Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5, 63107-63112 [2016-21994]
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in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 14, 2016. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
63107
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: September 2, 2016.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart L—Georgia
2. Section 52.570(e), is amended by
adding the entry ‘‘110(a)(1) and (2)
Infrastructure Requirements for the 2010
1-hour NO2 NAAQS’’ at the end of the
table to read as follows:
■
§ 52.570
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS
Name of nonregulatory
SIP provision
Applicable geographic or
nonattainment area
*
*
110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour
NO2 NAASQ.
*
*
Georgia ..........................................
ACTION:
[FR Doc. 2016–21991 Filed 9–13–16; 8:45 am]
State
submittal date/
effective date
EPA approval
date
*
3/25/2013
Final rule.
BILLING CODE 6560–50–P
The Environmental Protection
Agency (EPA) is approving, in part, and
disapproving, in part, changes to the
North Carolina State Implementation
Plan (SIP), provided by the North
Carolina Department of Environmental
Quality (NC DEQ) through the Division
of Air Quality (DAQ), to EPA in
submittals dated May 16, 2011, (two
separate submittals) and September 5,
2013. These SIP submittals modify
North Carolina’s New Source Review
(NSR)—Prevention of Significant
Deterioration (PSD) and Nonattainment
New Source Review (NNSR)—
SUMMARY:
ENVIRONMENTAL PROTECTION
AGENCY
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40 CFR Part 52
[EPA–R04–OAR–2015–0501; FRL–9952–31–
Region 4]
Air Plan Approval and Disapproval;
North Carolina: New Source Review for
Fine Particulate Matter (PM2.5)
AGENCY:
Environmental Protection
Agency.
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Explanation
*
*
With the exception of sections
110(a)(2)(C), prong 3 of D(i),
and
(J)
and
sections
110(a)(2)(D)(i)(I) and (II) (prongs
1, 2, and 4).
permitting regulations and include the
adoption of some federal requirements
regarding implementation of the fine
particulate matter (PM2.5) national
ambient air quality standards (NAAQS)
through the NSR permitting program. As
a result of the disapproval of a portion
of the State’s NSR requirements, EPA is
also approving, in part, and
disapproving, in part, the PSD elements
of North Carolina’s infrastructure SIP
submittals for the 2008 lead, 2008 8hour ozone, 2010 sulfur dioxide (SO2),
2010 nitrogen dioxide (NO2) and the
2012 PM2.5 NAAQS, and converting the
Agency’s previous conditional
approvals of the PSD elements of North
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Carolina’s infrastructure SIP submittals
for the 1997 Annual PM2.5 and 2006 24hour PM2.5 NAAQS to partial approvals
and partial disapprovals. This partial
disapproval triggers the requirement for
EPA to promulgate a Federal
Implementation Plan (FIP) no later than
two years from the date of the
disapproval unless the State corrects the
deficiencies through a SIP revision and
EPA approves the SIP revision before
EPA promulgates such a FIP.
DATES: This rule will be effective
October 14, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2015–0501. All documents in the docket
are listed on the www.regulations.gov
Web site. Although listed in the index,
some information is not publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. EPA
requests that if at all possible, you
contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Joel
Huey of the Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr. Huey
can be reached by telephone at (404)
562–9104 or via electronic mail at
huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
NNSR) and include the adoption of
some federal requirements regarding
implementation of the PM2.5 NAAQS
through the NSR permitting program. In
the notice of proposed rulemaking
(NPRM) published on May 10, 2016 (81
FR 28797), EPA proposed to take the
following four actions, some with
multiple parts, regarding the North
Carolina submittals:
• Approval of a May 16, 2011, SIP
submittal from North Carolina (as
revised and updated by the State’s
September 5, 2013, SIP submittal) as
meeting the requirements of EPA’s rule,
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers
(PM2.5),’’ Final Rule, 73 FR 28321 (May
16, 2008) (hereafter referred to as the
‘‘2008 NSR PM2.5 Implementation
Rule’’).
• Disapproval of the portions of North
Carolina’s September 5, 2013, SIP
submittal pertaining to adoption and
implementation of the PM2.5 increments
because North Carolina’s proposed SIP
revisions do not fully meet the
requirements of EPA’s rulemaking,
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than
2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC),’’ Final Rule, 75 FR 64864
(October 20, 2010) (hereafter referred to
as the ‘‘2010 PSD PM2.5 Rule’’).
Specifically, though paragraphs (q) and
(v) of North Carolina’s revised PSD
regulations at 15A NCAC 02D .0530
incorporate the federally required
numerical PM2.5 increments, North
Carolina’s regulations fail to include
other federally required provisions
needed to implement the PM2.5
increments, including (1) the definition
of ‘‘[m]ajor source baseline date’’ for
PM2.5 codified at 40 CFR
51.166(b)(14)(i)(c) (defined as October
20, 2010); (2) the definition of ‘‘[m]inor
source baseline date’’ for PM2.5 codified
at 40 CFR 51.166(b)(14)(ii)(c) (which
establishes the PM2.5 trigger date as
October 20, 2011); and (3) the definition
of ‘‘[b]aseline area’’ codified at 40 CFR
51.166(b)(15)(i).1 Without these
I. Background and Overview
In submittals dated May 16, 2011 (two
separate submittals), and September 5,
2013, DAQ submitted to EPA changes to
the North Carolina SIP with regard to
the State’s PSD and NNSR regulations
found at 15A North Carolina
Administrative Code (NCAC) 02D .0530
and 15A NCAC 02D .0531. These SIP
submittals modify North Carolina’s NSR
permitting regulations (for both PSD and
1 North Carolina’s regulations at 15A NCAC 02D
.0530 use incorporation by reference (IBR) to adopt
the federal regulations in the CFR as of May 16,
2008, which do not include the definitions of
‘‘major source baseline,’’ ‘‘minor source baseline,’’
and ‘‘baseline area’’ that EPA promulgated in the
2010 PSD PM2.5 rule. Thus, the definition of ‘‘major
source baseline date’’ incorporated into 15A NCAC
02D .0530 does not include the federally required
PM2.5 major source baseline date of October 20,
2010, but instead states: ‘‘In the case of particulate
matter and sulfur dioxide, January 6, 1975.’’
Likewise, the definition of ‘‘minor source baseline
date’’ incorporated into 15A NCAC 02D .0530 does
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definitions, North Carolina’s PSD
regulations do not require PSD sources
to conduct the appropriate analyses
demonstrating that emissions from
proposed construction of new major
stationary sources or major
modifications will not cause or
contribute to air quality deterioration
beyond the amount allowed by the
PM2.5 increments. Therefore, EPA
proposed to disapprove all of the PM2.5
increment provisions set forth in North
Carolina’s September 5, 2013, SIP
submittal, including all of the PM2.5related changes to 15A NCAC 02D .0530
at paragraphs (e), (q), and (v).2
• Approval of administrative changes
to North Carolina’s PSD and NNSR
regulations at 15A NCAC 02D .0530 and
15A NCAC 02D .0531 provided by the
State in a SIP submittal also dated May
16, 2011, including clarification of the
applicability of best available control
technology (BACT) and lowest
achievable emission rate (LAER) for
electrical generating units (EGUs) in the
State, and the inclusion of an additional
Federal Land Manager (FLM)
notification provision.
• Approval, in part, and disapproval,
in part, of the PSD elements of North
Carolina’s infrastructure SIP submittals
for the 2008 lead, 2008 8-hour ozone,
2010 SO2, 2010 NO2 and 2012 PM2.5
NAAQS and conversion of the Agency’s
previous conditional approvals of the
PSD elements of North Carolina’s
infrastructure SIP submittals for the
1997 Annual PM2.5 and 2006 24-hour
PM2.5 NAAQS to partial approvals and
partial disapprovals.
Comments on the NPRM were due on or
before June 9, 2016. The details of North
Carolina’s submittals and the rationale
for EPA’s actions are explained in the
NPRM.
not include the federally required PM2.5 trigger date
of October 20, 2011, but instead states: ‘‘In the case
of particulate matter and sulfur dioxide, August 7,
1977.’’ It is EPA’s understanding that North
Carolina interprets the term ‘‘particulate matter’’ in
North Carolina’s regulations to encompass PM2.5,
resulting in a PM2.5 major source baseline date of
January 6, 1975, and a PM2.5 trigger date of August
7, 1977.
2 Paragraph (v) establishes the numerical PM
2.5
increments. Paragraph (q) addresses the Class I
PM2.5 variances. Paragraph (e) incorporates
paragraph (v) by reference. EPA proposed to
disapprove 15A NCAC 02D .0530, paragraphs (e),
(q), and (v) in part, rather than in their entirety,
because the paragraphs also include previously
approved PM10 increment requirements.
Specifically, in addition to making the PM2.5-related
changes to these paragraphs, North Carolina also
revised 15A NCAC 02D .0530, paragraphs (e), (q),
and (v), to directly incorporate the PM10
increments. Previously, North Carolina had
incorporated the PM10 increments into 15A NCAC
02D .0530 by reference to the CFR. EPA is
approving the PM10-related changes to paragraphs
(e), (q), and (v).
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II. Response to Comments
EPA received one adverse comment
submission, from DAQ, on the May 10,
2016, NPRM to approve, in part, and
disapprove, in part, changes to North
Carolina’s SIP-approved NSR permitting
regulations. The comment submission is
available in the docket for this final
rulemaking action.
In its comments, DAQ objects to
EPA’s proposed disapproval of the PM2.5
increment-related portions of
paragraphs (e), (q) and (v) of North
Carolina’s PSD rule 15A NCAC 02D
.0530 for failing to incorporate the
definitions of ‘‘major source baseline
date,’’ ‘‘minor source baseline date,’’
and ‘‘baseline area’’ as found in EPA’s
2010 PSD PM2.5 Rule. DAQ contends
that EPA’s proposed disapproval of
North Carolina’s PM2.5 increment
provisions fails to properly account for
the decision by the United States Court
of Appeals for the District of Columbia
(D.C. Circuit) in Natural Resource
Defense Council v. EPA, 706 F.3d 428
(D.C. Cir., 2013) (NRDC), where the
Court determined that PM2.5 is not a
new pollutant, but rather is
encompassed by the statutory definition
of the pollutant PM10. According to
DAQ, North Carolina’s regulations,
which incorporate by reference the prior
federal definitions applicable to
‘‘particulate matter’’ (rather than the
definitions applicable to PM2.5
promulgated in EPA’s 2010 PSD PM2.5
Rule), are consistent with the Clean Air
Act (CAA or Act) and NRDC and can be
approved into the SIP as written. For the
same reason, DAQ also objects to EPA’s
proposed disapproval of the PSD
elements of seven infrastructure SIP
submittals. DAQ’s comments
incorporate by reference the following
documents: (1) Opening Brief of
Petitioner in North Carolina v. United
States Environmental Protection
Agency, 13–1312 and 14–1186, dated
October 9, 2014; (2) Reply Brief of
Petitioner for North Carolina v. United
States Environmental Protection
Agency, 13–1312 and 14–1186, dated
February 10, 2015; and (3) letter from
John Skvarla (North Carolina
Department of Environment and Natural
Resources 3) to Gina McCarthy (EPA),
dated August 22, 2013.
The legal briefs attached to DAQ’s
comments were filed in the D.C. Circuit
by the State of North Carolina in
support of the State’s consolidated
petitions for review of EPA’s 2010 PSD
PM2.5 Rule and of EPA’s denial of the
State’s administrative petition for
3 The North Carolina Department of Environment
and Natural Resources is now the North Carolina
Department of Environmental Quality.
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reconsideration of the PSD PM2.5 Rule.
In the briefs, the State challenged the
2010 PSD PM2.5 Rule on the basis that
the rule improperly set new baseline
dates for calculating PM2.5 increment
consumption rather than using the preexisting particulate matter baseline
dates set forth in the CAA. EPA filed a
Response Brief in that case disputing
the legal arguments in the briefs that
DAQ has now submitted to support its
comments on this SIP rule. The D.C.
Circuit dismissed both of North
Carolina’s petitions for review as
untimely. See North Carolina v. EPA,
614 Fed. Appx. 517, 2015 U.S. App.
LEXIS 16246 (D.C. Cir. 2015).
The August 22, 2013, letter from John
Skvarla that DAQ attached to its
comments was sent by North Carolina to
EPA prior to the D.C. Circuit litigation
and raised the same concern regarding
the PM2.5 increment baseline dates in
the 2010 PSD PM2.5 Rule that North
Carolina raised in the D.C. Circuit
litigation. EPA responded to the April
22, 2013, letter from Secretary Skvarla
to Administrator McCarthy in
conjunction with EPA’s August 28,
2014, response to the State’s petition for
EPA to reconsider or revise the 2010
PSD PM2.5 Rule.
In response to DAQ’s comments, EPA
notes that DAQ does not claim that
North Carolina’s PM2.5 increment
provisions satisfy the relevant federal
criteria for state PSD programs set forth
at 40 CFR 51.166 (as promulgated in the
2010 PSD PM2.5 Rule). Rather, DAQ’s
opposition to EPA’s proposed
disapproval of North Carolina’s PM2.5
increment provisions is based entirely
on DAQ’s claim that the federal PM2.5
increment baseline provisions set forth
at 40 CFR 51.166 are unlawful. In
determining whether to approve North
Carolina’s PM2.5 increment submittal,
however, EPA considers only whether
North Carolina’s proposed SIP revision
satisfies the minimum federal criteria
set forth at 50 CFR 51.166 and other
requirements governing SIP revisions.
EPA’s action on North Carolina’s
submittal does not reopen for comment
EPA’s determination of the appropriate
PM2.5 increment baselines for SIPapproved PSD programs, which were
established in the final 2010 PSD PM2.5
Rule published in the Federal Register
on October 20, 2010 (75 FR 64864).
Under CAA section 307(b)(1), 42
U.S.C. 7607(b)(1), any petition for
review of the 2010 PSD PM2.5 Rule had
to be filed in the D.C. Circuit within 60
days of EPA’s publication of the rule in
the Federal Register, unless such
petition is based solely on grounds
arising after the 60th day, in which case
the petition had to be filed within 60
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63109
days after such grounds arose. As the
D.C. Circuit explained in dismissing
North Carolina’s petition for review of
the 2010 PSD PM2.5 Rule, North
Carolina missed the statutory deadline
for filing a petition for review of the
PM2.5 increment baseline provisions set
forth in that Rule and did not file its
court challenge within 60 days of the
NRDC court decision that the State
alleged to establish ‘‘after arising’’
grounds for such a challenge. See North
Carolina, 614 Fed. Appx. at 517.4
Based on its view of the NRDC court
decision, North Carolina separately
petitioned EPA to reconsider or revise
the baseline date in the 2010 PSD PM2.5
Rule and subsequently challenged
EPA’s response to that petition in the
D.C. Circuit. EPA determined that
revision of the baseline dates for PM2.5
in the 2010 rule was not appropriate or
compelled by the court decision cited
by North Carolina. EPA also considered
and responded to the April 22, 2013,
letter from Secretary Skvarla in the
manner described above. Accordingly,
EPA has already given due
consideration to the concern raised by
North Carolina in its comment regarding
the content of the EPA regulations. The
Court upheld EPA’s response to the
State’s petition to change the rule. 614
Fed. Appx. at 519.
Thus, the legal issues raised by North
Carolina concerning the content of
EPA’s regulations are settled and not
open to reconsideration in this action
regarding North Carolina’s SIP
submittal. For purposes of this action,
the PM2.5 increment baseline provisions
for SIP-approved state PSD programs set
forth in 40 CFR 51.166 are final and
effective for all states, including North
Carolina. EPA is required to apply its
regulations as they are presently
written. See, e.g., 78 FR 63883, 63885
(Oct. 25, 2013) (EPA action on the Utah
SIP based on the terms of the current
version of 40 CFR 51.166). Accordingly,
DAQ’s comments regarding alleged
defects in the PM2.5 increment baseline
dates established in the 2010 PSD PM2.5
4 In the D.C. Circuit litigation, North Carolina
argued that the 2013 NRDC decision constituted
grounds arising after the 60th day following EPA’s
publication of the 2010 PSD PM2.5 Rule in the
Federal Register, and therefore started a new 60day period during which North Carolina could
petition the D.C. Circuit to review the 2010 PM2.5
PSD Rule. North Carolina, 614 Fed. Appx. at 518.
The D.C. Circuit found that even if NRDC
constituted after-arising grounds, ‘‘North Carolina
brought its petition more than ten months after [the
Court] issued NRDC—well outside of the sixty-day
window for petitions that the after-arising grounds
exception [in CAA section 307(b)] provides.’’ Id.
Therefore, the Court concluded: ‘‘Even assuming,
without deciding, that NRDC constituted afterarising grounds, North Carolina’s petition is thus
still untimely.’’ Id.
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Rule (including arguments made in
attachments to DAQ’s comment
submission) are not relevant to EPA’s
determination in this final action of
whether the PM2.5 increment provisions
in North Carolina’s September 5, 2013,
SIP submittal are approvable.
To be federally-approvable, North
Carolina’s PM2.5 increment provisions
must meet the requirements of 40 CFR
51.166 unless North Carolina can
demonstrate that it has alternative
measures in its plan other than PM2.5
increments that satisfy the PSD
requirements under sections 166(c) and
166(d) of the CAA. See 40 CFR
51.166(c)(2). Specifically regarding the
definitions of key terms set forth at 40
CFR 51.166(b), the regulations state that
‘‘[a]ll State plans shall use’’ these
definitions, unless ‘‘the State
specifically demonstrates that the
submitted definition is more stringent,
or at least as stringent, in all respects’’
as the federal definition. See 40 CFR
51.166(b). As EPA explained in the
NPRM, North Carolina’s PM2.5
increment provisions at 15A NCAC 02D
.0530 do not incorporate the federally
required definitions of ‘‘major source
baseline date,’’ ‘‘minor source baseline
date,’’ and ‘‘baseline area.’’ Nor has
North Carolina demonstrated—or even
claimed—that alternative definitions in
the State’s plan are more stringent, or at
least as stringent, as the federal
definitions set forth at 40 CFR 51.166.
Likewise, North Carolina has not
identified measures in its plan other
than PM2.5 increments that satisfy the
PSD requirements under sections 166(c)
and 166(d) of the CAA and would
warrant approval under 40 CFR
51.166(c)(2). DAQ’s comments do not
refute EPA’s determination that North
Carolina’s PM2.5 increment provisions
are not in compliance with 40 CFR
51.166. Therefore, EPA disagrees with
DAQ’s comment that North Carolina’s
rules can be approved into the SIP as
written.
III. Incorporation by Reference
In this rule, EPA is including in a
final EPA rule regulatory text that
includes incorporation by reference. In
accordance with requirements of 1 CFR
51.5, EPA is incorporating by reference
portions of North Carolina’s regulations
15A NCAC 02D .0530 and 15A NCAC
02D .0531, entitled ‘‘Prevention of
Significant Deterioration’’ and ‘‘Sources
in Nonattainment Areas,’’ effective
September 1, 2013. Therefore, these
materials have been approved by EPA
for inclusion in the SIP, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
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as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference by the
Director of the Federal Register in the
next update to the SIP compilation.5
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
and/or at the EPA Region 4 Office
(please contact the person identified in
the FOR FURTHER INFORMATION CONTACT
section of this preamble for more
information).
requirements, EPA also is disapproving
the PSD elements of the North
Carolina’s infrastructure SIP submittals
for the 2008 lead, 2008 8-hour ozone,
2010 SO2, 2010 NO2 and the 2012 PM2.5
NAAQS; and is converting the Agency’s
previous conditional approvals of the
PSD elements of North Carolina’s
infrastructure SIP submittals for the
1997 Annual PM2.5 and 2006 24-hour
PM2.5 NAAQS to partial approvals and
partial disapprovals.
North Carolina did not submit its
PM2.5 increment provisions or its
IV. Final Actions
infrastructure SIPs to meet requirements
EPA is approving, in part, and
for Part D of the CAA or a SIP call;
disapproving, in part, changes to the
therefore, EPA’s final action to
North Carolina SIP provided by the
disapprove North Carolina’s PM2.5
DAQ to EPA on May 16, 2011, (two
increment provisions and to partially
submittals) and September 5, 2013.
disapprove the PSD portions of the
These changes modify North Carolina’s
State’s infrastructure SIP submittals
NSR permitting regulations codified at
does not trigger sanctions. However, this
15A 02D .0530—Prevention of
final disapproval action does trigger the
Significant Deterioration and 15A NCAC requirement under section 110(c) for
02D.0531—Sources in Nonattainment
EPA to promulgate a FIP no later than
Areas, and include the adoption of some two years from the date of the
federal requirements respecting
disapproval unless the State corrects the
implementation of the PM2.5 NAAQS
deficiency through a SIP revision and
through the NSR permitting program.
EPA approves the SIP revision before
Specifically, EPA is approving the
EPA promulgates such a FIP.7
State’s changes as they relate to the
V. Statutory and Executive Order
requirements to comply with EPA’s
Reviews
2008 NSR PM2.5 Implementation Rule
Under the CAA, the Administrator is
(provided in the first May 16, 2011, SIP
required to approve a SIP submittal that
submittal and the September 5, 2013,
complies with the provisions of the Act
SIP submittal) and the State’s
and applicable federal regulations. See
miscellaneous changes as described in
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Section III.C. of the NPRM (provided in
Thus, in reviewing SIP submittals,
the second May 16, 2011, SIP submittal
EPA’s role is to approve state choices,
and the September 5, 2013, SIP
provided that they meet the criteria of
submittal). EPA is disapproving North
the CAA. This action approves, in part,
Carolina’s September 5, 2013, SIP
and disapproves, in part, state law as
submittal as it relates to the
meeting federal requirements and does
requirements to comply with EPA’s
not impose additional requirements
2010 PSD PM2.5 Rule. The versions of
beyond those imposed by state law. EPA
15A NCAC 02D .0530 (PSD) and 15A
is determining that the PSD portion of
NCAC 02D .0531 (NNSR) that became
some of the aforementioned SIP
effective in the State on September 1,
submittals do not meet federal
2013, will be incorporated into North
Carolina’s SIP, with the exception of the requirements. For that reason, this
action:
portions of paragraphs 15A NCAC 02D
• Is not a significant regulatory action
.0530(e), (q), and (v) that pertain to
PM2.5 increments. EPA is approving the subject to review by the Office of
Management and Budget under
portions of paragraphs 15A NCAC 02D
Executive Orders 12866 (58 FR 51735,
.0530(e), (q), and (v) that pertain to
October 4, 1993) and 13563 (76 FR 3821,
PM10.6 As a result of the disapproval of
January 21, 2011);
a portion of the State’s NSR
• does not impose an information
5 62 FR 27968 (May 22, 1997).
collection burden under the provisions
6 As explained in the NPRM (81 FR at 28803, fn.
of the Paperwork Reduction Act (44
17), the revisions to paragraphs (e), (q), and (v)
U.S.C. 3501 et seq.);
provided in North Carolina’s September 5, 2013,
• is certified as not having a
SIP submittal include PM10 increment provisions in
significant economic impact on a
addition to PM2.5 provisions. Prior to these rule
changes, North Carolina had incorporated the PM10
increments into 15A NCAC 02D .0530 by reference
to the CFR. North Carolina’s decision to write the
PM10 increment requirements directly into its rule
rather than to incorporate them by reference does
not change the applicable SIP requirements with
respect to PM10 increments.
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7 EPA expects North Carolina sources that are
subject (or become subject) to PSD requirements to
continue complying with federal PM2.5 increment
requirements following this disapproval action,
including use of the federally required baseline
dates for calculating PM2.5 increment consumption.
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Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and
recordkeeping requirements, Sulfur
oxides.
Dated: September 6, 2016.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Subpart II—North Carolina
2. Section 52.1770 is amended by:
a. In paragraph (c), Table 1, under
Subchapter 2D, Section .0500, revising
the entries for ‘‘Sect .0530’’ and ‘‘Sect
.0531’’.
■ b. In paragraph (e), adding entries for
‘‘110(a)(1) and (2) Infrastructure
Requirements for 1997 Fine Particulate
Matter NAAQS’’, ‘‘110(a)(1) and (2)
Infrastructure Requirements for 2006
Fine Particulate Matter NAAQS’’,
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2008 Lead
NAAQS’’, ‘‘110(a)(1) and (2)
Infrastructure Requirements for the 2008
8-Hour Ozone NAAQS’’, ‘‘110(a)(1) and
(2) Infrastructure Requirements for the
2010 1-hour NO2 NAAQS’’, ‘‘110(a)(1)
and (2) Infrastructure Requirements for
the 2010 1-hour SO2 NAAQS’’ and
‘‘110(a)(1) and (2) Infrastructure
Requirements for the 2012 Annual PM2.5
NAAQS’’ at the end of the table.
The revisions and additions read as
follows:
■
■
§ 52.1770
1. The authority citation for part 52
continues to read as follows:
■
*
Authority: 42 U.S.C. 7401 et seq.
Identification of plan.
*
*
(c) * * *
*
*
TABLE 1—EPA APPROVED NORTH CAROLINA REGULATIONS
State citation
State effective
date
Title/subject
EPA approval date
Explanation
Subchapter 2D Air Pollution Control Requirements
*
*
*
*
*
*
*
*
*
Section .0500 Emission Control Standards
*
*
*
*
*
Sect .0530 .........
Prevention of Significant Deterioration.
9/1/2013
.......................................................
Sect .0531 .........
Sources in Nonattainment Areas ..
9/1/2013
9/14/2016, [Insert citation of publication in Federal Register].
*
asabaliauskas on DSK3SPTVN1PROD with RULES
*
*
*
*
VerDate Sep<11>2014
*
*
*
21:42 Sep 13, 2016
*
Disapproved the portions of paragraphs
15A
NCAC
02D
.0530(e), (q), and (v) that pertain to PM2.5 increments.
*
*
(e) * * *
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*
63112
Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations
EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS
Provision
*
State effective
date
EPA Approval
date
*
*
Federal Register citation
*
*
110(a)(1) and (2) Infrastructure Requirements
for 1997 Fine Particulate Matter NAAQS.
4/1/2008
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for 2006 Fine Particulate Matter NAAQS.
9/21/2009
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for the 2008 Lead
NAAQS.
6/15/2012
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for the 2008 8-Hour
Ozone NAAQS.
11/2/2012
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for the 2010 1-hour NO2
NAAQS.
8/23/2013
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for the 2010 1-hour SO2
NAAQS.
3/18/2014
9/14/2016
[Insert citation of publication in Federal Register].
110(a)(1) and (2) Infrastructure Requirements
for the 2012 Annual
PM2.5 NAAQS.
12/4/2015
9/14/2016
[Insert citation of publication in Federal Register].
§ 52.1773
[Removed and Reserved]
3. Section 52.1773 is removed and
reserved.
■
[FR Doc. 2016–21994 Filed 9–13–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 63
[EPA–HQ–OAR–2006–0790; FRL–9951–64–
OAR]
asabaliauskas on DSK3SPTVN1PROD with RULES
RIN 2060–AS10
National Emission Standards for
Hazardous Air Pollutants for Area
Sources: Industrial, Commercial, and
Institutional Boilers
Environmental Protection
Agency (EPA).
ACTION: Final rule; notice of final action
on reconsideration.
AGENCY:
This action sets forth the
Environmental Protection Agency’s
(EPA’s) final decision on the issues for
SUMMARY:
VerDate Sep<11>2014
21:42 Sep 13, 2016
Jkt 238001
Explanation
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*
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
Partially approve the PSD elements of sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J) and disapprove with respect to the
PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
which it announced reconsideration on
January 21, 2015, that pertain to certain
aspects of the February 1, 2013, final
amendments to the ‘‘National Emission
Standards for Hazardous Air Pollutants
for Area Sources: Industrial,
Commercial, and Institutional Boilers’’
(Area Source Boilers Rule). The EPA is
retaining the subcategory and separate
requirements for limited-use boilers,
consistent with the February 2013 final
rule. In addition, the EPA is amending
three reconsidered provisions regarding:
The alternative particulate matter (PM)
standard for new oil-fired boilers;
performance testing for PM for certain
boilers based on their initial compliance
test; and fuel sampling for mercury (Hg)
for certain coal-fired boilers based on
their initial compliance demonstration,
consistent with the alternative
provisions for which comment was
solicited in the January 2015 proposal.
The EPA is making minor changes to the
proposed definitions of startup and
shutdown based on comments received.
This final action also addresses a
limited number of technical corrections
PO 00000
*
and clarifications on the rule, including
removal of the affirmative defense for
malfunction in light of a court decision
on the issue. These corrections will
clarify and improve the implementation
of the February 2013 final Area Source
Boilers Rule. In this action, the EPA is
also denying the requests for
reconsideration with respect to the
issues raised in the petitions for
reconsideration of the final Area Source
Boilers Rule for which reconsideration
was not granted.
DATES: This final rule is effective on
September 14, 2016.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2006–0790. All
documents in the docket are listed on
the https://www.regulations.gov Web
site. Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy
E:\FR\FM\14SER1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Rules and Regulations]
[Pages 63107-63112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2015-0501; FRL-9952-31-Region 4]
Air Plan Approval and Disapproval; North Carolina: New Source
Review for Fine Particulate Matter (PM2.5)
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving, in
part, and disapproving, in part, changes to the North Carolina State
Implementation Plan (SIP), provided by the North Carolina Department of
Environmental Quality (NC DEQ) through the Division of Air Quality
(DAQ), to EPA in submittals dated May 16, 2011, (two separate
submittals) and September 5, 2013. These SIP submittals modify North
Carolina's New Source Review (NSR)--Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NNSR)--
permitting regulations and include the adoption of some federal
requirements regarding implementation of the fine particulate matter
(PM2.5) national ambient air quality standards (NAAQS)
through the NSR permitting program. As a result of the disapproval of a
portion of the State's NSR requirements, EPA is also approving, in
part, and disapproving, in part, the PSD elements of North Carolina's
infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone,
2010 sulfur dioxide (SO2), 2010 nitrogen dioxide
(NO2) and the 2012 PM2.5 NAAQS, and converting
the Agency's previous conditional approvals of the PSD elements of
North
[[Page 63108]]
Carolina's infrastructure SIP submittals for the 1997 Annual
PM2.5 and 2006 24-hour PM2.5 NAAQS to partial
approvals and partial disapprovals. This partial disapproval triggers
the requirement for EPA to promulgate a Federal Implementation Plan
(FIP) no later than two years from the date of the disapproval unless
the State corrects the deficiencies through a SIP revision and EPA
approves the SIP revision before EPA promulgates such a FIP.
DATES: This rule will be effective October 14, 2016.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2015-0501. All documents in the docket
are listed on the www.regulations.gov Web site. Although listed in the
index, some information is not publicly available, i.e., Confidential
Business Information or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Joel Huey of the Air Planning and
Implementation Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Mr. Huey can be reached by telephone at
(404) 562-9104 or via electronic mail at huey.joel@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background and Overview
In submittals dated May 16, 2011 (two separate submittals), and
September 5, 2013, DAQ submitted to EPA changes to the North Carolina
SIP with regard to the State's PSD and NNSR regulations found at 15A
North Carolina Administrative Code (NCAC) 02D .0530 and 15A NCAC 02D
.0531. These SIP submittals modify North Carolina's NSR permitting
regulations (for both PSD and NNSR) and include the adoption of some
federal requirements regarding implementation of the PM2.5
NAAQS through the NSR permitting program. In the notice of proposed
rulemaking (NPRM) published on May 10, 2016 (81 FR 28797), EPA proposed
to take the following four actions, some with multiple parts, regarding
the North Carolina submittals:
Approval of a May 16, 2011, SIP submittal from North
Carolina (as revised and updated by the State's September 5, 2013, SIP
submittal) as meeting the requirements of EPA's rule, ``Implementation
of the New Source Review (NSR) Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5),'' Final Rule, 73 FR 28321 (May 16,
2008) (hereafter referred to as the ``2008 NSR PM2.5
Implementation Rule'').
Disapproval of the portions of North Carolina's September
5, 2013, SIP submittal pertaining to adoption and implementation of the
PM2.5 increments because North Carolina's proposed SIP
revisions do not fully meet the requirements of EPA's rulemaking,
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC),''
Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as
the ``2010 PSD PM2.5 Rule''). Specifically, though
paragraphs (q) and (v) of North Carolina's revised PSD regulations at
15A NCAC 02D .0530 incorporate the federally required numerical
PM2.5 increments, North Carolina's regulations fail to
include other federally required provisions needed to implement the
PM2.5 increments, including (1) the definition of ``[m]ajor
source baseline date'' for PM2.5 codified at 40 CFR
51.166(b)(14)(i)(c) (defined as October 20, 2010); (2) the definition
of ``[m]inor source baseline date'' for PM2.5 codified at 40
CFR 51.166(b)(14)(ii)(c) (which establishes the PM2.5
trigger date as October 20, 2011); and (3) the definition of
``[b]aseline area'' codified at 40 CFR 51.166(b)(15)(i).\1\ Without
these definitions, North Carolina's PSD regulations do not require PSD
sources to conduct the appropriate analyses demonstrating that
emissions from proposed construction of new major stationary sources or
major modifications will not cause or contribute to air quality
deterioration beyond the amount allowed by the PM2.5
increments. Therefore, EPA proposed to disapprove all of the
PM2.5 increment provisions set forth in North Carolina's
September 5, 2013, SIP submittal, including all of the
PM2.5-related changes to 15A NCAC 02D .0530 at paragraphs
(e), (q), and (v).\2\
---------------------------------------------------------------------------
\1\ North Carolina's regulations at 15A NCAC 02D .0530 use
incorporation by reference (IBR) to adopt the federal regulations in
the CFR as of May 16, 2008, which do not include the definitions of
``major source baseline,'' ``minor source baseline,'' and ``baseline
area'' that EPA promulgated in the 2010 PSD PM2.5 rule.
Thus, the definition of ``major source baseline date'' incorporated
into 15A NCAC 02D .0530 does not include the federally required
PM2.5 major source baseline date of October 20, 2010, but
instead states: ``In the case of particulate matter and sulfur
dioxide, January 6, 1975.'' Likewise, the definition of ``minor
source baseline date'' incorporated into 15A NCAC 02D .0530 does not
include the federally required PM2.5 trigger date of
October 20, 2011, but instead states: ``In the case of particulate
matter and sulfur dioxide, August 7, 1977.'' It is EPA's
understanding that North Carolina interprets the term ``particulate
matter'' in North Carolina's regulations to encompass
PM2.5, resulting in a PM2.5 major source
baseline date of January 6, 1975, and a PM2.5 trigger
date of August 7, 1977.
\2\ Paragraph (v) establishes the numerical PM2.5
increments. Paragraph (q) addresses the Class I PM2.5
variances. Paragraph (e) incorporates paragraph (v) by reference.
EPA proposed to disapprove 15A NCAC 02D .0530, paragraphs (e), (q),
and (v) in part, rather than in their entirety, because the
paragraphs also include previously approved PM10
increment requirements. Specifically, in addition to making the
PM2.5-related changes to these paragraphs, North Carolina
also revised 15A NCAC 02D .0530, paragraphs (e), (q), and (v), to
directly incorporate the PM10 increments. Previously,
North Carolina had incorporated the PM10 increments into
15A NCAC 02D .0530 by reference to the CFR. EPA is approving the
PM10-related changes to paragraphs (e), (q), and (v).
---------------------------------------------------------------------------
Approval of administrative changes to North Carolina's PSD
and NNSR regulations at 15A NCAC 02D .0530 and 15A NCAC 02D .0531
provided by the State in a SIP submittal also dated May 16, 2011,
including clarification of the applicability of best available control
technology (BACT) and lowest achievable emission rate (LAER) for
electrical generating units (EGUs) in the State, and the inclusion of
an additional Federal Land Manager (FLM) notification provision.
Approval, in part, and disapproval, in part, of the PSD
elements of North Carolina's infrastructure SIP submittals for the 2008
lead, 2008 8-hour ozone, 2010 SO2, 2010 NO2 and
2012 PM2.5 NAAQS and conversion of the Agency's previous
conditional approvals of the PSD elements of North Carolina's
infrastructure SIP submittals for the 1997 Annual PM2.5 and
2006 24-hour PM2.5 NAAQS to partial approvals and partial
disapprovals.
Comments on the NPRM were due on or before June 9, 2016. The details of
North Carolina's submittals and the rationale for EPA's actions are
explained in the NPRM.
[[Page 63109]]
II. Response to Comments
EPA received one adverse comment submission, from DAQ, on the May
10, 2016, NPRM to approve, in part, and disapprove, in part, changes to
North Carolina's SIP-approved NSR permitting regulations. The comment
submission is available in the docket for this final rulemaking action.
In its comments, DAQ objects to EPA's proposed disapproval of the
PM2.5 increment-related portions of paragraphs (e), (q) and
(v) of North Carolina's PSD rule 15A NCAC 02D .0530 for failing to
incorporate the definitions of ``major source baseline date,'' ``minor
source baseline date,'' and ``baseline area'' as found in EPA's 2010
PSD PM2.5 Rule. DAQ contends that EPA's proposed disapproval
of North Carolina's PM2.5 increment provisions fails to
properly account for the decision by the United States Court of Appeals
for the District of Columbia (D.C. Circuit) in Natural Resource Defense
Council v. EPA, 706 F.3d 428 (D.C. Cir., 2013) (NRDC), where the Court
determined that PM2.5 is not a new pollutant, but rather is
encompassed by the statutory definition of the pollutant
PM10. According to DAQ, North Carolina's regulations, which
incorporate by reference the prior federal definitions applicable to
``particulate matter'' (rather than the definitions applicable to
PM2.5 promulgated in EPA's 2010 PSD PM2.5 Rule),
are consistent with the Clean Air Act (CAA or Act) and NRDC and can be
approved into the SIP as written. For the same reason, DAQ also objects
to EPA's proposed disapproval of the PSD elements of seven
infrastructure SIP submittals. DAQ's comments incorporate by reference
the following documents: (1) Opening Brief of Petitioner in North
Carolina v. United States Environmental Protection Agency, 13-1312 and
14-1186, dated October 9, 2014; (2) Reply Brief of Petitioner for North
Carolina v. United States Environmental Protection Agency, 13-1312 and
14-1186, dated February 10, 2015; and (3) letter from John Skvarla
(North Carolina Department of Environment and Natural Resources \3\) to
Gina McCarthy (EPA), dated August 22, 2013.
---------------------------------------------------------------------------
\3\ The North Carolina Department of Environment and Natural
Resources is now the North Carolina Department of Environmental
Quality.
---------------------------------------------------------------------------
The legal briefs attached to DAQ's comments were filed in the D.C.
Circuit by the State of North Carolina in support of the State's
consolidated petitions for review of EPA's 2010 PSD PM2.5
Rule and of EPA's denial of the State's administrative petition for
reconsideration of the PSD PM2.5 Rule. In the briefs, the
State challenged the 2010 PSD PM2.5 Rule on the basis that
the rule improperly set new baseline dates for calculating
PM2.5 increment consumption rather than using the pre-
existing particulate matter baseline dates set forth in the CAA. EPA
filed a Response Brief in that case disputing the legal arguments in
the briefs that DAQ has now submitted to support its comments on this
SIP rule. The D.C. Circuit dismissed both of North Carolina's petitions
for review as untimely. See North Carolina v. EPA, 614 Fed. Appx. 517,
2015 U.S. App. LEXIS 16246 (D.C. Cir. 2015).
The August 22, 2013, letter from John Skvarla that DAQ attached to
its comments was sent by North Carolina to EPA prior to the D.C.
Circuit litigation and raised the same concern regarding the
PM2.5 increment baseline dates in the 2010 PSD
PM2.5 Rule that North Carolina raised in the D.C. Circuit
litigation. EPA responded to the April 22, 2013, letter from Secretary
Skvarla to Administrator McCarthy in conjunction with EPA's August 28,
2014, response to the State's petition for EPA to reconsider or revise
the 2010 PSD PM2.5 Rule.
In response to DAQ's comments, EPA notes that DAQ does not claim
that North Carolina's PM2.5 increment provisions satisfy the
relevant federal criteria for state PSD programs set forth at 40 CFR
51.166 (as promulgated in the 2010 PSD PM2.5 Rule). Rather,
DAQ's opposition to EPA's proposed disapproval of North Carolina's
PM2.5 increment provisions is based entirely on DAQ's claim
that the federal PM2.5 increment baseline provisions set
forth at 40 CFR 51.166 are unlawful. In determining whether to approve
North Carolina's PM2.5 increment submittal, however, EPA
considers only whether North Carolina's proposed SIP revision satisfies
the minimum federal criteria set forth at 50 CFR 51.166 and other
requirements governing SIP revisions. EPA's action on North Carolina's
submittal does not reopen for comment EPA's determination of the
appropriate PM2.5 increment baselines for SIP-approved PSD
programs, which were established in the final 2010 PSD PM2.5
Rule published in the Federal Register on October 20, 2010 (75 FR
64864).
Under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), any petition for
review of the 2010 PSD PM2.5 Rule had to be filed in the
D.C. Circuit within 60 days of EPA's publication of the rule in the
Federal Register, unless such petition is based solely on grounds
arising after the 60th day, in which case the petition had to be filed
within 60 days after such grounds arose. As the D.C. Circuit explained
in dismissing North Carolina's petition for review of the 2010 PSD
PM2.5 Rule, North Carolina missed the statutory deadline for
filing a petition for review of the PM2.5 increment baseline
provisions set forth in that Rule and did not file its court challenge
within 60 days of the NRDC court decision that the State alleged to
establish ``after arising'' grounds for such a challenge. See North
Carolina, 614 Fed. Appx. at 517.\4\
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\4\ In the D.C. Circuit litigation, North Carolina argued that
the 2013 NRDC decision constituted grounds arising after the 60th
day following EPA's publication of the 2010 PSD PM2.5
Rule in the Federal Register, and therefore started a new 60-day
period during which North Carolina could petition the D.C. Circuit
to review the 2010 PM2.5 PSD Rule. North Carolina, 614
Fed. Appx. at 518. The D.C. Circuit found that even if NRDC
constituted after-arising grounds, ``North Carolina brought its
petition more than ten months after [the Court] issued NRDC--well
outside of the sixty-day window for petitions that the after-arising
grounds exception [in CAA section 307(b)] provides.'' Id. Therefore,
the Court concluded: ``Even assuming, without deciding, that NRDC
constituted after-arising grounds, North Carolina's petition is thus
still untimely.'' Id.
---------------------------------------------------------------------------
Based on its view of the NRDC court decision, North Carolina
separately petitioned EPA to reconsider or revise the baseline date in
the 2010 PSD PM2.5 Rule and subsequently challenged EPA's
response to that petition in the D.C. Circuit. EPA determined that
revision of the baseline dates for PM2.5 in the 2010 rule
was not appropriate or compelled by the court decision cited by North
Carolina. EPA also considered and responded to the April 22, 2013,
letter from Secretary Skvarla in the manner described above.
Accordingly, EPA has already given due consideration to the concern
raised by North Carolina in its comment regarding the content of the
EPA regulations. The Court upheld EPA's response to the State's
petition to change the rule. 614 Fed. Appx. at 519.
Thus, the legal issues raised by North Carolina concerning the
content of EPA's regulations are settled and not open to
reconsideration in this action regarding North Carolina's SIP
submittal. For purposes of this action, the PM2.5 increment
baseline provisions for SIP-approved state PSD programs set forth in 40
CFR 51.166 are final and effective for all states, including North
Carolina. EPA is required to apply its regulations as they are
presently written. See, e.g., 78 FR 63883, 63885 (Oct. 25, 2013) (EPA
action on the Utah SIP based on the terms of the current version of 40
CFR 51.166). Accordingly, DAQ's comments regarding alleged defects in
the PM2.5 increment baseline dates established in the 2010
PSD PM2.5
[[Page 63110]]
Rule (including arguments made in attachments to DAQ's comment
submission) are not relevant to EPA's determination in this final
action of whether the PM2.5 increment provisions in North
Carolina's September 5, 2013, SIP submittal are approvable.
To be federally-approvable, North Carolina's PM2.5
increment provisions must meet the requirements of 40 CFR 51.166 unless
North Carolina can demonstrate that it has alternative measures in its
plan other than PM2.5 increments that satisfy the PSD
requirements under sections 166(c) and 166(d) of the CAA. See 40 CFR
51.166(c)(2). Specifically regarding the definitions of key terms set
forth at 40 CFR 51.166(b), the regulations state that ``[a]ll State
plans shall use'' these definitions, unless ``the State specifically
demonstrates that the submitted definition is more stringent, or at
least as stringent, in all respects'' as the federal definition. See 40
CFR 51.166(b). As EPA explained in the NPRM, North Carolina's
PM2.5 increment provisions at 15A NCAC 02D .0530 do not
incorporate the federally required definitions of ``major source
baseline date,'' ``minor source baseline date,'' and ``baseline area.''
Nor has North Carolina demonstrated--or even claimed--that alternative
definitions in the State's plan are more stringent, or at least as
stringent, as the federal definitions set forth at 40 CFR 51.166.
Likewise, North Carolina has not identified measures in its plan other
than PM2.5 increments that satisfy the PSD requirements
under sections 166(c) and 166(d) of the CAA and would warrant approval
under 40 CFR 51.166(c)(2). DAQ's comments do not refute EPA's
determination that North Carolina's PM2.5 increment
provisions are not in compliance with 40 CFR 51.166. Therefore, EPA
disagrees with DAQ's comment that North Carolina's rules can be
approved into the SIP as written.
III. Incorporation by Reference
In this rule, EPA is including in a final EPA rule regulatory text
that includes incorporation by reference. In accordance with
requirements of 1 CFR 51.5, EPA is incorporating by reference portions
of North Carolina's regulations 15A NCAC 02D .0530 and 15A NCAC 02D
.0531, entitled ``Prevention of Significant Deterioration'' and
``Sources in Nonattainment Areas,'' effective September 1, 2013.
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated by reference by the Director of the Federal Register in
the next update to the SIP compilation.\5\ EPA has made, and will
continue to make, these materials generally available through
www.regulations.gov and/or at the EPA Region 4 Office (please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
---------------------------------------------------------------------------
\5\ 62 FR 27968 (May 22, 1997).
---------------------------------------------------------------------------
IV. Final Actions
EPA is approving, in part, and disapproving, in part, changes to
the North Carolina SIP provided by the DAQ to EPA on May 16, 2011, (two
submittals) and September 5, 2013. These changes modify North
Carolina's NSR permitting regulations codified at 15A 02D .0530--
Prevention of Significant Deterioration and 15A NCAC 02D.0531--Sources
in Nonattainment Areas, and include the adoption of some federal
requirements respecting implementation of the PM2.5 NAAQS
through the NSR permitting program. Specifically, EPA is approving the
State's changes as they relate to the requirements to comply with EPA's
2008 NSR PM2.5 Implementation Rule (provided in the first
May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal)
and the State's miscellaneous changes as described in Section III.C. of
the NPRM (provided in the second May 16, 2011, SIP submittal and the
September 5, 2013, SIP submittal). EPA is disapproving North Carolina's
September 5, 2013, SIP submittal as it relates to the requirements to
comply with EPA's 2010 PSD PM2.5 Rule. The versions of 15A
NCAC 02D .0530 (PSD) and 15A NCAC 02D .0531 (NNSR) that became
effective in the State on September 1, 2013, will be incorporated into
North Carolina's SIP, with the exception of the portions of paragraphs
15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5
increments. EPA is approving the portions of paragraphs 15A NCAC 02D
.0530(e), (q), and (v) that pertain to PM10.\6\ As a result
of the disapproval of a portion of the State's NSR requirements, EPA
also is disapproving the PSD elements of the North Carolina's
infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone,
2010 SO2, 2010 NO2 and the 2012 PM2.5
NAAQS; and is converting the Agency's previous conditional approvals of
the PSD elements of North Carolina's infrastructure SIP submittals for
the 1997 Annual PM2.5 and 2006 24-hour PM2.5
NAAQS to partial approvals and partial disapprovals.
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\6\ As explained in the NPRM (81 FR at 28803, fn. 17), the
revisions to paragraphs (e), (q), and (v) provided in North
Carolina's September 5, 2013, SIP submittal include PM10
increment provisions in addition to PM2.5 provisions.
Prior to these rule changes, North Carolina had incorporated the
PM10 increments into 15A NCAC 02D .0530 by reference to
the CFR. North Carolina's decision to write the PM10
increment requirements directly into its rule rather than to
incorporate them by reference does not change the applicable SIP
requirements with respect to PM10 increments.
---------------------------------------------------------------------------
North Carolina did not submit its PM2.5 increment
provisions or its infrastructure SIPs to meet requirements for Part D
of the CAA or a SIP call; therefore, EPA's final action to disapprove
North Carolina's PM2.5 increment provisions and to partially
disapprove the PSD portions of the State's infrastructure SIP
submittals does not trigger sanctions. However, this final disapproval
action does trigger the requirement under section 110(c) for EPA to
promulgate a FIP no later than two years from the date of the
disapproval unless the State corrects the deficiency through a SIP
revision and EPA approves the SIP revision before EPA promulgates such
a FIP.\7\
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\7\ EPA expects North Carolina sources that are subject (or
become subject) to PSD requirements to continue complying with
federal PM2.5 increment requirements following this
disapproval action, including use of the federally required baseline
dates for calculating PM2.5 increment consumption.
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V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submittal 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 submittals, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action approves,
in part, and disapproves, in part, state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. EPA is determining that the PSD portion of some
of the aforementioned SIP submittals do not meet federal requirements.
For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a
[[Page 63111]]
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: September 6, 2016.
V. Anne Heard,
Acting Regional Administrator, Region 4.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. Section 52.1770 is amended by:
0
a. In paragraph (c), Table 1, under Subchapter 2D, Section .0500,
revising the entries for ``Sect .0530'' and ``Sect .0531''.
0
b. In paragraph (e), adding entries for ``110(a)(1) and (2)
Infrastructure Requirements for 1997 Fine Particulate Matter NAAQS'',
``110(a)(1) and (2) Infrastructure Requirements for 2006 Fine
Particulate Matter NAAQS'', ``110(a)(1) and (2) Infrastructure
Requirements for the 2008 Lead NAAQS'', ``110(a)(1) and (2)
Infrastructure Requirements for the 2008 8-Hour Ozone NAAQS'',
``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour
NO2 NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements
for the 2010 1-hour SO2 NAAQS'' and ``110(a)(1) and (2)
Infrastructure Requirements for the 2012 Annual PM2.5
NAAQS'' at the end of the table.
The revisions and additions read as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
Table 1--EPA Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
Subchapter 2D Air Pollution Control Requirements
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Section .0500 Emission Control Standards
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Sect .0530................. Prevention of 9/1/2013 ..................... Disapproved the
Significant portions of
Deterioration. paragraphs 15A NCAC
02D .0530(e), (q),
and (v) that pertain
to PM2.5 increments.
Sect .0531................. Sources in 9/1/2013 9/14/2016, [Insert .....................
Nonattainment Areas. citation of
publication in
Federal Register].
* * * * * * *
----------------------------------------------------------------------------------------------------------------
* * * * *
(e) * * *
[[Page 63112]]
EPA-Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
State EPA Approval Federal Register
Provision effective date date citation Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
110(a)(1) and (2) Infrastructure 4/1/2008 9/14/2016 [Insert citation of Partially approve the
Requirements for 1997 Fine publication in PSD elements of
Particulate Matter NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 9/21/2009 9/14/2016 [Insert citation of Partially approve the
Requirements for 2006 Fine publication in PSD elements of
Particulate Matter NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 6/15/2012 9/14/2016 [Insert citation of Partially approve the
Requirements for the 2008 Lead publication in PSD elements of
NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 11/2/2012 9/14/2016 [Insert citation of Partially approve the
Requirements for the 2008 8-Hour publication in PSD elements of
Ozone NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 8/23/2013 9/14/2016 [Insert citation of Partially approve the
Requirements for the 2010 1-hour publication in PSD elements of
NO2 NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 3/18/2014 9/14/2016 [Insert citation of Partially approve the
Requirements for the 2010 1-hour publication in PSD elements of
SO2 NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
110(a)(1) and (2) Infrastructure 12/4/2015 9/14/2016 [Insert citation of Partially approve the
Requirements for the 2012 Annual publication in PSD elements of
PM2.5 NAAQS. Federal Register]. sections 110(a)(2)(C),
110(a)(2)(D)(i)(II)
(prong 3) and
110(a)(2)(J) and
disapprove with respect
to the PM2.5 increment
requirements of 2010
PSD PM2.5 Rule.
----------------------------------------------------------------------------------------------------------------
Sec. 52.1773 [Removed and Reserved]
0
3. Section 52.1773 is removed and reserved.
[FR Doc. 2016-21994 Filed 9-13-16; 8:45 am]
BILLING CODE 6560-50-P
