination that North Carolina’s SIP is adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour NO2 NAAQS. 6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the State comply with the requirements respecting State Boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve North Carolina’s SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii). With respect to North Carolina’s August 23, 2013, infrastructure SIP submission related to the state board requirements of section 110(a)(2)(E)(ii), EPA took final action to PO 00000 Frm 00072 Fmt 4702 Sfmt 4702 approve these provisions for the 2010 1hour NO2 NAAQS on November 3, 2015. See 80 FR 67645. EPA’s rationale for today’s proposal respecting subelements (i) and (iii) is described below. To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), North Carolina’s infrastructure SIP submission cites several regulations. Rule 15A NCAC 2Q. 0200, Permit Fees, provides the mechanism by which stationary sources that emit air pollutants pay a fee based on the quantity of emissions. State statutes NCGS 143–215.3, General Powers of Commission and Department: Auxiliary Powers, and NCGS 143– 215.107(a)(1), Air Quality Standards and Classifications, provide the EMC with the statutory authority ‘‘[t]o prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.’’ NCGS 143–215.112, Local air pollution control programs, provides the EMC with the statutory authority ‘‘to review and have general oversight and supervision over all local air pollution control programs.’’ North Carolina has three local air agencies located in Buncombe, Forsyth, and Mecklenburg Counties that implement the air program in these areas. As further evidence of the adequacy of NCDAQ’s resources with respect to sub-elements (i) and (iii), EPA submitted a letter to North Carolina on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to North Carolina can be accessed at www.regulations.gov using Docket ID No. EPA–R04–OAR–2015–0362. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. North Carolina satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015, therefore North Carolina’s grants were finalized and closed out. Collectively, these rules and commitments provide evidence that NC DAQ has adequate personnel, funding, and legal authority to carry out the State’s implementation plan and related issues. EPA has made the preliminary determination that North Carolina has adequate resources and authority to satisfy sections 110(a)(2)(E)(i) and (iii), North Carolina has adequate resources for implementation of the 2010 1-hour NO2 NAAQS. 7. 110(a)(2)(F) Stationary source monitoring system: Section 110(a)(2)(F) requires SIPs to meet applicable E:\FR\FM\20JYP1.SGM 20JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. North Carolina’s infrastructure submission describes how the State establishes requirements for emissions compliance testing and utilizes emissions sampling and analysis. NC DAQ uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. North Carolina meets these requirements through 15A NCAC 2D .0604 Exceptions to Monitoring and Reporting Requirements; 15A NCAC 2D .0605 General Recordkeeping and Reporting Requirements; 15A NCAC 2D .0611 Monitoring Emissions from Other Sources; 15A NCAC 2D .0612 Alternative Monitoring and Reporting Procedures; 15A NCAC 2D .0613 Quality Assurance Program; and 15A NCAC 2D .0614 Compliance Assurance Monitoring. In addition, 15A NCAC 2D .0605(c) General Recordkeeping and Reporting Requirements allows for the use of credible evidence in the event that the NCDAQ Director has evidence that a source is violating an emission standard or permit condition, the Director may require that the owner or operator of any source submit to the Director any information necessary to determine the compliance status of the source. In addition, EPA is unaware of any provision preventing the use of credible evidence in the North Carolina SIP. Also, NCGS 143–215.107(a)(4), Air quality standards and classifications, provides the EMC with the statutory authority ‘‘To collect information or to require reporting from classes of sources which, in the judgment of the [EMC], may cause or contribute to air pollution.’’ Stationary sources are required to submit periodic emissions reports to the State by Rule 15A NCAC 2Q .0207 ‘‘Annual Emissions Reporting.’’ North Carolina is also required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA’s central repository for VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 air emissions data. EPA published the AERR on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. North Carolina made its latest update to the 2011 NEI on December 5, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http:// www.epa.gov/ttn/chief/ eiinformation.html. EPA has made the preliminary determination that North Carolina’s SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve North Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(F). 8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. North Carolina’s infrastructure SIP submission cites 15A NCAC 2D .0300, Air Pollution Emergencies, as identifying air pollution emergency episodes and preplanned abatement strategies, and provides the means to implement emergency air pollution episode measures. Under NCGS 143–215.3(a)(12), General powers of Commission and Department; auxiliary powers, if NC DENR finds that such a ‘‘condition of . . . air pollution exists and that it creates an emergency requiring immediate action to protect the public health and safety or to protect fish and wildlife, the Secretary of the Department [NC DENR] with the concurrence of the Governor, shall order persons causing or contributing to the . . . air pollution in question to reduce or discontinue immediately the emission of air contaminants or the discharge of wastes.’’ In addition, NCGS 143–215.3(a)(12) provides NC DENR with the authority to declare an emergency when it finds that a PO 00000 Frm 00073 Fmt 4702 Sfmt 4702 47121 generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. This statute also allows, in the absence of a generalized condition of air pollution, should the Secretary find ‘‘that the emissions from one or more air contaminant sources . . . is causing imminent danger to human health and safety or to fish and wildlife, he may with the concurrence of the Governor order the person or persons responsible for the operation or operations in question to immediately reduce or discontinue the emissions of air contaminants . . . or to take such other measures as are, in his judgment, necessary.’’ EPA has made the preliminary determination that North Carolina’s SIP submission is adequate to satisfy the emergency powers obligations of the 2010 1-hour NO2 NAAQS. 9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. NC DAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in North Carolina. NCGS 143– 215.107(a)(1) and (a)(10) grant NC DAQ the authority to prepare and develop, after proper study, a comprehensive plan for the prevention of air pollution and implement the CAA, respectively. These provisions also provide NC DAQ the ability and authority to respond to calls for SIP revisions, and North Carolina has provided a number of SIP revisions over the years for implementation of the NAAQS. In addition, State regulation 15A NCAC 2D .2401(d) states that ‘‘The EMC may specify through rulemaking a specific emission limit lower than that established under this rule for a specific source if compliance with the lower emission limit is required to attain or maintain the ambient air quality standard for ozone or PM2.5 or any other ambient air quality standard in Section 15A NCAC 2D .0400.’’ EPA has made the preliminary determination that North Carolina’s SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to E:\FR\FM\20JYP1.SGM 20JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 47122 Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules the 2010 1-hour NO2 NAAQS when necessary. 10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve North Carolina’s infrastructure SIP submission for the 2010 1-hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, and the visibility requirements. With respect to North Carolina’s infrastructure SIP submission related to the preconstruction PSD permitting, EPA is not proposing any action today regarding these requirements and instead will act on these portions of the submission in a separate action. EPA’s rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility is described below. Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Rules 15A NCAC 2D .0531, Sources in a Nonattainment Areas, 2D .1600, General Conformity, 2D .2000, Transportation Conformity, along with the State’s Regional Haze Implementation Plan, (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. North Carolina adopted statewide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires NC DAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. The Regional Haze SIP provides for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs. EPA has made the preliminary determination that North Carolina’s SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary. VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 Public notification (127 public notification): Rule 15A NCAC 2D .0300 Air Pollution Emergencies provides North Carolina with the authority to declare an emergency and notify the public accordingly when it finds a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. Additionally, the NC DAQ has the North Carolina Air Awareness Program which is a program to educate the public on air quality issues and promote voluntary emission reduction measures. The NC DAQ also features a Web page providing ambient monitoring information regarding current and historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which enhances public awareness of air quality in North Carolina and throughout the country. EPA has made the preliminary determination that North Carolina’s SIP and practices adequately demonstrate the State’s ability to provide public notification related to the 2010 1-hour NO2 NAAQS when necessary for the public notification element of section 110(a)(2)(J). Visibility protection: EPA’s 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. NC DENR referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that North Carolina’s infrastructure SIP submission is approvable for the visibility protection element of section 110(a)(2)(J) related to the 2010 1-hour NO2 NAAQS and that North Carolina does not need to rely on its regional haze program to satisfy this element. 11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and PO 00000 Frm 00074 Fmt 4702 Sfmt 4702 submission of such data to EPA can be made. This infrastructure requirement is met through emissions data collected through 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting (authorized under NCGS 143– 215.107(a)(4)), which provides information to model potential impact of major and some minor sources. 15A NCAC 2D .0530 Prevention of Significant Deterioration and 15A NCAC 2D .0531 Sources in Nonattainment Areas require that air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models. NCGS 143–215.107(a) also provides authority for the EMC to determine by means of field sampling and other studies, the degree of air contamination and air pollution in the State. These regulations demonstrate that North Carolina has the authority to perform air quality modeling and to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour NO2 NAAQS. The NC DAQ currently has personnel with training and experience to conduct source-oriented dispersion modeling that would likely be used in NO2 NAAQS applications with models approved by EPA. Additionally, North Carolina participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour NO2 NAAQS, for the Southeastern states. Taken as a whole, North Carolina’s air quality regulations and practices demonstrate that NC DAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS has been promulgated, and to provide such information to the EPA Administrator upon request. EPA has made the preliminary determination that North Carolina’s SIP and practices adequately demonstrate the State’s ability to provide for air quality and modeling, along with analysis of the associated data, related to the 2010 1-hour NO2 NAAQS when necessary. 12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not E:\FR\FM\20JYP1.SGM 20JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V. To satisfy these requirements, North Carolina’s infrastructure SIP submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a sufficient fee to cover the costs of the permitting program. Additionally, North Carolina has a fully approved title V operating permit program at 15A NCAC.0500 Emissions Control Standards and 2Q .0500, Title V Procedures,20 which include provisions to implement and enforce PSD and NNSR permits once Title V permits have been issued. The fees collected under 15A NCAC 2Q .0200 also support this activity. NCGS 143–215.3, General powers of Commission and Department; auxiliary Powers, provides authority for NC DAQ to require a processing fee in an amount sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. EPA has made the preliminary determination that North Carolina’s SIP and practices adequately provide for permitting fees related to the 2010 1-hour NO2 NAAQS, when necessary. 13. 110(a)(2)(M) Consultation/ participation by affected local entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Rule 15A NCAC 2Q .0530, Prevention of Significant Deterioration, requires that the NCDAQ notify the public, including affected local entities, of PSD permit applications and associated information related to PSD permits, and the opportunity for comment prior to making final permitting decisions. NCGS 150B–21.1 and 150B–21.2 authorize and require NCDAQ to advise, consult, cooperate and enter into agreements with other agencies of the state, the Federal government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the Department. Also, Rule 15A NCAC 2D .2000 Transportation Conformity requires consultation with all affected partners to be implemented for transportation conformity 20 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. VerDate Sep<11>2014 17:58 Jul 19, 2016 Jkt 238001 determinations. Furthermore, NC DAQ has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the developing of its Transportation Conformity SIP, Regional Haze Implementation Plan, and the 8-Hour Ozone Attainment Demonstration for the North Carolina portion of the Charlotte-Gastonia-Rock Hill NC–SC nonattainment area. EPA has made the preliminary determination that North Carolina’s SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary. V. Proposed Action EPA is proposing to approve that portions of NCDAQ’s infrastructure SIP submission, submitted August 23, 2013, for the 2010 1-hour NO2 NAAQS, has met the above described infrastructure SIP requirements. EPA is proposing to approve these portions of North Carolina’s infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because these aspects of the submission are consistent with section 110 of the CAA. 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), will not be addressed by EPA at this time. EPA has already taken action to approve North Carolina’s infrastructure SIP submission related to section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action: • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 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 PO 00000 Frm 00075 Fmt 4702 Sfmt 9990 47123 substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4); • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016–17071 Filed 7–19–16; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\20JYP1.SGM 20JYP1

Agencies

[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47115-47123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17071]



[[Page 47115]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0362; FRL-9949-26-Region 4]


Air Plan Approval; North Carolina Infrastructure Requirements for 
the 2010 Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the State of North Carolina, through the North Carolina 
Department of Environment and Natural Resources (NC DENR), Division of 
Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North 
Carolina SIP. This proposal pertains to the infrastructure requirements 
of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide 
(NO2) 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 
submission. NCDAQ certified that the North Carolina SIP contains 
provisions that ensure the 2010 1-hour NO2 NAAQS is 
implemented, enforced, and maintained in North Carolina. EPA is 
proposing to find that portions of North Carolina's infrastructure SIP 
submission, provided to EPA on August 23, 2013, satisfy certain 
infrastructure elements for the 2010 1-hour NO2 NAAQS.

DATES: Written comments must be received on or before August 19, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0362 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, 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. Mr. Wong can be reached via telephone at (404) 562-8726 or 
via electronic mail at wong.richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
requirements of section 110(a)(2) within three years after promulgation 
of a new or revised NAAQS. Section 110(a)(2) requires states to address 
basic SIP requirements, including emissions inventories, monitoring, 
and modeling to assure attainment and maintenance of the NAAQS. States 
were required to submit such SIPs for the 2010 1-hour NO2 
NAAQS to EPA no later than January 22, 2013.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Unless otherwise indicated, the Title 15A 
regulations of the North Carolina Administrative Code (``15A NCAC'') 
cited throughout this rulemaking have either been approved, or 
submitted for approval into North Carolina's federally-approved SIP. 
The North Carolina General Statutes (``NCGS'') cited throughout this 
rulemaking, however, are not approved into the North Carolina SIP 
unless otherwise indicated.
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    This action is proposing to approve North Carolina's infrastructure 
submission for the applicable requirements of the 2010 1-hour 
NO2 NAAQS, 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). On November 3, 2015, EPA took final action to approve North 
Carolina's August 23, 2013, infrastructure SIP submission regarding the 
state board requirements of section 110(a)(2)(E)(ii), for the 2010 1-
hour NO2 NAAQS. See 80 FR 67645. Therefore, EPA is not 
proposing any action today pertaining to section 110(a)(2)(E)(ii). With 
respect to North Carolina's infrastructure SIP submission related to 
the provisions pertaining to the PSD permitting requirements for major 
sources of section 110(a)(2)(C) and (J) and the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 
4), EPA is not proposing any action at this time. For the aspects of 
North Carolina's submittal proposed for approval today, EPA notes that 
the Agency is not approving any specific rule, but rather proposing 
that North Carolina's already approved SIP meets certain CAA 
requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs 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. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 2010 1-hour NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include basic SIP elements such as modeling, monitoring, 
and emissions inventories that are designed to assure attainment and 
maintenance of the NAAQS. The requirements that are the

[[Page 47116]]

subject of this proposed rulemaking are listed below and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
---------------------------------------------------------------------------

    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
---------------------------------------------------------------------------

 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
---------------------------------------------------------------------------

    \4\ As mentioned above, this element is not relevant to this 
proposed rulemaking.
---------------------------------------------------------------------------

 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
 110(a)(2)(L): Permitting Fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from North Carolina that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 1-hour NO2 NAAQS. The requirement for 
states to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
---------------------------------------------------------------------------

    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
---------------------------------------------------------------------------

    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------

    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
---------------------------------------------------------------------------

    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a

[[Page 47117]]

plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
---------------------------------------------------------------------------

    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
---------------------------------------------------------------------------

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
---------------------------------------------------------------------------

    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------

    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on

[[Page 47118]]

the structure of an individual state's permitting or enforcement 
program (e.g., whether permits and enforcement orders are approved by a 
multi-member board or by a head of an executive agency). However they 
are addressed by the state, the substantive requirements of section 128 
are necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
fine particulate matter (PM2.5) NAAQS. Accordingly, the 
latter optional provisions are types of provisions EPA considers 
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, among other things, the 
requirement that states have a program to regulate minor new sources. 
Thus, EPA evaluates whether the state has an EPA-approved minor NSR 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach 
with respect to infrastructure SIP requirements is based on a 
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA 
provides other avenues and mechanisms to address specific substantive 
deficiencies in existing SIPs. These other statutory tools allow EPA to 
take appropriately tailored action, depending upon the nature and 
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes 
EPA to issue a ``SIP call'' whenever the Agency determines that a 
state's implementation plan is substantially inadequate to attain or 
maintain the NAAQS, to mitigate interstate transport, or to otherwise 
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\16\ 
Significantly, EPA's determination that an action on a state's 
infrastructure SIP submission is not the appropriate time and place to 
address all potential existing SIP deficiencies does not preclude EPA's 
subsequent reliance on provisions in section 110(a)(2) as part of the 
basis for action to correct those

[[Page 47119]]

deficiencies at a later time. For example, although it may not be 
appropriate to require a state to eliminate all existing inappropriate 
director's discretion provisions in the course of acting on an 
infrastructure SIP submission, EPA believes that section 110(a)(2)(A) 
may be among the statutory bases that EPA relies upon in the course of 
addressing such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how North Carolina addressed the elements 
of the sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    North Carolina's infrastructure submission addresses the provisions 
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Section 110(a)(2)(A) requires that each implementation plan 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. These requirements are met through several 
North Carolina Administrative Code (NCAC) regulations. Specifically, 
15A NCAC 2D .0500 Emission Control Standards establishes emission 
limits for NO2. The following rules address additional 
control measures, means and techniques: 15A NCAC 2D .0600 Monitoring: 
Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source Testing. In 
addition, NCGS 143-215.107(a)(5), Air quality standards and 
classifications, provides the North Carolina Environmental Management 
Commission (EMC) with the statutory authority, ``To develop and adopt 
emission control standards as in the judgment of the Commission may be 
necessary to prohibit, abate, or control air pollution commensurate 
with established air quality standards.'' EPA has made the preliminary 
determination that the cited provisions are adequate for enforceable 
emission limitations and other control measures, means, or techniques, 
as well as schedules and timetables for compliance for the 2010 1-hour 
NO2 NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency is addressing such state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``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.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to: 
(i) Monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. NCGS 143-
215.107(a)(2), Air quality standards and classifications, provides the 
EMC with the statutory authority ``To determine by means of field 
sampling and other studies, including the examination of available data 
collected by any local, State or federal agency or any person, the 
degree of air contamination and air pollution in the State and the 
several areas of the State.''
    Annually, states develop and submit to EPA for approval statewide 
ambient monitoring network plans consistent with the requirements of 40 
CFR parts 50, 53, and 58. The annual network plan involves an 
evaluation of any proposed changes to the monitoring network, and 
includes the annual ambient monitoring network design plan and a 
certified evaluation of the state's ambient monitors and auxiliary 
support equipment.\19\ The latest monitoring network plan for North 
Carolina was submitted to EPA on July 23, 2015, and on November 19, 
2015, EPA approved this plan. North Carolina's approved monitoring 
network plan can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2015-0362.
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    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    NCGS 143-215.107(a)(2), EPA regulations, along with North 
Carolina's Ambient Air Monitoring Network Plan, provide for the 
establishment and operation of ambient air quality monitors, the 
compilation and analysis of ambient air quality data, and the 
submission of these data to EPA upon request. EPA has made the 
preliminary determination that North Carolina's SIP and practices are 
adequate for the ambient air quality monitoring and data system 
requirements related to the 2010 1-hour NO2 NAAQS.
    3. 110(a)(2)(C) Program for Enforcement of Control Measures and for 
Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources; and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). To meet these obligations, North Carolina cited the 
following regulations: 15A NCAC 2D. 0500 Emissions Control Standards; 
15A NCAC 2D. 0530 Prevention of Significant Deterioration; 15A NCAC 2D. 
0531 Sources in Nonattainment Areas; 15A NCAC 2Q .0300 Construction 
Operation Permits; and 15A NCAC 2Q .0500 Title V Procedures. 
Collectively, these regulations enable North Carolina to regulate 
sources contributing to the 2010 1-hour NO2 NAAQS through 
enforceable permits. North Carolina also cited to the following 
statutory provisions as supporting this element: NCGS 143-215.108, 
Control of sources of air pollution; permits required; NCGS 143-
215.107(a)(7), Air quality standards and classifications; and NCGS 143-
215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal 
penalties, and injunctive relief.
    In this action, EPA is proposing to approve North Carolina's 
infrastructure SIP for the 2010 1-hour NO2 NAAQS with 
respect to the general requirement

[[Page 47120]]

in section 110(a)(2)(C) to include a program in the SIP for enforcement 
of NO2 emissions controls and measures and the regulation of 
minor sources and modifications to assist in the protection of air 
quality in nonattainment, attainment or unclassifiable areas.
    Enforcement: NC DAQ's above-described, SIP-approved regulations 
provide for enforcement of NO2 emission limits and control 
measures through enforceable permits. In addition, North Carolina cited 
NCGS 143-215.6A, 6B, and 6C, Enforcement procedures: civil penalties, 
criminal penalties, and injunctive relief, which provides NC DENR with 
the statutory authority to seek civil and criminal penalties, and 
injunctive relief to enforce air quality rules.
    Preconstruction PSD Permitting for Major Sources: With respect to 
North Carolina's infrastructure SIP submission related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA is not proposing any action today regarding 
these requirements and instead will act on this portion of the 
submission in a separate action.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2010 1-hour 
NO2 NAAQS. Regulation 15A NCAC 2Q .0300 Construction 
Operation Permits governs the preconstruction permitting of minor 
modifications and construction of minor stationary sources.
    EPA has made the preliminary determination that North Carolina's 
SIP is adequate for enforcement of control measures and regulation of 
minor sources and construction or modifications related to the 2010 1-
hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4''). With respect to North Carolina's 
infrastructure SIP in relation to the interstate transport requirements 
of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 
4), EPA is not proposing any action today regarding these requirements.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act relating to interstate and international pollution abatement. 
Regulations 15A NCAC 2D .0530, Prevention of Significant Deterioration, 
and 15A NCAC 2D .0531, Sources of Nonattainment Areas, provide how 
NCDAQ will notify neighboring states of potential impacts from new or 
modified sources consistent with the requirements of 40 CFR 51.166. 
These regulations require NC DAQ to provide an opportunity for a public 
hearing to the public, which includes state or local air pollution 
control agencies, ``whose lands may be affected by emissions from the 
source or modification'' in North Carolina. In addition, North Carolina 
does not have any pending obligation under sections 115 and 126 of the 
CAA. Accordingly, EPA has made the preliminary determination that North 
Carolina's SIP is adequate for ensuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide: 
(i) Necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
North Carolina's SIP as meeting the requirements of sub-elements 
110(a)(2)(E)(i) and (iii). With respect to North Carolina's August 23, 
2013, infrastructure SIP submission related to the state board 
requirements of section 110(a)(2)(E)(ii), EPA took final action to 
approve these provisions for the 2010 1-hour NO2 NAAQS on 
November 3, 2015. See 80 FR 67645. EPA's rationale for today's proposal 
respecting sub-elements (i) and (iii) is described below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
North Carolina's infrastructure SIP submission cites several 
regulations. Rule 15A NCAC 2Q. 0200, Permit Fees, provides the 
mechanism by which stationary sources that emit air pollutants pay a 
fee based on the quantity of emissions. State statutes NCGS 143-215.3, 
General Powers of Commission and Department: Auxiliary Powers, and NCGS 
143-215.107(a)(1), Air Quality Standards and Classifications, provide 
the EMC with the statutory authority ``[t]o prepare and develop, after 
proper study, a comprehensive plan or plans for the prevention, 
abatement and control of air pollution in the State or in any 
designated area of the State.'' NCGS 143-215.112, Local air pollution 
control programs, provides the EMC with the statutory authority ``to 
review and have general oversight and supervision over all local air 
pollution control programs.'' North Carolina has three local air 
agencies located in Buncombe, Forsyth, and Mecklenburg Counties that 
implement the air program in these areas.
    As further evidence of the adequacy of NCDAQ's resources with 
respect to sub-elements (i) and (iii), EPA submitted a letter to North 
Carolina on April 19, 2016, outlining section 105 grant commitments and 
the current status of these commitments for fiscal year 2015. The 
letter EPA submitted to North Carolina can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362. 
Annually, states update these grant commitments based on current SIP 
requirements, air quality planning, and applicable requirements related 
to the NAAQS. North Carolina satisfactorily met all commitments agreed 
to in the Air Planning Agreement for fiscal year 2015, therefore North 
Carolina's grants were finalized and closed out. Collectively, these 
rules and commitments provide evidence that NC DAQ has adequate 
personnel, funding, and legal authority to carry out the State's 
implementation plan and related issues. EPA has made the preliminary 
determination that North Carolina has adequate resources and authority 
to satisfy sections 110(a)(2)(E)(i) and (iii), North Carolina has 
adequate resources for implementation of the 2010 1-hour NO2 
NAAQS.
    7. 110(a)(2)(F) Stationary source monitoring system: Section 
110(a)(2)(F) requires SIPs to meet applicable

[[Page 47121]]

requirements addressing: (i) The installation, maintenance, and 
replacement of equipment, and the implementation of other necessary 
steps, by owners or operators of stationary sources to monitor 
emissions from such sources, (ii) periodic reports on the nature and 
amounts of emissions and emissions related data from such sources, and 
(iii) correlation of such reports by the state agency with any emission 
limitations or standards established pursuant to this section, which 
reports shall be available at reasonable times for public inspection. 
North Carolina's infrastructure submission describes how the State 
establishes requirements for emissions compliance testing and utilizes 
emissions sampling and analysis.
    NC DAQ uses these data to track progress towards maintaining the 
NAAQS, develop control and maintenance strategies, identify sources and 
general emission levels, and determine compliance with emission 
regulations and additional EPA requirements. North Carolina meets these 
requirements through 15A NCAC 2D .0604 Exceptions to Monitoring and 
Reporting Requirements; 15A NCAC 2D .0605 General Recordkeeping and 
Reporting Requirements; 15A NCAC 2D .0611 Monitoring Emissions from 
Other Sources; 15A NCAC 2D .0612 Alternative Monitoring and Reporting 
Procedures; 15A NCAC 2D .0613 Quality Assurance Program; and 15A NCAC 
2D .0614 Compliance Assurance Monitoring. In addition, 15A NCAC 2D 
.0605(c) General Recordkeeping and Reporting Requirements allows for 
the use of credible evidence in the event that the NCDAQ Director has 
evidence that a source is violating an emission standard or permit 
condition, the Director may require that the owner or operator of any 
source submit to the Director any information necessary to determine 
the compliance status of the source. In addition, EPA is unaware of any 
provision preventing the use of credible evidence in the North Carolina 
SIP. Also, NCGS 143-215.107(a)(4), Air quality standards and 
classifications, provides the EMC with the statutory authority ``To 
collect information or to require reporting from classes of sources 
which, in the judgment of the [EMC], may cause or contribute to air 
pollution.''
    Stationary sources are required to submit periodic emissions 
reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions 
Reporting.'' North Carolina is also required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
AERR on December 5, 2008, which modified the requirements for 
collecting and reporting air emissions data (73 FR 76539). The AERR 
shortened the time states had to report emissions data from 17 to 12 
months, giving states one calendar year to submit emissions data. All 
states are required to submit a comprehensive emissions inventory every 
three years and report emissions for certain larger sources annually 
through EPA's online Emissions Inventory System. States report 
emissions data for the six criteria pollutants and the precursors that 
form them--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon 
monoxide, particulate matter, and volatile organic compounds. Many 
states also voluntarily report emissions of hazardous air pollutants. 
North Carolina made its latest update to the 2011 NEI on December 5, 
2014. EPA compiles the emissions data, supplementing it where 
necessary, and releases it to the general public through the Web site 
http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the 
preliminary determination that North Carolina's SIP and practices are 
adequate for the stationary source monitoring systems related to the 
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to 
approve North Carolina's infrastructure SIP submission with respect to 
section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires 
that states demonstrate authority comparable with section 303 of the 
CAA and adequate contingency plans to implement such authority. North 
Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300, Air 
Pollution Emergencies, as identifying air pollution emergency episodes 
and preplanned abatement strategies, and provides the means to 
implement emergency air pollution episode measures. Under NCGS 143-
215.3(a)(12), General powers of Commission and Department; auxiliary 
powers, if NC DENR finds that such a ``condition of . . . air pollution 
exists and that it creates an emergency requiring immediate action to 
protect the public health and safety or to protect fish and wildlife, 
the Secretary of the Department [NC DENR] with the concurrence of the 
Governor, shall order persons causing or contributing to the . . . air 
pollution in question to reduce or discontinue immediately the emission 
of air contaminants or the discharge of wastes.'' In addition, NCGS 
143-215.3(a)(12) provides NC DENR with the authority to declare an 
emergency when it finds that a generalized condition of water or air 
pollution which is causing imminent danger to the health or safety of 
the public. This statute also allows, in the absence of a generalized 
condition of air pollution, should the Secretary find ``that the 
emissions from one or more air contaminant sources . . . is causing 
imminent danger to human health and safety or to fish and wildlife, he 
may with the concurrence of the Governor order the person or persons 
responsible for the operation or operations in question to immediately 
reduce or discontinue the emissions of air contaminants . . . or to 
take such other measures as are, in his judgment, necessary.'' EPA has 
made the preliminary determination that North Carolina's SIP submission 
is adequate to satisfy the emergency powers obligations of the 2010 1-
hour NO2 NAAQS.
    9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in 
summary, requires each SIP to provide for revisions of such plan (i) as 
may be necessary to take account of revisions of such national primary 
or secondary ambient air quality standard or the availability of 
improved or more expeditious methods of attaining such standard, and 
(ii) whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. NC DAQ is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in North Carolina. NCGS 143-215.107(a)(1) and (a)(10) grant NC 
DAQ the authority to prepare and develop, after proper study, a 
comprehensive plan for the prevention of air pollution and implement 
the CAA, respectively. These provisions also provide NC DAQ the ability 
and authority to respond to calls for SIP revisions, and North Carolina 
has provided a number of SIP revisions over the years for 
implementation of the NAAQS. In addition, State regulation 15A NCAC 2D 
.2401(d) states that ``The EMC may specify through rulemaking a 
specific emission limit lower than that established under this rule for 
a specific source if compliance with the lower emission limit is 
required to attain or maintain the ambient air quality standard for 
ozone or PM2.5 or any other ambient air quality standard in 
Section 15A NCAC 2D .0400.'' EPA has made the preliminary determination 
that North Carolina's SIP and practices adequately demonstrate a 
commitment to provide future SIP revisions related to

[[Page 47122]]

the 2010 1-hour NO2 NAAQS when necessary.
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve North Carolina's infrastructure SIP submission for the 2010 1-
hour NO2 NAAQS with respect to the general requirement in 
section 110(a)(2)(J) to include a program in the SIP that provides for 
meeting the applicable consultation requirements of section 121, the 
public notification requirements of section 127, and the visibility 
requirements. With respect to North Carolina's infrastructure SIP 
submission related to the preconstruction PSD permitting, EPA is not 
proposing any action today regarding these requirements and instead 
will act on these portions of the submission in a separate action. 
EPA's rationale for its proposed action regarding applicable 
consultation requirements of section 121, the public notification 
requirements of section 127, and visibility is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. Rules 
15A NCAC 2D .0531, Sources in a Nonattainment Areas, 2D .1600, General 
Conformity, 2D .2000, Transportation Conformity, along with the State's 
Regional Haze Implementation Plan, (which allows for consultation 
between appropriate state, local, and tribal air pollution control 
agencies as well as the corresponding FLMs), provide for consultation 
with government officials whose jurisdictions might be affected by SIP 
development activities. North Carolina adopted state-wide consultation 
procedures for the implementation of transportation conformity. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires NC DAQ to consult with Federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. The Regional Haze SIP 
provides for consultation between appropriate state, local, and tribal 
air pollution control agencies as well as the corresponding FLMs. EPA 
has made the preliminary determination that North Carolina's SIP and 
practices adequately demonstrate consultation with government officials 
related to the 2010 1-hour NO2 NAAQS when necessary.
    Public notification (127 public notification): Rule 15A NCAC 2D 
.0300 Air Pollution Emergencies provides North Carolina with the 
authority to declare an emergency and notify the public accordingly 
when it finds a generalized condition of water or air pollution which 
is causing imminent danger to the health or safety of the public. 
Additionally, the NC DAQ has the North Carolina Air Awareness Program 
which is a program to educate the public on air quality issues and 
promote voluntary emission reduction measures. The NC DAQ also features 
a Web page providing ambient monitoring information regarding current 
and historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which 
enhances public awareness of air quality in North Carolina and 
throughout the country. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate the State's 
ability to provide public notification related to the 2010 1-hour 
NO2 NAAQS when necessary for the public notification element 
of section 110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. NC 
DENR referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR 
does not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that North Carolina's infrastructure SIP 
submission is approvable for the visibility protection element of 
section 110(a)(2)(J) related to the 2010 1-hour NO2 NAAQS 
and that North Carolina does not need to rely on its regional haze 
program to satisfy this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to EPA can be made. This infrastructure requirement is met through 
emissions data collected through 15A NCAC 2D .0600 Monitoring: 
Recordkeeping: Reporting (authorized under NCGS 143-215.107(a)(4)), 
which provides information to model potential impact of major and some 
minor sources. 15A NCAC 2D .0530 Prevention of Significant 
Deterioration and 15A NCAC 2D .0531 Sources in Nonattainment Areas 
require that air modeling be conducted in accordance with 40 CFR part 
51, Appendix W, Guideline on Air Quality Models. NCGS 143-215.107(a) 
also provides authority for the EMC to determine by means of field 
sampling and other studies, the degree of air contamination and air 
pollution in the State. These regulations demonstrate that North 
Carolina has the authority to perform air quality modeling and to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 2010 1-hour NO2 NAAQS. The NC DAQ 
currently has personnel with training and experience to conduct source-
oriented dispersion modeling that would likely be used in 
NO2 NAAQS applications with models approved by EPA. 
Additionally, North Carolina participates in a regional effort to 
coordinate the development of emissions inventories and conduct 
regional modeling for several NAAQS, including the 2010 1-hour 
NO2 NAAQS, for the Southeastern states. Taken as a whole, 
North Carolina's air quality regulations and practices demonstrate that 
NC DAQ has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
pollutant for which a NAAQS has been promulgated, and to provide such 
information to the EPA Administrator upon request. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
and modeling, along with analysis of the associated data, related to 
the 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the 
owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under the 
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not

[[Page 47123]]

including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V.
    To satisfy these requirements, North Carolina's infrastructure SIP 
submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which 
requires the owner or operator of each major stationary source to pay 
to the permitting authority, as a condition of any permit required 
under the CAA, a sufficient fee to cover the costs of the permitting 
program. Additionally, North Carolina has a fully approved title V 
operating permit program at 15A NCAC.0500 Emissions Control Standards 
and 2Q .0500, Title V Procedures,\20\ which include provisions to 
implement and enforce PSD and NNSR permits once Title V permits have 
been issued. The fees collected under 15A NCAC 2Q .0200 also support 
this activity. NCGS 143-215.3, General powers of Commission and 
Department; auxiliary Powers, provides authority for NC DAQ to require 
a processing fee in an amount sufficient for the reasonable cost of 
reviewing and acting upon PSD and NNSR permits. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately provide for permitting fees related to the 2010 1-hour 
NO2 NAAQS, when necessary.
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    \20\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/participation by affected local 
entities: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. Rule 15A NCAC 2Q .0530, 
Prevention of Significant Deterioration, requires that the NCDAQ notify 
the public, including affected local entities, of PSD permit 
applications and associated information related to PSD permits, and the 
opportunity for comment prior to making final permitting decisions. 
NCGS 150B-21.1 and 150B-21.2 authorize and require NCDAQ to advise, 
consult, cooperate and enter into agreements with other agencies of the 
state, the Federal government, other states, interstate agencies, 
groups, political subdivisions, and industries affected by the 
provisions of this act, rules, or policies of the Department. Also, 
Rule 15A NCAC 2D .2000 Transportation Conformity requires consultation 
with all affected partners to be implemented for transportation 
conformity determinations. Furthermore, NC DAQ has demonstrated 
consultation with, and participation by, affected local entities 
through its work with local political subdivisions during the 
developing of its Transportation Conformity SIP, Regional Haze 
Implementation Plan, and the 8-Hour Ozone Attainment Demonstration for 
the North Carolina portion of the Charlotte-Gastonia-Rock Hill NC-SC 
nonattainment area. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate consultation 
with affected local entities related to the 2010 1-hour NO2 
NAAQS when necessary.

V. Proposed Action

    EPA is proposing to approve that portions of NCDAQ's infrastructure 
SIP submission, submitted August 23, 2013, for the 2010 1-hour 
NO2 NAAQS, has met the above described infrastructure SIP 
requirements. EPA is proposing to approve these portions of North 
Carolina's infrastructure SIP submission for the 2010 1-hour 
NO2 NAAQS because these aspects of the submission are 
consistent with section 110 of the CAA. 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), will not be addressed by EPA at this time. EPA has already 
taken action to approve North Carolina's infrastructure SIP submission 
related to section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Reporting and 
recordkeeping requirements.

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

    Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17071 Filed 7-19-16; 8:45 am]
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