81 FR 63107 - Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 178 (September 14, 2016)
Federal Register Volume 81, Issue 178 (September 14, 2016)
| Page Range | 63107-63112 | |
| FR Document | 2016-21994 |
[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)] [Rules and Regulations] [Pages 63107-63112] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-21994] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0501; FRL-9952-31-Region 4] Air Plan Approval and Disapproval; North Carolina: New Source Review for Fine Particulate Matter (PM2.5) AGENCY: Environmental Protection Agency. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving, in part, and disapproving, in part, changes to the North Carolina State Implementation Plan (SIP), provided by the North Carolina Department of Environmental Quality (NC DEQ) through the Division of Air Quality (DAQ), to EPA in submittals dated May 16, 2011, (two separate submittals) and September 5, 2013. These SIP submittals modify North Carolina's New Source Review (NSR)--Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR)-- permitting regulations and include the adoption of some federal requirements regarding implementation of the fine particulate matter (PM2.5 ) national ambient air quality standards (NAAQS) through the NSR permitting program. As a result of the disapproval of a portion of the State's NSR requirements, EPA is also approving, in part, and disapproving, in part, the PSD elements of North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 sulfur dioxide (SO2 ), 2010 nitrogen dioxide (NO2 ) and the 2012 PM2.5 NAAQS, and converting the Agency's previous conditional approvals of the PSD elements of North [[Page 63108]] Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals. This partial disapproval triggers the requirement for EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiencies through a SIP revision and EPA approves the SIP revision before EPA promulgates such a FIP. DATES: This rule will be effective October 14, 2016. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0501. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Joel Huey of the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Huey can be reached by telephone at (404) 562-9104 or via electronic mail at [email protected]. SUPPLEMENTARY INFORMATION: I. Background and Overview In submittals dated May 16, 2011 (two separate submittals), and September 5, 2013, DAQ submitted to EPA changes to the North Carolina SIP with regard to the State's PSD and NNSR regulations found at 15A North Carolina Administrative Code (NCAC) 02D .0530 and 15A NCAC 02D .0531. These SIP submittals modify North Carolina's NSR permitting regulations (for both PSD and NNSR) and include the adoption of some federal requirements regarding implementation of the PM2.5 NAAQS through the NSR permitting program. In the notice of proposed rulemaking (NPRM) published on May 10, 2016 (81 FR 28797), EPA proposed to take the following four actions, some with multiple parts, regarding the North Carolina submittals:Approval of a May 16, 2011, SIP submittal from North Carolina (as revised and updated by the State's September 5, 2013, SIP submittal) as meeting the requirements of EPA's rule, ``Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 ),'' Final Rule, 73 FR 28321 (May 16, 2008) (hereafter referred to as the ``2008 NSR PM2.5 Implementation Rule'').Disapproval of the portions of North Carolina's September 5, 2013, SIP submittal pertaining to adoption and implementation of the PM 2.5 increments because North Carolina's proposed SIP revisions do not fully meet the requirements of EPA's rulemaking, ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC),'' Final Rule, 75 FR 64864 (October 20, 2010) (hereafter referred to as the ``2010 PSD PM2.5 Rule''). Specifically, though paragraphs (q) and (v) of North Carolina's revised PSD regulations at 15A NCAC 02D .0530 incorporate the federally required numerical PM2.5 increments, North Carolina's regulations fail to include other federally required provisions needed to implement the PM2.5 increments, including (1) the definition of ``[m]ajor source baseline date'' for PM2.5 codified at 40 CFR 51.166(b)(14)(i)(c) (defined as October 20, 2010); (2) the definition of ``[m]inor source baseline date'' for PM2.5 codified at 40 CFR 51.166(b)(14)(ii)(c) (which establishes the PM2.5 trigger date as October 20, 2011); and (3) the definition of ``[b]aseline area'' codified at 40 CFR 51.166(b)(15)(i).\1\ Without these definitions, North Carolina's PSD regulations do not require PSD sources to conduct the appropriate analyses demonstrating that emissions from proposed construction of new major stationary sources or major modifications will not cause or contribute to air quality deterioration beyond the amount allowed by the PM2.5 increments. Therefore, EPA proposed to disapprove all of the PM2.5 increment provisions set forth in North Carolina's September 5, 2013, SIP submittal, including all of the PM2.5 -related changes to 15A NCAC 02D .0530 at paragraphs (e), (q), and (v).\2\ --------------------------------------------------------------------------- \1\ North Carolina's regulations at 15A NCAC 02D .0530 use incorporation by reference (IBR) to adopt the federal regulations in the CFR as of May 16, 2008, which do not include the definitions of ``major source baseline,'' ``minor source baseline,'' and ``baseline area'' that EPA promulgated in the 2010 PSD PM2.5 rule. Thus, the definition of ``major source baseline date'' incorporated into 15A NCAC 02D .0530 does not include the federally required PM2.5 major source baseline date of October 20, 2010, but instead states: ``In the case of particulate matter and sulfur dioxide, January 6, 1975.'' Likewise, the definition of ``minor source baseline date'' incorporated into 15A NCAC 02D .0530 does not include the federally required PM2.5 trigger date of October 20, 2011, but instead states: ``In the case of particulate matter and sulfur dioxide, August 7, 1977.'' It is EPA's understanding that North Carolina interprets the term ``particulate matter'' in North Carolina's regulations to encompass PM2.5 , resulting in a PM2.5 major source baseline date of January 6, 1975, and a PM2.5 trigger date of August 7, 1977. \2\ Paragraph (v) establishes the numerical PM2.5 increments. Paragraph (q) addresses the Class I PM2.5 variances. Paragraph (e) incorporates paragraph (v) by reference. EPA proposed to disapprove 15A NCAC 02D .0530, paragraphs (e), (q), and (v) in part, rather than in their entirety, because the paragraphs also include previously approved PM10 increment requirements. Specifically, in addition to making the PM2.5 -related changes to these paragraphs, North Carolina also revised 15A NCAC 02D .0530, paragraphs (e), (q), and (v), to directly incorporate the PM10 increments. Previously, North Carolina had incorporated the PM10 increments into 15A NCAC 02D .0530 by reference to the CFR. EPA is approving the PM10 -related changes to paragraphs (e), (q), and (v). ---------------------------------------------------------------------------Approval of administrative changes to North Carolina's PSD and NNSR regulations at 15A NCAC 02D .0530 and 15A NCAC 02D .0531 provided by the State in a SIP submittal also dated May 16, 2011, including clarification of the applicability of best available control technology (BACT) and lowest achievable emission rate (LAER) for electrical generating units (EGUs) in the State, and the inclusion of an additional Federal Land Manager (FLM) notification provision. Approval, in part, and disapproval, in part, of the PSD elements of North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO 2 , 2010 NO2 and 2012 PM2.5 NAAQS and conversion of the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals. Comments on the NPRM were due on or before June 9, 2016. The details of North Carolina's submittals and the rationale for EPA's actions are explained in the NPRM. [[Page 63109]] II. Response to Comments EPA received one adverse comment submission, from DAQ, on the May 10, 2016, NPRM to approve, in part, and disapprove, in part, changes to North Carolina's SIP-approved NSR permitting regulations. The comment submission is available in the docket for this final rulemaking action. In its comments, DAQ objects to EPA's proposed disapproval of the PM2.5 increment-related portions of paragraphs (e), (q) and (v) of North Carolina's PSD rule 15A NCAC 02D .0530 for failing to incorporate the definitions of ``major source baseline date,'' ``minor source baseline date,'' and ``baseline area'' as found in EPA's 2010 PSD PM2.5 Rule. DAQ contends that EPA's proposed disapproval of North Carolina's PM2.5 increment provisions fails to properly account for the decision by the United States Court of Appeals for the District of Columbia (D.C. Circuit) in Natural Resource Defense Council v. EPA, 706 F.3d 428 (D.C. Cir., 2013) (NRDC), where the Court determined that PM2.5 is not a new pollutant, but rather is encompassed by the statutory definition of the pollutant PM10. According to DAQ, North Carolina's regulations, which incorporate by reference the prior federal definitions applicable to ``particulate matter'' (rather than the definitions applicable to PM2.5 promulgated in EPA's 2010 PSD PM2.5 Rule), are consistent with the Clean Air Act (CAA or Act) and NRDC and can be approved into the SIP as written. For the same reason, DAQ also objects to EPA's proposed disapproval of the PSD elements of seven infrastructure SIP submittals. DAQ's comments incorporate by reference the following documents: (1) Opening Brief of Petitioner in North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated October 9, 2014; (2) Reply Brief of Petitioner for North Carolina v. United States Environmental Protection Agency, 13-1312 and 14-1186, dated February 10, 2015; and (3) letter from John Skvarla (North Carolina Department of Environment and Natural Resources \3\) to Gina McCarthy (EPA), dated August 22, 2013. --------------------------------------------------------------------------- \3\ The North Carolina Department of Environment and Natural Resources is now the North Carolina Department of Environmental Quality. --------------------------------------------------------------------------- The legal briefs attached to DAQ's comments were filed in the D.C. Circuit by the State of North Carolina in support of the State's consolidated petitions for review of EPA's 2010 PSD PM2.5 Rule and of EPA's denial of the State's administrative petition for reconsideration of the PSD PM2.5 Rule. In the briefs, the State challenged the 2010 PSD PM2.5 Rule on the basis that the rule improperly set new baseline dates for calculating PM2.5 increment consumption rather than using the pre- existing particulate matter baseline dates set forth in the CAA. EPA filed a Response Brief in that case disputing the legal arguments in the briefs that DAQ has now submitted to support its comments on this SIP rule. The D.C. Circuit dismissed both of North Carolina's petitions for review as untimely. See North Carolina v. EPA, 614 Fed. Appx. 517, 2015 U.S. App. LEXIS 16246 (D.C. Cir. 2015). The August 22, 2013, letter from John Skvarla that DAQ attached to its comments was sent by North Carolina to EPA prior to the D.C. Circuit litigation and raised the same concern regarding the PM2.5 increment baseline dates in the 2010 PSD PM2.5 Rule that North Carolina raised in the D.C. Circuit litigation. EPA responded to the April 22, 2013, letter from Secretary Skvarla to Administrator McCarthy in conjunction with EPA's August 28, 2014, response to the State's petition for EPA to reconsider or revise the 2010 PSD PM2.5 Rule. In response to DAQ's comments, EPA notes that DAQ does not claim that North Carolina's PM2.5 increment provisions satisfy the relevant federal criteria for state PSD programs set forth at 40 CFR 51.166 (as promulgated in the 2010 PSD PM2.5 Rule). Rather, DAQ's opposition to EPA's proposed disapproval of North Carolina's PM2.5 increment provisions is based entirely on DAQ's claim that the federal PM2.5 increment baseline provisions set forth at 40 CFR 51.166 are unlawful. In determining whether to approve North Carolina's PM2.5 increment submittal, however, EPA considers only whether North Carolina's proposed SIP revision satisfies the minimum federal criteria set forth at 50 CFR 51.166 and other requirements governing SIP revisions. EPA's action on North Carolina's submittal does not reopen for comment EPA's determination of the appropriate PM2.5 increment baselines for SIP-approved PSD programs, which were established in the final 2010 PSD PM2.5 Rule published in the Federal Register on October 20, 2010 (75 FR 64864). Under CAA section 307(b)(1), 42 U.S.C. 7607(b)(1), any petition for review of the 2010 PSD PM2.5 Rule had to be filed in the D.C. Circuit within 60 days of EPA's publication of the rule in the Federal Register, unless such petition is based solely on grounds arising after the 60th day, in which case the petition had to be filed within 60 days after such grounds arose. As the D.C. Circuit explained in dismissing North Carolina's petition for review of the 2010 PSD PM2.5 Rule, North Carolina missed the statutory deadline for filing a petition for review of the PM2.5 increment baseline provisions set forth in that Rule and did not file its court challenge within 60 days of the NRDC court decision that the State alleged to establish ``after arising'' grounds for such a challenge. See North Carolina, 614 Fed. Appx. at 517.\4\ --------------------------------------------------------------------------- \4\ In the D.C. Circuit litigation, North Carolina argued that the 2013 NRDC decision constituted grounds arising after the 60th day following EPA's publication of the 2010 PSD PM2.5 Rule in the Federal Register, and therefore started a new 60-day period during which North Carolina could petition the D.C. Circuit to review the 2010 PM2.5 PSD Rule. North Carolina, 614 Fed. Appx. at 518. The D.C. Circuit found that even if NRDC constituted after-arising grounds, ``North Carolina brought its petition more than ten months after [the Court] issued NRDC--well outside of the sixty-day window for petitions that the after-arising grounds exception [in CAA section 307(b)] provides.'' Id. Therefore, the Court concluded: ``Even assuming, without deciding, that NRDC constituted after-arising grounds, North Carolina's petition is thus still untimely.'' Id. --------------------------------------------------------------------------- Based on its view of the NRDC court decision, North Carolina separately petitioned EPA to reconsider or revise the baseline date in the 2010 PSD PM2.5 Rule and subsequently challenged EPA's response to that petition in the D.C. Circuit. EPA determined that revision of the baseline dates for PM2.5 in the 2010 rule was not appropriate or compelled by the court decision cited by North Carolina. EPA also considered and responded to the April 22, 2013, letter from Secretary Skvarla in the manner described above. Accordingly, EPA has already given due consideration to the concern raised by North Carolina in its comment regarding the content of the EPA regulations. The Court upheld EPA's response to the State's petition to change the rule. 614 Fed. Appx. at 519. Thus, the legal issues raised by North Carolina concerning the content of EPA's regulations are settled and not open to reconsideration in this action regarding North Carolina's SIP submittal. For purposes of this action, the PM2.5 increment baseline provisions for SIP-approved state PSD programs set forth in 40 CFR 51.166 are final and effective for all states, including North Carolina. EPA is required to apply its regulations as they are presently written. See, e.g., 78 FR 63883, 63885 (Oct. 25, 2013) (EPA action on the Utah SIP based on the terms of the current version of 40 CFR 51.166). Accordingly, DAQ's comments regarding alleged defects in the PM2.5 increment baseline dates established in the 2010 PSD PM2.5 [[Page 63110]] Rule (including arguments made in attachments to DAQ's comment submission) are not relevant to EPA's determination in this final action of whether the PM2.5 increment provisions in North Carolina's September 5, 2013, SIP submittal are approvable. To be federally-approvable, North Carolina's PM2.5 increment provisions must meet the requirements of 40 CFR 51.166 unless North Carolina can demonstrate that it has alternative measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA. See 40 CFR 51.166(c)(2). Specifically regarding the definitions of key terms set forth at 40 CFR 51.166(b), the regulations state that ``[a]ll State plans shall use'' these definitions, unless ``the State specifically demonstrates that the submitted definition is more stringent, or at least as stringent, in all respects'' as the federal definition. See 40 CFR 51.166(b). As EPA explained in the NPRM, North Carolina's PM2.5 increment provisions at 15A NCAC 02D .0530 do not incorporate the federally required definitions of ``major source baseline date,'' ``minor source baseline date,'' and ``baseline area.'' Nor has North Carolina demonstrated--or even claimed--that alternative definitions in the State's plan are more stringent, or at least as stringent, as the federal definitions set forth at 40 CFR 51.166. Likewise, North Carolina has not identified measures in its plan other than PM2.5 increments that satisfy the PSD requirements under sections 166(c) and 166(d) of the CAA and would warrant approval under 40 CFR 51.166(c)(2). DAQ's comments do not refute EPA's determination that North Carolina's PM2.5 increment provisions are not in compliance with 40 CFR 51.166. Therefore, EPA disagrees with DAQ's comment that North Carolina's rules can be approved into the SIP as written. III. Incorporation by Reference In this rule, EPA is including in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is incorporating by reference portions of North Carolina's regulations 15A NCAC 02D .0530 and 15A NCAC 02D .0531, entitled ``Prevention of Significant Deterioration'' and ``Sources in Nonattainment Areas,'' effective September 1, 2013. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.\5\ EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). --------------------------------------------------------------------------- \5\ 62 FR 27968 (May 22, 1997). --------------------------------------------------------------------------- IV. Final Actions EPA is approving, in part, and disapproving, in part, changes to the North Carolina SIP provided by the DAQ to EPA on May 16, 2011, (two submittals) and September 5, 2013. These changes modify North Carolina's NSR permitting regulations codified at 15A 02D .0530-- Prevention of Significant Deterioration and 15A NCAC 02D.0531--Sources in Nonattainment Areas, and include the adoption of some federal requirements respecting implementation of the PM2.5 NAAQS through the NSR permitting program. Specifically, EPA is approving the State's changes as they relate to the requirements to comply with EPA's 2008 NSR PM2.5 Implementation Rule (provided in the first May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal) and the State's miscellaneous changes as described in Section III.C. of the NPRM (provided in the second May 16, 2011, SIP submittal and the September 5, 2013, SIP submittal). EPA is disapproving North Carolina's September 5, 2013, SIP submittal as it relates to the requirements to comply with EPA's 2010 PSD PM2.5 Rule. The versions of 15A NCAC 02D .0530 (PSD) and 15A NCAC 02D .0531 (NNSR) that became effective in the State on September 1, 2013, will be incorporated into North Carolina's SIP, with the exception of the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5 increments. EPA is approving the portions of paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM10 .\6\ As a result of the disapproval of a portion of the State's NSR requirements, EPA also is disapproving the PSD elements of the North Carolina's infrastructure SIP submittals for the 2008 lead, 2008 8-hour ozone, 2010 SO2 , 2010 NO2 and the 2012 PM2.5 NAAQS; and is converting the Agency's previous conditional approvals of the PSD elements of North Carolina's infrastructure SIP submittals for the 1997 Annual PM2.5 and 2006 24-hour PM2.5 NAAQS to partial approvals and partial disapprovals. --------------------------------------------------------------------------- \6\ As explained in the NPRM (81 FR at 28803, fn. 17), the revisions to paragraphs (e), (q), and (v) provided in North Carolina's September 5, 2013, SIP submittal include PM10 increment provisions in addition to PM2.5 provisions. Prior to these rule changes, North Carolina had incorporated the PM10 increments into 15A NCAC 02D .0530 by reference to the CFR. North Carolina's decision to write the PM10 increment requirements directly into its rule rather than to incorporate them by reference does not change the applicable SIP requirements with respect to PM10 increments. --------------------------------------------------------------------------- North Carolina did not submit its PM2.5 increment provisions or its infrastructure SIPs to meet requirements for Part D of the CAA or a SIP call; therefore, EPA's final action to disapprove North Carolina's PM2.5 increment provisions and to partially disapprove the PSD portions of the State's infrastructure SIP submittals does not trigger sanctions. However, this final disapproval action does trigger the requirement under section 110(c) for EPA to promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency through a SIP revision and EPA approves the SIP revision before EPA promulgates such a FIP.\7\ --------------------------------------------------------------------------- \7\ EPA expects North Carolina sources that are subject (or become subject) to PSD requirements to continue complying with federal PM2.5 increment requirements following this disapproval action, including use of the federally required baseline dates for calculating PM2.5 increment consumption. --------------------------------------------------------------------------- V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submittal that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submittals, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action approves, in part, and disapproves, in part, state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. EPA is determining that the PSD portion of some of the aforementioned SIP submittals do not meet federal requirements. For that reason, this action:Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a [[Page 63111]] substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: September 6, 2016. V. Anne Heard, Acting Regional Administrator, Region 4. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart II--North Carolina 0 2. Section 52.1770 is amended by: 0 a. In paragraph (c), Table 1, under Subchapter 2D, Section .0500, revising the entries for ``Sect .0530'' and ``Sect .0531''. 0 b. In paragraph (e), adding entries for ``110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for the 2008 Lead NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO 2 NAAQS'', ``110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS'' and ``110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS'' at the end of the table. The revisions and additions read as follows: Sec. 52.1770 Identification of plan. * * * * * (c) * * * Table 1--EPA Approved North Carolina Regulations ---------------------------------------------------------------------------------------------------------------- State State citation Title/subject effective date EPA approval date Explanation ---------------------------------------------------------------------------------------------------------------- Subchapter 2D Air Pollution Control Requirements ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Section .0500 Emission Control Standards ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- Sect .0530................. Prevention of 9/1/2013 ..................... Disapproved the Significant portions of Deterioration. paragraphs 15A NCAC 02D .0530(e), (q), and (v) that pertain to PM2.5 increments. Sect .0531................. Sources in 9/1/2013 9/14/2016, [Insert ..................... Nonattainment Areas. citation of publication in Federal Register]. * * * * * * * ---------------------------------------------------------------------------------------------------------------- * * * * * (e) * * * [[Page 63112]] EPA-Approved North Carolina Non-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- State EPA Approval Federal Register Provision effective date date citation Explanation ---------------------------------------------------------------------------------------------------------------- * * * * * * * ---------------------------------------------------------------------------------------------------------------- 110(a)(1) and (2) Infrastructure 4/1/2008 9/14/2016 [Insert citation of Partially approve the Requirements for 1997 Fine publication in PSD elements of Particulate Matter NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 9/21/2009 9/14/2016 [Insert citation of Partially approve the Requirements for 2006 Fine publication in PSD elements of Particulate Matter NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 6/15/2012 9/14/2016 [Insert citation of Partially approve the Requirements for the 2008 Lead publication in PSD elements of NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 11/2/2012 9/14/2016 [Insert citation of Partially approve the Requirements for the 2008 8-Hour publication in PSD elements of Ozone NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 8/23/2013 9/14/2016 [Insert citation of Partially approve the Requirements for the 2010 1-hour publication in PSD elements of NO2 NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 3/18/2014 9/14/2016 [Insert citation of Partially approve the Requirements for the 2010 1-hour publication in PSD elements of SO2 NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. 110(a)(1) and (2) Infrastructure 12/4/2015 9/14/2016 [Insert citation of Partially approve the Requirements for the 2012 Annual publication in PSD elements of PM2.5 NAAQS. Federal Register]. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) and disapprove with respect to the PM2.5 increment requirements of 2010 PSD PM2.5 Rule. ---------------------------------------------------------------------------------------------------------------- Sec. 52.1773 [Removed and Reserved] 0 3. Section 52.1773 is removed and reserved. [FR Doc. 2016-21994 Filed 9-13-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 63107
in the Unfunded Mandates Reform Act direct costs on tribal governments or be challenged later in proceedings to
of 1995 (Pub. L. 104–4); preempt tribal law. enforce its requirements. See section
• does not have Federalism The Congressional Review Act, 5 307(b)(2).
implications as specified in Executive U.S.C. 801 et seq., as added by the Small List of Subjects in 40 CFR Part 52
Order 13132 (64 FR 43255, August 10, Business Regulatory Enforcement
1999); Fairness Act of 1996, generally provides Environmental protection, Air
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• is not subject to requirements of required information to the U.S. Senate, Acting Regional Administrator, Region 4.
Section 12(d) of the National the U.S. House of Representatives, and
Technology Transfer and Advancement the Comptroller General of the United 40 CFR part 52 is amended as follows:
Act of 1995 (15 U.S.C. 272 note) because States prior to publication of the rule in
application of those requirements would the Federal Register. A major rule PART 52—APPROVAL AND
be inconsistent with the CAA; and cannot take effect until 60 days after it PROMULGATION OF
IMPLEMENTATION PLANS
• does not provide EPA with the is published in the Federal Register.
discretionary authority to address, as This action is not a ‘‘major rule’’ as ■ 1. The authority citation for part 52
appropriate, disproportionate human defined by 5 U.S.C. 804(2). continues to read as follows:
health or environmental effects, using Under section 307(b)(1) of the CAA,
practicable and legally permissible petitions for judicial review of this Authority: 42 U.S.C. 7401 et seq.
methods, under Executive Order 12898 action must be filed in the United States Subpart L—Georgia
(59 FR 7629, February 16, 1994). Court of Appeals for the appropriate
The SIP is not approved to apply on circuit by November 14, 2016. Filing a ■ 2. Section 52.570(e), is amended by
any Indian reservation land or in any petition for reconsideration by the adding the entry ‘‘110(a)(1) and (2)
other area where EPA or an Indian tribe Administrator of this final rule does not Infrastructure Requirements for the 2010
has demonstrated that a tribe has affect the finality of this action for the 1-hour NO2 NAAQS’’ at the end of the
jurisdiction. In those areas of Indian purposes of judicial review nor does it table to read as follows:
country, the rule does not have tribal extend the time within which a petition
implications as specified by Executive for judicial review may be filed, and § 52.570 Identification of plan.
Order 13175 (65 FR 67249, November 9, shall not postpone the effectiveness of * * * * *
2000), nor will it impose substantial such rule or action. This action may not (e) * * *
EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS
State
Name of nonregulatory Applicable geographic or EPA approval
submittal date/ Explanation
SIP provision nonattainment area date
effective date
* * * * * * *
110(a)(1) and (2) Infrastructure Re- Georgia .......................................... 3/25/2013 9/14/2016 With the exception of sections
quirements for the 2010 1-hour 110(a)(2)(C), prong 3 of D(i),
NO2 NAASQ. and (J) and sections
110(a)(2)(D)(i)(I) and (II) (prongs
1, 2, and 4).
[FR Doc. 2016–21991 Filed 9–13–16; 8:45 am] ACTION: Final rule. permitting regulations and include the
BILLING CODE 6560–50–P adoption of some federal requirements
SUMMARY: The Environmental Protection regarding implementation of the fine
Agency (EPA) is approving, in part, and particulate matter (PM2.5) national
ENVIRONMENTAL PROTECTION disapproving, in part, changes to the ambient air quality standards (NAAQS)
AGENCY North Carolina State Implementation through the NSR permitting program. As
Plan (SIP), provided by the North a result of the disapproval of a portion
40 CFR Part 52
Carolina Department of Environmental of the State’s NSR requirements, EPA is
Quality (NC DEQ) through the Division also approving, in part, and
[EPA–R04–OAR–2015–0501; FRL–9952–31–
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of Air Quality (DAQ), to EPA in disapproving, in part, the PSD elements
Region 4]
submittals dated May 16, 2011, (two of North Carolina’s infrastructure SIP
Air Plan Approval and Disapproval; separate submittals) and September 5, submittals for the 2008 lead, 2008 8-
North Carolina: New Source Review for 2013. These SIP submittals modify hour ozone, 2010 sulfur dioxide (SO2),
Fine Particulate Matter (PM2.5) North Carolina’s New Source Review 2010 nitrogen dioxide (NO2) and the
(NSR)—Prevention of Significant 2012 PM2.5 NAAQS, and converting the
AGENCY: Environmental Protection Deterioration (PSD) and Nonattainment Agency’s previous conditional
Agency. New Source Review (NNSR)— approvals of the PSD elements of North
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![63108 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations
Carolina’s infrastructure SIP submittals NNSR) and include the adoption of definitions, North Carolina’s PSD
for the 1997 Annual PM2.5 and 2006 24- some federal requirements regarding regulations do not require PSD sources
hour PM2.5 NAAQS to partial approvals implementation of the PM2.5 NAAQS to conduct the appropriate analyses
and partial disapprovals. This partial through the NSR permitting program. In demonstrating that emissions from
disapproval triggers the requirement for the notice of proposed rulemaking proposed construction of new major
EPA to promulgate a Federal (NPRM) published on May 10, 2016 (81 stationary sources or major
Implementation Plan (FIP) no later than FR 28797), EPA proposed to take the modifications will not cause or
two years from the date of the following four actions, some with contribute to air quality deterioration
disapproval unless the State corrects the multiple parts, regarding the North beyond the amount allowed by the
deficiencies through a SIP revision and Carolina submittals: PM2.5 increments. Therefore, EPA
EPA approves the SIP revision before • Approval of a May 16, 2011, SIP proposed to disapprove all of the PM2.5
EPA promulgates such a FIP. submittal from North Carolina (as increment provisions set forth in North
DATES: This rule will be effective revised and updated by the State’s Carolina’s September 5, 2013, SIP
October 14, 2016. September 5, 2013, SIP submittal) as submittal, including all of the PM2.5-
ADDRESSES: EPA has established a meeting the requirements of EPA’s rule, related changes to 15A NCAC 02D .0530
docket for this action under Docket ‘‘Implementation of the New Source at paragraphs (e), (q), and (v).2
Identification No. EPA–R04–OAR– Review (NSR) Program for Particulate • Approval of administrative changes
2015–0501. All documents in the docket Matter Less Than 2.5 Micrometers to North Carolina’s PSD and NNSR
are listed on the www.regulations.gov (PM2.5),’’ Final Rule, 73 FR 28321 (May regulations at 15A NCAC 02D .0530 and
Web site. Although listed in the index, 16, 2008) (hereafter referred to as the 15A NCAC 02D .0531 provided by the
some information is not publicly ‘‘2008 NSR PM2.5 Implementation State in a SIP submittal also dated May
available, i.e., Confidential Business Rule’’). 16, 2011, including clarification of the
Information or other information whose • Disapproval of the portions of North applicability of best available control
disclosure is restricted by statute. Carolina’s September 5, 2013, SIP technology (BACT) and lowest
Certain other material, such as submittal pertaining to adoption and achievable emission rate (LAER) for
copyrighted material, is not placed on implementation of the PM2.5 increments electrical generating units (EGUs) in the
the Internet and will be publicly because North Carolina’s proposed SIP State, and the inclusion of an additional
available only in hard copy form. revisions do not fully meet the Federal Land Manager (FLM)
Publicly available docket materials are requirements of EPA’s rulemaking, notification provision.
available either electronically through ‘‘Prevention of Significant Deterioration • Approval, in part, and disapproval,
www.regulations.gov or in hard copy at (PSD) for Particulate Matter Less Than in part, of the PSD elements of North
the Air Regulatory Management Section, 2.5 Micrometers (PM2.5)—Increments, Carolina’s infrastructure SIP submittals
Air Planning and Implementation Significant Impact Levels (SILs) and for the 2008 lead, 2008 8-hour ozone,
Branch, Air, Pesticides and Toxics Significant Monitoring Concentration 2010 SO2, 2010 NO2 and 2012 PM2.5
Management Division, U.S. (SMC),’’ Final Rule, 75 FR 64864 NAAQS and conversion of the Agency’s
Environmental Protection Agency, (October 20, 2010) (hereafter referred to previous conditional approvals of the
Region 4, 61 Forsyth Street SW., as the ‘‘2010 PSD PM2.5 Rule’’). PSD elements of North Carolina’s
Atlanta, Georgia 30303–8960. EPA Specifically, though paragraphs (q) and infrastructure SIP submittals for the
requests that if at all possible, you (v) of North Carolina’s revised PSD 1997 Annual PM2.5 and 2006 24-hour
contact the person listed in the FOR regulations at 15A NCAC 02D .0530 PM2.5 NAAQS to partial approvals and
FURTHER INFORMATION CONTACT section to incorporate the federally required partial disapprovals.
schedule your inspection. The Regional numerical PM2.5 increments, North Comments on the NPRM were due on or
Office’s official hours of business are Carolina’s regulations fail to include before June 9, 2016. The details of North
Monday through Friday, 8:30 a.m. to other federally required provisions Carolina’s submittals and the rationale
4:30 p.m., excluding federal holidays. needed to implement the PM2.5 for EPA’s actions are explained in the
FOR FURTHER INFORMATION CONTACT: Joel
increments, including (1) the definition NPRM.
Huey of the Air Planning and of ‘‘[m]ajor source baseline date’’ for
Implementation Branch, Air, Pesticides PM2.5 codified at 40 CFR not include the federally required PM2.5 trigger date
and Toxics Management Division, U.S. 51.166(b)(14)(i)(c) (defined as October of October 20, 2011, but instead states: ‘‘In the case
20, 2010); (2) the definition of ‘‘[m]inor of particulate matter and sulfur dioxide, August 7,
Environmental Protection Agency, 1977.’’ It is EPA’s understanding that North
Region 4, 61 Forsyth Street SW., source baseline date’’ for PM2.5 codified Carolina interprets the term ‘‘particulate matter’’ in
Atlanta, Georgia 30303–8960. Mr. Huey at 40 CFR 51.166(b)(14)(ii)(c) (which North Carolina’s regulations to encompass PM2.5,
can be reached by telephone at (404) establishes the PM2.5 trigger date as resulting in a PM2.5 major source baseline date of
October 20, 2011); and (3) the definition January 6, 1975, and a PM2.5 trigger date of August
562–9104 or via electronic mail at 7, 1977.
huey.joel@epa.gov. of ‘‘[b]aseline area’’ codified at 40 CFR 2 Paragraph (v) establishes the numerical PM
2.5
51.166(b)(15)(i).1 Without these increments. Paragraph (q) addresses the Class I
SUPPLEMENTARY INFORMATION:
PM2.5 variances. Paragraph (e) incorporates
I. Background and Overview 1 North Carolina’s regulations at 15A NCAC 02D paragraph (v) by reference. EPA proposed to
.0530 use incorporation by reference (IBR) to adopt disapprove 15A NCAC 02D .0530, paragraphs (e),
In submittals dated May 16, 2011 (two the federal regulations in the CFR as of May 16, (q), and (v) in part, rather than in their entirety,
separate submittals), and September 5, 2008, which do not include the definitions of because the paragraphs also include previously
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2013, DAQ submitted to EPA changes to ‘‘major source baseline,’’ ‘‘minor source baseline,’’ approved PM10 increment requirements.
and ‘‘baseline area’’ that EPA promulgated in the Specifically, in addition to making the PM2.5-related
the North Carolina SIP with regard to 2010 PSD PM2.5 rule. Thus, the definition of ‘‘major changes to these paragraphs, North Carolina also
the State’s PSD and NNSR regulations source baseline date’’ incorporated into 15A NCAC revised 15A NCAC 02D .0530, paragraphs (e), (q),
found at 15A North Carolina 02D .0530 does not include the federally required and (v), to directly incorporate the PM10
Administrative Code (NCAC) 02D .0530 PM2.5 major source baseline date of October 20, increments. Previously, North Carolina had
2010, but instead states: ‘‘In the case of particulate incorporated the PM10 increments into 15A NCAC
and 15A NCAC 02D .0531. These SIP matter and sulfur dioxide, January 6, 1975.’’ 02D .0530 by reference to the CFR. EPA is
submittals modify North Carolina’s NSR Likewise, the definition of ‘‘minor source baseline approving the PM10-related changes to paragraphs
permitting regulations (for both PSD and date’’ incorporated into 15A NCAC 02D .0530 does (e), (q), and (v).
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II. Response to Comments reconsideration of the PSD PM2.5 Rule. days after such grounds arose. As the
EPA received one adverse comment In the briefs, the State challenged the D.C. Circuit explained in dismissing
submission, from DAQ, on the May 10, 2010 PSD PM2.5 Rule on the basis that North Carolina’s petition for review of
2016, NPRM to approve, in part, and the rule improperly set new baseline the 2010 PSD PM2.5 Rule, North
disapprove, in part, changes to North dates for calculating PM2.5 increment Carolina missed the statutory deadline
Carolina’s SIP-approved NSR permitting consumption rather than using the pre- for filing a petition for review of the
regulations. The comment submission is existing particulate matter baseline PM2.5 increment baseline provisions set
available in the docket for this final dates set forth in the CAA. EPA filed a forth in that Rule and did not file its
rulemaking action. Response Brief in that case disputing court challenge within 60 days of the
In its comments, DAQ objects to the legal arguments in the briefs that NRDC court decision that the State
EPA’s proposed disapproval of the PM2.5 DAQ has now submitted to support its alleged to establish ‘‘after arising’’
increment-related portions of comments on this SIP rule. The D.C. grounds for such a challenge. See North
paragraphs (e), (q) and (v) of North Circuit dismissed both of North Carolina, 614 Fed. Appx. at 517.4
Carolina’s PSD rule 15A NCAC 02D Carolina’s petitions for review as Based on its view of the NRDC court
.0530 for failing to incorporate the untimely. See North Carolina v. EPA, decision, North Carolina separately
definitions of ‘‘major source baseline 614 Fed. Appx. 517, 2015 U.S. App. petitioned EPA to reconsider or revise
date,’’ ‘‘minor source baseline date,’’ LEXIS 16246 (D.C. Cir. 2015). the baseline date in the 2010 PSD PM2.5
and ‘‘baseline area’’ as found in EPA’s The August 22, 2013, letter from John Rule and subsequently challenged
2010 PSD PM2.5 Rule. DAQ contends Skvarla that DAQ attached to its EPA’s response to that petition in the
that EPA’s proposed disapproval of comments was sent by North Carolina to D.C. Circuit. EPA determined that
North Carolina’s PM2.5 increment EPA prior to the D.C. Circuit litigation revision of the baseline dates for PM2.5
provisions fails to properly account for and raised the same concern regarding in the 2010 rule was not appropriate or
the decision by the United States Court the PM2.5 increment baseline dates in compelled by the court decision cited
of Appeals for the District of Columbia the 2010 PSD PM2.5 Rule that North by North Carolina. EPA also considered
(D.C. Circuit) in Natural Resource Carolina raised in the D.C. Circuit and responded to the April 22, 2013,
Defense Council v. EPA, 706 F.3d 428 litigation. EPA responded to the April letter from Secretary Skvarla in the
(D.C. Cir., 2013) (NRDC), where the 22, 2013, letter from Secretary Skvarla manner described above. Accordingly,
Court determined that PM2.5 is not a to Administrator McCarthy in EPA has already given due
new pollutant, but rather is conjunction with EPA’s August 28, consideration to the concern raised by
encompassed by the statutory definition 2014, response to the State’s petition for North Carolina in its comment regarding
of the pollutant PM10. According to EPA to reconsider or revise the 2010 the content of the EPA regulations. The
DAQ, North Carolina’s regulations, PSD PM2.5 Rule. Court upheld EPA’s response to the
which incorporate by reference the prior In response to DAQ’s comments, EPA State’s petition to change the rule. 614
federal definitions applicable to notes that DAQ does not claim that Fed. Appx. at 519.
‘‘particulate matter’’ (rather than the North Carolina’s PM2.5 increment Thus, the legal issues raised by North
definitions applicable to PM2.5 provisions satisfy the relevant federal Carolina concerning the content of
promulgated in EPA’s 2010 PSD PM2.5 criteria for state PSD programs set forth EPA’s regulations are settled and not
Rule), are consistent with the Clean Air at 40 CFR 51.166 (as promulgated in the open to reconsideration in this action
Act (CAA or Act) and NRDC and can be 2010 PSD PM2.5 Rule). Rather, DAQ’s regarding North Carolina’s SIP
approved into the SIP as written. For the opposition to EPA’s proposed submittal. For purposes of this action,
same reason, DAQ also objects to EPA’s disapproval of North Carolina’s PM2.5 the PM2.5 increment baseline provisions
proposed disapproval of the PSD increment provisions is based entirely for SIP-approved state PSD programs set
elements of seven infrastructure SIP on DAQ’s claim that the federal PM2.5 forth in 40 CFR 51.166 are final and
submittals. DAQ’s comments increment baseline provisions set forth effective for all states, including North
incorporate by reference the following at 40 CFR 51.166 are unlawful. In Carolina. EPA is required to apply its
documents: (1) Opening Brief of determining whether to approve North regulations as they are presently
Petitioner in North Carolina v. United Carolina’s PM2.5 increment submittal, written. See, e.g., 78 FR 63883, 63885
States Environmental Protection however, EPA considers only whether (Oct. 25, 2013) (EPA action on the Utah
Agency, 13–1312 and 14–1186, dated North Carolina’s proposed SIP revision SIP based on the terms of the current
October 9, 2014; (2) Reply Brief of satisfies the minimum federal criteria version of 40 CFR 51.166). Accordingly,
Petitioner for North Carolina v. United set forth at 50 CFR 51.166 and other DAQ’s comments regarding alleged
States Environmental Protection requirements governing SIP revisions. defects in the PM2.5 increment baseline
Agency, 13–1312 and 14–1186, dated EPA’s action on North Carolina’s dates established in the 2010 PSD PM2.5
February 10, 2015; and (3) letter from submittal does not reopen for comment
John Skvarla (North Carolina EPA’s determination of the appropriate 4 In the D.C. Circuit litigation, North Carolina
Department of Environment and Natural PM2.5 increment baselines for SIP- argued that the 2013 NRDC decision constituted
Resources 3) to Gina McCarthy (EPA), approved PSD programs, which were grounds arising after the 60th day following EPA’s
established in the final 2010 PSD PM2.5 publication of the 2010 PSD PM2.5 Rule in the
dated August 22, 2013. Federal Register, and therefore started a new 60-
The legal briefs attached to DAQ’s Rule published in the Federal Register day period during which North Carolina could
comments were filed in the D.C. Circuit on October 20, 2010 (75 FR 64864). petition the D.C. Circuit to review the 2010 PM2.5
by the State of North Carolina in Under CAA section 307(b)(1), 42 PSD Rule. North Carolina, 614 Fed. Appx. at 518.
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U.S.C. 7607(b)(1), any petition for The D.C. Circuit found that even if NRDC
support of the State’s consolidated constituted after-arising grounds, ‘‘North Carolina
petitions for review of EPA’s 2010 PSD review of the 2010 PSD PM2.5 Rule had brought its petition more than ten months after [the
PM2.5 Rule and of EPA’s denial of the to be filed in the D.C. Circuit within 60 Court] issued NRDC—well outside of the sixty-day
days of EPA’s publication of the rule in window for petitions that the after-arising grounds
State’s administrative petition for exception [in CAA section 307(b)] provides.’’ Id.
the Federal Register, unless such
Therefore, the Court concluded: ‘‘Even assuming,
3 The North Carolina Department of Environment petition is based solely on grounds without deciding, that NRDC constituted after-
and Natural Resources is now the North Carolina arising after the 60th day, in which case arising grounds, North Carolina’s petition is thus
Department of Environmental Quality. the petition had to be filed within 60 still untimely.’’ Id.
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![63110 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations
Rule (including arguments made in as of the effective date of the final requirements, EPA also is disapproving
attachments to DAQ’s comment rulemaking of EPA’s approval, and will the PSD elements of the North
submission) are not relevant to EPA’s be incorporated by reference by the Carolina’s infrastructure SIP submittals
determination in this final action of Director of the Federal Register in the for the 2008 lead, 2008 8-hour ozone,
whether the PM2.5 increment provisions next update to the SIP compilation.5 2010 SO2, 2010 NO2 and the 2012 PM2.5
in North Carolina’s September 5, 2013, EPA has made, and will continue to NAAQS; and is converting the Agency’s
SIP submittal are approvable. make, these materials generally previous conditional approvals of the
To be federally-approvable, North available through www.regulations.gov PSD elements of North Carolina’s
Carolina’s PM2.5 increment provisions and/or at the EPA Region 4 Office infrastructure SIP submittals for the
must meet the requirements of 40 CFR (please contact the person identified in 1997 Annual PM2.5 and 2006 24-hour
51.166 unless North Carolina can the FOR FURTHER INFORMATION CONTACT PM2.5 NAAQS to partial approvals and
demonstrate that it has alternative section of this preamble for more partial disapprovals.
measures in its plan other than PM2.5 information). North Carolina did not submit its
increments that satisfy the PSD PM2.5 increment provisions or its
requirements under sections 166(c) and IV. Final Actions infrastructure SIPs to meet requirements
166(d) of the CAA. See 40 CFR EPA is approving, in part, and for Part D of the CAA or a SIP call;
51.166(c)(2). Specifically regarding the disapproving, in part, changes to the therefore, EPA’s final action to
definitions of key terms set forth at 40 North Carolina SIP provided by the disapprove North Carolina’s PM2.5
CFR 51.166(b), the regulations state that DAQ to EPA on May 16, 2011, (two increment provisions and to partially
‘‘[a]ll State plans shall use’’ these submittals) and September 5, 2013. disapprove the PSD portions of the
definitions, unless ‘‘the State These changes modify North Carolina’s State’s infrastructure SIP submittals
specifically demonstrates that the NSR permitting regulations codified at does not trigger sanctions. However, this
submitted definition is more stringent, 15A 02D .0530—Prevention of final disapproval action does trigger the
or at least as stringent, in all respects’’ Significant Deterioration and 15A NCAC requirement under section 110(c) for
as the federal definition. See 40 CFR 02D.0531—Sources in Nonattainment EPA to promulgate a FIP no later than
51.166(b). As EPA explained in the Areas, and include the adoption of some two years from the date of the
NPRM, North Carolina’s PM2.5 federal requirements respecting disapproval unless the State corrects the
increment provisions at 15A NCAC 02D implementation of the PM2.5 NAAQS deficiency through a SIP revision and
.0530 do not incorporate the federally through the NSR permitting program. EPA approves the SIP revision before
required definitions of ‘‘major source Specifically, EPA is approving the EPA promulgates such a FIP.7
baseline date,’’ ‘‘minor source baseline State’s changes as they relate to the
requirements to comply with EPA’s V. Statutory and Executive Order
date,’’ and ‘‘baseline area.’’ Nor has
North Carolina demonstrated—or even 2008 NSR PM2.5 Implementation Rule Reviews
claimed—that alternative definitions in (provided in the first May 16, 2011, SIP Under the CAA, the Administrator is
the State’s plan are more stringent, or at submittal and the September 5, 2013, required to approve a SIP submittal that
least as stringent, as the federal SIP submittal) and the State’s complies with the provisions of the Act
definitions set forth at 40 CFR 51.166. miscellaneous changes as described in and applicable federal regulations. See
Likewise, North Carolina has not Section III.C. of the NPRM (provided in 42 U.S.C. 7410(k); 40 CFR 52.02(a).
identified measures in its plan other the second May 16, 2011, SIP submittal Thus, in reviewing SIP submittals,
than PM2.5 increments that satisfy the and the September 5, 2013, SIP EPA’s role is to approve state choices,
PSD requirements under sections 166(c) submittal). EPA is disapproving North provided that they meet the criteria of
and 166(d) of the CAA and would Carolina’s September 5, 2013, SIP the CAA. This action approves, in part,
warrant approval under 40 CFR submittal as it relates to the and disapproves, in part, state law as
51.166(c)(2). DAQ’s comments do not requirements to comply with EPA’s meeting federal requirements and does
refute EPA’s determination that North 2010 PSD PM2.5 Rule. The versions of not impose additional requirements
Carolina’s PM2.5 increment provisions 15A NCAC 02D .0530 (PSD) and 15A beyond those imposed by state law. EPA
are not in compliance with 40 CFR NCAC 02D .0531 (NNSR) that became is determining that the PSD portion of
51.166. Therefore, EPA disagrees with effective in the State on September 1, some of the aforementioned SIP
DAQ’s comment that North Carolina’s 2013, will be incorporated into North submittals do not meet federal
rules can be approved into the SIP as Carolina’s SIP, with the exception of the requirements. For that reason, this
written. portions of paragraphs 15A NCAC 02D action:
.0530(e), (q), and (v) that pertain to • Is not a significant regulatory action
III. Incorporation by Reference
PM2.5 increments. EPA is approving the subject to review by the Office of
In this rule, EPA is including in a portions of paragraphs 15A NCAC 02D Management and Budget under
final EPA rule regulatory text that .0530(e), (q), and (v) that pertain to Executive Orders 12866 (58 FR 51735,
includes incorporation by reference. In PM10.6 As a result of the disapproval of October 4, 1993) and 13563 (76 FR 3821,
accordance with requirements of 1 CFR a portion of the State’s NSR January 21, 2011);
51.5, EPA is incorporating by reference • does not impose an information
portions of North Carolina’s regulations 5 62 FR 27968 (May 22, 1997). collection burden under the provisions
15A NCAC 02D .0530 and 15A NCAC 6 As explained in the NPRM (81 FR at 28803, fn. of the Paperwork Reduction Act (44
02D .0531, entitled ‘‘Prevention of 17), the revisions to paragraphs (e), (q), and (v) U.S.C. 3501 et seq.);
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Significant Deterioration’’ and ‘‘Sources provided in North Carolina’s September 5, 2013, • is certified as not having a
SIP submittal include PM10 increment provisions in
in Nonattainment Areas,’’ effective addition to PM2.5 provisions. Prior to these rule significant economic impact on a
September 1, 2013. Therefore, these changes, North Carolina had incorporated the PM10
materials have been approved by EPA increments into 15A NCAC 02D .0530 by reference 7 EPA expects North Carolina sources that are
for inclusion in the SIP, have been to the CFR. North Carolina’s decision to write the subject (or become subject) to PSD requirements to
PM10 increment requirements directly into its rule continue complying with federal PM2.5 increment
incorporated by reference by EPA into rather than to incorporate them by reference does requirements following this disapproval action,
that plan, are fully federally enforceable not change the applicable SIP requirements with including use of the federally required baseline
under sections 110 and 113 of the CAA respect to PM10 increments. dates for calculating PM2.5 increment consumption.
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substantial number of small entities The SIP is not approved to apply on Subpart II—North Carolina
under the Regulatory Flexibility Act (5 any Indian reservation land or in any
U.S.C. 601 et seq.); other area where EPA or an Indian tribe ■ 2. Section 52.1770 is amended by:
• does not contain any unfunded has demonstrated that a tribe has
■ a. In paragraph (c), Table 1, under
mandate or significantly or uniquely jurisdiction. In those areas of Indian
Subchapter 2D, Section .0500, revising
affect small governments, as described country, the rule does not have tribal
the entries for ‘‘Sect .0530’’ and ‘‘Sect
in the Unfunded Mandates Reform Act implications as specified by Executive
.0531’’.
of 1995 (Pub. L. 104–4); Order 13175 (65 FR 67249, November 9,
• does not have Federalism 2000), nor will it impose substantial ■ b. In paragraph (e), adding entries for
implications as specified in Executive direct costs on tribal governments or ‘‘110(a)(1) and (2) Infrastructure
Order 13132 (64 FR 43255, August 10, preempt tribal law. Requirements for 1997 Fine Particulate
1999); Matter NAAQS’’, ‘‘110(a)(1) and (2)
List of Subjects in 40 CFR Part 52 Infrastructure Requirements for 2006
• is not an economically significant
regulatory action based on health or Environmental protection, Air Fine Particulate Matter NAAQS’’,
safety risks subject to Executive Order pollution control, Incorporation by ‘‘110(a)(1) and (2) Infrastructure
13045 (62 FR 19885, April 23, 1997); reference, Intergovernmental relations, Requirements for the 2008 Lead
• is not a significant regulatory action Lead, Nitrogen dioxide, Ozone, NAAQS’’, ‘‘110(a)(1) and (2)
subject to Executive Order 13211 (66 FR Particulate matter, Reporting and Infrastructure Requirements for the 2008
28355, May 22, 2001); recordkeeping requirements, Sulfur 8-Hour Ozone NAAQS’’, ‘‘110(a)(1) and
• is not subject to requirements of oxides. (2) Infrastructure Requirements for the
Section 12(d) of the National Dated: September 6, 2016. 2010 1-hour NO2 NAAQS’’, ‘‘110(a)(1)
Technology Transfer and Advancement V. Anne Heard, and (2) Infrastructure Requirements for
Act of 1995 (15 U.S.C. 272 note) because the 2010 1-hour SO2 NAAQS’’ and
Acting Regional Administrator, Region 4.
application of those requirements would ‘‘110(a)(1) and (2) Infrastructure
40 CFR part 52 is amended as follows:
be inconsistent with the CAA; and Requirements for the 2012 Annual PM2.5
• does not provide EPA with the PART 52—APPROVAL AND NAAQS’’ at the end of the table.
discretionary authority to address, as PROMULGATION OF The revisions and additions read as
appropriate, disproportionate human IMPLEMENTATION PLANS follows:
health or environmental effects, using
■ 1. The authority citation for part 52 § 52.1770 Identification of plan.
practicable and legally permissible
methods, under Executive Order 12898 continues to read as follows: * * * * *
(59 FR 7629, February 16, 1994). Authority: 42 U.S.C. 7401 et seq. (c) * * *
TABLE 1—EPA APPROVED NORTH CAROLINA REGULATIONS
State effective
State citation Title/subject EPA approval date Explanation
date
Subchapter 2D Air Pollution Control Requirements
* * * * * * *
Section .0500 Emission Control Standards
* * * * * * *
Sect .0530 ......... Prevention of Significant Deterio- 9/1/2013 ....................................................... Disapproved the portions of para-
ration. graphs 15A NCAC 02D
.0530(e), (q), and (v) that per-
tain to PM2.5 increments.
Sect .0531 ......... Sources in Nonattainment Areas .. 9/1/2013 9/14/2016, [Insert citation of publi-
cation in Federal Register].
* * * * * * *
* * * * * (e) * * *
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![63112 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations
EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS
State effective EPA Approval
Provision Federal Register citation Explanation
date date
* * * * * * *
110(a)(1) and (2) Infra- 4/1/2008 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for 1997 Fine Particu- ister]. 110(a)(2)(J) and disapprove with respect to the
late Matter NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 9/21/2009 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for 2006 Fine Particu- ister]. 110(a)(2)(J) and disapprove with respect to the
late Matter NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 6/15/2012 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for the 2008 Lead ister]. 110(a)(2)(J) and disapprove with respect to the
NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 11/2/2012 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for the 2008 8-Hour ister]. 110(a)(2)(J) and disapprove with respect to the
Ozone NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 8/23/2013 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for the 2010 1-hour NO2 ister]. 110(a)(2)(J) and disapprove with respect to the
NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 3/18/2014 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for the 2010 1-hour SO2 ister]. 110(a)(2)(J) and disapprove with respect to the
NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
110(a)(1) and (2) Infra- 12/4/2015 9/14/2016 [Insert citation of publica- Partially approve the PSD elements of sections
structure Requirements tion in Federal Reg- 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
for the 2012 Annual ister]. 110(a)(2)(J) and disapprove with respect to the
PM2.5 NAAQS. PM2.5 increment requirements of 2010 PSD PM2.5
Rule.
§ 52.1773 [Removed and Reserved] which it announced reconsideration on and clarifications on the rule, including
■ 3. Section 52.1773 is removed and January 21, 2015, that pertain to certain removal of the affirmative defense for
reserved. aspects of the February 1, 2013, final malfunction in light of a court decision
amendments to the ‘‘National Emission on the issue. These corrections will
[FR Doc. 2016–21994 Filed 9–13–16; 8:45 am]
Standards for Hazardous Air Pollutants clarify and improve the implementation
BILLING CODE 6560–50–P
for Area Sources: Industrial, of the February 2013 final Area Source
Commercial, and Institutional Boilers’’ Boilers Rule. In this action, the EPA is
ENVIRONMENTAL PROTECTION (Area Source Boilers Rule). The EPA is also denying the requests for
AGENCY retaining the subcategory and separate reconsideration with respect to the
requirements for limited-use boilers, issues raised in the petitions for
40 CFR Part 63 consistent with the February 2013 final reconsideration of the final Area Source
rule. In addition, the EPA is amending Boilers Rule for which reconsideration
[EPA–HQ–OAR–2006–0790; FRL–9951–64– was not granted.
OAR]
three reconsidered provisions regarding:
The alternative particulate matter (PM) DATES: This final rule is effective on
RIN 2060–AS10 standard for new oil-fired boilers; September 14, 2016.
performance testing for PM for certain ADDRESSES: The EPA has established a
National Emission Standards for boilers based on their initial compliance docket for this action under Docket ID
Hazardous Air Pollutants for Area test; and fuel sampling for mercury (Hg) No. EPA–HQ–OAR–2006–0790. All
Sources: Industrial, Commercial, and for certain coal-fired boilers based on documents in the docket are listed on
Institutional Boilers their initial compliance demonstration, the http://www.regulations.gov Web
asabaliauskas on DSK3SPTVN1PROD with RULES
AGENCY: Environmental Protection consistent with the alternative site. Although listed in the index, some
Agency (EPA). provisions for which comment was information is not publicly available,
ACTION: Final rule; notice of final action solicited in the January 2015 proposal. e.g., confidential business information
on reconsideration. The EPA is making minor changes to the or other information whose disclosure is
proposed definitions of startup and restricted by statute. Certain other
SUMMARY: This action sets forth the shutdown based on comments received. material, such as copyrighted material,
Environmental Protection Agency’s This final action also addresses a is not placed on the Internet and will be
(EPA’s) final decision on the issues for limited number of technical corrections publicly available only in hard copy
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Document Created: 2016-09-14 02:26:55
Document Modified: 2016-09-14 02:26:55
| 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 | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule will be effective October 14, 2016. | |
| Contact | Joel Huey of the Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Huey can be reached by telephone at (404) 562-9104 or via electronic mail at [email protected] | |
| FR Citation | 81 FR 63107 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Lead; Nitrogen Dioxide; Ozone; Particulate Matter; Reporting and Recordkeeping Requirements and Sulfur Oxides |
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