81 FR 47115 - Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 139 (July 20, 2016)
Federal Register Volume 81, Issue 139 (July 20, 2016)
| Page Range | 47115-47123 | |
| FR Document | 2016-17071 |
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)] [Proposed Rules] [Pages 47115-47123] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-17071] [[Page 47115]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0362; FRL-9949-26-Region 4] Air Plan Approval; North Carolina Infrastructure Requirements for the 2010 Nitrogen Dioxide National Ambient Air Quality Standard AGENCY: Environmental Protection Agency. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), Division of Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North Carolina SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO2 ) national ambient air quality standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ``infrastructure'' SIP submission. NCDAQ certified that the North Carolina SIP contains provisions that ensure the 2010 1-hour NO2 NAAQS is implemented, enforced, and maintained in North Carolina. EPA is proposing to find that portions of North Carolina's infrastructure SIP submission, provided to EPA on August 23, 2013, satisfy certain infrastructure elements for the 2010 1-hour NO2 NAAQS. DATES: Written comments must be received on or before August 19, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04- OAR-2015-0362 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background and Overview On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion (ppb), based on a 3- year average of the 98th percentile of the yearly distribution of 1- hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS. Section 110(a)(2) requires states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013.\1\ --------------------------------------------------------------------------- \1\ In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Unless otherwise indicated, the Title 15A regulations of the North Carolina Administrative Code (``15A NCAC'') cited throughout this rulemaking have either been approved, or submitted for approval into North Carolina's federally-approved SIP. The North Carolina General Statutes (``NCGS'') cited throughout this rulemaking, however, are not approved into the North Carolina SIP unless otherwise indicated. --------------------------------------------------------------------------- This action is proposing to approve North Carolina's infrastructure submission for the applicable requirements of the 2010 1-hour NO2 NAAQS, with the exception of the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of 110(E)(ii). On November 3, 2015, EPA took final action to approve North Carolina's August 23, 2013, infrastructure SIP submission regarding the state board requirements of section 110(a)(2)(E)(ii), for the 2010 1- hour NO2 NAAQS. See 80 FR 67645. Therefore, EPA is not proposing any action today pertaining to section 110(a)(2)(E)(ii). With respect to North Carolina's infrastructure SIP submission related to the provisions pertaining to the PSD permitting requirements for major sources of section 110(a)(2)(C) and (J) and the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), EPA is not proposing any action at this time. For the aspects of North Carolina's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that North Carolina's already approved SIP meets certain CAA requirements. II. What elements are required under sections 110(a)(1) and (2)? Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for ``infrastructure'' SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the [[Page 47116]] subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).'' \2\ --------------------------------------------------------------------------- \2\ Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C). ---------------------------------------------------------------------------110(a)(2)(A): Emission Limits and Other Control Measures 110(a)(2)(B): Ambient Air Quality Monitoring/Data System 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources \3\ --------------------------------------------------------------------------- \3\ This rulemaking only addresses requirements for this element as they relate to attainment areas. --------------------------------------------------------------------------- 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies 110(a)(2)(F): Stationary Source Monitoring and Reporting 110(a)(2)(G): Emergency Powers 110(a)(2)(H): SIP Revisions 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\ --------------------------------------------------------------------------- \4\ As mentioned above, this element is not relevant to this proposed rulemaking. --------------------------------------------------------------------------- 110(a)(2)(J): Consultation with Government Officials, Public Notification, and PSD and Visibility Protection 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data 110(a)(2)(L): Permitting Fees 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions? EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour NO 2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.\5\ EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. --------------------------------------------------------------------------- \5\ For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. --------------------------------------------------------------------------- The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ``each'' SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.\6\ Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.\7\ This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. --------------------------------------------------------------------------- \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). \7\ EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. --------------------------------------------------------------------------- Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ``a [[Page 47117]] plan'' to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.\8\ Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.\9\ --------------------------------------------------------------------------- \8\ See, e.g., ``Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and ``Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). \9\ On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal. --------------------------------------------------------------------------- Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.\10\ --------------------------------------------------------------------------- \10\ For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. --------------------------------------------------------------------------- EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the ``applicable requirements'' of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.\11\ EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).\12\ EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.\13\ The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. --------------------------------------------------------------------------- \11\ EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. \12\ ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013. \13\ EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations. --------------------------------------------------------------------------- As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on [[Page 47118]] the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM2.5 ) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (``SSM''); (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.\14\ It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. --------------------------------------------------------------------------- \14\ By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. --------------------------------------------------------------------------- EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ``implementation, maintenance, and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.\16\ Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those [[Page 47119]] deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.\17\ --------------------------------------------------------------------------- \15\ For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ``Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011). \16\ EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ``Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). \17\ See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions). --------------------------------------------------------------------------- IV. What is EPA's analysis of how North Carolina addressed the elements of the sections 110(a)(1) and (2) ``Infrastructure'' provisions? North Carolina's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below. 1. 110(a)(2)(A): Emission limits and other control measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. These requirements are met through several North Carolina Administrative Code (NCAC) regulations. Specifically, 15A NCAC 2D .0500 Emission Control Standards establishes emission limits for NO2. The following rules address additional control measures, means and techniques: 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source Testing. In addition, NCGS 143-215.107(a)(5), Air quality standards and classifications, provides the North Carolina Environmental Management Commission (EMC) with the statutory authority, ``To develop and adopt emission control standards as in the judgment of the Commission may be necessary to prohibit, abate, or control air pollution commensurate with established air quality standards.'' EPA has made the preliminary determination that the cited provisions are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance for the 2010 1-hour NO2 NAAQS in the State. In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, ``State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the Agency is addressing such state regulations in a separate action.\18\ --------------------------------------------------------------------------- \18\ On June 12, 2015, EPA published a final action entitled, ``State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.'' See 80 FR 33840. --------------------------------------------------------------------------- Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible. 2. 110(a)(2)(B) Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. NCGS 143- 215.107(a)(2), Air quality standards and classifications, provides the EMC with the statutory authority ``To determine by means of field sampling and other studies, including the examination of available data collected by any local, State or federal agency or any person, the degree of air contamination and air pollution in the State and the several areas of the State.'' Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, and includes the annual ambient monitoring network design plan and a certified evaluation of the state's ambient monitors and auxiliary support equipment.\19\ The latest monitoring network plan for North Carolina was submitted to EPA on July 23, 2015, and on November 19, 2015, EPA approved this plan. North Carolina's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362. --------------------------------------------------------------------------- \19\ On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. --------------------------------------------------------------------------- NCGS 143-215.107(a)(2), EPA regulations, along with North Carolina's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. EPA has made the preliminary determination that North Carolina's SIP and practices are adequate for the ambient air quality monitoring and data system requirements related to the 2010 1-hour NO2 NAAQS. 3. 110(a)(2)(C) Program for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). To meet these obligations, North Carolina cited the following regulations: 15A NCAC 2D. 0500 Emissions Control Standards; 15A NCAC 2D. 0530 Prevention of Significant Deterioration; 15A NCAC 2D. 0531 Sources in Nonattainment Areas; 15A NCAC 2Q .0300 Construction Operation Permits; and 15A NCAC 2Q .0500 Title V Procedures. Collectively, these regulations enable North Carolina to regulate sources contributing to the 2010 1-hour NO2 NAAQS through enforceable permits. North Carolina also cited to the following statutory provisions as supporting this element: NCGS 143-215.108, Control of sources of air pollution; permits required; NCGS 143- 215.107(a)(7), Air quality standards and classifications; and NCGS 143- 215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief. In this action, EPA is proposing to approve North Carolina's infrastructure SIP for the 2010 1-hour NO2 NAAQS with respect to the general requirement [[Page 47120]] in section 110(a)(2)(C) to include a program in the SIP for enforcement of NO2 emissions controls and measures and the regulation of minor sources and modifications to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas. Enforcement: NC DAQ's above-described, SIP-approved regulations provide for enforcement of NO2 emission limits and control measures through enforceable permits. In addition, North Carolina cited NCGS 143-215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal penalties, and injunctive relief, which provides NC DENR with the statutory authority to seek civil and criminal penalties, and injunctive relief to enforce air quality rules. Preconstruction PSD Permitting for Major Sources: With respect to North Carolina's infrastructure SIP submission related to the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), EPA is not proposing any action today regarding these requirements and instead will act on this portion of the submission in a separate action. Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1-hour NO2 NAAQS. Regulation 15A NCAC 2Q .0300 Construction Operation Permits governs the preconstruction permitting of minor modifications and construction of minor stationary sources. EPA has made the preliminary determination that North Carolina's SIP is adequate for enforcement of control measures and regulation of minor sources and construction or modifications related to the 2010 1- hour NO2 NAAQS. 4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as ``prongs,'' that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (``prong 1''), and interfering with maintenance of the NAAQS in another state (``prong 2''). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (``prong 3''), or to protect visibility in another state (``prong 4''). With respect to North Carolina's infrastructure SIP in relation to the interstate transport requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 4), EPA is not proposing any action today regarding these requirements. 5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act relating to interstate and international pollution abatement. Regulations 15A NCAC 2D .0530, Prevention of Significant Deterioration, and 15A NCAC 2D .0531, Sources of Nonattainment Areas, provide how NCDAQ will notify neighboring states of potential impacts from new or modified sources consistent with the requirements of 40 CFR 51.166. These regulations require NC DAQ to provide an opportunity for a public hearing to the public, which includes state or local air pollution control agencies, ``whose lands may be affected by emissions from the source or modification'' in North Carolina. In addition, North Carolina does not have any pending obligation under sections 115 and 126 of the CAA. Accordingly, EPA has made the preliminary determination that North Carolina's SIP is adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour NO2 NAAQS. 6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the State comply with the requirements respecting State Boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the State has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve North Carolina's SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and (iii). With respect to North Carolina's August 23, 2013, infrastructure SIP submission related to the state board requirements of section 110(a)(2)(E)(ii), EPA took final action to approve these provisions for the 2010 1-hour NO2 NAAQS on November 3, 2015. See 80 FR 67645. EPA's rationale for today's proposal respecting sub-elements (i) and (iii) is described below. To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), North Carolina's infrastructure SIP submission cites several regulations. Rule 15A NCAC 2Q. 0200, Permit Fees, provides the mechanism by which stationary sources that emit air pollutants pay a fee based on the quantity of emissions. State statutes NCGS 143-215.3, General Powers of Commission and Department: Auxiliary Powers, and NCGS 143-215.107(a)(1), Air Quality Standards and Classifications, provide the EMC with the statutory authority ``[t]o prepare and develop, after proper study, a comprehensive plan or plans for the prevention, abatement and control of air pollution in the State or in any designated area of the State.'' NCGS 143-215.112, Local air pollution control programs, provides the EMC with the statutory authority ``to review and have general oversight and supervision over all local air pollution control programs.'' North Carolina has three local air agencies located in Buncombe, Forsyth, and Mecklenburg Counties that implement the air program in these areas. As further evidence of the adequacy of NCDAQ's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to North Carolina on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to North Carolina can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. North Carolina satisfactorily met all commitments agreed to in the Air Planning Agreement for fiscal year 2015, therefore North Carolina's grants were finalized and closed out. Collectively, these rules and commitments provide evidence that NC DAQ has adequate personnel, funding, and legal authority to carry out the State's implementation plan and related issues. EPA has made the preliminary determination that North Carolina has adequate resources and authority to satisfy sections 110(a)(2)(E)(i) and (iii), North Carolina has adequate resources for implementation of the 2010 1-hour NO2 NAAQS. 7. 110(a)(2)(F) Stationary source monitoring system: Section 110(a)(2)(F) requires SIPs to meet applicable [[Page 47121]] requirements addressing: (i) The installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. North Carolina's infrastructure submission describes how the State establishes requirements for emissions compliance testing and utilizes emissions sampling and analysis. NC DAQ uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. North Carolina meets these requirements through 15A NCAC 2D .0604 Exceptions to Monitoring and Reporting Requirements; 15A NCAC 2D .0605 General Recordkeeping and Reporting Requirements; 15A NCAC 2D .0611 Monitoring Emissions from Other Sources; 15A NCAC 2D .0612 Alternative Monitoring and Reporting Procedures; 15A NCAC 2D .0613 Quality Assurance Program; and 15A NCAC 2D .0614 Compliance Assurance Monitoring. In addition, 15A NCAC 2D .0605(c) General Recordkeeping and Reporting Requirements allows for the use of credible evidence in the event that the NCDAQ Director has evidence that a source is violating an emission standard or permit condition, the Director may require that the owner or operator of any source submit to the Director any information necessary to determine the compliance status of the source. In addition, EPA is unaware of any provision preventing the use of credible evidence in the North Carolina SIP. Also, NCGS 143-215.107(a)(4), Air quality standards and classifications, provides the EMC with the statutory authority ``To collect information or to require reporting from classes of sources which, in the judgment of the [EMC], may cause or contribute to air pollution.'' Stationary sources are required to submit periodic emissions reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions Reporting.'' North Carolina is also required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the AERR on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. North Carolina made its latest update to the 2011 NEI on December 5, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that North Carolina's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve North Carolina's infrastructure SIP submission with respect to section 110(a)(2)(F). 8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. North Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300, Air Pollution Emergencies, as identifying air pollution emergency episodes and preplanned abatement strategies, and provides the means to implement emergency air pollution episode measures. Under NCGS 143- 215.3(a)(12), General powers of Commission and Department; auxiliary powers, if NC DENR finds that such a ``condition of . . . air pollution exists and that it creates an emergency requiring immediate action to protect the public health and safety or to protect fish and wildlife, the Secretary of the Department [NC DENR] with the concurrence of the Governor, shall order persons causing or contributing to the . . . air pollution in question to reduce or discontinue immediately the emission of air contaminants or the discharge of wastes.'' In addition, NCGS 143-215.3(a)(12) provides NC DENR with the authority to declare an emergency when it finds that a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. This statute also allows, in the absence of a generalized condition of air pollution, should the Secretary find ``that the emissions from one or more air contaminant sources . . . is causing imminent danger to human health and safety or to fish and wildlife, he may with the concurrence of the Governor order the person or persons responsible for the operation or operations in question to immediately reduce or discontinue the emissions of air contaminants . . . or to take such other measures as are, in his judgment, necessary.'' EPA has made the preliminary determination that North Carolina's SIP submission is adequate to satisfy the emergency powers obligations of the 2010 1- hour NO2 NAAQS. 9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. NC DAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in North Carolina. NCGS 143-215.107(a)(1) and (a)(10) grant NC DAQ the authority to prepare and develop, after proper study, a comprehensive plan for the prevention of air pollution and implement the CAA, respectively. These provisions also provide NC DAQ the ability and authority to respond to calls for SIP revisions, and North Carolina has provided a number of SIP revisions over the years for implementation of the NAAQS. In addition, State regulation 15A NCAC 2D .2401(d) states that ``The EMC may specify through rulemaking a specific emission limit lower than that established under this rule for a specific source if compliance with the lower emission limit is required to attain or maintain the ambient air quality standard for ozone or PM2.5 or any other ambient air quality standard in Section 15A NCAC 2D .0400.'' EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate a commitment to provide future SIP revisions related to [[Page 47122]] the 2010 1-hour NO2 NAAQS when necessary. 10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve North Carolina's infrastructure SIP submission for the 2010 1- hour NO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that provides for meeting the applicable consultation requirements of section 121, the public notification requirements of section 127, and the visibility requirements. With respect to North Carolina's infrastructure SIP submission related to the preconstruction PSD permitting, EPA is not proposing any action today regarding these requirements and instead will act on these portions of the submission in a separate action. EPA's rationale for its proposed action regarding applicable consultation requirements of section 121, the public notification requirements of section 127, and visibility is described below. Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and federal land managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Rules 15A NCAC 2D .0531, Sources in a Nonattainment Areas, 2D .1600, General Conformity, 2D .2000, Transportation Conformity, along with the State's Regional Haze Implementation Plan, (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. North Carolina adopted state-wide consultation procedures for the implementation of transportation conformity. Implementation of transportation conformity as outlined in the consultation procedures requires NC DAQ to consult with Federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. The Regional Haze SIP provides for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour NO2 NAAQS when necessary. Public notification (127 public notification): Rule 15A NCAC 2D .0300 Air Pollution Emergencies provides North Carolina with the authority to declare an emergency and notify the public accordingly when it finds a generalized condition of water or air pollution which is causing imminent danger to the health or safety of the public. Additionally, the NC DAQ has the North Carolina Air Awareness Program which is a program to educate the public on air quality issues and promote voluntary emission reduction measures. The NC DAQ also features a Web page providing ambient monitoring information regarding current and historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which enhances public awareness of air quality in North Carolina and throughout the country. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate the State's ability to provide public notification related to the 2010 1-hour NO2 NAAQS when necessary for the public notification element of section 110(a)(2)(J). Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. NC DENR referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that North Carolina's infrastructure SIP submission is approvable for the visibility protection element of section 110(a)(2)(J) related to the 2010 1-hour NO2 NAAQS and that North Carolina does not need to rely on its regional haze program to satisfy this element. 11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to EPA can be made. This infrastructure requirement is met through emissions data collected through 15A NCAC 2D .0600 Monitoring: Recordkeeping: Reporting (authorized under NCGS 143-215.107(a)(4)), which provides information to model potential impact of major and some minor sources. 15A NCAC 2D .0530 Prevention of Significant Deterioration and 15A NCAC 2D .0531 Sources in Nonattainment Areas require that air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models. NCGS 143-215.107(a) also provides authority for the EMC to determine by means of field sampling and other studies, the degree of air contamination and air pollution in the State. These regulations demonstrate that North Carolina has the authority to perform air quality modeling and to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour NO2 NAAQS. The NC DAQ currently has personnel with training and experience to conduct source- oriented dispersion modeling that would likely be used in NO2 NAAQS applications with models approved by EPA. Additionally, North Carolina participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour NO2 NAAQS, for the Southeastern states. Taken as a whole, North Carolina's air quality regulations and practices demonstrate that NC DAQ has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS has been promulgated, and to provide such information to the EPA Administrator upon request. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate the State's ability to provide for air quality and modeling, along with analysis of the associated data, related to the 2010 1-hour NO2 NAAQS when necessary. 12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not [[Page 47123]] including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V. To satisfy these requirements, North Carolina's infrastructure SIP submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a sufficient fee to cover the costs of the permitting program. Additionally, North Carolina has a fully approved title V operating permit program at 15A NCAC.0500 Emissions Control Standards and 2Q .0500, Title V Procedures,\20\ which include provisions to implement and enforce PSD and NNSR permits once Title V permits have been issued. The fees collected under 15A NCAC 2Q .0200 also support this activity. NCGS 143-215.3, General powers of Commission and Department; auxiliary Powers, provides authority for NC DAQ to require a processing fee in an amount sufficient for the reasonable cost of reviewing and acting upon PSD and NNSR permits. EPA has made the preliminary determination that North Carolina's SIP and practices adequately provide for permitting fees related to the 2010 1-hour NO2 NAAQS, when necessary. --------------------------------------------------------------------------- \20\ Title V program regulations are federally-approved but not incorporated into the federally-approved SIP. --------------------------------------------------------------------------- 13. 110(a)(2)(M) Consultation/participation by affected local entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Rule 15A NCAC 2Q .0530, Prevention of Significant Deterioration, requires that the NCDAQ notify the public, including affected local entities, of PSD permit applications and associated information related to PSD permits, and the opportunity for comment prior to making final permitting decisions. NCGS 150B-21.1 and 150B-21.2 authorize and require NCDAQ to advise, consult, cooperate and enter into agreements with other agencies of the state, the Federal government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the Department. Also, Rule 15A NCAC 2D .2000 Transportation Conformity requires consultation with all affected partners to be implemented for transportation conformity determinations. Furthermore, NC DAQ has demonstrated consultation with, and participation by, affected local entities through its work with local political subdivisions during the developing of its Transportation Conformity SIP, Regional Haze Implementation Plan, and the 8-Hour Ozone Attainment Demonstration for the North Carolina portion of the Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the preliminary determination that North Carolina's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour NO2 NAAQS when necessary. V. Proposed Action EPA is proposing to approve that portions of NCDAQ's infrastructure SIP submission, submitted August 23, 2013, for the 2010 1-hour NO2 NAAQS, has met the above described infrastructure SIP requirements. EPA is proposing to approve these portions of North Carolina's infrastructure SIP submission for the 2010 1-hour NO2 NAAQS because these aspects of the submission are consistent with section 110 of the CAA. The PSD permitting requirements for major sources of section 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), will not be addressed by EPA at this time. EPA has already taken action to approve North Carolina's infrastructure SIP submission related to section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS. VI. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: July 8, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016-17071 Filed 7-19-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47115
ENVIRONMENTAL PROTECTION not consider comments or comment section 110(a)(2)(D)(i)(I) and (II) (prongs
AGENCY contents located outside of the primary 1 through 4), and the state board
submission (i.e., on the web, cloud, or requirements of 110(E)(ii). On
40 CFR Part 52 other file sharing system). For November 3, 2015, EPA took final action
[EPA–R04–OAR–2015–0362; FRL–9949–26– additional submission methods, the full to approve North Carolina’s August 23,
Region 4] EPA public comment policy, 2013, infrastructure SIP submission
information about CBI or multimedia regarding the state board requirements
Air Plan Approval; North Carolina submissions, and general guidance on of section 110(a)(2)(E)(ii), for the 2010
Infrastructure Requirements for the making effective comments, please visit 1-hour NO2 NAAQS. See 80 FR 67645.
2010 Nitrogen Dioxide National http://www2.epa.gov/dockets/ Therefore, EPA is not proposing any
Ambient Air Quality Standard commenting-epa-dockets. action today pertaining to section
FOR FURTHER INFORMATION CONTACT: 110(a)(2)(E)(ii). With respect to North
AGENCY: Environmental Protection Carolina’s infrastructure SIP submission
Agency. Richard Wong, Air Regulatory
Management Section, Air Planning and related to the provisions pertaining to
ACTION: Proposed rule. the PSD permitting requirements for
Implementation Branch, Air, Pesticides
SUMMARY: The Environmental Protection and Toxics Management Division, U.S. major sources of section 110(a)(2)(C)
Agency (EPA) is proposing to approve Environmental Protection Agency, and (J) and the interstate transport
portions of the State Implementation Region 4, 61 Forsyth Street SW., requirements of section 110(a)(2)(D)(i)(I)
Plan (SIP) submission, submitted by the Atlanta, Georgia 30303–8960. Mr. Wong and (II) (prongs 1 through 4), EPA is not
State of North Carolina, through the can be reached via telephone at (404) proposing any action at this time. For
North Carolina Department of 562–8726 or via electronic mail at the aspects of North Carolina’s submittal
Environment and Natural Resources (NC wong.richard@epa.gov. proposed for approval today, EPA notes
DENR), Division of Air Quality SUPPLEMENTARY INFORMATION: that the Agency is not approving any
(NCDAQ) on August 23, 2013, for specific rule, but rather proposing that
I. Background and Overview North Carolina’s already approved SIP
inclusion into the North Carolina SIP.
This proposal pertains to the On February 9, 2010, EPA published meets certain CAA requirements.
infrastructure requirements of the Clean a new 1-hour primary NAAQS for NO2 II. What elements are required under
Air Act (CAA or Act) for the 2010 at a level of 100 parts per billion (ppb), sections 110(a)(1) and (2)?
1-hour nitrogen dioxide (NO2) national based on a 3-year average of the 98th
percentile of the yearly distribution of Section 110(a) of the CAA requires
ambient air quality standards (NAAQS).
1-hour daily maximum concentrations. states to submit SIPs to provide for the
The CAA requires that each state adopt
See 75 FR 6474. Pursuant to section implementation, maintenance, and
and submit a SIP for the
110(a)(1) of the CAA, states are required enforcement of a new or revised
implementation, maintenance and
to submit SIPs meeting the requirements NAAQS within three years following
enforcement of each NAAQS
of section 110(a)(2) within three years the promulgation of such NAAQS, or
promulgated by EPA, which is
after promulgation of a new or revised within such shorter period as EPA may
commonly referred to as an
NAAQS. Section 110(a)(2) requires prescribe. Section 110(a) imposes the
‘‘infrastructure’’ SIP submission.
states to address basic SIP requirements, obligation upon states to make a SIP
NCDAQ certified that the North
including emissions inventories, submission to EPA for a new or revised
Carolina SIP contains provisions that
monitoring, and modeling to assure NAAQS, but the contents of that
ensure the 2010 1-hour NO2 NAAQS is
attainment and maintenance of the submission may vary depending upon
implemented, enforced, and maintained
NAAQS. States were required to submit the facts and circumstances. In
in North Carolina. EPA is proposing to
such SIPs for the 2010 1-hour NO2 particular, the data and analytical tools
find that portions of North Carolina’s available at the time the state develops
infrastructure SIP submission, provided NAAQS to EPA no later than January
22, 2013.1 and submits the SIP for a new or revised
to EPA on August 23, 2013, satisfy NAAQS affects the content of the
certain infrastructure elements for the This action is proposing to approve
North Carolina’s infrastructure submission. The contents of such SIP
2010 1-hour NO2 NAAQS. submissions may also vary depending
DATES: Written comments must be
submission for the applicable
requirements of the 2010 1-hour NO2 upon what provisions the state’s
received on or before August 19, 2016. existing SIP already contains. In the
NAAQS, with the exception of the PSD
ADDRESSES: Submit your comments, case of the 2010 1-hour NO2 NAAQS,
permitting requirements for major
identified by Docket ID No. EPA–R04– sources of section 110(a)(2)(C) and (J), states typically have met the basic
OAR–2015–0362 at http:// the interstate transport requirements of program elements required in section
www.regulations.gov. Follow the online 110(a)(2) through earlier SIP
instructions for submitting comments. 1 In these infrastructure SIP submissions states submissions in connection with
Once submitted, comments cannot be generally certify evidence of compliance with previous NAAQS.
edited or removed from Regulations.gov. sections 110(a)(1) and (2) of the CAA through a More specifically, section 110(a)(1)
EPA may publish any comment received combination of state regulations and statutes, some provides the procedural and timing
of which have been incorporated into the federally-
to its public docket. Do not submit approved SIP. In addition, certain federally-
requirements for SIPs. Section 110(a)(2)
electronically any information you approved, non-SIP regulations may also be lists specific elements that states must
consider to be Confidential Business appropriate for demonstrating compliance with meet for ‘‘infrastructure’’ SIP
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Information (CBI) or other information sections 110(a)(1) and (2). Unless otherwise requirements related to a newly
indicated, the Title 15A regulations of the North
whose disclosure is restricted by statute. Carolina Administrative Code (‘‘15A NCAC’’) cited
established or revised NAAQS. As
Multimedia submissions (audio, video, throughout this rulemaking have either been mentioned above, these requirements
etc.) must be accompanied by a written approved, or submitted for approval into North include basic SIP elements such as
comment. The written comment is Carolina’s federally-approved SIP. The North modeling, monitoring, and emissions
Carolina General Statutes (‘‘NCGS’’) cited
considered the official comment and throughout this rulemaking, however, are not
inventories that are designed to assure
should include discussion of all points approved into the North Carolina SIP unless attainment and maintenance of the
you wish to make. EPA will generally otherwise indicated. NAAQS. The requirements that are the
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subject of this proposed rulemaking are arises out of CAA section 110(a)(1). statutory provisions are ambiguous. In
listed below and in EPA’s September 13, Pursuant to section 110(a)(1), states particular, EPA believes that the list of
2013, memorandum entitled ‘‘Guidance must make SIP submissions ‘‘within 3 required elements for infrastructure SIP
on Infrastructure State Implementation years (or such shorter period as the submissions provided in section
Plan (SIP) Elements under Clean Air Act Administrator may prescribe) after the 110(a)(2) contains ambiguities
Sections 110(a)(1) and 110(a)(2).’’ 2 promulgation of a national primary concerning what is required for
• 110(a)(2)(A): Emission Limits and ambient air quality standard (or any inclusion in an infrastructure SIP
Other Control Measures revision thereof),’’ and these SIP submission.
• 110(a)(2)(B): Ambient Air Quality submissions are to provide for the The following examples of
Monitoring/Data System ‘‘implementation, maintenance, and ambiguities illustrate the need for EPA
• 110(a)(2)(C): Programs for enforcement’’ of such NAAQS. The to interpret some section 110(a)(1) and
Enforcement of Control Measures and statute directly imposes on states the section 110(a)(2) requirements with
for Construction or Modification of duty to make these SIP submissions, respect to infrastructure SIP
Stationary Sources 3 and the requirement to make the submissions for a given new or revised
• 110(a)(2)(D)(i)(I) and (II): Interstate submissions is not conditioned upon NAAQS. One example of ambiguity is
Pollution Transport EPA’s taking any action other than that section 110(a)(2) requires that
• 110(a)(2)(D)(ii): Interstate Pollution promulgating a new or revised NAAQS. ‘‘each’’ SIP submission must meet the
Abatement and International Air Section 110(a)(2) includes a list of list of requirements therein, while EPA
Pollution specific elements that ‘‘[e]ach such has long noted that this literal reading
• 110(a)(2)(E): Adequate Resources and plan’’ submission must address. of the statute is internally inconsistent
Authority, Conflict of Interest, and EPA has historically referred to these and would create a conflict with the
Oversight of Local Governments and SIP submissions made for the purpose nonattainment provisions in part D of
Regional Agencies of satisfying the requirements of CAA title I of the Act, which specifically
• 110(a)(2)(F): Stationary Source sections 110(a)(1) and 110(a)(2) as address nonattainment SIP
Monitoring and Reporting ‘‘infrastructure SIP’’ submissions. requirements.6 Section 110(a)(2)(I)
• 110(a)(2)(G): Emergency Powers Although the term ‘‘infrastructure SIP’’ pertains to nonattainment SIP
• 110(a)(2)(H): SIP Revisions does not appear in the CAA, EPA uses requirements and part D addresses
• 110(a)(2)(I): Plan Revisions for the term to distinguish this particular when attainment plan SIP submissions
Nonattainment Areas 4 type of SIP submission from to address nonattainment area
• 110(a)(2)(J): Consultation with submissions that are intended to satisfy requirements are due. For example,
Government Officials, Public other SIP requirements under the CAA, section 172(b) requires EPA to establish
Notification, and PSD and Visibility such as ‘‘nonattainment SIP’’ or a schedule for submission of such plans
Protection ‘‘attainment plan SIP’’ submissions to for certain pollutants when the
• 110(a)(2)(K): Air Quality Modeling address the nonattainment planning Administrator promulgates the
and Submission of Modeling Data requirements of part D of title I of the designation of an area as nonattainment,
• 110(a)(2)(L): Permitting Fees CAA, ‘‘regional haze SIP’’ submissions and section 107(d)(1)(B) allows up to
• 110(a)(2)(M): Consultation and required by EPA rule to address the two years, or in some cases three years,
Participation by Affected Local visibility protection requirements of for such designations to be
Entities CAA section 169A, and nonattainment promulgated.7 This ambiguity illustrates
III. What is EPA’s approach to the new source review (NNSR) permit that rather than apply all the stated
review of infrastructure SIP program submissions to address the requirements of section 110(a)(2) in a
submissions? permit requirements of CAA, title I, part strict literal sense, EPA must determine
D. which provisions of section 110(a)(2)
EPA is acting upon the SIP Section 110(a)(1) addresses the timing are applicable for a particular
submission from North Carolina that and general requirements for infrastructure SIP submission.
addresses the infrastructure infrastructure SIP submissions, and Another example of ambiguity within
requirements of CAA sections 110(a)(1) section 110(a)(2) provides more details sections 110(a)(1) and 110(a)(2) with
and 110(a)(2) for the 2010 1-hour NO2 concerning the required contents of respect to infrastructure SIPs pertains to
NAAQS. The requirement for states to these submissions. The list of required whether states must meet all of the
make a SIP submission of this type elements provided in section 110(a)(2) infrastructure SIP requirements in a
contains a wide variety of disparate single SIP submission, and whether EPA
2 Two elements identified in section 110(a)(2) are
provisions, some of which pertain to must act upon such SIP submission in
not governed by the three year submission deadline required legal authority, some of which
of section 110(a)(1) because SIPs incorporating
a single action. Although section
necessary local nonattainment area controls are not pertain to required substantive program 110(a)(1) directs states to submit ‘‘a
due within three years after promulgation of a new provisions, and some of which pertain
or revised NAAQS, but rather due at the time the to requirements for both authority and 6 See, e.g., ‘‘Rule To Reduce Interstate Transport
nonattainment area plan requirements are due substantive program provisions.5 EPA of Fine Particulate Matter and Ozone (Clean Air
pursuant to section 172. These requirements are: (1) Interstate Rule); Revisions to Acid Rain Program;
Submissions required by section 110(a)(2)(C) to the therefore believes that while the timing Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
extent that subsection refers to a permit program as requirement in section 110(a)(1) is 25162, at 25163–65 (May 12, 2005) (explaining
required in part D Title I of the CAA; and (2) unambiguous, some of the other relationship between timing requirement of section
submissions required by section 110(a)(2)(I) which 110(a)(2)(D) versus section 110(a)(2)(I)).
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pertain to the nonattainment planning requirements 5 For example: Section 110(a)(2)(E)(i) provides 7 EPA notes that this ambiguity within section
of part D, Title I of the CAA. This proposed 110(a)(2) is heightened by the fact that various
that states must provide assurances that they have
rulemaking does not address infrastructure adequate legal authority under state and local law subparts of part D set specific dates for submission
elements related to section 110(a)(2)(I) or the to carry out the SIP; section 110(a)(2)(C) provides of certain types of SIP submissions in designated
nonattainment planning requirements of that states must have a SIP-approved program to nonattainment areas for various pollutants. Note,
110(a)(2)(C). address certain sources as required by part C of title e.g., that section 182(a)(1) provides specific dates
3 This rulemaking only addresses requirements
I of the CAA; and section 110(a)(2)(G) provides that for submission of emissions inventories for the
for this element as they relate to attainment areas. states must have legal authority to address ozone NAAQS. Some of these specific dates are
4 As mentioned above, this element is not emergencies as well as contingency plans that are necessarily later than three years after promulgation
relevant to this proposed rulemaking. triggered in the event of such emergencies. of the new or revised NAAQS.
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in section 110(a)(2)(C) to include a from interfering with measures required approve these provisions for the 2010 1-
program in the SIP for enforcement of to prevent significant deterioration of air hour NO2 NAAQS on November 3,
NO2 emissions controls and measures quality in another state (‘‘prong 3’’), or 2015. See 80 FR 67645. EPA’s rationale
and the regulation of minor sources and to protect visibility in another state for today’s proposal respecting sub-
modifications to assist in the protection (‘‘prong 4’’). With respect to North elements (i) and (iii) is described below.
of air quality in nonattainment, Carolina’s infrastructure SIP in relation To satisfy the requirements of sections
attainment or unclassifiable areas. to the interstate transport requirements 110(a)(2)(E)(i) and (iii), North Carolina’s
Enforcement: NC DAQ’s above- of section 110(a)(2)(D)(i)(I) and infrastructure SIP submission cites
described, SIP-approved regulations 110(a)(2)(D)(i)(II) (prongs 1 through 4), several regulations. Rule 15A NCAC 2Q.
provide for enforcement of NO2 EPA is not proposing any action today 0200, Permit Fees, provides the
emission limits and control measures regarding these requirements. mechanism by which stationary sources
through enforceable permits. In 5. 110(a)(2)(D)(ii) Interstate Pollution that emit air pollutants pay a fee based
addition, North Carolina cited NCGS Abatement and International Air on the quantity of emissions. State
143–215.6A, 6B, and 6C, Enforcement Pollution: Section 110(a)(2)(D)(ii) statutes NCGS 143–215.3, General
procedures: civil penalties, criminal requires SIPs to include provisions Powers of Commission and Department:
penalties, and injunctive relief, which ensuring compliance with sections 115 Auxiliary Powers, and NCGS 143–
provides NC DENR with the statutory and 126 of the Act relating to interstate 215.107(a)(1), Air Quality Standards
authority to seek civil and criminal and international pollution abatement. and Classifications, provide the EMC
penalties, and injunctive relief to Regulations 15A NCAC 2D .0530, with the statutory authority ‘‘[t]o
enforce air quality rules. Prevention of Significant Deterioration, prepare and develop, after proper study,
Preconstruction PSD Permitting for and 15A NCAC 2D .0531, Sources of a comprehensive plan or plans for the
Major Sources: With respect to North Nonattainment Areas, provide how prevention, abatement and control of air
Carolina’s infrastructure SIP submission NCDAQ will notify neighboring states of pollution in the State or in any
related to the preconstruction PSD potential impacts from new or modified designated area of the State.’’ NCGS
permitting requirements for major sources consistent with the 143–215.112, Local air pollution control
sources of section 110(a)(2)(C), EPA is requirements of 40 CFR 51.166. These programs, provides the EMC with the
not proposing any action today regulations require NC DAQ to provide statutory authority ‘‘to review and have
regarding these requirements and an opportunity for a public hearing to general oversight and supervision over
instead will act on this portion of the the public, which includes state or local all local air pollution control programs.’’
submission in a separate action. air pollution control agencies, ‘‘whose North Carolina has three local air
Regulation of minor sources and lands may be affected by emissions from agencies located in Buncombe, Forsyth,
modifications: Section 110(a)(2)(C) also the source or modification’’ in North and Mecklenburg Counties that
requires the SIP to include provisions Carolina. In addition, North Carolina implement the air program in these
that govern the minor source program does not have any pending obligation areas.
that regulates emissions of the 2010 1- under sections 115 and 126 of the CAA. As further evidence of the adequacy
hour NO2 NAAQS. Regulation 15A Accordingly, EPA has made the of NCDAQ’s resources with respect to
NCAC 2Q .0300 Construction Operation preliminary determination that North sub-elements (i) and (iii), EPA
Permits governs the preconstruction Carolina’s SIP is adequate for ensuring submitted a letter to North Carolina on
permitting of minor modifications and compliance with the applicable April 19, 2016, outlining section 105
construction of minor stationary requirements relating to interstate and grant commitments and the current
sources. international pollution abatement for status of these commitments for fiscal
EPA has made the preliminary the 2010 1-hour NO2 NAAQS. year 2015. The letter EPA submitted to
determination that North Carolina’s SIP 6. 110(a)(2)(E) Adequate Resources North Carolina can be accessed at
is adequate for enforcement of control and Authority, Conflict of Interest, and www.regulations.gov using Docket ID
measures and regulation of minor Oversight of Local Governments and No. EPA–R04–OAR–2015–0362.
sources and construction or Regional Agencies: Section 110(a)(2)(E) Annually, states update these grant
modifications related to the 2010 1-hour requires that each implementation plan commitments based on current SIP
NO2 NAAQS. provide: (i) Necessary assurances that requirements, air quality planning, and
4. 110(a)(2)(D)(i) Interstate Pollution the State will have adequate personnel, applicable requirements related to the
Transport: Section 110(a)(2)(D)(i) has funding, and authority under state law NAAQS. North Carolina satisfactorily
two components; 110(a)(2)(D)(i)(I) and to carry out its implementation plan, (ii) met all commitments agreed to in the
110(a)(2)(D)(i)(II). Each of these that the State comply with the Air Planning Agreement for fiscal year
components have two subparts resulting requirements respecting State Boards 2015, therefore North Carolina’s grants
in four distinct components, commonly pursuant to section 128 of the Act, and were finalized and closed out.
referred to as ‘‘prongs,’’ that must be (iii) necessary assurances that, where Collectively, these rules and
addressed in infrastructure SIP the State has relied on a local or commitments provide evidence that NC
submissions. The first two prongs, regional government, agency, or DAQ has adequate personnel, funding,
which are codified in section instrumentality for the implementation and legal authority to carry out the
110(a)(2)(D)(i)(I), are provisions that of any plan provision, the State has State’s implementation plan and related
prohibit any source or other type of responsibility for ensuring adequate issues. EPA has made the preliminary
emissions activity in one state from implementation of such plan provisions. determination that North Carolina has
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contributing significantly to EPA is proposing to approve North adequate resources and authority to
nonattainment of the NAAQS in another Carolina’s SIP as meeting the satisfy sections 110(a)(2)(E)(i) and (iii),
state (‘‘prong 1’’), and interfering with requirements of sub-elements North Carolina has adequate resources
maintenance of the NAAQS in another 110(a)(2)(E)(i) and (iii). With respect to for implementation of the 2010 1-hour
state (‘‘prong 2’’). The third and fourth North Carolina’s August 23, 2013, NO2 NAAQS.
prongs, which are codified in section infrastructure SIP submission related to 7. 110(a)(2)(F) Stationary source
110(a)(2)(D)(i)(II), are provisions that the state board requirements of section monitoring system: Section 110(a)(2)(F)
prohibit emissions activity in one state 110(a)(2)(E)(ii), EPA took final action to requires SIPs to meet applicable
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requirements addressing: (i) The air emissions data. EPA published the generalized condition of water or air
installation, maintenance, and AERR on December 5, 2008, which pollution which is causing imminent
replacement of equipment, and the modified the requirements for collecting danger to the health or safety of the
implementation of other necessary and reporting air emissions data (73 FR public. This statute also allows, in the
steps, by owners or operators of 76539). The AERR shortened the time absence of a generalized condition of air
stationary sources to monitor emissions states had to report emissions data from pollution, should the Secretary find
from such sources, (ii) periodic reports 17 to 12 months, giving states one ‘‘that the emissions from one or more air
on the nature and amounts of emissions calendar year to submit emissions data. contaminant sources . . . is causing
and emissions related data from such All states are required to submit a imminent danger to human health and
sources, and (iii) correlation of such comprehensive emissions inventory safety or to fish and wildlife, he may
reports by the state agency with any every three years and report emissions with the concurrence of the Governor
emission limitations or standards for certain larger sources annually order the person or persons responsible
established pursuant to this section, through EPA’s online Emissions for the operation or operations in
which reports shall be available at Inventory System. States report question to immediately reduce or
reasonable times for public inspection. emissions data for the six criteria discontinue the emissions of air
North Carolina’s infrastructure pollutants and the precursors that form contaminants . . . or to take such other
submission describes how the State them—nitrogen oxides, sulfur dioxide, measures as are, in his judgment,
establishes requirements for emissions ammonia, lead, carbon monoxide, necessary.’’ EPA has made the
compliance testing and utilizes particulate matter, and volatile organic preliminary determination that North
emissions sampling and analysis. compounds. Many states also
NC DAQ uses these data to track Carolina’s SIP submission is adequate to
voluntarily report emissions of satisfy the emergency powers
progress towards maintaining the hazardous air pollutants. North Carolina
NAAQS, develop control and obligations of the 2010 1-hour NO2
made its latest update to the 2011 NEI NAAQS.
maintenance strategies, identify sources on December 5, 2014. EPA compiles the
and general emission levels, and emissions data, supplementing it where 9. 110(a)(2)(H) Future SIP Revisions:
determine compliance with emission necessary, and releases it to the general Section 110(a)(2)(H), in summary,
regulations and additional EPA public through the Web site http:// requires each SIP to provide for
requirements. North Carolina meets www.epa.gov/ttn/chief/ revisions of such plan (i) as may be
these requirements through 15A NCAC eiinformation.html. EPA has made the necessary to take account of revisions of
2D .0604 Exceptions to Monitoring and preliminary determination that North such national primary or secondary
Reporting Requirements; 15A NCAC 2D Carolina’s SIP and practices are ambient air quality standard or the
.0605 General Recordkeeping and adequate for the stationary source availability of improved or more
Reporting Requirements; 15A NCAC 2D monitoring systems related to the 2010 expeditious methods of attaining such
.0611 Monitoring Emissions from Other 1-hour NO2 NAAQS. Accordingly, EPA standard, and (ii) whenever the
Sources; 15A NCAC 2D .0612 is proposing to approve North Carolina’s Administrator finds that the plan is
Alternative Monitoring and Reporting infrastructure SIP submission with substantially inadequate to attain the
Procedures; 15A NCAC 2D .0613 respect to section 110(a)(2)(F). NAAQS or to otherwise comply with
Quality Assurance Program; and 15A any additional applicable requirements.
NCAC 2D .0614 Compliance Assurance 8. 110(a)(2)(G) Emergency Powers:
Section 110(a)(2)(G) requires that states NC DAQ is responsible for adopting air
Monitoring. In addition, 15A NCAC 2D quality rules and revising SIPs as
.0605(c) General Recordkeeping and demonstrate authority comparable with
section 303 of the CAA and adequate needed to attain or maintain the
Reporting Requirements allows for the NAAQS in North Carolina. NCGS 143–
use of credible evidence in the event contingency plans to implement such
authority. North Carolina’s 215.107(a)(1) and (a)(10) grant NC DAQ
that the NCDAQ Director has evidence
infrastructure SIP submission cites 15A the authority to prepare and develop,
that a source is violating an emission
NCAC 2D .0300, Air Pollution after proper study, a comprehensive
standard or permit condition, the
Emergencies, as identifying air pollution plan for the prevention of air pollution
Director may require that the owner or
emergency episodes and preplanned and implement the CAA, respectively.
operator of any source submit to the
abatement strategies, and provides the These provisions also provide NC DAQ
Director any information necessary to
determine the compliance status of the means to implement emergency air the ability and authority to respond to
source. In addition, EPA is unaware of pollution episode measures. Under calls for SIP revisions, and North
any provision preventing the use of NCGS 143–215.3(a)(12), General powers Carolina has provided a number of SIP
credible evidence in the North Carolina of Commission and Department; revisions over the years for
SIP. Also, NCGS 143–215.107(a)(4), Air auxiliary powers, if NC DENR finds that implementation of the NAAQS. In
quality standards and classifications, such a ‘‘condition of . . . air pollution addition, State regulation 15A NCAC 2D
provides the EMC with the statutory exists and that it creates an emergency .2401(d) states that ‘‘The EMC may
authority ‘‘To collect information or to requiring immediate action to protect specify through rulemaking a specific
require reporting from classes of sources the public health and safety or to protect emission limit lower than that
which, in the judgment of the [EMC], fish and wildlife, the Secretary of the established under this rule for a specific
may cause or contribute to air Department [NC DENR] with the source if compliance with the lower
pollution.’’ concurrence of the Governor, shall order emission limit is required to attain or
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Stationary sources are required to persons causing or contributing to the maintain the ambient air quality
submit periodic emissions reports to the . . . air pollution in question to reduce standard for ozone or PM2.5 or any other
State by Rule 15A NCAC 2Q .0207 or discontinue immediately the ambient air quality standard in Section
‘‘Annual Emissions Reporting.’’ North emission of air contaminants or the 15A NCAC 2D .0400.’’ EPA has made
Carolina is also required to submit discharge of wastes.’’ In addition, NCGS the preliminary determination that
emissions data to EPA for purposes of 143–215.3(a)(12) provides NC DENR North Carolina’s SIP and practices
the National Emissions Inventory (NEI). with the authority to declare an adequately demonstrate a commitment
The NEI is EPA’s central repository for emergency when it finds that a to provide future SIP revisions related to
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including any court costs or other costs determinations. Furthermore, NC DAQ substantial number of small entities
associated with any enforcement has demonstrated consultation with, under the Regulatory Flexibility Act (5
action), until such fee requirement is and participation by, affected local U.S.C. 601 et seq.);
superseded with respect to such sources entities through its work with local • Does not contain any unfunded
by the Administrator’s approval of a fee political subdivisions during the
mandate or significantly or uniquely
program under title V. developing of its Transportation
To satisfy these requirements, North affect small governments, as described
Conformity SIP, Regional Haze
Carolina’s infrastructure SIP submission Implementation Plan, and the 8-Hour in the Unfunded Mandates Reform Act
cites Regulation 15A NCAC 2Q .0200 Ozone Attainment Demonstration for of 1995 (Pub. L. 104–4);
Permit Fees, which requires the owner the North Carolina portion of the • Does not have Federalism
or operator of each major stationary Charlotte-Gastonia-Rock Hill NC–SC implications as specified in Executive
source to pay to the permitting nonattainment area. EPA has made the Order 13132 (64 FR 43255, August 10,
authority, as a condition of any permit preliminary determination that North 1999);
required under the CAA, a sufficient fee Carolina’s SIP and practices adequately
• Is not an economically significant
to cover the costs of the permitting demonstrate consultation with affected
program. Additionally, North Carolina regulatory action based on health or
local entities related to the 2010 1-hour
has a fully approved title V operating NO2 NAAQS when necessary. safety risks subject to Executive Order
permit program at 15A NCAC.0500 13045 (62 FR 19885, April 23, 1997);
Emissions Control Standards and 2Q V. Proposed Action • Is not a significant regulatory action
.0500, Title V Procedures,20 which EPA is proposing to approve that subject to Executive Order 13211 (66 FR
include provisions to implement and portions of NCDAQ’s infrastructure SIP 28355, May 22, 2001);
enforce PSD and NNSR permits once submission, submitted August 23, 2013,
• Is not subject to requirements of
Title V permits have been issued. The for the 2010 1-hour NO2 NAAQS, has
met the above described infrastructure section 12(d) of the National
fees collected under 15A NCAC 2Q
SIP requirements. EPA is proposing to Technology Transfer and Advancement
.0200 also support this activity. NCGS
143–215.3, General powers of approve these portions of North Act of 1995 (15 U.S.C. 272 note) because
Commission and Department; auxiliary Carolina’s infrastructure SIP submission application of those requirements would
Powers, provides authority for NC DAQ for the 2010 1-hour NO2 NAAQS be inconsistent with the CAA; and
to require a processing fee in an amount because these aspects of the submission • Does not provide EPA with the
sufficient for the reasonable cost of are consistent with section 110 of the discretionary authority to address, as
reviewing and acting upon PSD and CAA. The PSD permitting requirements appropriate, disproportionate human
NNSR permits. EPA has made the for major sources of section 110(a)(2)(C) health or environmental effects, using
preliminary determination that North and (J), the interstate transport practicable and legally permissible
Carolina’s SIP and practices adequately requirements of section 110(a)(2)(D)(i)(I) methods, under Executive Order 12898
provide for permitting fees related to the and (II) (prongs 1 through 4), will not be (59 FR 7629, February 16, 1994).
2010 1-hour NO2 NAAQS, when addressed by EPA at this time. EPA has
already taken action to approve North The SIP is not approved to apply on
necessary.
13. 110(a)(2)(M) Consultation/ Carolina’s infrastructure SIP submission any Indian reservation land or in any
participation by affected local entities: related to section 110(a)(2)(E)(ii) for the other area where EPA or an Indian tribe
Section 110(a)(2)(M) of the Act requires 2010 NO2 NAAQS. has demonstrated that a tribe has
states to provide for consultation and jurisdiction. In those areas of Indian
VI. Statutory and Executive Order country, the rule does not have tribal
participation in SIP development by
Reviews implications as specified by Executive
local political subdivisions affected by
the SIP. Rule 15A NCAC 2Q .0530, Under the CAA, the Administrator is Order 13175 (65 FR 67249, November 9,
Prevention of Significant Deterioration, required to approve a SIP submission 2000), nor will it impose substantial
requires that the NCDAQ notify the that complies with the provisions of the direct costs on tribal governments or
public, including affected local entities, Act and applicable federal regulations. preempt tribal law.
of PSD permit applications and See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
associated information related to PSD Thus, in reviewing SIP submissions, List of Subjects in 40 CFR Part 52
permits, and the opportunity for EPA’s role is to approve state choices,
Environmental protection, Air
comment prior to making final provided that they meet the criteria of
the CAA. Accordingly, this proposed pollution control, Incorporation by
permitting decisions. NCGS 150B–21.1 reference, Intergovernmental relations,
and 150B–21.2 authorize and require action merely approves state law as
meeting federal requirements and does Nitrogen dioxide, Reporting and
NCDAQ to advise, consult, cooperate
not impose additional requirements recordkeeping requirements.
and enter into agreements with other
agencies of the state, the Federal beyond those imposed by state law. For Authority: 42 U.S.C. 7401 et seq.
government, other states, interstate that reason, this proposed action: Dated: July 8, 2016.
agencies, groups, political subdivisions, • Is not a significant regulatory action
subject to review by the Office of Heather McTeer Toney,
and industries affected by the
Management and Budget under Regional Administrator, Region 4.
provisions of this act, rules, or policies
Executive Orders 12866 (58 FR 51735,
mstockstill on DSK3G9T082PROD with PROPOSALS
of the Department. Also, Rule 15A [FR Doc. 2016–17071 Filed 7–19–16; 8:45 am]
NCAC 2D .2000 Transportation October 4, 1993) and 13563 (76 FR 3821, BILLING CODE 6560–50–P
Conformity requires consultation with January 21, 2011);
all affected partners to be implemented • Does not impose an information
for transportation conformity collection burden under the provisions
of the Paperwork Reduction Act (44
20 Title V program regulations are federally- U.S.C. 3501 et seq.);
approved but not incorporated into the federally- • Is certified as not having a
approved SIP. significant economic impact on a
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Document Created: 2018-02-08 07:57:12
Document Modified: 2018-02-08 07:57:12
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Written comments must be received on or before August 19, 2016. | |
| Contact | Richard Wong, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or via electronic mail at [email protected] | |
| FR Citation | 81 FR 47115 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide and Reporting and Recordkeeping Requirements |
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