Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5, 63107-63112 [2016-21994]

Download as PDF Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 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 asabaliauskas on DSK3SPTVN1PROD with RULES 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. VerDate Sep<11>2014 20:49 Sep 13, 2016 Jkt 238001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 9/14/2016 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 E:\FR\FM\14SER1.SGM 14SER1 63108 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES 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 VerDate Sep<11>2014 20:49 Sep 13, 2016 Jkt 238001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 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). E:\FR\FM\14SER1.SGM 14SER1 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 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. VerDate Sep<11>2014 20:49 Sep 13, 2016 Jkt 238001 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 PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 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. E:\FR\FM\14SER1.SGM 14SER1 63110 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES 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 VerDate Sep<11>2014 20:49 Sep 13, 2016 Jkt 238001 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. PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 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. E:\FR\FM\14SER1.SGM 14SER1 63111 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) * * * Jkt 238001 PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 E:\FR\FM\14SER1.SGM 14SER1 * 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 Frm 00062 Fmt 4700 Sfmt 4700 * 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 http://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 14SER1

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]


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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.

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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\
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    \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).
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     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.
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    \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.
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    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).
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    \5\ 62 FR 27968 (May 22, 1997).
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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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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