Air Plan Approval; North Carolina; Prevention of Significant Deterioration for Mecklenburg County, 51946-51955 [2022-18172]
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Federal Register / Vol. 87, No. 163 / Wednesday, August 24, 2022 / Proposed Rules
IV. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
Tennessee Rules 1200–03–09–.01,
Construction Permits,8 and 1200–03–
21–.01, General Alternate Emission
Standard, state effective on April 22,
2021. EPA has made, and will continue
to make, these materials generally
available through www.regulations.gov
and at the EPA Region 4 office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
V. Proposed Action
EPA is proposing to approve changes
to the Tennessee SIP, and convert the
conditional approval for element C,
Prong 3, and element J, for the 2015 8hour ozone Infrastructure SIP to a full
approval. Specifically, EPA is proposing
to approve changes to Tennessee Rules
1200–03–09–.01, Construction and
Operating Permits, and 1200–03–21–
.01, General Alternate Emission
Standard.
VI. Statutory and Executive Order
Reviews
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Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. This action merely proposes to
approve state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
8 EPA is not proposing to incorporate the April
22, 2021, state effective version of: 1200–03–09–
.01(1)(a); 1200–03–09–.01(1)(d); 1200–03–09–
.01(1)(h); 1200–03–09–.01(1)(j); 1200–03–09–
.01(4)(a)7(vi); 1200–03–09–.01(4)(b)24(XVII); 1200–
03–09–.01(4)(b)29; 1200–03–09–.01(4)(b)47(i)(IV);
1200–03–09–.01(4)(j)3; 1200–03–09–.01(4)(l)2(iii);
1200–03–09–.01(5)(b)1(x)(VII); the PM2.5 annual
and 24-hour averaging time as part of subparagraph
1200–03–09–.01(5)(b)(1)(xix); 1200–03–09–
.01(5)(b)2(viii)(III); 1200–03–09–.01(5)2(iii)(II); and
1200–03–09–.01(5)(b)3(i)(III). These provisions are
either not approved into the SIP or the April 22,
2021, version of the rule contains language changes
that are not before EPA for approval into the SIP.
If EPA finalizes this action, the Agency will update
the SIP table at 40 CFR 52.2220(c) to reflect these
exceptions.
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October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the proposed 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, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022–18199 Filed 8–23–22; 8:45 am]
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2021–0867; FRL–9377–01–
R4]
Air Plan Approval; North Carolina;
Prevention of Significant Deterioration
for Mecklenburg County
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
portion of a State Implementation Plan
(SIP) revision to the Mecklenburg
County portion of the North Carolina
SIP, hereinafter referred to as the
Mecklenburg County Local
Implementation Plan (LIP). The revision
was submitted through the North
Carolina Division of Air Quality
(NCDAQ), on behalf of Mecklenburg
County Air Pollution Control (MCAQ),
via a letter dated April 24, 2020, which
was received by EPA on June 19, 2020.
This SIP revision includes changes to
Mecklenburg County Air Pollution
Control Ordinance (MCAPCO) rules
incorporated into the LIP regarding
Prevention of Significant Deterioration
(PSD) permitting to address changes to
the Federal new source review (NSR)
regulations in recent years. EPA is
proposing to approve these changes
pursuant to the Clean Air Act (CAA or
Act).
DATES: Comments must be received on
or before September 23, 2022.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2021–0867 at
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
SUMMARY:
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Federal Register / Vol. 87, No. 163 / Wednesday, August 24, 2022 / Proposed Rules
making effective comments, please visit
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: D.
Brad Akers, Air Regulatory Management
Section, Air Planning and
Implementation Branch, Air and
Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303–8960.
Mr. Akers can be reached via electronic
mail at akers.brad@epa.gov or via
telephone at (404) 562–9089.
SUPPLEMENTARY INFORMATION:
I. Background and Overview of Mecklenburg
LIP
II. Background on PSD Updates
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM2.5) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2
Rule
D. Greenhouse Gas Tailoring Rule and
Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
III. Analysis of Mecklenburg’s April 24, 2020
Submittal
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM2.5) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2
Rule
D. Greenhouse Gas Tailoring Rule and
Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
IV. Incorporation by Reference
V. Proposed Action
VI. Statutory and Executive Order Reviews
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I. Background and Overview of
Mecklenburg LIP
The Mecklenburg LIP was submitted
to EPA on June 14, 1990, and EPA
approved the plan on May 2, 1991. See
56 FR 20140. Mecklenburg County is
now requesting that EPA approve
changes to the LIP for, among other
things, general consistency with the
North Carolina SIP.1 Mecklenburg
County prepared three submittals in
order to update the LIP and reflect
regulatory and administrative changes
that NCDAQ made to the North Carolina
SIP since EPA’s 1991 LIP approval.2 The
three submittals were submitted as
follows: NCDAQ transmitted the
October 25, 2017, submittal to EPA but
later withdrew it from review through a
letter dated February 15, 2019. On April
24, 2020, NCDAQ resubmitted the
October 25, 2017, update to EPA and
submitted the January 21, 2016, and
January 14, 2019, updates. Each of these
1 Hereinafter, the terms ‘‘North Carolina SIP’’ and
‘‘SIP’’ refer to the North Carolina regulatory portion
of the North Carolina SIP (i.e., the portion that
contains SIP-approved North Carolina regulations).
2 The Mecklenburg County, North Carolina
revision that is dated April 24, 2020, and received
by EPA on June 19, 2020, is comprised of three
previous submittals—one dated January 21, 2016;
one dated October 25, 2017; and one dated January
14, 2019.
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submittals were properly noticed to the
public in compliance with 40 CFR
51.102.
This proposed rulemaking would
modify the LIP by updating the PSD
program rules incorporated into the LIP
in Rule 2.0530, Prevention of Significant
Deterioration, and by adding into the
LIP rule 2.0544, Prevention of
Significant Deterioration Requirements
for Greenhouse Gases.
II. Background on PSD Updates
The PSD program is a preconstruction
permitting program that requires
‘‘major’’ stationary sources of air
pollution to obtain a PSD permit prior
to beginning construction in areas
classified as either in attainment with
the National Ambient Air Quality
Standards (NAAQS) or unclassifiable.3
See CAA section 165. EPA requires PSD
SIPs to meet the standards codified at 40
CFR 51.166.4 Over the years, EPA has
updated these rules, and as a result of
these amendments, states and localities
similarly are required to update their
SIP-approved rules to ensure
compliance with the PSD standards set
forth at 40 CFR 51.166.
In this Notice of Proposed
Rulemaking (NPRM), EPA is proposing
to approve Mecklenburg’s PSD rule
revisions as meeting the requirements of
the CAA and 40 CFR 51.166. EPA most
recently approved Mecklenburg’s PSD
rules on May 2, 1991, with a local
effective date of June 14, 1990. See 56
FR 20140. Since then, EPA’s PSD
permitting rules have undergone a
number of changes. For historical
context, this NPRM first provides a
summary of significant amendments to
EPA’s PSD permitting rules made after
the date of approval of Mecklenburg’s
LIP-approved PSD permitting rules. The
NPRM then discusses the PSD rules
contained in the proposed SIP revision.
A. 2002 NSR Reform Rules
On December 31, 2002, EPA
published final rule revisions to 40 CFR
parts 51 and 52, regarding the CAA’s
PSD and Nonattainment New Source
Review (NNSR) programs. See 67 FR
80186 (hereinafter referred to as the
2002 NSR Rule). The revisions included
five changes to the major NSR program
that would reduce regulatory burdens,
maximize operating flexibility, improve
environmental quality, provide
3 A separate NSR preconstruction permitting
program applies to nonattainment areas pursuant to
CAA section 173. NSR permits in nonattainment
areas are referred to as nonattainment NSR (NNSR)
permits.
4 Related rules setting forth the Federal PSD
program for areas without an approved PSD
permitting program are codified at 40 CFR 52.21.
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additional certainty, and promote
administrative efficiency. Initially, these
updates to the Federal NSR program
included the revision of baseline actual
emissions and adoption of actual-toprojected-actual emissions
methodology, plant-wide applicability
limits (PALs), Clean Units, and
pollution control projects (PCPs). The
final rule also codified a longstanding
policy regarding the calculation of
baseline emissions for electric utility
steam generating units and the
definition of ‘‘regulated NSR pollutant’’
that clarifies which pollutants are
regulated under the Act for purposes of
major NSR.
Following publication of the 2002
NSR Rule, EPA received numerous
petitions requesting reconsideration of
several aspects of the final rule, along
with portions of EPA’s 1980 NSR
Rules.5 On July 30, 2003, EPA granted
petitions for reconsideration of six
issues presented by the petitioners and
opened a new comment period for the
public.6 As a result of the
reconsideration, on November 7, 2003
(68 FR 63021), EPA published the NSR
Reform Reconsideration Rule, which
made two clarifications to EPA’s
underlying NSR rules. These two
clarifications included: (1) adding the
definition of ‘‘replacement unit’’ to
indicate that it is considered an existing
unit in terms of major NSR
applicability, and (2) specifying that the
PAL baseline calculation procedures for
newly constructed units do not apply to
modified units. The 2002 NSR Rule and
the NSR Reform Reconsideration Rule
are hereinafter collectively referred to as
the ‘‘2002 NSR Reform Rules.’’
The 2002 NSR Reform Rules were
challenged in the U.S. Court of Appeals
for the District of Columbia Circuit (D.C.
Circuit), and the court issued a decision
on the challenges on June 24, 2005. See
New York v. EPA, 413 F.3d 3 (DC Cir.
2005). In summary, the D.C. Circuit
vacated portions of EPA’s NSR Reform
Rules pertaining to Clean Units and
PCPs, remanded a portion of the rules
regarding recordkeeping and the term
‘‘reasonable possibility’’ found in 40
CFR 52.21(r)(6), 40 CFR 51.166(r)(6),
and 40 CFR 51.165(a)(6) to EPA, and
either upheld or did not comment on
the other provisions included as part of
the 2002 NSR Reform Rules. On June 13,
2007 (72 FR 32526), EPA took final
action to revise the 2002 NSR Reform
5 See 45 FR 52676 (August 7, 1980) for EPA’s
1980 NSR Rules.
6 For full details on the six issues reconsidered by
EPA, refer to the July 30, 2003, publication. See 68
FR 44624.
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Rules to exclude the portions that were
vacated by the D.C. Circuit.
Meanwhile, EPA continued to move
forward with its evaluation of the
portion of its NSR Reform Rules that
were remanded by the D.C. Circuit. On
March 8, 2007 (72 FR 10445), EPA
responded to the Court’s remand
regarding the recordkeeping provisions
by proposing two alternative options to
clarify what constitutes ‘‘reasonable
possibility’’ and when the ‘‘reasonable
possibility’’ recordkeeping requirements
apply. The ‘‘reasonable possibility’’
standard identifies the circumstances
under which a major stationary source
must keep records for modifications that
do not trigger major NSR. EPA later
finalized these changes on December 21,
2007 (72 FR 72607).
Separately from the petitions received
that led to the 2002 NSR
Reconsideration Rule, EPA received
another petition for reconsideration on
July 11, 2003. Specifically, the
petitioner requested EPA to reconsider
the inclusion of ‘‘fugitive emissions’’
when assessing whether a proposed
physical or operational change qualified
as a ‘‘major modification.’’ On
November 13, 2007, EPA granted the
petition for reconsideration, and on
December 19, 2008, finalized the
revision of the language to clarify which
types of sources were required to
include ‘‘fugitive emissions’’ in their
calculations. See 73 FR 77882
(hereinafter referred to as the Fugitive
Emissions Rule).
Finally, on February 17, 2009, EPA
received a petition for reconsideration
of the Fugitive Emissions Rule. Due to
this petition, and after several stays,7
EPA established an indefinite stay of the
Fugitive Emissions Rule language on
March 30, 2011 (76 FR 17548). This
indefinite stay also clarified EPA’s
intent to ‘‘correct ambiguity’’ in the
March 31, 2010 stay. With the March 30,
2011, stay, EPA specified which
portions of 40 CFR 51.165, 40 CFR
51.166, and 40 CFR 52.21 were stayed
indefinitely, which were reinstated, and
which were revised, in order to revert
the Federal rules to the regulatory
language that existed prior to the
Fugitive Emissions Rule.8
7 EPA originally established a three-month stay
that became effective September 30, 2009 (74 FR
50115), which was later extended for an additional
three months, effective December 31, 2009. See 74
FR 65692. In order to allow for more time for
reconsideration and for public comment on any
potential revisions to the Fugitive Emissions Rule,
EPA established a longer 18-month stay that became
effective on March 31, 2010. See 75 FR 16012.
8 In this NPRM, EPA is not proposing to act on
certain provisions addressing the treatment of
fugitive emissions, as provided in EPA’s December
19, 2008, rule. See 73 FR 77882. Specifically, EPA
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In summary, after several court
decisions and public petitions, the
Federal major NSR program (found in
40 CFR 51.165, 51.166, and 52.21) no
longer includes the provisions related to
Clean Units or PCPs that were part of
the 2002 NSR reform rules.
Additionally, an indefinite stay has
been placed on the Fugitive Emissions
Rule. Mecklenburg County is adopting
most of the surviving provisions from
the 2002 NSR Reform Rules, with
changes. More details on Mecklenburg
County’s adoption of the 2002 NSR
Reform Rules and EPA’s analysis of its
submittal can be found in section III.A
of this NPRM.
B. Fine Particulate Matter (PM2.5)
NAAQS
1. Implementation of NSR for the PM2.5
NAAQS and Grandfathering Provisions
On May 16, 2008 (73 FR 28321), EPA
published the ‘‘Implementation of the
New Source Review (NSR) Program for
Particulate Matter Less than 2.5
Micrometers (PM2.5)’’ Final Rule
(hereinafter referred to as the NSR PM2.5
Rule). The NSR PM2.5 Rule revised the
NSR program requirements to establish
the framework for implementing
preconstruction permit review for the
PM2.5 NAAQS in both attainment and
nonattainment areas. As indicated in the
NSR PM2.5 Rule, major stationary
sources seeking permits must begin
directly satisfying the PM2.5
requirements, as of the effective date of
the rule, rather than relying on PM10 as
a surrogate, with two exceptions. The
first exception was a ‘‘grandfathering’’
provision in the Federal PSD program at
40 CFR 52.21(i)(1)(xi). This
grandfathering provision applied to
sources that had applied for, but had not
yet received, a final and effective PSD
permit before the July 15, 2008, effective
date of the May 2008 final rule. The
second exception was that states with
SIP-approved PSD programs could
continue to implement a policy in
which PM10 served as a surrogate for
PM2.5 for up to three years (until May
2011) or until the individual revised
state PSD programs for PM2.5 are
approved by EPA, whichever came
first.9
is not acting on the incorporation by reference of
40 CFR 51.166(b)(2)(v), nor 51.166(b)(3)(iii)(d),
which were subsequently stayed indefinitely in a
March 30, 2011, final rule. See 76 FR 17548.
9 After EPA promulgated the NAAQS for PM
2.5 in
1997, the Agency issued a guidance document
entitled ‘‘Interim Implementation of New Source
Review Requirements for PM2.5,’’ which allowed for
the regulation of PM10 as a surrogate for PM2.5 until
significant technical issues were resolved (the
‘‘PM10 Surrogate Policy’’). John S. Seitz, EPA,
October 23, 1997.
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On February 11, 2010 (75 FR 6827),
EPA proposed to repeal the
grandfathering provision for PM2.5
contained in the Federal PSD program at
40 CFR 52.21(i)(1)(xi) and to end early
the PM10 Surrogate Policy applicable in
states that have a SIP-approved PSD
program. In support of this proposal,
EPA explained that the PM2.5
implementation issues that led to the
adoption of the PM10 Surrogate Policy in
1997 had been largely resolved to a
degree sufficient for sources and
permitting authorities to conduct
meaningful permit related PM2.5
analyses. On May 18, 2011 (76 FR
28646), EPA took final action to repeal
the PM2.5 grandfathering provision at 40
CFR 52.21(i)(1)(xi). This final action
ended the use of the 1997 PM10
Surrogate Policy for PSD permits under
the Federal PSD program at 40 CFR
52.21. In effect, any PSD permit
applicant previously covered by the
grandfathering provision (for sources
that completed and submitted a permit
application before July 15, 2008) 10 that
did not have a final and effective PSD
permit before the effective date of the
repeal will not be able to rely on the
1997 p.m.10 Surrogate Policy to satisfy
the PSD requirements for PM2.5 unless
the application includes a valid
surrogacy demonstration.
The NSR PM2.5 Rule also established
the following NSR requirements for PSD
to implement the PM2.5 NAAQS: (1)
required NSR permits to address
directly emitted PM2.5 and precursor
pollutants; (2) established significant
emission rates for direct PM2.5 and
precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides
(NOX)); and (3) required states to
account for gases that condense to form
particles (‘‘condensables’’) in PM2.5 and
PM10 emission limits in PSD or NNSR
permits.
2. PM2.5 Condensables Correction
Among the changes included in the
NSR PM2.5 Rule mentioned above, EPA
also revised the definition of ‘‘regulated
NSR pollutant’’ for PSD to add a
paragraph providing that ‘‘particulate
matter (PM) emissions, PM2.5 emissions
and PM10 emissions shall include
gaseous emissions from a source or
activity which condense to form
particulate matter at ambient
temperatures’’ and that on or after
January 1, 2011, ‘‘such condensable
particulate matter shall be accounted for
in applicability determinations and in
10 Sources that applied for a PSD permit under
the Federal PSD program on or after July 15, 2008,
are already excluded from using the 1997 p.m.10
Surrogate Policy as a means of satisfying the PSD
requirements for PM2.5. See 73 FR 28321.
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establishing emissions limitations for
PM, PM2.5 and PM10 in permits.’’ See 73
FR 28321 at 28348 (May 16, 2008). A
similar paragraph added to the NNSR
rule did not include ‘‘particulate matter
(PM) emissions.’’ See 40 CFR
51.165(a)(1)(xxxvii)(D).
On October 25, 2012 (77 FR 65107),
EPA took final action to amend the
definition, promulgated in the 2008
NSR PM2.5 Rule, of ‘‘regulated NSR
pollutant’’ contained in the PM
condensable provision at 40 CFR
51.166(b)(49)(vi), 52.21(b)(50)(i) and
appendix S to 40 CFR part 51
(hereinafter referred to as the PM2.5
Condensables Correction Rule). The
PM2.5 Condensables Correction Rule
removed the inadvertent requirement in
the NSR PM2.5 Rule that the
measurement of condensable particulate
matter be included as part of the
measurement and regulation of
‘‘particulate matter emissions’’ under
the PSD program. The term ‘‘particulate
matter emissions’’ includes only
filterable particles that are larger than
PM10.
3. PM2.5 PSD Increments, Significant
Impact Levels (SILs), and Significant
Monitoring Concentration (SMC) Rule
On October 20, 2010 (75 FR 64863),
EPA published a final rule entitled
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter less than 2.5
Micrometers (PM2.5),’’ amending the
requirements for PM2.5 under the
Federal PSD program (also referred to as
the PM2.5 PSD-Increments-SILs-SMC
Rule). The final rule established the
following: (1) PM2.5 increments
pursuant to section 166(a) of the CAA to
prevent significant deterioration of air
quality in areas attaining the NAAQS;
(2) PM2.5 Significant Impact Levels
(SILs) for PSD and NNSR; and (3)
Significant Monitoring Concentration
(SMC) for PSD purposes.
Subsequently, in response to a
challenge to the PM2.5 SILs and SMC
provisions of the PM2.5 PSD-IncrementSILs-SMC Rule, the D.C. Circuit vacated
and remanded to EPA the portions of
the rule addressing PM2.5 SILs, except
for the PM2.5 SILs promulgated in EPA’s
NNSR rules at 40 CFR 51.165(b)(2). See
Sierra Club v. EPA, 705 F.3d 458, 469
(D.C. Cir. 2013). The D.C. Circuit also
vacated the parts of the rule establishing
a PM2.5 SMC for PSD purposes. Id. EPA
removed these vacated provisions in a
December 9, 2013 (78 FR 73698), final
rule.
The PM2.5 SILs promulgated in EPA’s
NNSR regulations at 40 CFR
51.165(b)(2) were not vacated by the
D.C. Circuit because, unlike the SILs
promulgated in the PSD regulations (40
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CFR 51.166, 52.21), the SILs
promulgated in the NNSR regulations at
40 CFR 51.165(b)(2) do not serve to
exempt a source from conducting a
cumulative air quality analysis. Rather,
the SILs promulgated at 40 CFR
51.165(b)(2) establish levels at which a
proposed new major source or major
modification located in an area
designated as attainment or
unclassifiable for any NAAQS would be
considered to cause or contribute to a
violation of a NAAQS in any area. For
this reason, the D.C. Circuit left the
PM2.5 SILs at 40 CFR 51.165(b)(2) in
place.
Mecklenburg County is adopting the
Federal provisions relevant to PSD
permitting for PM2.5 in the April 24,
2020, submittal. This update to
Mecklenburg’s PSD regulations is
necessary and is consistent with North
Carolina’s rules and the Federal rules.
See section III.B of this NPRM for more
details on the adoption of provisions to
implement PM2.5 for PSD permitting.
C. 1997 8-Hour Ozone NAAQS Phase 2
Rule
On November 29, 2005 (70 FR 71612),
EPA published a final rule entitled
‘‘Final Rule To Implement the 8-Hour
Ozone National Ambient Air Quality
Standard—Phase 2; Final Rule To
Implement Certain Aspects of the 1990
Amendments Relating to New Source
Review and Prevention of Significant
Deterioration as They Apply in Carbon
Monoxide, Particulate Matter and Ozone
NAAQS; Final Rule for Reformulated
Gasoline’’ (hereinafter referred to as the
Phase 2 Rule). The Phase 2 Rule
addressed control and planning
requirements as they applied to areas
designated nonattainment for the 1997
8-hour ozone NAAQS 11 such as
reasonably available control technology,
reasonably available control measures,
reasonable further progress, modeling
and attainment demonstrations, NSR,
and the impact to reformulated gasoline
for the 1997 8-hour ozone NAAQS
transition. Additionally, regarding the
NSR permitting requirements which are
relevant to this proposed action, the
Phase 2 Rule included the following
11 On July 18, 1997, EPA promulgated a revised
8-hour ozone NAAQS of 0.08 parts per million
(ppm)—also referred to as the 1997 8-hour ozone
NAAQS. On April 30, 2004, EPA designated areas
as unclassifiable/attainment, nonattainment, and
unclassifiable for the 1997 8-hour ozone NAAQS.
In addition, on April 30, 2004 (69 FR 23951), as part
of the framework to implement the 1997 8-hour
ozone NAAQS, EPA promulgated an
implementation rule in two phases (Phases I and II).
The Phase I Rule (effective on June 15, 2004),
provided the implementation requirements for
designating areas under subpart 1 and subpart 2 of
the CAA.
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provisions: (1) recognized NOX as an
ozone precursor for PSD purposes; and
(2) established significant emission rates
for the ozone precursors volatile organic
compounds (VOCs) and NOX in the PSD
regulations.12
The April 24, 2020, LIP revision
adopts the relevant PSD provisions of 40
CFR 51.166, thus recognizing NOX as a
precursor to ozone alongside VOCs. The
adoption of these provisions is
consistent with the Federal PSD
provisions as well as North Carolina’s
rules. More details on Mecklenburg
County’s adoption of the Ozone Phase 2
Rule provisions for PSD and EPA’s
analysis of its submittal can be found in
section III.C of this NPRM.
D. Greenhouse Gas Tailoring Rule and
Biomass Deferral Rule
On January 2, 2011, emissions of
greenhouse gases (GHGs) were, for the
first time, covered by the PSD and title
V operating permit programs.13 To
establish a process for phasing in the
permitting requirements for stationary
sources of GHGs under the CAA’s PSD
and title V programs, on June 3, 2010,
EPA published a final rule entitled
‘‘Prevention of Significant Deterioration
and Title V Greenhouse Gas Tailoring
Rule’’ (hereinafter referred to as the
‘‘GHG Tailoring Rule’’). See 75 FR
31514. In Step 1 of the GHG Tailoring
Rule, which took effect on January 2,
2011, EPA limited application of PSD
and title V requirements to sources and
modifications of GHG emissions, but
only if they were subject to PSD or title
V ‘‘anyway’’ due to their emissions of
pollutants other than GHGs. These
sources and modifications covered
under Step 1 are commonly referred to
as ‘‘anyway sources’’ and ‘‘anyway
modifications,’’ respectively.
In Step 2 of the GHG Tailoring Rule,
which took effect on July 1, 2011, the
PSD and title V permitting requirements
extended beyond the sources and
modifications covered under Step 1 to
apply to sources that were classified as
major sources based solely on their GHG
emissions or potential to emit GHGs.
Step 2 also applied PSD permitting
requirements to modifications of
otherwise major sources that would
increase only GHG emissions above the
threshold in the Federal PSD
regulations. EPA generally described the
12 This action also established significant
emission rates for PM10 and carbon monoxide in
EPA’s Federal NNSR regulations. MCAQ has not
transmitted any changes to its LIP-approved NNSR
program at Rule 2.0531, Sources in Nonattainment
Areas, in the April 24, 2020, LIP revision. There are
no designated nonattainment areas in Mecklenburg
County at this time.
13 See 75 FR 17004 (April 2, 2010).
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sources and modifications covered by
PSD under Step 2 of the Tailoring Rule
as ‘‘Step 2 sources and modifications’’
or ‘‘GHG-only sources and
modifications.’’
Subsequently, EPA published Step 3
of the GHG Tailoring Rule on July 12,
2012. See 77 FR 41051. In the rule, EPA
decided against further phase-in of the
PSD and title V requirements for sources
emitting lower levels of GHG emissions.
Thus, the thresholds for determining
PSD and title V applicability based on
emissions of GHGs remained the same
as established in Steps 1 and 2 of the
Tailoring Rule.
On June 23, 2014, the U.S. Supreme
Court addressed the application of
stationary source permitting
requirements to GHG emissions in
Utility Air Regulatory Group v. EPA, 573
U.S. 302 (2014) (UARG). The Supreme
Court upheld EPA’s regulation of GHG
Step 1—or ‘‘anyway’’ sources—but held
that EPA may not treat GHGs as air
pollutants for the purpose of
determining whether a source is a major
source (or is undergoing a major
modification) and thus require the
source to obtain a PSD or title V permit.
Therefore, the Court invalidated the
PSD and title V permitting requirements
for GHG Step 2 sources and
modifications.
In accordance with the Supreme
Court’s decision, on April 10, 2015, the
D.C. Circuit issued an Amended
Judgment vacating the regulations that
implemented Step 2 of the GHG
Tailoring Rule, but not the regulations
that implement Step 1 of the GHG
Tailoring Rule. See Coalition for
Responsible Regulation, Inc. v. EPA, 606
Fed. Appx. 6, 7 (D.C. Cir. 2015). The
Amended Judgment specifically vacated
the EPA regulations under review
(including 40 CFR 51.166(b)(48)(v) and
40 CFR 52.21(b)(49)(v)) ‘‘to the extent
they require a stationary source to
obtain a PSD permit if greenhouse gases
are the only pollutant (i) that the source
emits or has the potential to emit above
the applicable major source thresholds,
or (ii) for which there is a significant
emissions increase from a
modification.’’ Id. at 7–8.
In response, EPA promulgated a good
cause final rule on August 19, 2015,
entitled ‘‘Prevention of Significant
Deterioration and Title V Permitting for
Greenhouse Gases: Removal of Certain
Vacated Elements.’’ See 80 FR 50199
(August 19, 2015) (hereinafter referred
to as the ‘‘Good Cause GHG Rule’’). The
rule removed from the Federal
regulations the portions of the PSD
permitting provisions for Step 2 sources
that were vacated by the D.C. Circuit
(i.e., 40 CFR 51.166(b)(48)(v) and
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52.21(b)(49)(v)). Therefore, EPA no
longer has the authority to conduct PSD
permitting for Step 2 sources, nor can
the Agency approve provisions
submitted by a state for inclusion in its
SIP providing this authority. On October
3, 2016, EPA proposed to revise
provisions in the PSD permitting
regulations applicable to GHGs to
address the GHG applicability threshold
for PSD in order to fully conform with
UARG and the Amended Judgment, but
those revisions have not been finalized.
See 81 FR 68110.
On July 20, 2011, EPA finalized the
Biomass Deferral Rule, which deferred
for a period of three years, the
application of PSD and Title V
permitting requirements to carbon
dioxide (CO2) emissions from bioenergy
and other biogenic stationary sources
(also known as biogenic CO2 emissions).
See 76 FR 43490. During this three-year
period, stationary sources that combust
biomass and constructed or modified a
facility would have avoided the
application of PSD to biogenic CO2
emissions resulting from construction or
modification. The deferral applied only
to biogenic CO2 emissions and did not
affect other GHGs emitted from the
combustion of biomass fuel and
decomposition of biogenic material or
non-GHG pollutants. Additionally, the
deferral only applied to biogenic CO2
emissions in the PSD and Title V
programs; it did not apply to any other
EPA programs, such as the GHG
Reporting Program.14
On July 12, 2013, the D.C. Circuit
vacated the Biomass Deferral Rule, but
on November 14, 2013, issued an order
delaying the vacatur of the Biomass
Deferral Rule until the U.S. Supreme
Court made a final decision in the
UARG case related to the GHG Tailoring
Rule. See Center for Biological Diversity
v. EPA, 722 F.3d 401. After a final
decision was made by the Supreme
Court on June 23, 2014, in UARG, EPA
did not immediately take formal action
to remove the Biomass Deferral Rule
from the CFR. On July 19, 2021, EPA
removed the vacated text of the Biomass
Deferral Rule from 40 CFR
51.166(b)(48)(ii)(a), 52.21(b)(49)(ii)(a),
70.2(2), and 71.2(2). See 86 FR 37918.
The April 24, 2020, LIP revision
adopts the PSD plan requirements of 40
CFR 51.166, and adopts other relevant
provisions directly to implement PSD
for greenhouse gases, consistent with
the Federal PSD provisions as well as
North Carolina’s rules. See section III.D
of this NPRM for more details.
14 See https://www.epa.gov/ghgreporting for
information on the GHG Reporting Program.
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E. Equipment Replacement Provision
Under Federal regulations, certain
activities are not considered to be a
physical change or a change in the
method of operation at a source, and
thus do not trigger NSR review. One
category of such activities is routine
maintenance, repair and replacement
(RMRR). On October 27, 2003 (68 FR
61248), EPA published a rule entitled
‘‘Prevention of Significant Deterioration
(PSD) and Non-Attainment New Source
Review (NSR): Equipment Replacement
Provision of the Routine Maintenance,
Repair and Replacement Exclusion’’
(hereinafter referred to as the ‘‘ERP
Rule’’). The ERP Rule provided criteria
for determining whether an activity falls
within the RMRR exemption. The ERP
Rule also provided a list of equipment
replacement activities that are exempt
from NSR permitting requirements,
while ensuring that industries maintain
safe, reliable, and efficient operations
that will have little or no impact on
emissions. Under the ERP Rule, a
facility undergoing equipment
replacement would not be required to
undergo NSR review if the facility
replaced any component of a process
unit with an identical or functionally
equivalent component. The rule
included several modifications to the
NSR rules to explain what would
qualify as an identical or functionally
equivalent component.
Shortly after the October 27, 2003,
rule, several parties filed petitions for
review of the ERP Rule in the D.C.
Circuit. The court stayed the effective
date of the rule pending resolution of
the petitions. A collection of
environmental groups, public interest
groups, and states, subsequently filed a
petition for reconsideration with EPA,
requesting that the Agency reconsider
certain aspects of the ERP Rule. EPA
granted the petition for reconsideration
on July 1, 2004 (69 FR 40278).15 After
reconsideration, EPA published its final
response on June 10, 2005 (70 FR
33838), which stated that the Agency
would not change any aspects of the
ERP. On March 17, 2006, the D.C.
Circuit acted on the petitions for review
and vacated the ERP Rule.16 EPA
removed the vacated language from the
15 The reconsideration granted by EPA opened a
new 60-day public comment period, including a
new public hearing, on three issues of the ERP: (1)
the basis for determining that the ERP was
allowable under the CAA; (2) the basis for selecting
the cost threshold (20 percent of the replacement
cost of the process unit) that was used in the final
rule to determine if a replacement was routine; and
(3) a simplified procedure for incorporating a
Federal Implementation Plan into state plans to
accommodate changes to the NSR rules.
16 New York v. EPA, 443 F.3d 880 (D.C. Cir.
2006).
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Federal rules in a final rule published
on July 19, 2021 (86 FR 37918).
Rule 2.0530 in the April 24, 2020,
Mecklenburg submittal adopts the
requirements of 40 CFR 51.166 as
amended July 1, 2014, with exceptions.
Likewise, Rule 2.0544 of the April 24,
2020, Mecklenburg submittal adopts the
requirements of 40 CFR 51.166 as
amended July 20, 2011, with exceptions.
In this NPRM, EPA is not proposing to
act on the incorporation by reference of
language to implement the ERP, as
provided in EPA’s October 27, 2003,
rule. See 68 FR 61248. Specifically, EPA
is not acting on the incorporation by
reference of the 2003 changes to 40 CFR
51.166(b)(2)(iii)(a), the incorporation by
reference of 40 CFR 51.166(b)(53)
through (56), nor the incorporation by
reference of 40 CFR 51.166(y). These
provisions were in the Federal rule as of
July 1, 2014; but, previously vacated by
the D.C. Circuit.17 EPA subsequently
removed the vacated provisions from
the CFR. See 86 FR 37918 (July 19,
2021).
F. Ethanol Rule
Under the CAA, there are two
possible thresholds for determining
whether a source is a major emitting
facility that is potentially subject to the
construction permitting requirements
under the PSD program; one threshold
is 100 tons per year (tpy) per pollutant,
and the other is 250 tpy per pollutant.
Section 169(1) of the CAA lists twentyeight source categories that qualify as
major emitting facilities if their
emissions equal or exceed the 100 tpy
threshold. If the source does not fall
within one of twenty-eight source
categories listed in section 169, then the
250 tpy threshold is applicable.
One of the source categories in the list
of twenty-eight source categories, to
which the 100 tpy threshold applies, is
chemical process plants. Since the
Standard Industrial Classification (SIC)
code for chemical process plants
includes facilities primarily engaged in
manufacturing ethanol fuel, EPA and
states had previously considered such
facilities to be subject to the 100 tpy
thresholds.
As a result of this classification,
pursuant to EPA’s major NSR
regulations, chemical process plants
were also required to include fugitive
emissions for determining the potential
emissions of such sources. Thus, prior
to promulgation of the 2007 Ethanol
Rule, the classification of fuel and
industrial ethanol facilities as chemical
process plants had the effect of
requiring these plants to include
17 See
footnote 16.
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fugitive emissions when determining
whether their emissions exceed the
applicability thresholds for the PSD and
NNSR permit programs.
On May 1, 2007, EPA published the
2007 Ethanol Rule (72 FR 24060), which
amended EPA’s PSD and NNSR
regulations to exclude ethanol
manufacturing facilities that produce
ethanol by natural fermentation
processes from the ‘‘chemical process
plants’’ category under the regulatory
definition of ‘‘major stationary source.’’
This change to EPA’s NSR regulations
affected the threshold used to determine
PSD applicability for these ethanol
production facilities, clarifying that
such facilities were subject to the 250
tpy major source threshold. The 2007
Ethanol Rule also included changes to
other provisions which established that
ethanol facilities need not count fugitive
emissions when determining whether
such a source is ‘‘major’’ under the
Federal PSD, NNSR, and Title V
permitting programs.
On July 2, 2007, the National
Resources Defense Council (NRDC)
petitioned the D.C. Circuit to review the
2007 Ethanol Rule. On that same day,
EPA received a petition for
administrative reconsideration and
request for stay of the 2007 Ethanol Rule
from NRDC. On March 27, 2008, EPA
denied NRDC’s 2007 administrative
petition for reconsideration.
On March 2, 2009, EPA received a
second petition for reconsideration and
request for stay from NRDC. In 2009,
NRDC also filed a petition for judicial
review challenging EPA’s March 27,
2008, denial of NRDC’s 2007
administrative petition in the D.C.
Circuit. This challenge was consolidated
with NRDC’s challenge to the 2007
Ethanol Rule. In August of 2009, the
D.C. Circuit granted a joint motion to
hold the case in abeyance, and the case
has remained in abeyance.
On October 21, 2019, EPA partially
granted and partially denied NRDC’s
2009 administrative petition for
reconsideration. See 84 FR 59743
(November 6, 2019). Specifically, EPA
granted the request for reconsideration
with regard to NRDC’s claim that the
2007 Ethanol Rule did not appropriately
address the CAA section 193 antibacksliding requirements for
nonattainment areas. EPA denied the
remainder of the requests for
reconsideration on the grounds that
NRDC failed to establish that
reconsideration was warranted under
CAA section 307(d)(7)(B).
Mecklenburg County’s incorporation
by reference of Federal PSD provisions
as of July 1, 2014, includes the 2007
Ethanol Rule’s changes to the treatment
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of ethanol production facilities. See
section III.F of this NPRM and EPA’s
technical support document in the
docket for this proposed action for more
details.
III. Analysis of Mecklenburg’s April 24,
2020 Submittal
MCAQ adopts the Federal PSD
requirements of 40 CFR 51.166 with
several changes, consistent with the
State of North Carolina’s PSD
provisions.18 MCAPCO Rule 2.0530
adopts certain provisions of the version
of 40 CFR 51.166 effective on July 1,
2014, with certain revisions described
in this document, and Rule 2.0544
adopts certain provisions of the version
of the Federal rule effective on July 20,
2011, with certain revisions described
in this document. EPA’s analysis of
several features of the April 24, 2020,
LIP revision related to Mecklenburg
County’s PSD program at Rules 2.0530
and 2.0544 is included in the following
subsections.
A. 2002 NSR Reform Rules
This SIP revision addresses baseline
actual emissions, actual-to-projected
actual applicability tests, PALs,
recordkeeping requirements, and
reporting requirements.19 Rule 2.0530
adopts the Federal PSD requirements at
40 CFR 51.166, as amended July 1, 2014,
with certain revisions described in this
document. These revisions include a
non-substantive update to the definition
of ‘‘baseline actual emissions;’’ an
amendment pursuant to the PAL
adjustment provision at
51.166(w)(10)(iv)(a); and streamlined
language to adopt the recordkeeping and
reporting requirements at 51.166(r)(6).
As a general matter, state and local
agencies may meet the requirements of
40 CFR part 51 with different but
equivalent (or more stringent)
regulations. As mentioned above,
MCAQ chose to adopt the Federal rules
with several changes, consistent with
North Carolina’s SIP-approved PSD
provisions. The definition of ‘‘baseline
actual emissions’’ at Rule 2.0530(b)(1)
was changed from the Federal
provisions to remove the provision
allowing emissions units that are not
electric utility steam generating units
(EUSGUs) to look back 10 years to select
the baseline period. Mecklenburg
18 See, e.g., 76 FR 49313 (August 10, 2011); 76 FR
64240 (October 18, 2011); 81 FR 63107 (September
14, 2016); 83 FR 45827 (September 11, 2018); 84 FR
38876 (August 8, 2019); and 85 FR 57707
(September 16, 2020).
19 As noted in section II.A, EPA is not proposing
to act on the incorporation by reference of EPA’s
indefinitely stayed fugitive emissions provisions at
40 CFR 51.166(b)(2)(v) and 51.166(b)(3)(iii)(d).
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County rules treat EUSGUs and nonEUSGUs the same by allowing a lookback of only five years. However,
Mecklenburg County rules provide the
option of allowing a different time
period, not to exceed 10 years, if the
owner or operator demonstrates that it
is more representative of normal source
operation as required by 40 CFR
51.166(b)(47)(i). In addition,
Mecklenburg County rules require
EUSGUs to adjust downward the
baseline emissions to account for
reductions required under the North
Carolina Clean Smokestacks Act, which
is a North Carolina law that became
effective in 2007 and set caps on NOX
and SO2 emissions from public utilities
operating coal-fired power plants in the
State that cannot be met by purchasing
emissions credits. See N.C. Gen. Stat.
section 143–215.107D; N.C. Gen. Stat.
section 62–133.6.
With regard to the PAL adjustment
provision at 51.166(w)(10)(iv)(a), the
Federal regulations provide the option
that if the emissions level is equal to or
greater than 80 percent of the PAL level,
the reviewing authority may renew the
PAL at the same level or it may set the
PAL at a different level considering
other factors per 40 CFR
51.166(w)(10)(iv)(b). Rule 2.0530(i)
instead requires that the PAL be
renewed at the same level if emissions
are equal to or greater than 80 percent
of the PAL.
With regard to the remanded portions
of the 2002 NSR Reform Rules related to
recordkeeping and EPA’s December 21,
2007, clarifications of the term
‘‘reasonable possibility’’ (72 FR 72607),
Mecklenburg County did not adopt all
the provisions at 40 CFR 51.166(r)(6) or
adopt the Federal ‘‘reasonable
possibility’’ standard. Instead,
Mecklenburg County adopted
recordkeeping and reporting
requirements at paragraph 2.0530(u)
that apply to all modifications that use
the actual-to-projected-actual
applicability test. Therefore, the
Mecklenburg County provisions meet
the minimum recordkeeping and
reporting requirements of the Federal
rule.
In addition to incorporating the
Federal rules by reference with several
changes, Mecklenburg County’s rule
revisions include two additional
provisions that do not directly relate to
the 2002 NSR Reform rules, including:
(1) incorporating by reference 40 CFR
52.21(r)(2) to clarify the period of
validity of approval to construct; and (2)
requiring that all new natural gas-fired
EUSGUs install best available control
technology or lowest achievable
emission rate, as appropriate. This
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second requirement was included in the
North Carolina rules originally for
clarity and consistency with restrictions
on use of allowances imposed by an
agreement resulting from provisions of
the North Carolina Clean Smokestacks
Act, and Mecklenburg County adopted
the same provision to be consistent with
the State.20
EPA believes that approval of these
changes would not have a negative
impact on air quality in the
Mecklenburg County area. With these
proposed changes, the local regulations
will now be consistent with the State’s
current SIP-approved PSD program,
which already underwent updates
concerning the 2002 NSR Reform Rules
on August 10, 2011. See 76 FR 49313.
B. Fine Particulate Matter (PM2.5)
NAAQS
The April 24, 2020, submittal adopts
the PM2.5 provisions necessary to
implement PSD for the PM2.5 NAAQS.
First, regarding the 2008 NSR PM2.5
Rule, the incorporation by reference
date of July 1, 2014, captures the
requirement for PSD permits to address
directly emitted PM2.5 and precursor
pollutants as codified at 40 CFR
51.166(b)(49). This incorporation by
reference date also includes the PSD
requirement that condensable PM10 and
PM2.5 emissions be accounted for in PSD
applicability determinations and in
establishing emissions limitations for
permitting, as codified at section
51.166(b)(49) and corrected in EPA’s
October 25, 2012 PM2.5 Condensable
Correction Rule (77 FR 65107). The
significant emission rates for direct
PM2.5 and its precursors of SO2 and NOX
are adopted at Rule 2.0530(b)(4), which
references 40 CFR 51.166(b)(23)(i), and
which also notes that VOCs and
ammonia are not significant precursors
to PM2.5 in attainment and
unclassifiable areas where Rule 2.0530
would apply. This is consistent with
Federal language on PM2.5 precursor
pollutants at 40 CFR 51.166(b)(23)(i)
and 51.166(b)(49)(i)(b)(4).
Next, Rule 2.0530(e)’s adoption of the
July 1, 2014, requirements of 40 CFR
51.166(c) include required elements of
EPA’s PM2.5 PSD-Increments-SILs-SMC
Rule. Specifically, adopting the Federal
rule as of July 1, 2014, includes the
20 Any allowances for emissions reductions
achieved under the North Carolina Clean
Smokestacks Act are not available to the subject
facilities for Federal Clean Air Act programs
because they are ‘‘state only’’ reductions, and such
reductions may not be used to offset emissions and
avoid installation of BACT or LAER on new natural
gas-fired units. See generally https://deq.nc.gov/
about/divisions/air-quality/air-quality-outreach/
news/clean-air-legislation/clean-smokestacks-act
(last accessed March 23, 2022).
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PM2.5 increments at 40 CFR 51.166(c)(1).
Additionally, by adopting the
definitions contained in 40 CFR
51.166(b) as of July 1, 2014, Rule
2.0530(b) has the effect of adding to the
Mecklenburg County LIP the required
definitions of ‘‘major source baseline
date,’’ ‘‘minor source baseline date,’’
and ‘‘baseline area.’’
Finally, Rule 2.0530 does not include
(1) the grandfathering provisions from
the PM2.5 NSR Rule, or (2) the PM2.5
SILs and SMC provisions from the PM2.5
Increments-SILs-SMC Rule, as the July
1, 2014, date captures EPA’s May 18,
2011, and December 9, 2013, actions to
remove these provisions, respectively.
See 76 FR 28646 and 78 FR 73698.
Therefore, EPA has preliminarily
determined that Mecklenburg County’s
incorporation by reference of EPA’s PSD
regulations as of July 1, 2014, is
consistent with current Federal
provisions to implement PM2.5 for PSD.
C. 1997 8-Hour Ozone NAAQS Phase 2
Rule
Mecklenburg County adopts the PSD
provisions from the Ozone Phase 2 Rule,
as noted in section II.C of this NPRM.
Consistent with North Carolina’s rules
and the Federal rules, Rule 2.0530(b)
adopts the same language regarding the
Phase 2 Rule via the incorporation by
reference of 40 CFR 51.166(b)(1)(ii),
51.166(b)(2)(ii), 51.166(b)(23)(i), and
51.166(b)(49)(i), which effectively
recognizes VOCs and NOx as precursors
to ozone for purposes of PSD. Therefore,
EPA has preliminarily determined that
MCAQ’s proposed LIP revision is
consistent with the Ozone Phase 2 Rule.
D. Greenhouse Gas Tailoring Rule and
Biomass Deferral Rule
The April 24, 2020, SIP revision
establishes thresholds for determining
which new stationary sources and
modification projects become subject to
permitting requirements for GHG
emissions under Mecklenburg County’s
PSD program. This SIP revision updates
MCAQ’s existing PSD program to
include a new rule applicable to GHGs
only. Specifically, the revision
incorporates a new PSD rule into
Mecklenburg County’s LIP, at MCAPCO
Rule 2.0544, Prevention of Significant
Deterioration Requirements for
Greenhouse Gases, to address the
thresholds for GHG permitting
applicability. This new regulation
adopts the provisions of 40 CFR 51.166
as effective on July 26, 2011, to
specifically include the Federal
Tailoring Rule requirements still in
place and defined at 40 CFR 51.166. For
all other regulated NSR pollutants, the
provisions of Rule 2.0530 apply.
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Additionally, Rule 2.0544(a) reflects
the effects of the 2014 UARG decision
on PSD permitting requirements for
GHG-only, or Step 2, sources, by
including the following language: ‘‘A
major stationary source or major
modification shall not be required to
obtain a prevention of significant
deterioration (PSD) permit on the sole
basis of its greenhouse gas emissions.
For all other regulated NSR pollutants,
the provisions of MCAPCO Regulation
2.0530 of this [sic] apply.’’
The Rule also includes a mechanism
at Rule 2.0554(d) to automatically
incorporate any changes to the Federal
GHG global warming potentials into the
definition of ‘‘subject to regulation’’
incorporated by reference from 40 CFR
51.166(b)(48) that may occur after the
incorporation by reference (‘‘IBR’’) date.
In order to determine if a source is
subject to regulation for GHGs, a
source’s total GHG emissions are
calculated using the global warming
potentials published in Table A–1 of
Subpart A of 40 CFR part 98.21 MCAQ’s
submittal ensures that any future
changes EPA makes to Table A–1 are
concurrently incorporated into the
Mecklenburg County LIP-approved PSD
program for greenhouse gases without
the need for further LIP revisions.
The July 20, 2011, version of the
definition of ‘‘subject to regulation’’ at
40 CFR 51.166(b)(48) includes the text
of the Biomass Deferral Rule, discussed
in section II.D of this NPRM, at
51.166(b)(48)(ii)(a). However, MCAQ
submitted a letter on February 4, 2022,
through NCDAQ, clarifying its intent for
EPA not to adopt the since-vacated text
of the Biomass Deferral Rule into the
federally-approved LIP. The letter
withdraws this portion of the adoption
of PSD provisions in its submittal from
EPA consideration.
In the February 4, 2022, supplemental
letter, Mecklenburg County also clarifies
that while Rule 2.0544’s definition of
‘‘baseline actual emissions’’ does not
include the term ‘‘immediately’’ at
subparagraph 2.0544(b)(1), MCAQ will
enforce the provision as if the term were
present based on MCAQ’s interpretation
and North Carolina’s interpretation that
this word is extraneous. This rule
21 GHGs, as defined in the definition of ‘‘subject
to regulation’’ at 40 CFR 51.166(b)(48), is the
aggregate of six different gases: carbon dioxide,
nitrous oxide, methane, hydrofluorocarbons,
perfluorocarbons, and sulfur hexafluoride. To
calculate the total GHG emissions for a source: (1)
the mass amount of emissions, in tpy, of each
individual GHG is multiplied by its global warming
potential found in Table A–1 of Subpart A of 40
CFR part 98, and (2) the resulting values for each
individual GHG are added. This results in the total
GHG emissions for the source expressed in tpy of
CO2 equivalent (tpy CO2e).
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previously included the term
‘‘immediately’’ in its locally effective
version, as follows:
For an existing emissions unit, baseline
actual emissions means the average rate, in
tons per year, at which the emissions unit
actually emitted the pollutant during any
consecutive 24-month period selected by the
owner or operator within the 5-year period
immediately preceding the date that a
complete permit application is received by
the Department for a permit required under
this Rule. The Director shall allow a different
time period, not to exceed 10 years
immediately preceding the date that a
complete permit application is received by
the Department, if the owner or operator
demonstrates that it is more representative of
normal source operation. . . .
Without the term ‘‘immediately,’’ this
provision reads as follows:
For an existing emissions unit, baseline
actual emissions mean the average rate, in
tons per year, at which the emissions unit
actually emitted the pollutant during any
consecutive 24-month period selected by the
owner or operator within the 5-year period
preceding the date that a complete permit
application is received by the Department for
a permit required under this Rule. The
Director shall allow a different time period,
not to exceed 10 years preceding the date that
a complete permit application is received by
the Department, if the owner or operator
demonstrates that it is more representative of
normal source operation. . . .
The term ‘‘immediately’’ was
eliminated from the State’s analogous
rule at 15A North Carolina
Administrative Code Rule 02D .0544
subparagraph (b)(1) as the result of a
technical correction from the North
Carolina Rules Review Commission to
remove this word as extraneous text.
North Carolina previously submitted a
letter clarifying that the State intends to
enforce its provision at 15A North
Carolina Administrative Code Rule 02D
.0544 subparagraph (b)(1) as if the term
‘‘immediately’’ were present in the rule.
MCAQ’s February 4, 2022, letter notes
that MCAQ intends to be consistent
with the State and therefore also intends
to enforce subparagraph 2.0544(b)(1) as
if the term ‘‘immediately’’ were present.
EPA also notes that the definition of
‘‘baseline actual emissions,’’ as included
in Rule 2.0530(b)(1) for other regulated
NSR pollutants, includes the term
‘‘immediately.’’ Therefore, MCAQ
would be enforcing 2.0544(b)(1)
consistent with how the term is defined
at 2.0530(b)(1). EPA’s proposed action
to incorporate the definition of
‘‘baseline actual emissions’’ is based on
Mecklenburg County’s interpretation of
this subparagraph as explained in the
February 4, 2022, letter.22
22 EPA incorporated this language into the SIP on
August 8, 2019 (84 FR 38876).
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EPA has preliminarily determined
that MCAQ’s proposed LIP revision is
consistent with the Tailoring Rule.
Furthermore, EPA has preliminarily
determined that this revision to
Mecklenburg County’s LIP is consistent
with section 110 of the CAA. Therefore,
EPA is proposing to incorporate Rule
2.0544 into the Mecklenburg County
LIP, excluding the language of the
Biomass Deferral Rule from the
incorporation by reference of 40 CFR
51.166.23
E. Equipment Replacement Provision
As noted in section II.E of this NPRM,
the April 24, 2020, submittal adopts the
Federal PSD plan requirements
contained within 40 CFR 51.166 as
amended July 1, 2014, with certain
revisions, into Rule 2.0530, Prevention
of Significant Deterioration. The
language of the ERP was vacated by
court order before July 1, 2014, and
therefore, as noted in section II.E of this
NPRM, EPA is not proposing to act on
the incorporation by reference of the
2003 changes to 40 CFR
51.166(b)(2)(iii)(a), the incorporation by
reference of paragraphs 40 CFR
51.166(b)(53) through (56), nor the
incorporation by reference of 40 CFR
51.166(y) in Rule 2.0530 or Rule 2.0544.
F. Ethanol Rule
MCAPCO Rule 2.0530 is consistent
with EPA’s PSD program requirements
in 40 CFR 51.166, as amended in the
2007 Ethanol Rule.24 EPA prepared a
Technical Support Document (TSD)
related to the 2007 Ethanol Rule
adoption that is available as part of the
docket to this proposed rulemaking that
contains an analysis of the potential
impact of the SIP revision on air quality
and whether approval of the SIP
revision will interfere with attainment
23 If EPA finalizes this proposed action, it will
include a note in the table in paragraph (c)(3) of 40
CFR 52.1770 identifying the exclusion of the
Biomass Deferral Rule language from the LIPapproved version of Rule 2.0544.
24 The term ‘‘major stationary source’’ is defined
in 40 CFR 51.166(b)(1)(i)(a) as ‘‘[a]ny of the
following stationary sources of air pollutants which
emits, or has the potential to emit, 100 tons per year
or more of any regulated NSR pollutant: . . .
Chemical process plants (which does not include
ethanol production facilities that produce ethanol
by natural fermentation included in NAICS codes
325193 or 312140).’’ Additionally, 40 CFR
51.166(b)(1)(iii) excludes fugitive emissions from
ethanol production facilities from the ‘‘chemical
process plants’’ category such that fugitive
emissions are not considered in determining
whether the facility is subject to PSD. Because
Mecklenburg County’s incorporation by reference of
40 CFR 51.166 includes the ethanol exclusion,
ethanol facilities emitting less than 250 tpy of a
regulated air pollutant are not subject to PSD, and
fugitive emissions from ethanol facilities are not
considered in determining whether the facility is
subject to PSD.
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or maintenance of the national ambient
air quality standards (or standards) or
any other CAA requirement. As
discussed therein, there are no existing
ethanol plants in Mecklenburg County.
The one existing ethanol plant in the
State is mapped in the TSD along with
the ambient air monitors to demonstrate
the relationship between ethanol
production and air quality.
Emissions for four criteria pollutants
are analyzed in the TSD. EPA also
graphed air quality trends in the TSD in
Mecklenburg County, since the date of
promulgation of the 2007 Ethanol Rule,
until 2021, for all criteria pollutants
associated with ethanol production. The
air quality trends reveal air quality
improved for generally every pollutant
monitored. Additionally, there has been
no ethanol production in or near
Mecklenburg County, North Carolina.
EPA also describes requirements for
MCAQ’s minor source NSR program in
the TSD because the facilities that
would be below the 250 tpy PSD major
source threshold under this rulemaking
will still need to obtain minor source
construction permits. EPA further
analyzes the impact of increasing the
threshold to 250 tpy on ozone and PM
precursors. As the analysis for ozone
and secondary PM in the TSD
demonstrates that sources below the 250
tpy threshold will not cause any
interference with attainment or
maintenance of the standard in
Mecklenburg County.
Based on EPA’s analysis in the TSD,
EPA’s exclusion of these facilities from
MCAQ’s PSD program, as proposed
herein, would not interfere with any
applicable requirement concerning
attainment and reasonable further
progress (as defined in section 171 of
the CAA) or any other applicable
requirement of the CAA. Therefore, this
proposed action is consistent with CAA
section 110(l).
IV. Incorporation by Reference
In this document, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the following Mecklenburg County
Rules: 2.0530, Prevention of Significant
Deterioration, effective October 17,
2017; 25 and 2.0544, Prevention of
Significant Deterioration Requirements
25 EPA is not proposing to incorporate by
reference the provisions of the Equipment
Replacement Rule and Fugitive Emissions Rule
contained in 40 CFR 51.166(b)(2)(iii)(a), 40 CFR
51.166(b)(2)(v), 51.166(b)(3)(iii)(d), 40 CFR
51.166(b)(53) through (56), and 40 CFR 51.166(y) as
those CFR provisions existed on July 1, 2014.
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17:06 Aug 23, 2022
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for Greenhouse Gases, effective
December 15, 2015.26 EPA has made,
and will continue to make, these
materials generally available through
www.regulations.gov and at the EPA
Region 4 office (please contact the
person identified in the FOR FURTHER
INFORMATION CONTACT section in the
preamble of this document for more
information).
V. Proposed Action
EPA is proposing to approve the
aforementioned changes to the
Mecklenburg County LIP. Specifically,
EPA is proposing to incorporate updates
to PSD permitting provisions in Rule
2.0530, Prevention of Significant
Deterioration, and incorporate new Rule
2.0544, Prevention of Significant
Deterioration Requirements for
Greenhouse Gases, with the exception
of those provisions described in
footnotes 25 and 26 of this document.
EPA believes that approval of these
changes and additions, including all
amendments mentioned in the
preceding sections, would not have a
negative impact on air quality in the
Mecklenburg County area. With these
proposed changes and additions, the
local regulations will now be consistent
with the State’s current SIP-approved
PSD program and Federal PSD rules.
Additionally, these updates include
important provisions such as
recognizing NOX as a precursor to
ozone, incorporating provisions to
regulate PM2.5, and incorporating
provisions to regulate GHGs for the
purposes of PSD. Therefore, EPA is
proposing to approve the April 24, 2020,
LIP revision changes to Mecklenburg
County’s PSD permitting program,
pursuant to the Act and EPA’s
implementing regulations.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. This action merely proposes to
approve local law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by local law. For that reason,
this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
26 EPA is not proposing to incorporate by
reference the provisions of the Biomass Deferral
Rule contained in 40 CFR 51.166.(b)(48)(ii)(a) as
that CFR provision existed on July 20, 2011.
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Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
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Federal Register / Vol. 87, No. 163 / Wednesday, August 24, 2022 / Proposed Rules
Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022–18172 Filed 8–23–22; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 220818–0171]
RIN 0648–BI18
Fisheries of the Northeastern United
States; Amendment 20 to the Atlantic
Surfclam and Ocean Quahog Fishery
Management Plan
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
NMFS proposes regulations to
implement Amendment 20 to the
Atlantic Surfclam and Ocean Quahog
Fishery Management Plan. The MidAtlantic Fishery Management Council
developed this action to limit the
amount of surfclam or ocean quahog
individual transferable quota share or
annual allocation in the form of cage
tags that an individual or their family
members could hold. These changes are
intended to ensure the management
plan is consistent with requirements of
the Magnuson-Stevens Fishery
Conservation and Management Act, and
to improve the management of these
fisheries.
SUMMARY:
Comments must be received by
September 23, 2022.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2020–0112, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov and enter
NOAA–NMFS–2020–0112 in the Search
box. Click the ‘‘Comment’’ icon,
complete the required fields, and enter
or attach your comments.
• Mail: Submit written comments to
Michael Pentony, Regional
Administrator, NMFS, Greater Atlantic
Regional Fisheries Office, 55 Great
Republic Drive, Gloucester, MA 01930.
Mark the outside of the envelope:
‘‘Comments on Surfclam/Ocean Quahog
Excessive Shares Amendment.’’
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DATES:
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Instructions: Comments sent by any
other method, to any other address or
individual, or received after the end of
the comment period, may not be
considered by NMFS. All comments
received are a part of the public record
and will generally be posted for public
viewing on www.regulations.gov
without change. All personal identifying
information (e.g., name, address, etc.),
confidential business information, or
otherwise sensitive information
submitted voluntarily by the sender will
be publicly accessible. NMFS will
accept anonymous comments (enter ‘‘N/
A’’ in the required fields if you wish to
remain anonymous). Written comments
regarding the burden-hour estimates or
other aspects of the collection-ofinformation requirements contained in
this proposed rule may be submitted to
the Greater Atlantic Regional Fisheries
Office and to www.reginfo.gov/public/
do/PRAMain. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
Copies of Amendment 20, including
the draft Environmental Assessment
(EA), are available on request from the
Mid-Atlantic Fishery Management
Council, 800 North State Street, Suite
201, Dover, DE 19901. These documents
are also accessible via the internet at
https://www.mafmc.org.
FOR FURTHER INFORMATION CONTACT:
Douglas Potts, Fishery Policy Analyst,
978–281–9341.
SUPPLEMENTARY INFORMATION:
Background
This action proposes regulations to
implement Amendment 20, also known
as the Excessive Shares Amendment, to
the Atlantic Surfclam and Ocean
Quahog Fishery Management Plan
(FMP). The Mid-Atlantic Fishery
Management Council developed this
amendment to establish limits to the
amount of individual transferable quota
(ITQ) quota share or cage tags such that
any particular individual, corporation,
or other entity can not acquire an
excessive share of such privileges, as
required by the Magnuson-Stevens
Fishery Conservation and Management
Act (Magnuson-Stevens Act), and to
make administrative changes to improve
the efficiency of the FMP.
The Magnuson-Stevens Act requires
that any FMP or implementing
regulation be consistent with ten
national standards for fishery
conservation and management. National
Standard 4 stipulates that, ‘‘If it
becomes necessary to allocate or assign
fishing privileges among various United
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51955
States fishermen, such allocation shall
be . . . carried out in such manner that
no particular individual, corporation, or
other entity acquires an excessive share
of such privileges.’’ When the Council
adopted Amendment 8 to the Atlantic
Surfclam and Ocean Quahog FMP,
which created the individual
transferable quota (ITQ) system for
managing the fishery, it relied on
Federal antitrust laws to prevent entities
from acquiring excessive shares. In
2002, the Government Accountability
Office (GAO) released a report titled,
Better Information Could Improve
Program Management (GAO–03–159,
December 11, 2002). One of the
recommendations from that report was
for the Council to define what
constitutes an excessive share for this
fishery. By 2007, the Council had begun
development of an FMP amendment to
address this recommendation as well as
implement a cost recovery program and
accountability measure requirements
that were introduced by the MagnusonStevens Fishery Conservation and
Management Reauthorization Act (Pub.
L. 109–479). The accountability measure
provisions were subsequently removed
and were implemented as part of the
Council’s Annual Catch Limit and
Accountability Measure Omnibus
Amendment (76 FR 60605, September
29, 2011).
As part of the development of this
action, an economic consulting
company, Compass Lexecon, was
contracted to evaluate the fishery and to
provide advice on how to set an
excessive share limit on ITQ systems
that could protect against market power
without constraining the workings of
competition. The 2011 Compass
Lexecon report and associated Center
for Independent Experts review
indicated that, in order to implement an
excessive shares definition, managers
would need more reliable information
regarding quota share ownership, and
would need to better monitor control of
the quota by tracking transfers and longterm leases of cage tags in the surfclam
and ocean quahog fisheries.
In 2012, the Council voted to split the
FMP amendment that was under
development. The cost recovery
provisions became Amendment 17 (81
FR 38969, June 15, 2016). The Council
requested that NMFS create a data
collection program as authorized under
Section 402A of the Magnuson-Stevens
Act, and the Council subsequently
established a new fishery management
action team (FMAT) to develop
recommendations for the program. The
new program became effective on
January 1, 2016 (80 FR 42747, July 20,
2015), and collected more detailed
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]]>Agencies
[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Proposed Rules]
[Pages 51946-51955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18172]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2021-0867; FRL-9377-01-R4]
Air Plan Approval; North Carolina; Prevention of Significant
Deterioration for Mecklenburg County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a portion of a State Implementation Plan (SIP) revision to the
Mecklenburg County portion of the North Carolina SIP, hereinafter
referred to as the Mecklenburg County Local Implementation Plan (LIP).
The revision was submitted through the North Carolina Division of Air
Quality (NCDAQ), on behalf of Mecklenburg County Air Pollution Control
(MCAQ), via a letter dated April 24, 2020, which was received by EPA on
June 19, 2020. This SIP revision includes changes to Mecklenburg County
Air Pollution Control Ordinance (MCAPCO) rules incorporated into the
LIP regarding Prevention of Significant Deterioration (PSD) permitting
to address changes to the Federal new source review (NSR) regulations
in recent years. EPA is proposing to approve these changes pursuant to
the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before September 23, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0867 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on
[[Page 51947]]
making effective comments, please visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Akers can be
reached via electronic mail at [email protected] or via telephone at
(404) 562-9089.
SUPPLEMENTARY INFORMATION:
I. Background and Overview of Mecklenburg LIP
II. Background on PSD Updates
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM2.5) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
III. Analysis of Mecklenburg's April 24, 2020 Submittal
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM2.5) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
IV. Incorporation by Reference
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background and Overview of Mecklenburg LIP
The Mecklenburg LIP was submitted to EPA on June 14, 1990, and EPA
approved the plan on May 2, 1991. See 56 FR 20140. Mecklenburg County
is now requesting that EPA approve changes to the LIP for, among other
things, general consistency with the North Carolina SIP.\1\ Mecklenburg
County prepared three submittals in order to update the LIP and reflect
regulatory and administrative changes that NCDAQ made to the North
Carolina SIP since EPA's 1991 LIP approval.\2\ The three submittals
were submitted as follows: NCDAQ transmitted the October 25, 2017,
submittal to EPA but later withdrew it from review through a letter
dated February 15, 2019. On April 24, 2020, NCDAQ resubmitted the
October 25, 2017, update to EPA and submitted the January 21, 2016, and
January 14, 2019, updates. Each of these submittals were properly
noticed to the public in compliance with 40 CFR 51.102.
---------------------------------------------------------------------------
\1\ Hereinafter, the terms ``North Carolina SIP'' and ``SIP''
refer to the North Carolina regulatory portion of the North Carolina
SIP (i.e., the portion that contains SIP-approved North Carolina
regulations).
\2\ The Mecklenburg County, North Carolina revision that is
dated April 24, 2020, and received by EPA on June 19, 2020, is
comprised of three previous submittals--one dated January 21, 2016;
one dated October 25, 2017; and one dated January 14, 2019.
---------------------------------------------------------------------------
This proposed rulemaking would modify the LIP by updating the PSD
program rules incorporated into the LIP in Rule 2.0530, Prevention of
Significant Deterioration, and by adding into the LIP rule 2.0544,
Prevention of Significant Deterioration Requirements for Greenhouse
Gases.
II. Background on PSD Updates
The PSD program is a preconstruction permitting program that
requires ``major'' stationary sources of air pollution to obtain a PSD
permit prior to beginning construction in areas classified as either in
attainment with the National Ambient Air Quality Standards (NAAQS) or
unclassifiable.\3\ See CAA section 165. EPA requires PSD SIPs to meet
the standards codified at 40 CFR 51.166.\4\ Over the years, EPA has
updated these rules, and as a result of these amendments, states and
localities similarly are required to update their SIP-approved rules to
ensure compliance with the PSD standards set forth at 40 CFR 51.166.
---------------------------------------------------------------------------
\3\ A separate NSR preconstruction permitting program applies to
nonattainment areas pursuant to CAA section 173. NSR permits in
nonattainment areas are referred to as nonattainment NSR (NNSR)
permits.
\4\ Related rules setting forth the Federal PSD program for
areas without an approved PSD permitting program are codified at 40
CFR 52.21.
---------------------------------------------------------------------------
In this Notice of Proposed Rulemaking (NPRM), EPA is proposing to
approve Mecklenburg's PSD rule revisions as meeting the requirements of
the CAA and 40 CFR 51.166. EPA most recently approved Mecklenburg's PSD
rules on May 2, 1991, with a local effective date of June 14, 1990. See
56 FR 20140. Since then, EPA's PSD permitting rules have undergone a
number of changes. For historical context, this NPRM first provides a
summary of significant amendments to EPA's PSD permitting rules made
after the date of approval of Mecklenburg's LIP-approved PSD permitting
rules. The NPRM then discusses the PSD rules contained in the proposed
SIP revision.
A. 2002 NSR Reform Rules
On December 31, 2002, EPA published final rule revisions to 40 CFR
parts 51 and 52, regarding the CAA's PSD and Nonattainment New Source
Review (NNSR) programs. See 67 FR 80186 (hereinafter referred to as the
2002 NSR Rule). The revisions included five changes to the major NSR
program that would reduce regulatory burdens, maximize operating
flexibility, improve environmental quality, provide additional
certainty, and promote administrative efficiency. Initially, these
updates to the Federal NSR program included the revision of baseline
actual emissions and adoption of actual-to-projected-actual emissions
methodology, plant-wide applicability limits (PALs), Clean Units, and
pollution control projects (PCPs). The final rule also codified a
longstanding policy regarding the calculation of baseline emissions for
electric utility steam generating units and the definition of
``regulated NSR pollutant'' that clarifies which pollutants are
regulated under the Act for purposes of major NSR.
Following publication of the 2002 NSR Rule, EPA received numerous
petitions requesting reconsideration of several aspects of the final
rule, along with portions of EPA's 1980 NSR Rules.\5\ On July 30, 2003,
EPA granted petitions for reconsideration of six issues presented by
the petitioners and opened a new comment period for the public.\6\ As a
result of the reconsideration, on November 7, 2003 (68 FR 63021), EPA
published the NSR Reform Reconsideration Rule, which made two
clarifications to EPA's underlying NSR rules. These two clarifications
included: (1) adding the definition of ``replacement unit'' to indicate
that it is considered an existing unit in terms of major NSR
applicability, and (2) specifying that the PAL baseline calculation
procedures for newly constructed units do not apply to modified units.
The 2002 NSR Rule and the NSR Reform Reconsideration Rule are
hereinafter collectively referred to as the ``2002 NSR Reform Rules.''
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\5\ See 45 FR 52676 (August 7, 1980) for EPA's 1980 NSR Rules.
\6\ For full details on the six issues reconsidered by EPA,
refer to the July 30, 2003, publication. See 68 FR 44624.
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The 2002 NSR Reform Rules were challenged in the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit), and the
court issued a decision on the challenges on June 24, 2005. See New
York v. EPA, 413 F.3d 3 (DC Cir. 2005). In summary, the D.C. Circuit
vacated portions of EPA's NSR Reform Rules pertaining to Clean Units
and PCPs, remanded a portion of the rules regarding recordkeeping and
the term ``reasonable possibility'' found in 40 CFR 52.21(r)(6), 40 CFR
51.166(r)(6), and 40 CFR 51.165(a)(6) to EPA, and either upheld or did
not comment on the other provisions included as part of the 2002 NSR
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to
revise the 2002 NSR Reform
[[Page 51948]]
Rules to exclude the portions that were vacated by the D.C. Circuit.
Meanwhile, EPA continued to move forward with its evaluation of the
portion of its NSR Reform Rules that were remanded by the D.C. Circuit.
On March 8, 2007 (72 FR 10445), EPA responded to the Court's remand
regarding the recordkeeping provisions by proposing two alternative
options to clarify what constitutes ``reasonable possibility'' and when
the ``reasonable possibility'' recordkeeping requirements apply. The
``reasonable possibility'' standard identifies the circumstances under
which a major stationary source must keep records for modifications
that do not trigger major NSR. EPA later finalized these changes on
December 21, 2007 (72 FR 72607).
Separately from the petitions received that led to the 2002 NSR
Reconsideration Rule, EPA received another petition for reconsideration
on July 11, 2003. Specifically, the petitioner requested EPA to
reconsider the inclusion of ``fugitive emissions'' when assessing
whether a proposed physical or operational change qualified as a
``major modification.'' On November 13, 2007, EPA granted the petition
for reconsideration, and on December 19, 2008, finalized the revision
of the language to clarify which types of sources were required to
include ``fugitive emissions'' in their calculations. See 73 FR 77882
(hereinafter referred to as the Fugitive Emissions Rule).
Finally, on February 17, 2009, EPA received a petition for
reconsideration of the Fugitive Emissions Rule. Due to this petition,
and after several stays,\7\ EPA established an indefinite stay of the
Fugitive Emissions Rule language on March 30, 2011 (76 FR 17548). This
indefinite stay also clarified EPA's intent to ``correct ambiguity'' in
the March 31, 2010 stay. With the March 30, 2011, stay, EPA specified
which portions of 40 CFR 51.165, 40 CFR 51.166, and 40 CFR 52.21 were
stayed indefinitely, which were reinstated, and which were revised, in
order to revert the Federal rules to the regulatory language that
existed prior to the Fugitive Emissions Rule.\8\
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\7\ EPA originally established a three-month stay that became
effective September 30, 2009 (74 FR 50115), which was later extended
for an additional three months, effective December 31, 2009. See 74
FR 65692. In order to allow for more time for reconsideration and
for public comment on any potential revisions to the Fugitive
Emissions Rule, EPA established a longer 18-month stay that became
effective on March 31, 2010. See 75 FR 16012.
\8\ In this NPRM, EPA is not proposing to act on certain
provisions addressing the treatment of fugitive emissions, as
provided in EPA's December 19, 2008, rule. See 73 FR 77882.
Specifically, EPA is not acting on the incorporation by reference of
40 CFR 51.166(b)(2)(v), nor 51.166(b)(3)(iii)(d), which were
subsequently stayed indefinitely in a March 30, 2011, final rule.
See 76 FR 17548.
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In summary, after several court decisions and public petitions, the
Federal major NSR program (found in 40 CFR 51.165, 51.166, and 52.21)
no longer includes the provisions related to Clean Units or PCPs that
were part of the 2002 NSR reform rules. Additionally, an indefinite
stay has been placed on the Fugitive Emissions Rule. Mecklenburg County
is adopting most of the surviving provisions from the 2002 NSR Reform
Rules, with changes. More details on Mecklenburg County's adoption of
the 2002 NSR Reform Rules and EPA's analysis of its submittal can be
found in section III.A of this NPRM.
B. Fine Particulate Matter (PM2.5) NAAQS
1. Implementation of NSR for the PM2.5 NAAQS and
Grandfathering Provisions
On May 16, 2008 (73 FR 28321), EPA published the ``Implementation
of the New Source Review (NSR) Program for Particulate Matter Less than
2.5 Micrometers (PM2.5)'' Final Rule (hereinafter referred
to as the NSR PM2.5 Rule). The NSR PM2.5 Rule
revised the NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM2.5
NAAQS in both attainment and nonattainment areas. As indicated in the
NSR PM2.5 Rule, major stationary sources seeking permits
must begin directly satisfying the PM2.5 requirements, as of
the effective date of the rule, rather than relying on PM10
as a surrogate, with two exceptions. The first exception was a
``grandfathering'' provision in the Federal PSD program at 40 CFR
52.21(i)(1)(xi). This grandfathering provision applied to sources that
had applied for, but had not yet received, a final and effective PSD
permit before the July 15, 2008, effective date of the May 2008 final
rule. The second exception was that states with SIP-approved PSD
programs could continue to implement a policy in which PM10
served as a surrogate for PM2.5 for up to three years (until
May 2011) or until the individual revised state PSD programs for
PM2.5 are approved by EPA, whichever came first.\9\
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\9\ After EPA promulgated the NAAQS for PM2.5 in
1997, the Agency issued a guidance document entitled ``Interim
Implementation of New Source Review Requirements for
PM2.5,'' which allowed for the regulation of
PM10 as a surrogate for PM2.5 until
significant technical issues were resolved (the ``PM10
Surrogate Policy''). John S. Seitz, EPA, October 23, 1997.
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On February 11, 2010 (75 FR 6827), EPA proposed to repeal the
grandfathering provision for PM2.5 contained in the Federal
PSD program at 40 CFR 52.21(i)(1)(xi) and to end early the
PM10 Surrogate Policy applicable in states that have a SIP-
approved PSD program. In support of this proposal, EPA explained that
the PM2.5 implementation issues that led to the adoption of
the PM10 Surrogate Policy in 1997 had been largely resolved
to a degree sufficient for sources and permitting authorities to
conduct meaningful permit related PM2.5 analyses. On May 18,
2011 (76 FR 28646), EPA took final action to repeal the
PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi).
This final action ended the use of the 1997 PM10 Surrogate
Policy for PSD permits under the Federal PSD program at 40 CFR 52.21.
In effect, any PSD permit applicant previously covered by the
grandfathering provision (for sources that completed and submitted a
permit application before July 15, 2008) \10\ that did not have a final
and effective PSD permit before the effective date of the repeal will
not be able to rely on the 1997 p.m.10 Surrogate Policy to
satisfy the PSD requirements for PM2.5 unless the
application includes a valid surrogacy demonstration.
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\10\ Sources that applied for a PSD permit under the Federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 p.m.10 Surrogate Policy as a means of satisfying
the PSD requirements for PM2.5. See 73 FR 28321.
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The NSR PM2.5 Rule also established the following NSR
requirements for PSD to implement the PM2.5 NAAQS: (1)
required NSR permits to address directly emitted PM2.5 and
precursor pollutants; (2) established significant emission rates for
direct PM2.5 and precursor pollutants (including sulfur
dioxide (SO2) and nitrogen oxides (NOX)); and (3)
required states to account for gases that condense to form particles
(``condensables'') in PM2.5 and PM10 emission
limits in PSD or NNSR permits.
2. PM2.5 Condensables Correction
Among the changes included in the NSR PM2.5 Rule
mentioned above, EPA also revised the definition of ``regulated NSR
pollutant'' for PSD to add a paragraph providing that ``particulate
matter (PM) emissions, PM2.5 emissions and PM10
emissions shall include gaseous emissions from a source or activity
which condense to form particulate matter at ambient temperatures'' and
that on or after January 1, 2011, ``such condensable particulate matter
shall be accounted for in applicability determinations and in
[[Page 51949]]
establishing emissions limitations for PM, PM2.5 and
PM10 in permits.'' See 73 FR 28321 at 28348 (May 16, 2008).
A similar paragraph added to the NNSR rule did not include
``particulate matter (PM) emissions.'' See 40 CFR
51.165(a)(1)(xxxvii)(D).
On October 25, 2012 (77 FR 65107), EPA took final action to amend
the definition, promulgated in the 2008 NSR PM2.5 Rule, of
``regulated NSR pollutant'' contained in the PM condensable provision
at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and appendix S to 40 CFR
part 51 (hereinafter referred to as the PM2.5 Condensables
Correction Rule). The PM2.5 Condensables Correction Rule
removed the inadvertent requirement in the NSR PM2.5 Rule
that the measurement of condensable particulate matter be included as
part of the measurement and regulation of ``particulate matter
emissions'' under the PSD program. The term ``particulate matter
emissions'' includes only filterable particles that are larger than
PM10.
3. PM2.5 PSD Increments, Significant Impact Levels (SILs),
and Significant Monitoring Concentration (SMC) Rule
On October 20, 2010 (75 FR 64863), EPA published a final rule
entitled ``Prevention of Significant Deterioration (PSD) for
Particulate Matter less than 2.5 Micrometers (PM2.5),''
amending the requirements for PM2.5 under the Federal PSD
program (also referred to as the PM2.5 PSD-Increments-SILs-
SMC Rule). The final rule established the following: (1)
PM2.5 increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas attaining the
NAAQS; (2) PM2.5 Significant Impact Levels (SILs) for PSD
and NNSR; and (3) Significant Monitoring Concentration (SMC) for PSD
purposes.
Subsequently, in response to a challenge to the PM2.5
SILs and SMC provisions of the PM2.5 PSD-Increment-SILs-SMC
Rule, the D.C. Circuit vacated and remanded to EPA the portions of the
rule addressing PM2.5 SILs, except for the PM2.5
SILs promulgated in EPA's NNSR rules at 40 CFR 51.165(b)(2). See Sierra
Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013). The D.C. Circuit also
vacated the parts of the rule establishing a PM2.5 SMC for
PSD purposes. Id. EPA removed these vacated provisions in a December 9,
2013 (78 FR 73698), final rule.
The PM2.5 SILs promulgated in EPA's NNSR regulations at
40 CFR 51.165(b)(2) were not vacated by the D.C. Circuit because,
unlike the SILs promulgated in the PSD regulations (40 CFR 51.166,
52.21), the SILs promulgated in the NNSR regulations at 40 CFR
51.165(b)(2) do not serve to exempt a source from conducting a
cumulative air quality analysis. Rather, the SILs promulgated at 40 CFR
51.165(b)(2) establish levels at which a proposed new major source or
major modification located in an area designated as attainment or
unclassifiable for any NAAQS would be considered to cause or contribute
to a violation of a NAAQS in any area. For this reason, the D.C.
Circuit left the PM2.5 SILs at 40 CFR 51.165(b)(2) in place.
Mecklenburg County is adopting the Federal provisions relevant to
PSD permitting for PM2.5 in the April 24, 2020, submittal.
This update to Mecklenburg's PSD regulations is necessary and is
consistent with North Carolina's rules and the Federal rules. See
section III.B of this NPRM for more details on the adoption of
provisions to implement PM2.5 for PSD permitting.
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
On November 29, 2005 (70 FR 71612), EPA published a final rule
entitled ``Final Rule To Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule To Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline''
(hereinafter referred to as the Phase 2 Rule). The Phase 2 Rule
addressed control and planning requirements as they applied to areas
designated nonattainment for the 1997 8-hour ozone NAAQS \11\ such as
reasonably available control technology, reasonably available control
measures, reasonable further progress, modeling and attainment
demonstrations, NSR, and the impact to reformulated gasoline for the
1997 8-hour ozone NAAQS transition. Additionally, regarding the NSR
permitting requirements which are relevant to this proposed action, the
Phase 2 Rule included the following provisions: (1) recognized
NOX as an ozone precursor for PSD purposes; and (2)
established significant emission rates for the ozone precursors
volatile organic compounds (VOCs) and NOX in the PSD
regulations.\12\
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\11\ On July 18, 1997, EPA promulgated a revised 8-hour ozone
NAAQS of 0.08 parts per million (ppm)--also referred to as the 1997
8-hour ozone NAAQS. On April 30, 2004, EPA designated areas as
unclassifiable/attainment, nonattainment, and unclassifiable for the
1997 8-hour ozone NAAQS. In addition, on April 30, 2004 (69 FR
23951), as part of the framework to implement the 1997 8-hour ozone
NAAQS, EPA promulgated an implementation rule in two phases (Phases
I and II). The Phase I Rule (effective on June 15, 2004), provided
the implementation requirements for designating areas under subpart
1 and subpart 2 of the CAA.
\12\ This action also established significant emission rates for
PM10 and carbon monoxide in EPA's Federal NNSR
regulations. MCAQ has not transmitted any changes to its LIP-
approved NNSR program at Rule 2.0531, Sources in Nonattainment
Areas, in the April 24, 2020, LIP revision. There are no designated
nonattainment areas in Mecklenburg County at this time.
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The April 24, 2020, LIP revision adopts the relevant PSD provisions
of 40 CFR 51.166, thus recognizing NOX as a precursor to
ozone alongside VOCs. The adoption of these provisions is consistent
with the Federal PSD provisions as well as North Carolina's rules. More
details on Mecklenburg County's adoption of the Ozone Phase 2 Rule
provisions for PSD and EPA's analysis of its submittal can be found in
section III.C of this NPRM.
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
On January 2, 2011, emissions of greenhouse gases (GHGs) were, for
the first time, covered by the PSD and title V operating permit
programs.\13\ To establish a process for phasing in the permitting
requirements for stationary sources of GHGs under the CAA's PSD and
title V programs, on June 3, 2010, EPA published a final rule entitled
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule'' (hereinafter referred to as the ``GHG Tailoring
Rule''). See 75 FR 31514. In Step 1 of the GHG Tailoring Rule, which
took effect on January 2, 2011, EPA limited application of PSD and
title V requirements to sources and modifications of GHG emissions, but
only if they were subject to PSD or title V ``anyway'' due to their
emissions of pollutants other than GHGs. These sources and
modifications covered under Step 1 are commonly referred to as ``anyway
sources'' and ``anyway modifications,'' respectively.
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\13\ See 75 FR 17004 (April 2, 2010).
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In Step 2 of the GHG Tailoring Rule, which took effect on July 1,
2011, the PSD and title V permitting requirements extended beyond the
sources and modifications covered under Step 1 to apply to sources that
were classified as major sources based solely on their GHG emissions or
potential to emit GHGs. Step 2 also applied PSD permitting requirements
to modifications of otherwise major sources that would increase only
GHG emissions above the threshold in the Federal PSD regulations. EPA
generally described the
[[Page 51950]]
sources and modifications covered by PSD under Step 2 of the Tailoring
Rule as ``Step 2 sources and modifications'' or ``GHG-only sources and
modifications.''
Subsequently, EPA published Step 3 of the GHG Tailoring Rule on
July 12, 2012. See 77 FR 41051. In the rule, EPA decided against
further phase-in of the PSD and title V requirements for sources
emitting lower levels of GHG emissions. Thus, the thresholds for
determining PSD and title V applicability based on emissions of GHGs
remained the same as established in Steps 1 and 2 of the Tailoring
Rule.
On June 23, 2014, the U.S. Supreme Court addressed the application
of stationary source permitting requirements to GHG emissions in
Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (UARG). The
Supreme Court upheld EPA's regulation of GHG Step 1--or ``anyway''
sources--but held that EPA may not treat GHGs as air pollutants for the
purpose of determining whether a source is a major source (or is
undergoing a major modification) and thus require the source to obtain
a PSD or title V permit. Therefore, the Court invalidated the PSD and
title V permitting requirements for GHG Step 2 sources and
modifications.
In accordance with the Supreme Court's decision, on April 10, 2015,
the D.C. Circuit issued an Amended Judgment vacating the regulations
that implemented Step 2 of the GHG Tailoring Rule, but not the
regulations that implement Step 1 of the GHG Tailoring Rule. See
Coalition for Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7
(D.C. Cir. 2015). The Amended Judgment specifically vacated the EPA
regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR
52.21(b)(49)(v)) ``to the extent they require a stationary source to
obtain a PSD permit if greenhouse gases are the only pollutant (i) that
the source emits or has the potential to emit above the applicable
major source thresholds, or (ii) for which there is a significant
emissions increase from a modification.'' Id. at 7-8.
In response, EPA promulgated a good cause final rule on August 19,
2015, entitled ``Prevention of Significant Deterioration and Title V
Permitting for Greenhouse Gases: Removal of Certain Vacated Elements.''
See 80 FR 50199 (August 19, 2015) (hereinafter referred to as the
``Good Cause GHG Rule''). The rule removed from the Federal regulations
the portions of the PSD permitting provisions for Step 2 sources that
were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)). Therefore, EPA no longer has the authority to conduct
PSD permitting for Step 2 sources, nor can the Agency approve
provisions submitted by a state for inclusion in its SIP providing this
authority. On October 3, 2016, EPA proposed to revise provisions in the
PSD permitting regulations applicable to GHGs to address the GHG
applicability threshold for PSD in order to fully conform with UARG and
the Amended Judgment, but those revisions have not been finalized. See
81 FR 68110.
On July 20, 2011, EPA finalized the Biomass Deferral Rule, which
deferred for a period of three years, the application of PSD and Title
V permitting requirements to carbon dioxide (CO2) emissions
from bioenergy and other biogenic stationary sources (also known as
biogenic CO2 emissions). See 76 FR 43490. During this three-
year period, stationary sources that combust biomass and constructed or
modified a facility would have avoided the application of PSD to
biogenic CO2 emissions resulting from construction or
modification. The deferral applied only to biogenic CO2
emissions and did not affect other GHGs emitted from the combustion of
biomass fuel and decomposition of biogenic material or non-GHG
pollutants. Additionally, the deferral only applied to biogenic
CO2 emissions in the PSD and Title V programs; it did not
apply to any other EPA programs, such as the GHG Reporting Program.\14\
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\14\ See https://www.epa.gov/ghgreporting for information on the
GHG Reporting Program.
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On July 12, 2013, the D.C. Circuit vacated the Biomass Deferral
Rule, but on November 14, 2013, issued an order delaying the vacatur of
the Biomass Deferral Rule until the U.S. Supreme Court made a final
decision in the UARG case related to the GHG Tailoring Rule. See Center
for Biological Diversity v. EPA, 722 F.3d 401. After a final decision
was made by the Supreme Court on June 23, 2014, in UARG, EPA did not
immediately take formal action to remove the Biomass Deferral Rule from
the CFR. On July 19, 2021, EPA removed the vacated text of the Biomass
Deferral Rule from 40 CFR 51.166(b)(48)(ii)(a), 52.21(b)(49)(ii)(a),
70.2(2), and 71.2(2). See 86 FR 37918.
The April 24, 2020, LIP revision adopts the PSD plan requirements
of 40 CFR 51.166, and adopts other relevant provisions directly to
implement PSD for greenhouse gases, consistent with the Federal PSD
provisions as well as North Carolina's rules. See section III.D of this
NPRM for more details.
E. Equipment Replacement Provision
Under Federal regulations, certain activities are not considered to
be a physical change or a change in the method of operation at a
source, and thus do not trigger NSR review. One category of such
activities is routine maintenance, repair and replacement (RMRR). On
October 27, 2003 (68 FR 61248), EPA published a rule entitled
``Prevention of Significant Deterioration (PSD) and Non-Attainment New
Source Review (NSR): Equipment Replacement Provision of the Routine
Maintenance, Repair and Replacement Exclusion'' (hereinafter referred
to as the ``ERP Rule''). The ERP Rule provided criteria for determining
whether an activity falls within the RMRR exemption. The ERP Rule also
provided a list of equipment replacement activities that are exempt
from NSR permitting requirements, while ensuring that industries
maintain safe, reliable, and efficient operations that will have little
or no impact on emissions. Under the ERP Rule, a facility undergoing
equipment replacement would not be required to undergo NSR review if
the facility replaced any component of a process unit with an identical
or functionally equivalent component. The rule included several
modifications to the NSR rules to explain what would qualify as an
identical or functionally equivalent component.
Shortly after the October 27, 2003, rule, several parties filed
petitions for review of the ERP Rule in the D.C. Circuit. The court
stayed the effective date of the rule pending resolution of the
petitions. A collection of environmental groups, public interest
groups, and states, subsequently filed a petition for reconsideration
with EPA, requesting that the Agency reconsider certain aspects of the
ERP Rule. EPA granted the petition for reconsideration on July 1, 2004
(69 FR 40278).\15\ After reconsideration, EPA published its final
response on June 10, 2005 (70 FR 33838), which stated that the Agency
would not change any aspects of the ERP. On March 17, 2006, the D.C.
Circuit acted on the petitions for review and vacated the ERP Rule.\16\
EPA removed the vacated language from the
[[Page 51951]]
Federal rules in a final rule published on July 19, 2021 (86 FR 37918).
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\15\ The reconsideration granted by EPA opened a new 60-day
public comment period, including a new public hearing, on three
issues of the ERP: (1) the basis for determining that the ERP was
allowable under the CAA; (2) the basis for selecting the cost
threshold (20 percent of the replacement cost of the process unit)
that was used in the final rule to determine if a replacement was
routine; and (3) a simplified procedure for incorporating a Federal
Implementation Plan into state plans to accommodate changes to the
NSR rules.
\16\ New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
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Rule 2.0530 in the April 24, 2020, Mecklenburg submittal adopts the
requirements of 40 CFR 51.166 as amended July 1, 2014, with exceptions.
Likewise, Rule 2.0544 of the April 24, 2020, Mecklenburg submittal
adopts the requirements of 40 CFR 51.166 as amended July 20, 2011, with
exceptions. In this NPRM, EPA is not proposing to act on the
incorporation by reference of language to implement the ERP, as
provided in EPA's October 27, 2003, rule. See 68 FR 61248.
Specifically, EPA is not acting on the incorporation by reference of
the 2003 changes to 40 CFR 51.166(b)(2)(iii)(a), the incorporation by
reference of 40 CFR 51.166(b)(53) through (56), nor the incorporation
by reference of 40 CFR 51.166(y). These provisions were in the Federal
rule as of July 1, 2014; but, previously vacated by the D.C.
Circuit.\17\ EPA subsequently removed the vacated provisions from the
CFR. See 86 FR 37918 (July 19, 2021).
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\17\ See footnote 16.
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F. Ethanol Rule
Under the CAA, there are two possible thresholds for determining
whether a source is a major emitting facility that is potentially
subject to the construction permitting requirements under the PSD
program; one threshold is 100 tons per year (tpy) per pollutant, and
the other is 250 tpy per pollutant. Section 169(1) of the CAA lists
twenty-eight source categories that qualify as major emitting
facilities if their emissions equal or exceed the 100 tpy threshold. If
the source does not fall within one of twenty-eight source categories
listed in section 169, then the 250 tpy threshold is applicable.
One of the source categories in the list of twenty-eight source
categories, to which the 100 tpy threshold applies, is chemical process
plants. Since the Standard Industrial Classification (SIC) code for
chemical process plants includes facilities primarily engaged in
manufacturing ethanol fuel, EPA and states had previously considered
such facilities to be subject to the 100 tpy thresholds.
As a result of this classification, pursuant to EPA's major NSR
regulations, chemical process plants were also required to include
fugitive emissions for determining the potential emissions of such
sources. Thus, prior to promulgation of the 2007 Ethanol Rule, the
classification of fuel and industrial ethanol facilities as chemical
process plants had the effect of requiring these plants to include
fugitive emissions when determining whether their emissions exceed the
applicability thresholds for the PSD and NNSR permit programs.
On May 1, 2007, EPA published the 2007 Ethanol Rule (72 FR 24060),
which amended EPA's PSD and NNSR regulations to exclude ethanol
manufacturing facilities that produce ethanol by natural fermentation
processes from the ``chemical process plants'' category under the
regulatory definition of ``major stationary source.'' This change to
EPA's NSR regulations affected the threshold used to determine PSD
applicability for these ethanol production facilities, clarifying that
such facilities were subject to the 250 tpy major source threshold. The
2007 Ethanol Rule also included changes to other provisions which
established that ethanol facilities need not count fugitive emissions
when determining whether such a source is ``major'' under the Federal
PSD, NNSR, and Title V permitting programs.
On July 2, 2007, the National Resources Defense Council (NRDC)
petitioned the D.C. Circuit to review the 2007 Ethanol Rule. On that
same day, EPA received a petition for administrative reconsideration
and request for stay of the 2007 Ethanol Rule from NRDC. On March 27,
2008, EPA denied NRDC's 2007 administrative petition for
reconsideration.
On March 2, 2009, EPA received a second petition for
reconsideration and request for stay from NRDC. In 2009, NRDC also
filed a petition for judicial review challenging EPA's March 27, 2008,
denial of NRDC's 2007 administrative petition in the D.C. Circuit. This
challenge was consolidated with NRDC's challenge to the 2007 Ethanol
Rule. In August of 2009, the D.C. Circuit granted a joint motion to
hold the case in abeyance, and the case has remained in abeyance.
On October 21, 2019, EPA partially granted and partially denied
NRDC's 2009 administrative petition for reconsideration. See 84 FR
59743 (November 6, 2019). Specifically, EPA granted the request for
reconsideration with regard to NRDC's claim that the 2007 Ethanol Rule
did not appropriately address the CAA section 193 anti-backsliding
requirements for nonattainment areas. EPA denied the remainder of the
requests for reconsideration on the grounds that NRDC failed to
establish that reconsideration was warranted under CAA section
307(d)(7)(B).
Mecklenburg County's incorporation by reference of Federal PSD
provisions as of July 1, 2014, includes the 2007 Ethanol Rule's changes
to the treatment of ethanol production facilities. See section III.F of
this NPRM and EPA's technical support document in the docket for this
proposed action for more details.
III. Analysis of Mecklenburg's April 24, 2020 Submittal
MCAQ adopts the Federal PSD requirements of 40 CFR 51.166 with
several changes, consistent with the State of North Carolina's PSD
provisions.\18\ MCAPCO Rule 2.0530 adopts certain provisions of the
version of 40 CFR 51.166 effective on July 1, 2014, with certain
revisions described in this document, and Rule 2.0544 adopts certain
provisions of the version of the Federal rule effective on July 20,
2011, with certain revisions described in this document. EPA's analysis
of several features of the April 24, 2020, LIP revision related to
Mecklenburg County's PSD program at Rules 2.0530 and 2.0544 is included
in the following subsections.
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\18\ See, e.g., 76 FR 49313 (August 10, 2011); 76 FR 64240
(October 18, 2011); 81 FR 63107 (September 14, 2016); 83 FR 45827
(September 11, 2018); 84 FR 38876 (August 8, 2019); and 85 FR 57707
(September 16, 2020).
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A. 2002 NSR Reform Rules
This SIP revision addresses baseline actual emissions, actual-to-
projected actual applicability tests, PALs, recordkeeping requirements,
and reporting requirements.\19\ Rule 2.0530 adopts the Federal PSD
requirements at 40 CFR 51.166, as amended July 1, 2014, with certain
revisions described in this document. These revisions include a non-
substantive update to the definition of ``baseline actual emissions;''
an amendment pursuant to the PAL adjustment provision at
51.166(w)(10)(iv)(a); and streamlined language to adopt the
recordkeeping and reporting requirements at 51.166(r)(6).
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\19\ As noted in section II.A, EPA is not proposing to act on
the incorporation by reference of EPA's indefinitely stayed fugitive
emissions provisions at 40 CFR 51.166(b)(2)(v) and
51.166(b)(3)(iii)(d).
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As a general matter, state and local agencies may meet the
requirements of 40 CFR part 51 with different but equivalent (or more
stringent) regulations. As mentioned above, MCAQ chose to adopt the
Federal rules with several changes, consistent with North Carolina's
SIP-approved PSD provisions. The definition of ``baseline actual
emissions'' at Rule 2.0530(b)(1) was changed from the Federal
provisions to remove the provision allowing emissions units that are
not electric utility steam generating units (EUSGUs) to look back 10
years to select the baseline period. Mecklenburg
[[Page 51952]]
County rules treat EUSGUs and non-EUSGUs the same by allowing a look-
back of only five years. However, Mecklenburg County rules provide the
option of allowing a different time period, not to exceed 10 years, if
the owner or operator demonstrates that it is more representative of
normal source operation as required by 40 CFR 51.166(b)(47)(i). In
addition, Mecklenburg County rules require EUSGUs to adjust downward
the baseline emissions to account for reductions required under the
North Carolina Clean Smokestacks Act, which is a North Carolina law
that became effective in 2007 and set caps on NOX and
SO2 emissions from public utilities operating coal-fired
power plants in the State that cannot be met by purchasing emissions
credits. See N.C. Gen. Stat. section 143-215.107D; N.C. Gen. Stat.
section 62-133.6.
With regard to the PAL adjustment provision at
51.166(w)(10)(iv)(a), the Federal regulations provide the option that
if the emissions level is equal to or greater than 80 percent of the
PAL level, the reviewing authority may renew the PAL at the same level
or it may set the PAL at a different level considering other factors
per 40 CFR 51.166(w)(10)(iv)(b). Rule 2.0530(i) instead requires that
the PAL be renewed at the same level if emissions are equal to or
greater than 80 percent of the PAL.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping and EPA's December 21, 2007, clarifications of
the term ``reasonable possibility'' (72 FR 72607), Mecklenburg County
did not adopt all the provisions at 40 CFR 51.166(r)(6) or adopt the
Federal ``reasonable possibility'' standard. Instead, Mecklenburg
County adopted recordkeeping and reporting requirements at paragraph
2.0530(u) that apply to all modifications that use the actual-to-
projected-actual applicability test. Therefore, the Mecklenburg County
provisions meet the minimum recordkeeping and reporting requirements of
the Federal rule.
In addition to incorporating the Federal rules by reference with
several changes, Mecklenburg County's rule revisions include two
additional provisions that do not directly relate to the 2002 NSR
Reform rules, including: (1) incorporating by reference 40 CFR
52.21(r)(2) to clarify the period of validity of approval to construct;
and (2) requiring that all new natural gas-fired EUSGUs install best
available control technology or lowest achievable emission rate, as
appropriate. This second requirement was included in the North Carolina
rules originally for clarity and consistency with restrictions on use
of allowances imposed by an agreement resulting from provisions of the
North Carolina Clean Smokestacks Act, and Mecklenburg County adopted
the same provision to be consistent with the State.\20\
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\20\ Any allowances for emissions reductions achieved under the
North Carolina Clean Smokestacks Act are not available to the
subject facilities for Federal Clean Air Act programs because they
are ``state only'' reductions, and such reductions may not be used
to offset emissions and avoid installation of BACT or LAER on new
natural gas-fired units. See generally https://deq.nc.gov/about/divisions/air-quality/air-quality-outreach/news/clean-air-legislation/clean-smokestacks-act (last accessed March 23, 2022).
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EPA believes that approval of these changes would not have a
negative impact on air quality in the Mecklenburg County area. With
these proposed changes, the local regulations will now be consistent
with the State's current SIP-approved PSD program, which already
underwent updates concerning the 2002 NSR Reform Rules on August 10,
2011. See 76 FR 49313.
B. Fine Particulate Matter (PM2.5) NAAQS
The April 24, 2020, submittal adopts the PM2.5
provisions necessary to implement PSD for the PM2.5 NAAQS.
First, regarding the 2008 NSR PM2.5 Rule, the incorporation
by reference date of July 1, 2014, captures the requirement for PSD
permits to address directly emitted PM2.5 and precursor
pollutants as codified at 40 CFR 51.166(b)(49). This incorporation by
reference date also includes the PSD requirement that condensable
PM10 and PM2.5 emissions be accounted for in PSD
applicability determinations and in establishing emissions limitations
for permitting, as codified at section 51.166(b)(49) and corrected in
EPA's October 25, 2012 PM2.5 Condensable Correction Rule (77
FR 65107). The significant emission rates for direct PM2.5
and its precursors of SO2 and NOX are adopted at
Rule 2.0530(b)(4), which references 40 CFR 51.166(b)(23)(i), and which
also notes that VOCs and ammonia are not significant precursors to
PM2.5 in attainment and unclassifiable areas where Rule
2.0530 would apply. This is consistent with Federal language on
PM2.5 precursor pollutants at 40 CFR 51.166(b)(23)(i) and
51.166(b)(49)(i)(b)(4).
Next, Rule 2.0530(e)'s adoption of the July 1, 2014, requirements
of 40 CFR 51.166(c) include required elements of EPA's PM2.5
PSD-Increments-SILs-SMC Rule. Specifically, adopting the Federal rule
as of July 1, 2014, includes the PM2.5 increments at 40 CFR
51.166(c)(1). Additionally, by adopting the definitions contained in 40
CFR 51.166(b) as of July 1, 2014, Rule 2.0530(b) has the effect of
adding to the Mecklenburg County LIP the required definitions of
``major source baseline date,'' ``minor source baseline date,'' and
``baseline area.''
Finally, Rule 2.0530 does not include (1) the grandfathering
provisions from the PM2.5 NSR Rule, or (2) the
PM2.5 SILs and SMC provisions from the PM2.5
Increments-SILs-SMC Rule, as the July 1, 2014, date captures EPA's May
18, 2011, and December 9, 2013, actions to remove these provisions,
respectively. See 76 FR 28646 and 78 FR 73698. Therefore, EPA has
preliminarily determined that Mecklenburg County's incorporation by
reference of EPA's PSD regulations as of July 1, 2014, is consistent
with current Federal provisions to implement PM2.5 for PSD.
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
Mecklenburg County adopts the PSD provisions from the Ozone Phase 2
Rule, as noted in section II.C of this NPRM. Consistent with North
Carolina's rules and the Federal rules, Rule 2.0530(b) adopts the same
language regarding the Phase 2 Rule via the incorporation by reference
of 40 CFR 51.166(b)(1)(ii), 51.166(b)(2)(ii), 51.166(b)(23)(i), and
51.166(b)(49)(i), which effectively recognizes VOCs and NOx as
precursors to ozone for purposes of PSD. Therefore, EPA has
preliminarily determined that MCAQ's proposed LIP revision is
consistent with the Ozone Phase 2 Rule.
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
The April 24, 2020, SIP revision establishes thresholds for
determining which new stationary sources and modification projects
become subject to permitting requirements for GHG emissions under
Mecklenburg County's PSD program. This SIP revision updates MCAQ's
existing PSD program to include a new rule applicable to GHGs only.
Specifically, the revision incorporates a new PSD rule into Mecklenburg
County's LIP, at MCAPCO Rule 2.0544, Prevention of Significant
Deterioration Requirements for Greenhouse Gases, to address the
thresholds for GHG permitting applicability. This new regulation adopts
the provisions of 40 CFR 51.166 as effective on July 26, 2011, to
specifically include the Federal Tailoring Rule requirements still in
place and defined at 40 CFR 51.166. For all other regulated NSR
pollutants, the provisions of Rule 2.0530 apply.
[[Page 51953]]
Additionally, Rule 2.0544(a) reflects the effects of the 2014 UARG
decision on PSD permitting requirements for GHG-only, or Step 2,
sources, by including the following language: ``A major stationary
source or major modification shall not be required to obtain a
prevention of significant deterioration (PSD) permit on the sole basis
of its greenhouse gas emissions. For all other regulated NSR
pollutants, the provisions of MCAPCO Regulation 2.0530 of this [sic]
apply.''
The Rule also includes a mechanism at Rule 2.0554(d) to
automatically incorporate any changes to the Federal GHG global warming
potentials into the definition of ``subject to regulation''
incorporated by reference from 40 CFR 51.166(b)(48) that may occur
after the incorporation by reference (``IBR'') date. In order to
determine if a source is subject to regulation for GHGs, a source's
total GHG emissions are calculated using the global warming potentials
published in Table A-1 of Subpart A of 40 CFR part 98.\21\ MCAQ's
submittal ensures that any future changes EPA makes to Table A-1 are
concurrently incorporated into the Mecklenburg County LIP-approved PSD
program for greenhouse gases without the need for further LIP
revisions.
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\21\ GHGs, as defined in the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48), is the aggregate of six
different gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. To
calculate the total GHG emissions for a source: (1) the mass amount
of emissions, in tpy, of each individual GHG is multiplied by its
global warming potential found in Table A-1 of Subpart A of 40 CFR
part 98, and (2) the resulting values for each individual GHG are
added. This results in the total GHG emissions for the source
expressed in tpy of CO2 equivalent (tpy CO2e).
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The July 20, 2011, version of the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48) includes the text of the Biomass
Deferral Rule, discussed in section II.D of this NPRM, at
51.166(b)(48)(ii)(a). However, MCAQ submitted a letter on February 4,
2022, through NCDAQ, clarifying its intent for EPA not to adopt the
since-vacated text of the Biomass Deferral Rule into the federally-
approved LIP. The letter withdraws this portion of the adoption of PSD
provisions in its submittal from EPA consideration.
In the February 4, 2022, supplemental letter, Mecklenburg County
also clarifies that while Rule 2.0544's definition of ``baseline actual
emissions'' does not include the term ``immediately'' at subparagraph
2.0544(b)(1), MCAQ will enforce the provision as if the term were
present based on MCAQ's interpretation and North Carolina's
interpretation that this word is extraneous. This rule previously
included the term ``immediately'' in its locally effective version, as
follows:
For an existing emissions unit, baseline actual emissions means
the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month
period selected by the owner or operator within the 5-year period
immediately preceding the date that a complete permit application is
received by the Department for a permit required under this Rule.
The Director shall allow a different time period, not to exceed 10
years immediately preceding the date that a complete permit
application is received by the Department, if the owner or operator
demonstrates that it is more representative of normal source
operation. . . .
Without the term ``immediately,'' this provision reads as follows:
For an existing emissions unit, baseline actual emissions mean
the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month
period selected by the owner or operator within the 5-year period
preceding the date that a complete permit application is received by
the Department for a permit required under this Rule. The Director
shall allow a different time period, not to exceed 10 years
preceding the date that a complete permit application is received by
the Department, if the owner or operator demonstrates that it is
more representative of normal source operation. . . .
The term ``immediately'' was eliminated from the State's analogous
rule at 15A North Carolina Administrative Code Rule 02D .0544
subparagraph (b)(1) as the result of a technical correction from the
North Carolina Rules Review Commission to remove this word as
extraneous text. North Carolina previously submitted a letter
clarifying that the State intends to enforce its provision at 15A North
Carolina Administrative Code Rule 02D .0544 subparagraph (b)(1) as if
the term ``immediately'' were present in the rule. MCAQ's February 4,
2022, letter notes that MCAQ intends to be consistent with the State
and therefore also intends to enforce subparagraph 2.0544(b)(1) as if
the term ``immediately'' were present. EPA also notes that the
definition of ``baseline actual emissions,'' as included in Rule
2.0530(b)(1) for other regulated NSR pollutants, includes the term
``immediately.'' Therefore, MCAQ would be enforcing 2.0544(b)(1)
consistent with how the term is defined at 2.0530(b)(1). EPA's proposed
action to incorporate the definition of ``baseline actual emissions''
is based on Mecklenburg County's interpretation of this subparagraph as
explained in the February 4, 2022, letter.\22\
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\22\ EPA incorporated this language into the SIP on August 8,
2019 (84 FR 38876).
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EPA has preliminarily determined that MCAQ's proposed LIP revision
is consistent with the Tailoring Rule. Furthermore, EPA has
preliminarily determined that this revision to Mecklenburg County's LIP
is consistent with section 110 of the CAA. Therefore, EPA is proposing
to incorporate Rule 2.0544 into the Mecklenburg County LIP, excluding
the language of the Biomass Deferral Rule from the incorporation by
reference of 40 CFR 51.166.\23\
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\23\ If EPA finalizes this proposed action, it will include a
note in the table in paragraph (c)(3) of 40 CFR 52.1770 identifying
the exclusion of the Biomass Deferral Rule language from the LIP-
approved version of Rule 2.0544.
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E. Equipment Replacement Provision
As noted in section II.E of this NPRM, the April 24, 2020,
submittal adopts the Federal PSD plan requirements contained within 40
CFR 51.166 as amended July 1, 2014, with certain revisions, into Rule
2.0530, Prevention of Significant Deterioration. The language of the
ERP was vacated by court order before July 1, 2014, and therefore, as
noted in section II.E of this NPRM, EPA is not proposing to act on the
incorporation by reference of the 2003 changes to 40 CFR
51.166(b)(2)(iii)(a), the incorporation by reference of paragraphs 40
CFR 51.166(b)(53) through (56), nor the incorporation by reference of
40 CFR 51.166(y) in Rule 2.0530 or Rule 2.0544.
F. Ethanol Rule
MCAPCO Rule 2.0530 is consistent with EPA's PSD program
requirements in 40 CFR 51.166, as amended in the 2007 Ethanol Rule.\24\
EPA prepared a Technical Support Document (TSD) related to the 2007
Ethanol Rule adoption that is available as part of the docket to this
proposed rulemaking that contains an analysis of the potential impact
of the SIP revision on air quality and whether approval of the SIP
revision will interfere with attainment
[[Page 51954]]
or maintenance of the national ambient air quality standards (or
standards) or any other CAA requirement. As discussed therein, there
are no existing ethanol plants in Mecklenburg County. The one existing
ethanol plant in the State is mapped in the TSD along with the ambient
air monitors to demonstrate the relationship between ethanol production
and air quality.
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\24\ The term ``major stationary source'' is defined in 40 CFR
51.166(b)(1)(i)(a) as ``[a]ny of the following stationary sources of
air pollutants which emits, or has the potential to emit, 100 tons
per year or more of any regulated NSR pollutant: . . . Chemical
process plants (which does not include ethanol production facilities
that produce ethanol by natural fermentation included in NAICS codes
325193 or 312140).'' Additionally, 40 CFR 51.166(b)(1)(iii) excludes
fugitive emissions from ethanol production facilities from the
``chemical process plants'' category such that fugitive emissions
are not considered in determining whether the facility is subject to
PSD. Because Mecklenburg County's incorporation by reference of 40
CFR 51.166 includes the ethanol exclusion, ethanol facilities
emitting less than 250 tpy of a regulated air pollutant are not
subject to PSD, and fugitive emissions from ethanol facilities are
not considered in determining whether the facility is subject to
PSD.
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Emissions for four criteria pollutants are analyzed in the TSD. EPA
also graphed air quality trends in the TSD in Mecklenburg County, since
the date of promulgation of the 2007 Ethanol Rule, until 2021, for all
criteria pollutants associated with ethanol production. The air quality
trends reveal air quality improved for generally every pollutant
monitored. Additionally, there has been no ethanol production in or
near Mecklenburg County, North Carolina.
EPA also describes requirements for MCAQ's minor source NSR program
in the TSD because the facilities that would be below the 250 tpy PSD
major source threshold under this rulemaking will still need to obtain
minor source construction permits. EPA further analyzes the impact of
increasing the threshold to 250 tpy on ozone and PM precursors. As the
analysis for ozone and secondary PM in the TSD demonstrates that
sources below the 250 tpy threshold will not cause any interference
with attainment or maintenance of the standard in Mecklenburg County.
Based on EPA's analysis in the TSD, EPA's exclusion of these
facilities from MCAQ's PSD program, as proposed herein, would not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171 of the CAA) or
any other applicable requirement of the CAA. Therefore, this proposed
action is consistent with CAA section 110(l).
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the following Mecklenburg County Rules: 2.0530, Prevention of
Significant Deterioration, effective October 17, 2017; \25\ and 2.0544,
Prevention of Significant Deterioration Requirements for Greenhouse
Gases, effective December 15, 2015.\26\ EPA has made, and will continue
to make, these materials generally available through
www.regulations.gov and at the EPA Region 4 office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section in the
preamble of this document for more information).
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\25\ EPA is not proposing to incorporate by reference the
provisions of the Equipment Replacement Rule and Fugitive Emissions
Rule contained in 40 CFR 51.166(b)(2)(iii)(a), 40 CFR
51.166(b)(2)(v), 51.166(b)(3)(iii)(d), 40 CFR 51.166(b)(53) through
(56), and 40 CFR 51.166(y) as those CFR provisions existed on July
1, 2014.
\26\ EPA is not proposing to incorporate by reference the
provisions of the Biomass Deferral Rule contained in 40 CFR
51.166.(b)(48)(ii)(a) as that CFR provision existed on July 20,
2011.
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V. Proposed Action
EPA is proposing to approve the aforementioned changes to the
Mecklenburg County LIP. Specifically, EPA is proposing to incorporate
updates to PSD permitting provisions in Rule 2.0530, Prevention of
Significant Deterioration, and incorporate new Rule 2.0544, Prevention
of Significant Deterioration Requirements for Greenhouse Gases, with
the exception of those provisions described in footnotes 25 and 26 of
this document. EPA believes that approval of these changes and
additions, including all amendments mentioned in the preceding
sections, would not have a negative impact on air quality in the
Mecklenburg County area. With these proposed changes and additions, the
local regulations will now be consistent with the State's current SIP-
approved PSD program and Federal PSD rules. Additionally, these updates
include important provisions such as recognizing NOX as a
precursor to ozone, incorporating provisions to regulate
PM2.5, and incorporating provisions to regulate GHGs for the
purposes of PSD. Therefore, EPA is proposing to approve the April 24,
2020, LIP revision changes to Mecklenburg County's PSD permitting
program, pursuant to the Act and EPA's implementing regulations.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. This action merely
proposes to approve local law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by local law.
For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
[[Page 51955]]
Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-18172 Filed 8-23-22; 8:45 am]
BILLING CODE 6560-50-P
