Air Plan Approval; North Carolina; Revisions to Exclusionary Rules and Permit Exemptions, 62990-62994 [2022-21651]
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
TABLE 1 TO PARAGRAPH(a)(1)
Statutory civil monetary penalty amount for violations that occurred
after November 2, 2015, and are assessed on or after October 18,
2022
Environmental statute and U.S. code citation
Clean Water Act (CWA), Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A)
CWA, Section 404(s)(4), 33 U.S.C. 1344(s)(4) ........................................
National Fishing Enhancement Act, Section 205(e), 33 U.S.C. 2104(e)
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[FR Doc. 2022–22480 Filed 10–17–22; 8:45 am]
BILLING CODE 3720–58–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2020–0187; FRL–10244–
01–R4]
Air Plan Approval; North Carolina;
Revisions to Exclusionary Rules and
Permit Exemptions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving portions of
revisions to the State Implementation
Plan (SIP) submitted by the State of
North Carolina, through the North
Carolina Department of Environmental
Quality, Division of Air Quality (DAQ),
on September 18, 2009, and July 10,
2019. These revisions modify two
different sections of the North Carolina
SIP which (1) exclude certain categories
of facilities from title V permitting
requirements by imposing limitations
on their potential emissions (Section 2Q
.0800, ‘‘Exclusionary Rules’’), and (2)
exclude certain categories of facilities
from the SIP’s permitting requirements
by imposing limitations on their
potential emissions (Section 2Q .0900,
‘‘Permit Exemptions’’). EPA is
approving these revisions pursuant to
the Clean Air Act (CAA or Act).
DATES: This rule is effective November
17, 2022.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2020–0187. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
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SUMMARY:
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$23,990 per violation, with a maximum of $59,974.
Maximum of $59,974 per day for each violation.
Maximum of $26,269 per violation.
Publicly available docket materials can
either be retrieved electronically via
www.regulations.gov or in hard copy at
the 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. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Pearlene Williams, 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.
Ms. Williams can be reached via
telephone at (404) 562–9144 or via
electronic mail at williams.pearlene@
epa.gov.
SUPPLEMENTARY INFORMATION:
Elevators; 2Q .0806, Cotton Gins; and
2Q .0807, Emergency Generators. In
addition, EPA proposed to remove from
the SIP Rule 2Q .0809, Concrete Batch
Plants.
EPA also proposed revisions to the
following rules under Section 2Q .0900
(‘‘Permit Exemptions’’), which defines
the categories of facilities that are
exempt from the State’s SIP permitting
requirements for non-title V facilities by
limiting their potential emissions: 2Q
.0901, Purpose and Scope, and 2Q
.0902, Temporary Crushers.3 4 The
January 19, 2021, NPRM provides
additional detail regarding the
background and rationale for EPA’s
action. Comments were due on or before
February 18, 2021.
I. Background
In a notice of proposed rulemaking
(NPRM) published on January 19, 2021
(86 FR 5091), EPA proposed to approve
changes to several provisions under 15A
North Carolina Administrative Code
(NCAC) Subchapter 2Q, Air Quality
Permit Procedures,1 of the North
Carolina SIP. EPA proposed revisions to
the following rules under Section 2Q
.0800 (‘‘Exclusionary Rules’’), which
defines the categories of facilities that
are not subject to title V permitting
requirements due to limitations on their
potential emissions: 2Q .0801, Purpose
and Scope; 2Q .0802, Gasoline Service
Stations and Dispensing Facilities; 2 2Q
.0803, Coating, Solvent Cleaning,
Graphic Arts Operations; 2Q .0804, Dry
Cleaning Facilities; 2Q .0805, Grain
II. Response to Comments
EPA received comments on the
January 19, 2021, NPRM, which are
included in the docket for this
rulemaking. The comments arrived in a
letter dated February 18, 2021, and
originate from one commentor, Air Law
for All. The Commenter also provided
supplemental documentation to support
its comments. The comments are
generally opposed to the revisions to the
permit exemption provisions of Rule 2Q
.0902, Temporary Crushers, which
exempts temporary rock crushers that
meet certain criteria from the
requirement to obtain stationary source
construction and operating permits
under Section 2Q .0300 of the SIP. EPA
received no comments on the changes to
rules under Section 2Q .0800 or other
rule revisions proposed for approval in
the NPRM. Below, EPA summarizes and
responds to the comments received and
briefly describes the temporary crushers
covered by Rule 2Q .0902.
A crusher is a machine designed to
crush rocks into sand, gravel, or smaller
crushed rocks. The term ‘‘temporary
crusher’’ means a crusher that will be
operated at any one site or facility for
1 In the table of North Carolina regulations
federally approved into the SIP at 40 CFR
52.1770(c), 15A NCAC 2Q is referred to as
‘‘Subchapter 2Q Air Quality Permits.’’
2 This amendment changes the title of Rule 2Q
.0802 in 40 CFR 52.1770(c) from ‘‘Gasoline
Servicing Stations and Dispensing Facilities’’ to
‘‘Gasoline Service Stations and Dispensing
Facilities.’’
3 In the September 18, 2009, submittal, North
Carolina changes the title of Rule 2Q .0902 from
‘‘Portable Crushers’’ to ‘‘Temporary Crushers.’’
4 DAQ supplemented the September 18, 2009,
submittal in a letter dated June 7, 2019, which
includes the correct redline/strikeout of the
regulatory changes and final regulations that
became state effective on January 1, 2009. This
letter is available in the docket for this rulemaking.
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no more than 12 months. See provision
2Q .0902(a). To operate, a crusher is
attached to either a diesel engine, which
powers the crusher, or to a diesel-fired
generator, which provides electrical
power to the crusher and can either be
mounted on the crusher or separated
from it on a trailer. These diesel engines
are mobile sources that meet the
definition of ‘‘nonroad engine’’ in the
CAA and its general compliance
provisions for highway, stationary, and
nonroad programs. See 72 U.S.C.
7550(10); 40 CFR 1068.30 (definition of
‘‘nonroad engine’’).5 The existing SIPapproved version of Rule 2Q .0902
exempts temporary crushers from
permitting if, among other specific
criteria, any diesel-fired generator or a
diesel engine that powers the crusher
burns no more than 17,000 gallons of
diesel fuel at any one facility or site.
Comment 1: The Commenter states
that diesel engines used at a temporary
source are considered nonroad engines
and that the State has the authority to
regulate the ‘‘use and operation’’ of
nonroad engines under a permissible
interpretation of section 209(e) of the
CAA. The Commenter quotes 40 CFR
part 1074, subpart A, Appendix A,
which states, in part, ‘‘EPA believes that
states are not precluded under 42 U.S.C.
7543 [CAA section 209] from regulating
the use and operation of nonroad
engines, such as regulations on hours of
usage, daily mass emission limits, or
sulfur limits on fuel; nor are permits
regulating such operations precluded,
once the engine is no longer new.’’ 6 The
Commenter then asserts that regulation
of total fuel consumption pursuant to
Rule 2Q .0902 at a temporary crusher
facility is a regulation of ‘‘the use and
operation’’ of the diesel engines.
Response 1: EPA disagrees that the
existing SIP-approved version of Rule
2Q .0902 imposes any restriction or
limitation on the ‘‘the use and
operation’’ of diesel engines. Paragraph
(b) of the SIP-approved version states
that the Rule applies to any temporary
crusher that:
(1) crushes no more than 300,000 tons
at any one facility or site;
(2) burns no more than 17,000 gallons
of diesel fuel at any one facility or site
if uses:
(A) a diesel-fired generator, or
also 40 CFR 1068.30, General Compliance
Provisions for Highway, Stationary, and Nonroad
Programs, which defines ‘‘nonroad engines,’’ in
part, as any internal combustion engine that, by
itself or in or on a piece of equipment, is portable
or transportable, and does not remain at a location
for more than 12 consecutive months.
6 The Commenter quotes 40 CFR part 89, subpart
A, Appendix A, which EPA moved to 40 CFR part
1074 in 2021. See 86 FR 34308 (July 29, 2021).
(B) a diesel engine to drive the
crusher;
(3) does not operate at a quarry that
has an air permit issued under this
subchapter;
(4) continuously uses water spray to
control emissions from the crushers;
and
(5) does not operate at a facility that
is required to have a mining permit
issued by the Division of Energy,
Mineral, and Land Resources.
These five criteria are not regulating
the use and operation of the crushers or
the diesel engines that run them; they
are the criteria that a temporary crusher
must meet under the existing North
Carolina SIP to qualify for an exemption
from the State’s construction and
operation permit provisions at Section
2Q .0300. North Carolina’s July 10,
2019, SIP revision removes only one of
these five criteria—the second one
regarding the burning of diesel fuel,
which places no restriction on the
combustion of diesel fuel by an engine
or generator and no limitation on the
emissions from such combustion. The
other four criteria remain for
determining whether a temporary
crusher qualifies for the permit
exemption.
EPA agrees with the Commenter that
diesel engines used at a temporary
source, such as these temporary
crushers, are considered nonroad
engines and that states are not
precluded from regulating the use and
operation of these engines. However,
North Carolina’s SIP explicitly exempts
title II nonroad engines from its
permitting requirements.7 Further, the
Commenter provides no evidence that
the fuel combustion threshold being
removed from the permitting exemption
criteria of Rule 2Q .0902 was originally
adopted as an in-use restriction. The
fuel combustion criterion was only one
of five criteria North Carolina originally
chose to adopt in this rule for the
purpose of deciding whether a
temporary crusher qualifies for a
stationary source permit exemption, as
explained further below. The State did
not create this criterion to regulate
emissions from the diesel engines.
Under the existing rule, for example, if
a temporary crusher that opted for
coverage under Rule 02Q .0902 were to
combust more than 17,000 gallons of
5 See
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7 See provision 2Q .0102(c)(1)(L)(ii), which states
‘‘[t]he following activities do not need a permit or
permit modification under this Section .0300 of this
Subchapter; however, the Director may require the
owner or operator of these activities to register them
under 15A NCAC 2D .0200: . . . non self-propelled
non-road engines, except generators, regulated by
rules adopted under Title II of the federal Clean Air
Act. . . .’’
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62991
diesel fuel at any one facility or site, it
would not be in violation of any fuel
combustion limitation (because none
exists). Instead, such facility would be
in violation of the requirement to obtain
a permit in accordance with 15A NCAC
2Q .0300.
North Carolina submitted the
temporary crusher permitting
exemption to EPA as a SIP revision on
December 14, 2004, and EPA approved
the revision on September 29, 2017.8 In
that original submittal, the State
estimated that crushers processing
300,000 tons of material would emit
approximately 1,775 pounds of
particulate matter (PM),9 the only
pollutant emitted by temporary crushers
subject to Rule 2Q .0902. The State also
observed that many of these crushers, in
combination with their associated
diesel-powered engines or generators,
emit less than 5 tons per year of each
pollutant per site.10 The State noted that
the subject crushers are used on a
temporary basis at construction sites to
crush concrete, asphalt, and stone, are
moved from site to site with little
notice, and are generally at one location
for only a few days to a few months at
a time.11 The State asserted that
‘‘[b]ecause of the mobile nature of these
crushers, requiring them to obtain an air
permit before moving to a new location
is cumbersome and creates compliance
problems for the crushers and the
Division of Air Quality.’’ 12 Thus, the
purpose of Rule 2Q .0902 is not to
regulate the ‘‘use and operation’’ of
these nonroad engines, but to identify
the ‘‘temporary crushers’’ that are
exempt from the State’s construction
and operation permits program at
Section 2Q .0300 due to the temporary
nature of their operating location and
their low level of air pollutant
emissions.
Comment 2: The Commenter states
that the diesel engine requirement was
a valid regulation, and its removal is not
merely a clarification.
Response 2: In its July 10, 2019,
submittal, North Carolina states that
language related to engines throughout
Rule 2Q .0902 was deleted because DAQ
does not regulate engines under CAA
title II, Emission Standards For Moving
Sources (title II).13 In other words,
8 See December 14, 2004, SIP revision, included
in the docket (Docket Identification No. EPA–R04–
OAR–2016–0362) for EPA’s September 29, 2017,
rulemaking (82 FR 45473).
9 Id. at Attachment 10, Memorandum, Paul Grable
to Mr. Thomas Allen, June 9, 2003.
10 Id. at Attachment 9, Economic Assessment.
11 Id.
12 Id.
13 See July 10, 2019, SIP revision, Attachment 2,
p. HR–1–202.
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
because emissions from nonroad
engines are mobile source emissions
and not stationary source emissions,
those emissions are not subject to any
requirement of the North Carolina SIP.
Indeed, the SIP specifically exempts
title II nonroad engines from its
permitting requirements, and the
quantity of diesel fuel combusted by a
nonroad engine or generator driving a
crusher has no relevance to stationary
source emissions. Therefore, removal of
the diesel combustion threshold helps
to clarify that mobile source emissions
are not regulated under the current
North Carolina SIP.14
Comment 3: The Commenter states
that the removal of the diesel fuel
combustion threshold on engines at
temporary crushers is a relaxation of the
SIP. According to the Commenter, it is
possible that a permit for a temporary
crusher with engines that burn more
than 17,000 gallons of diesel will not
contain any restrictions on the engines
themselves but impose restrictions on
other emissions from the crusher, and
that more temporary crushers will
qualify for the permit exemption as
result of the change. The Commenter
adds that this exemption is from the
State’s general construction and
operating permit program, which is
intended to protect air quality
standards. The Commenter concludes
that EPA must disapprove the revision
for temporary crushers because the State
has not demonstrated, as required under
section 110(l) of the Act, that the
revisions to the eligibility criteria for the
permit exemption for temporary
crushers will not interfere with
requirements regarding attainment,
reasonable further progress, and other
requirements of the Act.
Response 3: EPA disagrees that the
requirements of CAA section 110(l) have
not been satisfied. Section 110(l) states
that ‘‘[t]he Administrator shall not
approve a revision of a plan if the
revision would interfere with any
applicable requirement concerning
attainment and reasonable further
progress (as defined in section 171), or
any other applicable requirement of this
Act.’’ As discussed below, EPA has
concluded that the changes to Rule 2Q
.0902 will not interfere with any
applicable requirement concerning
attainment or any other applicable CAA
requirement because there are no
potential emission increases associated
with these changes.
14 While Rule 2Q .0902 relates only to North
Carolina’s SIP permitting requirements at Section
2Q .0300, EPA notes that the State’s title V
permitting rules likewise exempt mobile source
emissions from permitting requirements under that
program. See Rules 02Q .0502(d) and 0503(7)(a).
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As discussed above, North Carolina
does not regulate nonroad engines,
which are instead regulated by EPA
under title II of the CAA.15 EPA agrees
with the State that nonroad diesel
emissions are mobile source emissions
regulated by EPA under title II and are
not part of the stationary source
emissions from temporary crushers.
Therefore, removing the diesel engine
combustion criterion will not cause
engine emissions to increase because (1)
North Carolina does not regulate these
engines to begin with, (2) this criterion
never served to limit either the quantity
of diesel fuel that an engine or generator
was allowed to combust or the quantity
of emissions allowed from such
combustion, and (3) title II requirements
continue to limit emissions from
nonroad engines and generators and this
action will not change title II
requirements.
With regard to permitting the
stationary source, even if a temporary
crusher with a nonroad engine that
combusts more than 17,000 gallons at
any one facility or site were to become
exempt from the State’s construction
and operation permits program
following removal of the fuel
combustion criterion, EPA expects no
appreciable impact on air quality. First,
provision 2Q .0902(c) protects the fine
and coarse PM NAAQS by requiring the
owner or operator of a temporary
crusher to reduce to a minimum any
particulate matter from becoming
airborne to prevent exceeding the
ambient air quality standards for
particulate matter beyond the property
line.16 Second, EPA does not expect that
any permit issued by North Carolina to
a material crusher prior to becoming
exempt would have included any
emission limitations beyond what is
already required under state and federal
rules and this action does not change
those requirements. Requirements from
40 CFR part 60, subpart OOO,
Standards of Performance for
15 Section 213 of the CAA requires the EPA
Administrator to promulgate (and periodically
revise) regulations containing standards applicable
to emissions from those classes or categories of new
nonroad engines and new nonroad vehicles (other
than locomotives or engines used in locomotives)
which in the Administrator’s judgment cause, or
contribute to, air pollution. Those regulations are
codified under 40 CFR part 1039, Control of
Emissions from New and In-Use Nonroad
Compression-Ignition Engines.
16 The SIP-approved version of Rule 2Q .0902
states ‘‘The owner or operator of a portable crusher
shall not cause or allow any material to be
produced, handled, transported, or stockpiled
without taking measures to reduce to a minimum
any particulate matter from becoming airborne to
prevent exceeding the ambient air quality standards
beyond the property line for particulate matter
(PM2.5, PM10, and total suspended particulates).’’
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Nonmetallic Mineral Processing
Plants,17 and from North Carolina rules
2D .0510, Particulates from Sand,
Gravel, Or Crushed Stone Operations,
and 2D .0540, Particulates from Fugitive
Non-Process Dust Emission Sources
continue to apply to these material
crushers, in accordance with the terms
of such rules. These rules contain
limitations for particulate matter
emissions, fugitive emissions, and
opacity only. Third, the 300,000-ton
material processing criterion remains in
place, and as noted above, temporary
crushers that emit more than
approximately 1,775 pounds of PM at a
site per 12-month period would
continue to be subject to permitting.
For the reasons discussed above, EPA
has concluded that the revisions to Rule
2Q .0902 will not interfere with any
applicable requirement concerning
attainment, reasonable further progress,
or any other applicable CAA
requirement.
Comment 4: The Commenter states
that North Carolina’s SIP revision must
include a CAA section 110(l)
noninterference demonstration,
consisting of an air quality analysis or
substitute equivalent emissions
reductions, and that the revision
contains no such demonstration.
Therefore, the Commenter claims that
the SIP revision does not meet the
completeness requirements of Appendix
V to 40 CFR part 51, and in turn, does
not contain the information necessary to
enable EPA to determine whether the
plan submission complies with the
provisions of the Act, as required by
CAA section 110(k)(1)(A). The
Commenter also states that in the
absence of any information from the
State to support the SIP revision, EPA
cannot supplement it with technical
information about temporary crushers
and air quality to approve the submittal
because to do so would violate the
notice requirements of the
Administrative Procedure Act (APA)
(citing Ober v. U.S. EPA, 84 F.3d 304,
312 (9th Cir. 1996)). If the State or EPA
has information that supports approval
of the SIP revision, the Commenter
argues that EPA must re-propose its
action and allow for comment on the
information.
Response 4: EPA disagrees with the
Commenter. Pursuant to CAA section
110(k)(1)(B), the SIP submissions being
acted on were deemed complete by
operation of law on March 18, 2010, and
17 40 CFR part 60, subpart OOO, which applies
to temporary crushers in North Carolina that meet
certain applicability criteria (see 40 CFR
60.670(a)(1) and (c)(2)), does not include any
provision regulating the engines or generators that
power such equipment.
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January 10, 2020, respectively (i.e., six
months after the dates of submission),
because EPA did not make an
affirmative finding that the submissions
were complete or incomplete before
those dates. Furthermore, given the
nature of the revisions to Rule 2Q .0902,
the SIP submittals did not need a
technical air quality analysis or
equivalent emissions reductions to
demonstrate compliance with the CAA.
Removal of the diesel fuel combustion
criterion from Rule 2Q .0902 is
appropriate because, among other
things, mobile source emissions are not
part of the stationary source (i.e., the
temporary crusher) emissions, nonroad
engines are not regulated by North
Carolina, and the criterion did not
require any air pollutant emission
reductions from the nonroad engines.18
EPA’s evaluation of North Carolina’s
revisions to Rule 2Q .0902 is based
entirely on the State’s December 14,
2004, SIP submittal (original request for
approval of Rule 2Q .0902); the State’s
September 18, 2009, and July 10, 2019,
SIP submittals; the State’s June 7, 2019,
and June 1, 2020, letters included in the
docket for this rulemaking; the SIP; and
on the CAA. EPA has not relied on any
new technical information in approving
this rule revision. Under these
circumstances, re-proposal of this action
is not required by the APA.
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III. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, and as discussed in Section I and
II of this preamble, EPA is finalizing the
incorporation by reference of the
following rules under Subchapter 2Q
Air Quality Permits with a stateeffective date of April 1, 2018: 2Q .0801,
Purpose and Scope; 2Q .0802, Gasoline
Service Stations and Dispensing
Facilities; 2Q .0803, Coating, Solvent
Cleaning, Graphic Arts Operations; 2Q
.0804, Dry Cleaning Facilities; 2Q .0805,
Grain Elevators; 2Q .0806, Cotton Gins;
2Q .0807, Emergency Generators; 2Q
.0901, Purpose and Scope; and 2Q
.0902, Temporary Crushers (with the
exception of .0902(d)).19 Also in this
document, EPA is finalizing the removal
18 See prior comment responses in this notice for
additional rationale.
19 The changes to paragraph .0902(d) in the July
10, 2019, and September 18, 2009, SIP revisions
were withdrawn from EPA consideration in a letter
from DAQ dated June 1, 2020. Additionally, the
withdrawal of paragraph (d) from Rule 2Q .0902
leaves the rule with two paragraphs (c), one stateeffective on January 1, 2005, and one state-effective
on April 1, 2018. DAQ plans to submit revisions to
address the two paragraphs (c) in a future
submission.
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of Rule 2Q .0809, Concrete Batch Plants,
from the North Carolina SIP, which was
previously incorporated by reference in
accordance with the requirements of 1
CFR part 51. These changes to the North
Carolina SIP revise the recordkeeping
and reporting requirements of the
permitting exclusionary rules, revise
language, reformat the regulatory
citations contained in these regulations,
remove the ‘‘Concrete Batch Plants’’,
and remove provision 2Q .0902(b)(2).
EPA has made, and will continue to
make, the State Implementation Plan
generally available at the EPA Region 4
office (please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section of this
preamble for more information).
Therefore, the revised materials as
stated above, have been approved by
EPA for inclusion in the State
implementation plan, have been
incorporated by reference by EPA into
that plan, are fully federally enforceable
under sections 110 and 113 of the CAA
as of the effective date of the final
rulemaking of EPA’s approval, and will
be incorporated by reference in the next
update to the SIP compilation.
IV. Final Action
EPA is approving the changes
described above to the North Carolina
SIP submitted by the State of North
Carolina on September 18, 2009, and
July 10, 2019. The changes to 2Q .0801,
Purpose and Scope; 2Q .0802, Gasoline
Service Stations and Dispensing
Facilities; 2Q .0803, Coating, Solvent
Cleaning, Graphic Arts Operations; 2Q
.0804, Dry Cleaning Facilities; 2Q .0805,
Grain Elevators; 2Q .0806, Cotton Gins;
2Q .0807, Emergency Generators; 2Q
.0901, Purpose and Scope; and 2Q
.0902, Temporary Crushers, revise the
recordkeeping and reporting
requirements of the permitting
exclusionary rules, revise language,
reformat the regulatory citations
contained in these regulations, remove
2Q .0809, Concrete Batch Plants, and
remove provision 2Q .0902(b)(2). The
changes are consistent with the CAA.
V. 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 approves
state law as meeting Federal
requirements and does not impose
additional requirements beyond those
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62993
imposed by state law. For that reason,
this action:
• Is not a significant regulatory
actions 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.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
E:\FR\FM\18OCR1.SGM
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62994
Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by December 19, 2022. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. See section
307(b)(2).
List of Subjects in 40 CFR Part 52
Subpart II—North Carolina
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
■
Dated: September 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
2. In § 52.1770(c) amend Table (1)
under ‘‘Subchapter 2Q Air Quality
Permits’’ by:
■ a. Removing the entries for ‘‘Section
.0801’’, ‘‘Section .0802’’, ‘‘Section
.0803’’, ‘‘Section .0804’’, ‘‘Section
.0805’’, ‘‘Section .0806’’, ‘‘Section
.0807’’, and adding in their place entries
for ‘‘Rule .0801’’, ‘‘Rule .0802’’, ‘‘Rule
.0803’’, ‘‘Rule .0804’’, ‘‘Rule .0805’’,
‘‘Rule .0806’’, ‘‘Rule .0807’’;
■ b. Removing the entry for ‘‘Section
.0809’’; and
■ c. Removing the entries for ‘‘Section
.0901’’ and ‘‘Section .0902’’ and adding
in their place entries for ‘‘Rule .0901’’
and ‘‘Rule .0902’’.
The amendment reads as follows:
§ 52.1770
*
Authority: 42 U.S.C. 7401 et seq.
Identification of plan.
*
*
(c) * * *
*
*
(1) EPA APPROVED NORTH CAROLINA REGULATIONS
State
citation
Title/subject
*
*
State effective
date
EPA approval date
*
*
Explanation
*
*
*
*
*
*
*
*
*
Subchapter 2Q Air Quality Permits
*
Rule .0801 ...
*
Purpose and Scope ..........
*
4/1/2018
Rule .0802 ...
4/1/2018
Rule .0804 ...
Gasoline Service Stations
and Dispensing Facilities.
Coating, Solvent Cleaning,
Graphic Arts Operations.
Dry Cleaning Facilities .....
Rule .0805 ...
Grain Elevators .................
4/1/2018
Rule .0806 ...
Cotton Gins ......................
4/1/2018
Rule .0807 ...
Emergency Generators ....
4/1/2018
*
Rule .0901 ...
*
Purpose and Scope ..........
*
4/1/2018
Rule .0902 ...
Temporary Crushers ........
4/1/2018
Rule .0803 ...
khammond on DSKJM1Z7X2PROD with RULES
*
*
*
*
4/1/2018
4/1/2018
*
10/18/2022, [Insert citation
of publication].
10/18/2022, [Insert citation
of publication].
10/18/2022, [Insert
of publication].
10/18/2022, [Insert
of publication].
10/18/2022, [Insert
of publication].
10/18/2022, [Insert
of publication].
10/18/2022, [Insert
of publication].
citation
citation
citation
citation
citation
*
10/18/2022, [Insert citation
of publication].
10/18/2022, [Insert citation
of publication].
With the exception of .0902(d). This rule contains two
paragraph ‘‘(c)’’s. One has an effective date of 1/1/
2001. The other has a state effective date of 4/1/
2018.
*
[FR Doc. 2022–21651 Filed 10–17–22; 8:45 am]
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]]>Agencies
[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62990-62994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21651]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2020-0187; FRL-10244-01-R4]
Air Plan Approval; North Carolina; Revisions to Exclusionary
Rules and Permit Exemptions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of revisions to the State Implementation Plan (SIP) submitted
by the State of North Carolina, through the North Carolina Department
of Environmental Quality, Division of Air Quality (DAQ), on September
18, 2009, and July 10, 2019. These revisions modify two different
sections of the North Carolina SIP which (1) exclude certain categories
of facilities from title V permitting requirements by imposing
limitations on their potential emissions (Section 2Q .0800,
``Exclusionary Rules''), and (2) exclude certain categories of
facilities from the SIP's permitting requirements by imposing
limitations on their potential emissions (Section 2Q .0900, ``Permit
Exemptions''). EPA is approving these revisions pursuant to the Clean
Air Act (CAA or Act).
DATES: This rule is effective November 17, 2022.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2020-0187. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials can either
be retrieved electronically via www.regulations.gov or in hard copy at
the 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.
EPA requests that if at all possible, you contact the person listed in
the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The Regional Office's official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Pearlene Williams, 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. Ms. Williams can be
reached via telephone at (404) 562-9144 or via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
In a notice of proposed rulemaking (NPRM) published on January 19,
2021 (86 FR 5091), EPA proposed to approve changes to several
provisions under 15A North Carolina Administrative Code (NCAC)
Subchapter 2Q, Air Quality Permit Procedures,\1\ of the North Carolina
SIP. EPA proposed revisions to the following rules under Section 2Q
.0800 (``Exclusionary Rules''), which defines the categories of
facilities that are not subject to title V permitting requirements due
to limitations on their potential emissions: 2Q .0801, Purpose and
Scope; 2Q .0802, Gasoline Service Stations and Dispensing Facilities;
\2\ 2Q .0803, Coating, Solvent Cleaning, Graphic Arts Operations; 2Q
.0804, Dry Cleaning Facilities; 2Q .0805, Grain Elevators; 2Q .0806,
Cotton Gins; and 2Q .0807, Emergency Generators. In addition, EPA
proposed to remove from the SIP Rule 2Q .0809, Concrete Batch Plants.
---------------------------------------------------------------------------
\1\ In the table of North Carolina regulations federally
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 2Q is referred
to as ``Subchapter 2Q Air Quality Permits.''
\2\ This amendment changes the title of Rule 2Q .0802 in 40 CFR
52.1770(c) from ``Gasoline Servicing Stations and Dispensing
Facilities'' to ``Gasoline Service Stations and Dispensing
Facilities.''
---------------------------------------------------------------------------
EPA also proposed revisions to the following rules under Section 2Q
.0900 (``Permit Exemptions''), which defines the categories of
facilities that are exempt from the State's SIP permitting requirements
for non-title V facilities by limiting their potential emissions: 2Q
.0901, Purpose and Scope, and 2Q .0902, Temporary
Crushers.3 4 The January 19, 2021, NPRM provides additional
detail regarding the background and rationale for EPA's action.
Comments were due on or before February 18, 2021.
---------------------------------------------------------------------------
\3\ In the September 18, 2009, submittal, North Carolina changes
the title of Rule 2Q .0902 from ``Portable Crushers'' to ``Temporary
Crushers.''
\4\ DAQ supplemented the September 18, 2009, submittal in a
letter dated June 7, 2019, which includes the correct redline/
strikeout of the regulatory changes and final regulations that
became state effective on January 1, 2009. This letter is available
in the docket for this rulemaking.
---------------------------------------------------------------------------
II. Response to Comments
EPA received comments on the January 19, 2021, NPRM, which are
included in the docket for this rulemaking. The comments arrived in a
letter dated February 18, 2021, and originate from one commentor, Air
Law for All. The Commenter also provided supplemental documentation to
support its comments. The comments are generally opposed to the
revisions to the permit exemption provisions of Rule 2Q .0902,
Temporary Crushers, which exempts temporary rock crushers that meet
certain criteria from the requirement to obtain stationary source
construction and operating permits under Section 2Q .0300 of the SIP.
EPA received no comments on the changes to rules under Section 2Q .0800
or other rule revisions proposed for approval in the NPRM. Below, EPA
summarizes and responds to the comments received and briefly describes
the temporary crushers covered by Rule 2Q .0902.
A crusher is a machine designed to crush rocks into sand, gravel,
or smaller crushed rocks. The term ``temporary crusher'' means a
crusher that will be operated at any one site or facility for
[[Page 62991]]
no more than 12 months. See provision 2Q .0902(a). To operate, a
crusher is attached to either a diesel engine, which powers the
crusher, or to a diesel-fired generator, which provides electrical
power to the crusher and can either be mounted on the crusher or
separated from it on a trailer. These diesel engines are mobile sources
that meet the definition of ``nonroad engine'' in the CAA and its
general compliance provisions for highway, stationary, and nonroad
programs. See 72 U.S.C. 7550(10); 40 CFR 1068.30 (definition of
``nonroad engine'').\5\ The existing SIP-approved version of Rule 2Q
.0902 exempts temporary crushers from permitting if, among other
specific criteria, any diesel-fired generator or a diesel engine that
powers the crusher burns no more than 17,000 gallons of diesel fuel at
any one facility or site.
---------------------------------------------------------------------------
\5\ See also 40 CFR 1068.30, General Compliance Provisions for
Highway, Stationary, and Nonroad Programs, which defines ``nonroad
engines,'' in part, as any internal combustion engine that, by
itself or in or on a piece of equipment, is portable or
transportable, and does not remain at a location for more than 12
consecutive months.
---------------------------------------------------------------------------
Comment 1: The Commenter states that diesel engines used at a
temporary source are considered nonroad engines and that the State has
the authority to regulate the ``use and operation'' of nonroad engines
under a permissible interpretation of section 209(e) of the CAA. The
Commenter quotes 40 CFR part 1074, subpart A, Appendix A, which states,
in part, ``EPA believes that states are not precluded under 42 U.S.C.
7543 [CAA section 209] from regulating the use and operation of nonroad
engines, such as regulations on hours of usage, daily mass emission
limits, or sulfur limits on fuel; nor are permits regulating such
operations precluded, once the engine is no longer new.'' \6\ The
Commenter then asserts that regulation of total fuel consumption
pursuant to Rule 2Q .0902 at a temporary crusher facility is a
regulation of ``the use and operation'' of the diesel engines.
---------------------------------------------------------------------------
\6\ The Commenter quotes 40 CFR part 89, subpart A, Appendix A,
which EPA moved to 40 CFR part 1074 in 2021. See 86 FR 34308 (July
29, 2021).
---------------------------------------------------------------------------
Response 1: EPA disagrees that the existing SIP-approved version of
Rule 2Q .0902 imposes any restriction or limitation on the ``the use
and operation'' of diesel engines. Paragraph (b) of the SIP-approved
version states that the Rule applies to any temporary crusher that:
(1) crushes no more than 300,000 tons at any one facility or site;
(2) burns no more than 17,000 gallons of diesel fuel at any one
facility or site if uses:
(A) a diesel-fired generator, or
(B) a diesel engine to drive the crusher;
(3) does not operate at a quarry that has an air permit issued
under this subchapter;
(4) continuously uses water spray to control emissions from the
crushers; and
(5) does not operate at a facility that is required to have a
mining permit issued by the Division of Energy, Mineral, and Land
Resources.
These five criteria are not regulating the use and operation of the
crushers or the diesel engines that run them; they are the criteria
that a temporary crusher must meet under the existing North Carolina
SIP to qualify for an exemption from the State's construction and
operation permit provisions at Section 2Q .0300. North Carolina's July
10, 2019, SIP revision removes only one of these five criteria--the
second one regarding the burning of diesel fuel, which places no
restriction on the combustion of diesel fuel by an engine or generator
and no limitation on the emissions from such combustion. The other four
criteria remain for determining whether a temporary crusher qualifies
for the permit exemption.
EPA agrees with the Commenter that diesel engines used at a
temporary source, such as these temporary crushers, are considered
nonroad engines and that states are not precluded from regulating the
use and operation of these engines. However, North Carolina's SIP
explicitly exempts title II nonroad engines from its permitting
requirements.\7\ Further, the Commenter provides no evidence that the
fuel combustion threshold being removed from the permitting exemption
criteria of Rule 2Q .0902 was originally adopted as an in-use
restriction. The fuel combustion criterion was only one of five
criteria North Carolina originally chose to adopt in this rule for the
purpose of deciding whether a temporary crusher qualifies for a
stationary source permit exemption, as explained further below. The
State did not create this criterion to regulate emissions from the
diesel engines. Under the existing rule, for example, if a temporary
crusher that opted for coverage under Rule 02Q .0902 were to combust
more than 17,000 gallons of diesel fuel at any one facility or site, it
would not be in violation of any fuel combustion limitation (because
none exists). Instead, such facility would be in violation of the
requirement to obtain a permit in accordance with 15A NCAC 2Q .0300.
---------------------------------------------------------------------------
\7\ See provision 2Q .0102(c)(1)(L)(ii), which states ``[t]he
following activities do not need a permit or permit modification
under this Section .0300 of this Subchapter; however, the Director
may require the owner or operator of these activities to register
them under 15A NCAC 2D .0200: . . . non self-propelled non-road
engines, except generators, regulated by rules adopted under Title
II of the federal Clean Air Act. . . .''
---------------------------------------------------------------------------
North Carolina submitted the temporary crusher permitting exemption
to EPA as a SIP revision on December 14, 2004, and EPA approved the
revision on September 29, 2017.\8\ In that original submittal, the
State estimated that crushers processing 300,000 tons of material would
emit approximately 1,775 pounds of particulate matter (PM),\9\ the only
pollutant emitted by temporary crushers subject to Rule 2Q .0902. The
State also observed that many of these crushers, in combination with
their associated diesel-powered engines or generators, emit less than 5
tons per year of each pollutant per site.\10\ The State noted that the
subject crushers are used on a temporary basis at construction sites to
crush concrete, asphalt, and stone, are moved from site to site with
little notice, and are generally at one location for only a few days to
a few months at a time.\11\ The State asserted that ``[b]ecause of the
mobile nature of these crushers, requiring them to obtain an air permit
before moving to a new location is cumbersome and creates compliance
problems for the crushers and the Division of Air Quality.'' \12\ Thus,
the purpose of Rule 2Q .0902 is not to regulate the ``use and
operation'' of these nonroad engines, but to identify the ``temporary
crushers'' that are exempt from the State's construction and operation
permits program at Section 2Q .0300 due to the temporary nature of
their operating location and their low level of air pollutant
emissions.
---------------------------------------------------------------------------
\8\ See December 14, 2004, SIP revision, included in the docket
(Docket Identification No. EPA-R04-OAR-2016-0362) for EPA's
September 29, 2017, rulemaking (82 FR 45473).
\9\ Id. at Attachment 10, Memorandum, Paul Grable to Mr. Thomas
Allen, June 9, 2003.
\10\ Id. at Attachment 9, Economic Assessment.
\11\ Id.
\12\ Id.
---------------------------------------------------------------------------
Comment 2: The Commenter states that the diesel engine requirement
was a valid regulation, and its removal is not merely a clarification.
Response 2: In its July 10, 2019, submittal, North Carolina states
that language related to engines throughout Rule 2Q .0902 was deleted
because DAQ does not regulate engines under CAA title II, Emission
Standards For Moving Sources (title II).\13\ In other words,
[[Page 62992]]
because emissions from nonroad engines are mobile source emissions and
not stationary source emissions, those emissions are not subject to any
requirement of the North Carolina SIP. Indeed, the SIP specifically
exempts title II nonroad engines from its permitting requirements, and
the quantity of diesel fuel combusted by a nonroad engine or generator
driving a crusher has no relevance to stationary source emissions.
Therefore, removal of the diesel combustion threshold helps to clarify
that mobile source emissions are not regulated under the current North
Carolina SIP.\14\
---------------------------------------------------------------------------
\13\ See July 10, 2019, SIP revision, Attachment 2, p. HR-1-202.
\14\ While Rule 2Q .0902 relates only to North Carolina's SIP
permitting requirements at Section 2Q .0300, EPA notes that the
State's title V permitting rules likewise exempt mobile source
emissions from permitting requirements under that program. See Rules
02Q .0502(d) and 0503(7)(a).
---------------------------------------------------------------------------
Comment 3: The Commenter states that the removal of the diesel fuel
combustion threshold on engines at temporary crushers is a relaxation
of the SIP. According to the Commenter, it is possible that a permit
for a temporary crusher with engines that burn more than 17,000 gallons
of diesel will not contain any restrictions on the engines themselves
but impose restrictions on other emissions from the crusher, and that
more temporary crushers will qualify for the permit exemption as result
of the change. The Commenter adds that this exemption is from the
State's general construction and operating permit program, which is
intended to protect air quality standards. The Commenter concludes that
EPA must disapprove the revision for temporary crushers because the
State has not demonstrated, as required under section 110(l) of the
Act, that the revisions to the eligibility criteria for the permit
exemption for temporary crushers will not interfere with requirements
regarding attainment, reasonable further progress, and other
requirements of the Act.
Response 3: EPA disagrees that the requirements of CAA section
110(l) have not been satisfied. Section 110(l) states that ``[t]he
Administrator shall not approve a revision of a plan if the revision
would interfere with any applicable requirement concerning attainment
and reasonable further progress (as defined in section 171), or any
other applicable requirement of this Act.'' As discussed below, EPA has
concluded that the changes to Rule 2Q .0902 will not interfere with any
applicable requirement concerning attainment or any other applicable
CAA requirement because there are no potential emission increases
associated with these changes.
As discussed above, North Carolina does not regulate nonroad
engines, which are instead regulated by EPA under title II of the
CAA.\15\ EPA agrees with the State that nonroad diesel emissions are
mobile source emissions regulated by EPA under title II and are not
part of the stationary source emissions from temporary crushers.
Therefore, removing the diesel engine combustion criterion will not
cause engine emissions to increase because (1) North Carolina does not
regulate these engines to begin with, (2) this criterion never served
to limit either the quantity of diesel fuel that an engine or generator
was allowed to combust or the quantity of emissions allowed from such
combustion, and (3) title II requirements continue to limit emissions
from nonroad engines and generators and this action will not change
title II requirements.
---------------------------------------------------------------------------
\15\ Section 213 of the CAA requires the EPA Administrator to
promulgate (and periodically revise) regulations containing
standards applicable to emissions from those classes or categories
of new nonroad engines and new nonroad vehicles (other than
locomotives or engines used in locomotives) which in the
Administrator's judgment cause, or contribute to, air pollution.
Those regulations are codified under 40 CFR part 1039, Control of
Emissions from New and In-Use Nonroad Compression-Ignition Engines.
---------------------------------------------------------------------------
With regard to permitting the stationary source, even if a
temporary crusher with a nonroad engine that combusts more than 17,000
gallons at any one facility or site were to become exempt from the
State's construction and operation permits program following removal of
the fuel combustion criterion, EPA expects no appreciable impact on air
quality. First, provision 2Q .0902(c) protects the fine and coarse PM
NAAQS by requiring the owner or operator of a temporary crusher to
reduce to a minimum any particulate matter from becoming airborne to
prevent exceeding the ambient air quality standards for particulate
matter beyond the property line.\16\ Second, EPA does not expect that
any permit issued by North Carolina to a material crusher prior to
becoming exempt would have included any emission limitations beyond
what is already required under state and federal rules and this action
does not change those requirements. Requirements from 40 CFR part 60,
subpart OOO, Standards of Performance for Nonmetallic Mineral
Processing Plants,\17\ and from North Carolina rules 2D .0510,
Particulates from Sand, Gravel, Or Crushed Stone Operations, and 2D
.0540, Particulates from Fugitive Non-Process Dust Emission Sources
continue to apply to these material crushers, in accordance with the
terms of such rules. These rules contain limitations for particulate
matter emissions, fugitive emissions, and opacity only. Third, the
300,000-ton material processing criterion remains in place, and as
noted above, temporary crushers that emit more than approximately 1,775
pounds of PM at a site per 12-month period would continue to be subject
to permitting.
---------------------------------------------------------------------------
\16\ The SIP-approved version of Rule 2Q .0902 states ``The
owner or operator of a portable crusher shall not cause or allow any
material to be produced, handled, transported, or stockpiled without
taking measures to reduce to a minimum any particulate matter from
becoming airborne to prevent exceeding the ambient air quality
standards beyond the property line for particulate matter
(PM2.5, PM10, and total suspended
particulates).''
\17\ 40 CFR part 60, subpart OOO, which applies to temporary
crushers in North Carolina that meet certain applicability criteria
(see 40 CFR 60.670(a)(1) and (c)(2)), does not include any provision
regulating the engines or generators that power such equipment.
---------------------------------------------------------------------------
For the reasons discussed above, EPA has concluded that the
revisions to Rule 2Q .0902 will not interfere with any applicable
requirement concerning attainment, reasonable further progress, or any
other applicable CAA requirement.
Comment 4: The Commenter states that North Carolina's SIP revision
must include a CAA section 110(l) noninterference demonstration,
consisting of an air quality analysis or substitute equivalent
emissions reductions, and that the revision contains no such
demonstration. Therefore, the Commenter claims that the SIP revision
does not meet the completeness requirements of Appendix V to 40 CFR
part 51, and in turn, does not contain the information necessary to
enable EPA to determine whether the plan submission complies with the
provisions of the Act, as required by CAA section 110(k)(1)(A). The
Commenter also states that in the absence of any information from the
State to support the SIP revision, EPA cannot supplement it with
technical information about temporary crushers and air quality to
approve the submittal because to do so would violate the notice
requirements of the Administrative Procedure Act (APA) (citing Ober v.
U.S. EPA, 84 F.3d 304, 312 (9th Cir. 1996)). If the State or EPA has
information that supports approval of the SIP revision, the Commenter
argues that EPA must re-propose its action and allow for comment on the
information.
Response 4: EPA disagrees with the Commenter. Pursuant to CAA
section 110(k)(1)(B), the SIP submissions being acted on were deemed
complete by operation of law on March 18, 2010, and
[[Page 62993]]
January 10, 2020, respectively (i.e., six months after the dates of
submission), because EPA did not make an affirmative finding that the
submissions were complete or incomplete before those dates.
Furthermore, given the nature of the revisions to Rule 2Q .0902, the
SIP submittals did not need a technical air quality analysis or
equivalent emissions reductions to demonstrate compliance with the CAA.
Removal of the diesel fuel combustion criterion from Rule 2Q .0902 is
appropriate because, among other things, mobile source emissions are
not part of the stationary source (i.e., the temporary crusher)
emissions, nonroad engines are not regulated by North Carolina, and the
criterion did not require any air pollutant emission reductions from
the nonroad engines.\18\ EPA's evaluation of North Carolina's revisions
to Rule 2Q .0902 is based entirely on the State's December 14, 2004,
SIP submittal (original request for approval of Rule 2Q .0902); the
State's September 18, 2009, and July 10, 2019, SIP submittals; the
State's June 7, 2019, and June 1, 2020, letters included in the docket
for this rulemaking; the SIP; and on the CAA. EPA has not relied on any
new technical information in approving this rule revision. Under these
circumstances, re-proposal of this action is not required by the APA.
---------------------------------------------------------------------------
\18\ See prior comment responses in this notice for additional
rationale.
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III. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, and as discussed in Section I and II of this preamble, EPA is
finalizing the incorporation by reference of the following rules under
Subchapter 2Q Air Quality Permits with a state-effective date of April
1, 2018: 2Q .0801, Purpose and Scope; 2Q .0802, Gasoline Service
Stations and Dispensing Facilities; 2Q .0803, Coating, Solvent
Cleaning, Graphic Arts Operations; 2Q .0804, Dry Cleaning Facilities;
2Q .0805, Grain Elevators; 2Q .0806, Cotton Gins; 2Q .0807, Emergency
Generators; 2Q .0901, Purpose and Scope; and 2Q .0902, Temporary
Crushers (with the exception of .0902(d)).\19\ Also in this document,
EPA is finalizing the removal of Rule 2Q .0809, Concrete Batch Plants,
from the North Carolina SIP, which was previously incorporated by
reference in accordance with the requirements of 1 CFR part 51. These
changes to the North Carolina SIP revise the recordkeeping and
reporting requirements of the permitting exclusionary rules, revise
language, reformat the regulatory citations contained in these
regulations, remove the ``Concrete Batch Plants'', and remove provision
2Q .0902(b)(2). EPA has made, and will continue to make, the State
Implementation Plan generally available at the EPA Region 4 office
(please contact the person identified in the For Further Information
Contact section of this preamble for more information). Therefore, the
revised materials as stated above, have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.
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\19\ The changes to paragraph .0902(d) in the July 10, 2019, and
September 18, 2009, SIP revisions were withdrawn from EPA
consideration in a letter from DAQ dated June 1, 2020. Additionally,
the withdrawal of paragraph (d) from Rule 2Q .0902 leaves the rule
with two paragraphs (c), one state-effective on January 1, 2005, and
one state-effective on April 1, 2018. DAQ plans to submit revisions
to address the two paragraphs (c) in a future submission.
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IV. Final Action
EPA is approving the changes described above to the North Carolina
SIP submitted by the State of North Carolina on September 18, 2009, and
July 10, 2019. The changes to 2Q .0801, Purpose and Scope; 2Q .0802,
Gasoline Service Stations and Dispensing Facilities; 2Q .0803, Coating,
Solvent Cleaning, Graphic Arts Operations; 2Q .0804, Dry Cleaning
Facilities; 2Q .0805, Grain Elevators; 2Q .0806, Cotton Gins; 2Q .0807,
Emergency Generators; 2Q .0901, Purpose and Scope; and 2Q .0902,
Temporary Crushers, revise the recordkeeping and reporting requirements
of the permitting exclusionary rules, revise language, reformat the
regulatory citations contained in these regulations, remove 2Q .0809,
Concrete Batch Plants, and remove provision 2Q .0902(b)(2). The changes
are consistent with the CAA.
V. 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
approves state law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by state law. For that
reason, this action:
Is not a significant regulatory actions 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate,
[[Page 62994]]
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
A major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 19, 2022. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: September 30, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. In Sec. 52.1770(c) amend Table (1) under ``Subchapter 2Q Air
Quality Permits'' by:
0
a. Removing the entries for ``Section .0801'', ``Section .0802'',
``Section .0803'', ``Section .0804'', ``Section .0805'', ``Section
.0806'', ``Section .0807'', and adding in their place entries for
``Rule .0801'', ``Rule .0802'', ``Rule .0803'', ``Rule .0804'', ``Rule
.0805'', ``Rule .0806'', ``Rule .0807'';
0
b. Removing the entry for ``Section .0809''; and
0
c. Removing the entries for ``Section .0901'' and ``Section .0902'' and
adding in their place entries for ``Rule .0901'' and ``Rule .0902''.
The amendment reads as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
(1) EPA Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Subchapter 2Q Air Quality Permits
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Rule .0801..................... Purpose and Scope. 4/1/2018 10/18/2022, .......................
[Insert citation
of publication].
Rule .0802..................... Gasoline Service 4/1/2018 10/18/2022, .......................
Stations and [Insert citation
Dispensing of publication].
Facilities.
Rule .0803..................... Coating, Solvent 4/1/2018 10/18/2022, .......................
Cleaning, Graphic [Insert citation
Arts Operations. of publication].
Rule .0804..................... Dry Cleaning 4/1/2018 10/18/2022, .......................
Facilities. [Insert citation
of publication].
Rule .0805..................... Grain Elevators... 4/1/2018 10/18/2022, .......................
[Insert citation
of publication].
Rule .0806..................... Cotton Gins....... 4/1/2018 10/18/2022, .......................
[Insert citation
of publication].
Rule .0807..................... Emergency 4/1/2018 10/18/2022, .......................
Generators. [Insert citation
of publication].
* * * * * * *
Rule .0901..................... Purpose and Scope. 4/1/2018 10/18/2022, .......................
[Insert citation
of publication].
Rule .0902..................... Temporary Crushers 4/1/2018 10/18/2022, With the exception of
[Insert citation .0902(d). This rule
of publication]. contains two paragraph
``(c)''s. One has an
effective date of 1/1/
2001. The other has a
state effective date
of 4/1/2018.
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* * * * *
[FR Doc. 2022-21651 Filed 10-17-22; 8:45 am]
BILLING CODE 6560-50-P
