Air Plan Approval; North Carolina; Infrastructure Requirements for the 2012 PM2.5, 47314-47323 [2016-17301]
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Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Proposed Rules
Authority for This Rulemaking
Title 49 of the United States Code
specifies the FAA’s authority to issue
rules on aviation safety. Subtitle I,
section 106, describes the authority of
the FAA Administrator. Subtitle VII:
Aviation Programs, describes in more
detail the scope of the Agency’s
authority.
We are issuing this rulemaking under
the authority described in Subtitle VII,
Part A, Subpart III, Section 44701:
‘‘General requirements.’’ Under that
section, Congress charges the FAA with
promoting safe flight of civil aircraft in
air commerce by prescribing regulations
for practices, methods, and procedures
the Administrator finds necessary for
safety in air commerce. This regulation
is within the scope of that authority
because it addresses an unsafe condition
that is likely to exist or develop on
products identified in this rulemaking
action.
Regulatory Findings
We determined that this proposed AD
would not have federalism implications
under Executive Order 13132. This
proposed AD would not have a
substantial direct effect on the States, on
the relationship between the national
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.
For the reasons discussed above, I
certify this proposed regulation:
(1) Is not a ‘‘significant regulatory
action’’ under Executive Order 12866,
(2) Is not a ‘‘significant rule’’ under
the DOT Regulatory Policies and
Procedures (44 FR 11034, February 26,
1979),
(3) Will not affect intrastate aviation
in Alaska to the extent that it justifies
making a regulatory distinction, and
(4) Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
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List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
The Proposed Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA proposes to amend 14 CFR part
39 as follows:
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
■
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Authority: 49 U.S.C. 106(g), 40113, 44701.
§ 39.13
[Amended]
2. The FAA amends § 39.13 by adding
the following new airworthiness
directive (AD):
■
International Aero Engines AG: Docket No.
FAA–2016–7099; Directorate Identifier
2016–NE–15–AD.
(a) Comments Due Date
We must receive comments by September
19, 2016.
(b) Affected ADs
None.
(c) Applicability
This AD applies to International Aero
Engines (IAE) V2522–A5, V2524–A5, V2527–
A5, V2527E–A5, V2527M–A5, V2530–A5,
V2533–A5, V2525–D5, V2528–D5, and
V2531–E5 turbofan engines with No. 3
bearing serial numbers listed in Appendix 1
of IAE Non-Modification Service Bulletin
(NMSB) V2500–ENG–72–0671, dated March
22, 2016.
(d) Unsafe Condition
This AD was prompted by several in-flight
shutdowns that resulted from premature
failure of the No. 3 bearing. We are issuing
this AD to prevent failure of the No. 3
bearing, failure of one or more engines, loss
of thrust control, and loss of the airplane.
(e) Compliance
Comply with this AD within the
compliance times specified, unless already
done.
(1) Prior to accumulating 125 flight hours
after the effective date of this AD, inspect the
master magnetic chip detector (MMCD) for
metallic debris. If no metallic debris is found
during the MMCD inspection, repeat the
inspection within every 125 flight hours.
(2) If metallic debris is found during the
MMCD inspection, evaluate the debris using
paragraph 2.B. of the Accomplishment
Instructions in IAE NMSB V2500–ENG–72–
0671, dated March 22, 2016. Perform
additional inspections or remove the engine
from service in accordance with the
Accomplishment Instructions in IAE NMSB
V2500–ENG–72–0671.
(3) Remove the No. 3 bearing from service
at the next engine shop visit and replace it
with a bearing part/serial number
combination not listed in Appendix 1 of IAE
NMSB V2500–ENG–72–0671, dated March
22, 2016.
(f) Mandatory Terminating Action
Removal of the No. 3 bearing from service
at the next engine shop visit and replacement
with a bearing not listed in Appendix 1 of
IAE NMSB V2500–ENG–72–0671, dated
March 22, 2016, is terminating action to this
AD.
(g) Definition
For the purpose of this AD, an ‘‘engine
shop visit’’ is the induction of an engine into
the shop for maintenance involving the
separation of pairs of major mating engine
flanges, except that the separation of engine
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flanges solely for the purposes of
transportation without subsequent engine
maintenance does not constitute an engine
shop visit.
(h) Alternative Methods of Compliance
(AMOCs)
The Manager, Engine Certification Office,
FAA, may approve AMOCs for this AD. Use
the procedures found in 14 CFR 39.19 to
make your request. You may email your
request to: ANE–AD–AMOC@faa.gov.
(i) Related Information
(1) For more information about this AD,
contact Brian Kierstead, Aerospace Engineer,
Engine Certification Office, FAA, Engine &
Propeller Directorate, 1200 District Avenue,
Burlington, MA 01803; phone: 781–238–
7772; fax: 781–238–7199; email:
brian.kierstead@faa.gov.
(2) IAE NMSB V2500–ENG–72–0671, dated
March 22, 2016, can be obtained from IAE
using the contact information in paragraph
(i)(3) of this proposed AD.
(3) For service information identified in
this proposed AD, contact International Aero
Engines AG, 400 Main Street, East Hartford,
CT 06118; phone: 860–565–0140; email:
help24@pw.utc.com; Internet: https://
fleetcare.pw.utc.com.
(4) You may view this service information
at the FAA, Engine & Propeller Directorate,
1200 District Avenue, Burlington, MA. For
information on the availability of this
material at the FAA, call 781–238–7125.
Issued in Burlington, Massachusetts, on
July 13, 2016.
Colleen M. D’Alessandro,
Manager, Engine & Propeller Directorate,
Aircraft Certification Service.
[FR Doc. 2016–17159 Filed 7–20–16; 8:45 am]
BILLING CODE 4910–13–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2014–0428; FRL–9949–38–
Region 4]
Air Plan Approval; North Carolina;
Infrastructure Requirements for the
2012 PM2.5 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
Department of Environmental Quality
(DEQ), formerly known as the
Department of Environment and Natural
Resources (DENR), Division of Air
Quality (DAQ), on December 4, 2015, for
inclusion into the North Carolina SIP.
SUMMARY:
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Federal Register / Vol. 81, No. 140 / Thursday, July 21, 2016 / Proposed Rules
This proposal pertains to the
infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2012
Annual Fine Particulate Matter (PM2.5)
national ambient air quality standard
(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. DAQ
certified that the North Carolina SIP
contains provisions that ensure the 2012
Annual PM2.5 NAAQS is implemented,
enforced, and maintained in North
Carolina. EPA is proposing to determine
that portions of North Carolina’s
infrastructure SIP submission, provided
to EPA on December 4, 2015, satisfy
certain infrastructure elements for the
2012 Annual PM2.5 NAAQS.
Written comments must be
received on or before August 22, 2016.
DATES:
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2014–0428 at https://
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
https://www2.epa.gov/dockets/
commenting-epa-dockets.
ADDRESSES:
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FOR FURTHER INFORMATION CONTACT:
Tiereny Bell, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms. Bell
can be reached via electronic mail at
bell.tiereny@epa.gov or via telephone at
(404) 562–9088.
SUPPLEMENTARY INFORMATION:
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I. Background and Overview
On December 14, 2012 (78 FR 3086,
January 15, 2013), EPA promulgated a
revised primary annual PM2.5 NAAQS.
The standard was strengthened from
15.0 micrograms per cubic meter (mg/
m3) to 12.0 mg/m3. Pursuant to section
110(a)(1) of the CAA, states are required
to submit SIPs meeting the applicable
requirements of section 110(a)(2) within
three years after promulgation of a new
or revised NAAQS or within such
shorter period as EPA may prescribe.
Section 110(a)(2) requires states to
address basic SIP elements such as
requirements for monitoring, basic
program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. States were required to submit
such SIPs for the 2012 Annual PM2.5
NAAQS to EPA no later than December
14, 2015.1
This rulemaking is proposing to
approve portions of North Carolina’s
PM2.5 infrastructure SIP submissions 2
for the applicable requirements of the
2012 Annual PM2.5 NAAQS, with the
exception of the interstate transport
requirements of section 110(a)(2)(D)(i)(I)
and (II) (prongs 1, 2, and 4) and
preconstruction Prevention of
Significant Deterioration (PSD)
permitting requirements for major
sources of section 110(a)(2)(C) and (J),
for which EPA is not proposing any
action in this rulemaking regarding
these requirements. For the aspects of
North Carolina’s submittal proposed for
approval in this rulemaking, 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
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). Throughout this
rulemaking unless otherwise noted, the cited
regulation (North Carolina Administrative Code
(NCAC)) has either been approved, or submitted for
approval into North Carolina’s federally-approved
SIP. The North Carolina statutory provisions cited
to herein (North Carolina General Statutes (NCGS))
have not been approved into the North Carolina
SIP, unless otherwise noted.
2 North Carolina’s 2012 Annual PM
2.5 NAAQS
infrastructure SIP submission dated December 4,
2015, is referred to as ‘‘North Carolina’s PM2.5
infrastructure SIP’’ in this action.
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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.
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
requirements for monitoring, basic
program requirements and legal
authority that are designed to assure
attainment and maintenance of the
NAAQS. The requirements that are the
subject of this proposed rulemaking are
summarized 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).’’ 3
• 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 4
• 110(a)(2)(D)(i)(I) and (II): Interstate
Pollution Transport
• 110(a)(2)(D)(ii): Interstate Pollution
Abatement and International Air
Pollution
3 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).
4 This rulemaking only addresses requirements
for this element as they relate to attainment areas.
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• 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 5
• 110(a)(2)(J): Consultation with
Government Officials, Public
Notification, and Prevention of
Significant Deterioration (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
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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 2012 Annual PM2.5
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
5 As mentioned above, this element is not
relevant to this proposed rulemaking.
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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.6 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.
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.7 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
6 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.
7 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)).
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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.8 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
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.9
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
8 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.
9 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).
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elements and sub-elements of the same
infrastructure SIP submission.10
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.11
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
10 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.
11 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.
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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.12 EPA most
recently issued guidance for
infrastructure SIPs on September 13,
2013 (2013 Guidance).13 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.14 The guidance also
12 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.
13 ‘‘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.
14 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 United States (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
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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
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,
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.
On March 17, 2016, EPA released a memorandum
titled, ‘‘Information on the Interstate Transport
‘Good Neighbor’ Provision for the 2012 Fine
Particulate Matter National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)’’ to provide guidance to states for
interstate transport requirements specific to the
PM2.5 NAAQS.
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including greenhouse gases. 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 Annual 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, inter alia,
the requirement that states have a
program to regulate minor new sources.
Thus, EPA evaluates whether the state
has an EPA-approved minor new source
review 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
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aware of such existing provisions.15 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
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)
15 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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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 SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.16 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.17
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
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.18
IV. What is EPA’s analysis of how
North Carolina addressed the elements
of the sections 110(a)(1) and (2)
‘‘infrastructure’’ provisions?
The North Carolina infrastructure
submission addresses the provisions of
16 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).
17 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).
18 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 (Jan. 26, 2011)
(final disapproval of such provisions).
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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 PM2.5. The following State rules
address additional control measures,
means and techniques: 15A NCAC 2D
.0600 Monitoring: Recordkeeping:
Reporting, and 15A NCAC 2D .2600
Source Testing. In addition North
Carolina General Statutes (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 provisions contained in these
regulations, and North Carolina’s
statutory authority are adequate for
Section 110(a)(2)(A) for the 2012
Annual PM2.5 NAAQS.
In this action, EPA is not proposing to
approve or disapprove any existing
State provisions with regard to excess
emissions during SSM 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.19
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
19 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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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 agency’s ambient
monitors and auxiliary support
equipment.20 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–2014–
0428.
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
20 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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47319
system related to the 2012 Annual PM2.5
NAAQS.
3. 110(a)(2)(C) Programs 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 State regulations: 15A
NCAC 2D .0500 Emissions Control
Standards; 15A NCAC 2D .0530
Prevention of Significant Deterioration;
15A NCAC 2D .0531 Sources in
Nonattainment Areas; and 15A NCAC
2Q .0300 Construction Operation
Permits. Collectively, these regulations
enable North Carolina to regulate
sources contributing to the 2012 Annual
PM2.5 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 2012 Annual PM2.5 NAAQS
with respect to the general requirement
in section 110(a)(2)(C) to include a
program in the SIP for enforcement of
PM2.5 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: DAQ’s above-described,
SIP-approved regulations provide for
enforcement of PM2.5 emission limits
and control measures through
enforceable permits. In addition, North
Carolina cited NCGS 143–215.6A, 6B,
and 6C, which provides NC DAQ 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 in this rule
making regarding these requirements
and instead will act on this portion of
the submission in a separate action.
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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 2012
Annual PM2.5 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 modifications related to the
2012 Annual PM2.5 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) 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 has 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’’). EPA is not proposing any
action in this rulemaking related to the
interstate transport requirements of
section 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II) (prongs 1 through 4).
5. 110(a)(2)(D)(ii) Interstate Pollution
Abatement and International Air
Pollution: Section 110(a)(2)(D)(ii)
requires SIPs to include provisions
insuring compliance with sections 115
and 126 of the Act relating to interstate
and international pollution abatement.
15A NCAC 2D .0530 Prevention of
Significant Deterioration and 15A NCAC
2D .0531 Sources of Nonattainment
Areas provide how DAQ will notify
neighboring states of potential impacts
from new or modified sources
consistent with the requirements of 40
CFR 51.166. These regulations require
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
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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 2012
Annual PM2.5 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 subelements 110(a)(2)(E)(i), (ii) and (iii).
EPA’s rationale for this proposal
respecting each sub-element 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 DAQ’s resources, EPA submitted a
letter to North Carolina on April 19,
2016, outlining 105 grant commitments
and the current status of these
commitments for fiscal year 2015. The
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letter EPA submitted to North Carolina
can be accessed at www.regulations.gov
using Docket ID No. EPA–R04–OAR–
2014–0428. 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
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) of
the 2012 Annual PM2.5 NAAQS.
Section 110(a)(2)(E)(ii) requires that
the state comply with section 128 of the
CAA. Section 128 requires that the SIP
provide: (1) The majority of members of
the state board or body which approves
permits or enforcement orders represent
the public interest and do not derive
any significant portion of their income
from persons subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such board or body, or the head of an
executive agency with similar powers be
adequately disclosed. For purposes of
section 128(a)(1), as of October 1, 2012,
North Carolina has no boards or bodies
with authority over air pollution
permits or enforcement actions. The
authority to approve CAA permits or
enforcement orders are instead
delegated to the Secretary of the
Department of Environment and Natural
Resources (DENR) and his/her
delegatee. As such, a ‘‘board or body’’ is
not responsible for approving permits or
enforcement orders in North Carolina,
and the requirements of section
128(a)(1) are not applicable.
On November 3, 2015 (80 FR 67645),
EPA approved North Carolina’s section
128(a)(2) conflict of interest disclosure
requirements for administrative law
judges (ALJs) 21 through NCGS 7A–754
of the North Carolina General Statues,
which contains provisions related to the
Office of Administrative Hearings
addressing these requirements for the
ALJ. NCGS 7A–754 requires ALJs to act
impartially, which broadly includes
financial considerations, relationships,
and other associations. ALJs are
prohibited from participating in any
21 EPA has determined that ALJs in North
Carolina are authorized to approve permits and
enforcement orders on appeal and that the ALJs
must therefore meet the conflict of interest
disclosure requirements of section 128(a)(2).
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matter in which the ALJs impartiality
might reasonably be questioned or the
ALJ must disclose the potential conflict
of interest on the record in the
proceeding. In the case of such
disclosures, the parties to the matter
must agree that the disclosed conflict of
interest is immaterial before the ALJ
may continue to participate in the
matter.
EPA has made the preliminary
determination that the State has
adequately addressed the requirements
of section 128(a), and accordingly has
met the requirements of section
110(a)(2)(E)(ii) with respect to
infrastructure SIP requirements.
Therefore, EPA is proposing to approve
North Carolina’s infrastructure SIP
submission as meeting the requirements
of sub-elements 110(a)(2)(E)(i), (ii) and
(iii).
7. 110(a)(2)(F) Stationary Source
Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet
applicable 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 SIP
submission describes how the State
establishes requirements for emissions
compliance testing and utilizes
emissions sampling and analysis. 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 DAQ Director has evidence that
a source is violating an emission
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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
Air Emissions Reporting Rule (AERR)
on December 5, 2008, which modified
the requirements for collecting and
reporting air emissions data. See 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 dioxides,
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 June 3, 2014. EPA compiles the
emissions data, supplementing it where
necessary, and releases it to the general
public through the Web site https://
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 obligations for the
2012 Annual PM2.5 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:
This section requires that states
demonstrate authority comparable with
section 303 of the CAA and adequate
contingency plans to implement such
authority. North Carolina’s
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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 DEQ] 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 DEQ 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 satisfies the emergency powers
obligations of the annual PM2.5 NAAQS.
9. 110(a)(2)(H) 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.
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 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
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provisions also provide 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
the 2012 Annual PM2.5 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 for
the 2012 Annual PM2.5 NAAQS with
respect to the general requirement in
section 110(a)(2)(J) to include a program
in the SIP that complies with the
applicable consultation requirements of
section 121, the public notification
requirements of section 127, and
visibility protection. With respect to
North Carolina’s infrastructure SIP
submission related to the
preconstruction PSD permitting, EPA is
not proposing any action in this
rulemaking 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.
15A NCAC 2D .1600 General
Conformity, 15A NCAC 2D .2000
Transportation Conformity, and 15A
NCAC 2D .0531 Sources in
Nonattainment Areas, along with the
State’s Regional Haze Implementation
Plan, provide for consultation with
government officials whose jurisdictions
might be affected by SIP development
activities. Specifically, North Carolina
adopted state-wide consultation
procedures for the implementation of
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transportation conformity.
Implementation of transportation
conformity as outlined in the
consultation procedures requires 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 that the State
meets applicable requirements related to
consultation with government officials
for the 2012 Annual PM2.5 NAAQS
when necessary for the consultation
with government officials element of
section 110(a)(2)(J).
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 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 DAQ also features a Web page
providing ambient monitoring
information regarding current and
historical air quality across the State at
https://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 2012 Annual
PM2.5 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 DEQ 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
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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 2012 Annual
PM2.5 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 the 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 requires sources to
provide information needed to model
potential impacts on air quality). 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. Collectively, 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 2012 Annual PM2.5
NAAQS. The submittal also states that
DAQ currently has personnel with
training and experience to conduct
source-oriented dispersion modeling
that would likely be used in PM2.5
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 2012 Annual PM2.5
NAAQS, for the Southeastern states.
Taken as a whole, North Carolina’s air
quality regulations and practices
demonstrate that 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 modeling, along
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with analysis of the associated data,
related to the 2012 Annual PM2.5
NAAQS.
12. 110(a)(2)(L) Permitting fees: This
element necessitates that the SIP require
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
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. The 15A NCAC 2D .0500 and
2Q .0500 rules contain the State’s title
V program 22 which includes provisions
to implement and enforce PSD and
NNSR permits once these 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
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
2012 Annual PM2.5 NAAQS, when
necessary.
13. 110(a)(2)(M) Consultation and
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. 15A NCAC 2D .0530 Prevention
of Significant Deterioration requires that
NC DEQ 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
22 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP.
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authorize and require DAQ 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, 15A NCAC 2D .2000
Transportation Conformity requires a
consultation with all affected partners to
be implemented for transportation
conformity determinations.
Furthermore, 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 2012 Annual
PM2.5 NAAQS, when necessary.
V. Proposed Action
EPA is proposing to approve that
portions of DAQ’s infrastructure SIP
submission, submitted December 4,
2015, for the 2012 Annual PM2.5
NAAQS, has met the above described
infrastructure SIP requirements. 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 is proposing to
approve these portions of North
Carolina’s infrastructure SIP submission
for the 2012 Annual PM2.5 NAAQS
because these aspects of the submission
are consistent with section 110 of the
CAA.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
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
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47323
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 rulemaking 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, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–17301 Filed 7–20–16; 8:45 am]
BILLING CODE 6560–50–P
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[Federal Register Volume 81, Number 140 (Thursday, July 21, 2016)]
[Proposed Rules]
[Pages 47314-47323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17301]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0428; FRL-9949-38-Region 4]
Air Plan Approval; North Carolina; Infrastructure Requirements
for the 2012 PM2.5 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 Department of
Environmental Quality (DEQ), formerly known as the Department of
Environment and Natural Resources (DENR), Division of Air Quality
(DAQ), on December 4, 2015, for inclusion into the North Carolina SIP.
[[Page 47315]]
This proposal pertains to the infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter
(PM2.5) national ambient air quality standard (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. DAQ certified that the North Carolina SIP contains
provisions that ensure the 2012 Annual PM2.5 NAAQS is
implemented, enforced, and maintained in North Carolina. EPA is
proposing to determine that portions of North Carolina's infrastructure
SIP submission, provided to EPA on December 4, 2015, satisfy certain
infrastructure elements for the 2012 Annual PM2.5 NAAQS.
DATES: Written comments must be received on or before August 22, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0428 at https://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 https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Ms. Bell can be reached via electronic mail at
bell.tiereny@epa.gov or via telephone at (404) 562-9088.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
On December 14, 2012 (78 FR 3086, January 15, 2013), EPA
promulgated a revised primary annual PM2.5 NAAQS. The
standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/
m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA,
states are required to submit SIPs meeting the applicable requirements
of section 110(a)(2) within three years after promulgation of a new or
revised NAAQS or within such shorter period as EPA may prescribe.
Section 110(a)(2) requires states to address basic SIP elements such as
requirements for monitoring, basic program requirements and legal
authority that are designed to assure attainment and maintenance of the
NAAQS. States were required to submit such SIPs for the 2012 Annual
PM2.5 NAAQS to EPA no later than December 14, 2015.\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). Throughout this rulemaking unless otherwise
noted, the cited regulation (North Carolina Administrative Code
(NCAC)) has either been approved, or submitted for approval into
North Carolina's federally-approved SIP. The North Carolina
statutory provisions cited to herein (North Carolina General
Statutes (NCGS)) have not been approved into the North Carolina SIP,
unless otherwise noted.
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This rulemaking is proposing to approve portions of North
Carolina's PM2.5 infrastructure SIP submissions \2\ for the
applicable requirements of the 2012 Annual PM2.5 NAAQS, with
the exception of the interstate transport requirements of section
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and preconstruction
Prevention of Significant Deterioration (PSD) permitting requirements
for major sources of section 110(a)(2)(C) and (J), for which EPA is not
proposing any action in this rulemaking regarding these requirements.
For the aspects of North Carolina's submittal proposed for approval in
this rulemaking, 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.
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\2\ North Carolina's 2012 Annual PM2.5 NAAQS
infrastructure SIP submission dated December 4, 2015, is referred to
as ``North Carolina's PM2.5 infrastructure SIP'' in this
action.
---------------------------------------------------------------------------
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.
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 requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. The
requirements that are the subject of this proposed rulemaking are
summarized 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).'' \3\
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\3\ 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).
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 \4\
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\4\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
[[Page 47316]]
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 \5\
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\5\ As mentioned above, this element is not relevant to this
proposed rulemaking.
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110(a)(2)(J): Consultation with Government Officials, Public
Notification, and Prevention of Significant Deterioration (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 2012 Annual PM2.5 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.\6\ 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.
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\6\ 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.
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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.\7\
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.\8\ 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.
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\7\ 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)).
\8\ 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.
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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
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.\9\ 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
[[Page 47317]]
elements and sub-elements of the same infrastructure SIP
submission.\10\
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\9\ 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).
\10\ 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.
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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.\11\
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\11\ 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.
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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.\12\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\13\ 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.\14\ 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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\12\ 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.
\13\ ``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.
\14\ 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 United States (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. On March 17, 2016, EPA released a
memorandum titled, ``Information on the Interstate Transport `Good
Neighbor' Provision for the 2012 Fine Particulate Matter National
Ambient Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I)'' to provide guidance to states for interstate
transport requirements specific to the PM2.5 NAAQS.
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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 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,
[[Page 47318]]
including greenhouse gases. 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 Annual
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, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, EPA
evaluates whether the state has an EPA-approved minor new source review
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.\15\ 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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\15\ 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 SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ 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 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.\18\
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\16\ 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).
\17\ 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).
\18\ 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 (Jan. 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?
The North Carolina infrastructure submission addresses the
provisions of
[[Page 47319]]
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 PM2.5. The following State rules address
additional control measures, means and techniques: 15A NCAC 2D .0600
Monitoring: Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source
Testing. In addition North Carolina General Statutes (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 provisions contained in these regulations, and North Carolina's
statutory authority are adequate for Section 110(a)(2)(A) for the 2012
Annual PM2.5 NAAQS.
In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM
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.\19\
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\19\ 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 agency's ambient monitors and auxiliary
support equipment.\20\ 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-2014-0428.
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\20\ 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 related
to the 2012 Annual PM2.5 NAAQS.
3. 110(a)(2)(C) Programs 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 State regulations: 15A NCAC 2D .0500 Emissions Control
Standards; 15A NCAC 2D .0530 Prevention of Significant Deterioration;
15A NCAC 2D .0531 Sources in Nonattainment Areas; and 15A NCAC 2Q .0300
Construction Operation Permits. Collectively, these regulations enable
North Carolina to regulate sources contributing to the 2012 Annual
PM2.5 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 2012 Annual PM2.5 NAAQS with
respect to the general requirement in section 110(a)(2)(C) to include a
program in the SIP for enforcement of PM2.5 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: DAQ's above-described, SIP-approved regulations
provide for enforcement of PM2.5 emission limits and control
measures through enforceable permits. In addition, North Carolina cited
NCGS 143-215.6A, 6B, and 6C, which provides NC DAQ 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 in this rule
making regarding these requirements and instead will act on this
portion of the submission in a separate action.
[[Page 47320]]
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 2012 Annual
PM2.5 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 modifications related to the 2012 Annual
PM2.5 NAAQS.
4. 110(a)(2)(D)(i)(I) and (II) 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 has 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''). EPA is not proposing any action in this
rulemaking related to the interstate transport requirements of section
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 4).
5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions insuring compliance with sections 115 and 126 of the
Act relating to interstate and international pollution abatement. 15A
NCAC 2D .0530 Prevention of Significant Deterioration and 15A NCAC 2D
.0531 Sources of Nonattainment Areas provide how DAQ will notify
neighboring states of potential impacts from new or modified sources
consistent with the requirements of 40 CFR 51.166. These regulations
require 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 2012 Annual PM2.5 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), (ii) and (iii). EPA's rationale for this proposal
respecting each sub-element 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 DAQ's resources, EPA
submitted a letter to North Carolina on April 19, 2016, outlining 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-2014-
0428. 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 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) of the 2012 Annual
PM2.5 NAAQS.
Section 110(a)(2)(E)(ii) requires that the state comply with
section 128 of the CAA. Section 128 requires that the SIP provide: (1)
The majority of members of the state board or body which approves
permits or enforcement orders represent the public interest and do not
derive any significant portion of their income from persons subject to
permitting or enforcement orders under the CAA; and (2) any potential
conflicts of interest by such board or body, or the head of an
executive agency with similar powers be adequately disclosed. For
purposes of section 128(a)(1), as of October 1, 2012, North Carolina
has no boards or bodies with authority over air pollution permits or
enforcement actions. The authority to approve CAA permits or
enforcement orders are instead delegated to the Secretary of the
Department of Environment and Natural Resources (DENR) and his/her
delegatee. As such, a ``board or body'' is not responsible for
approving permits or enforcement orders in North Carolina, and the
requirements of section 128(a)(1) are not applicable.
On November 3, 2015 (80 FR 67645), EPA approved North Carolina's
section 128(a)(2) conflict of interest disclosure requirements for
administrative law judges (ALJs) \21\ through NCGS 7A-754 of the North
Carolina General Statues, which contains provisions related to the
Office of Administrative Hearings addressing these requirements for the
ALJ. NCGS 7A-754 requires ALJs to act impartially, which broadly
includes financial considerations, relationships, and other
associations. ALJs are prohibited from participating in any
[[Page 47321]]
matter in which the ALJs impartiality might reasonably be questioned or
the ALJ must disclose the potential conflict of interest on the record
in the proceeding. In the case of such disclosures, the parties to the
matter must agree that the disclosed conflict of interest is immaterial
before the ALJ may continue to participate in the matter.
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\21\ EPA has determined that ALJs in North Carolina are
authorized to approve permits and enforcement orders on appeal and
that the ALJs must therefore meet the conflict of interest
disclosure requirements of section 128(a)(2).
---------------------------------------------------------------------------
EPA has made the preliminary determination that the State has
adequately addressed the requirements of section 128(a), and
accordingly has met the requirements of section 110(a)(2)(E)(ii) with
respect to infrastructure SIP requirements. Therefore, EPA is proposing
to approve North Carolina's infrastructure SIP submission as meeting
the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section
110(a)(2)(F) requires SIPs to meet applicable 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 SIP submission describes how the State establishes
requirements for emissions compliance testing and utilizes emissions
sampling and analysis. 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 DAQ
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
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data. See
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 dioxides,
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 June 3, 2014. EPA compiles the emissions data,
supplementing it where necessary, and releases it to the general public
through the Web site https://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
obligations for the 2012 Annual PM2.5 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: This section 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 DEQ] 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 DEQ 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 satisfies the
emergency powers obligations of the annual PM2.5 NAAQS.
9. 110(a)(2)(H) 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. 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 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
[[Page 47322]]
provisions also provide 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 the 2012 Annual PM2.5 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 for the 2012 Annual
PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(J) to include a program in the SIP that complies with
the applicable consultation requirements of section 121, the public
notification requirements of section 127, and visibility protection.
With respect to North Carolina's infrastructure SIP submission related
to the preconstruction PSD permitting, EPA is not proposing any action
in this rulemaking 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. 15A NCAC
2D .1600 General Conformity, 15A NCAC 2D .2000 Transportation
Conformity, and 15A NCAC 2D .0531 Sources in Nonattainment Areas, along
with the State's Regional Haze Implementation Plan, provide for
consultation with government officials whose jurisdictions might be
affected by SIP development activities. Specifically, North Carolina
adopted state-wide consultation procedures for the implementation of
transportation conformity. Implementation of transportation conformity
as outlined in the consultation procedures requires 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 that the
State meets applicable requirements related to consultation with
government officials for the 2012 Annual PM2.5 NAAQS when
necessary for the consultation with government officials element of
section 110(a)(2)(J).
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 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 DAQ also features a
Web page providing ambient monitoring information regarding current and
historical air quality across the State at https://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 2012 Annual
PM2.5 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
DEQ 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 2012 Annual PM2.5 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 the 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 requires sources to provide information needed to model potential
impacts on air quality). 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.
Collectively, 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
2012 Annual PM2.5 NAAQS. The submittal also states that DAQ
currently has personnel with training and experience to conduct source-
oriented dispersion modeling that would likely be used in
PM2.5 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 2012 Annual
PM2.5 NAAQS, for the Southeastern states. Taken as a whole,
North Carolina's air quality regulations and practices demonstrate that
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
modeling, along
[[Page 47323]]
with analysis of the associated data, related to the 2012 Annual
PM2.5 NAAQS.
12. 110(a)(2)(L) Permitting fees: This element necessitates that
the SIP require 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 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. The 15A NCAC 2D .0500 and 2Q .0500 rules contain the State's
title V program \22\ which includes provisions to implement and enforce
PSD and NNSR permits once these 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 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 2012 Annual PM2.5 NAAQS, when necessary.
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\22\ 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 and 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. 15A NCAC 2D .0530
Prevention of Significant Deterioration requires that NC DEQ 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 DAQ 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, 15A NCAC 2D .2000
Transportation Conformity requires a consultation with all affected
partners to be implemented for transportation conformity
determinations. Furthermore, 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 2012 Annual PM2.5 NAAQS, when
necessary.
V. Proposed Action
EPA is proposing to approve that portions of DAQ's infrastructure
SIP submission, submitted December 4, 2015, for the 2012 Annual
PM2.5 NAAQS, has met the above described infrastructure SIP
requirements. 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 is proposing to approve these
portions of North Carolina's infrastructure SIP submission for the 2012
Annual PM2.5 NAAQS because these aspects of the submission
are consistent with section 110 of the CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the 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
rulemaking 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, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17301 Filed 7-20-16; 8:45 am]
BILLING CODE 6560-50-P
