Daily Rules, Proposed Rules, and Notices of the Federal Government
Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM
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. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect 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 1997 annual and 2006 24-hour PM
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 already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this final rulemaking are listed below
• 110(a)(2)(A): Emission limits and other control measures.
• 110(a)(2)(B): Ambient air quality monitoring/data system.
• 110(a)(2)(C): Program for enforcement of control measures.
• 110(a)(2)(D): Interstate transport.
• 110(a)(2)(E): Adequate resources.
• 110(a)(2)(F): Stationary source monitoring system.
• 110(a)(2)(G): Emergency power.
• 110(a)(2)(H): Future SIP revisions.
• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.
• 110(a)(2)(J): Consultation with government officials; public notification; and prevention of significant deterioration (PSD) and visibility protection.
• 110(a)(2)(K): Air quality modeling/data.
• 110(a)(2)(L): Permitting fees.
• 110(a)(2)(M): Consultation/participation by affected local entities.
Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP. North Carolina certified that the North Carolina SIP contains provisions that ensure the 1997 annual and 2006 24-hour PM
With the exceptions of elements 110(a)(2)(C), 110(a)(2)(D)(i), 110(a)(2)(E)(ii) and 110(a)(2)(J) related to PSD requirements, EPA is taking final action to approve North Carolina's infrastructure submissions as demonstrating that the State's implementation plan meets portions of the section 110(a)(2) infrastructure requirements for both the 1997 annual and 2006 24-hour PM
In addition, EPA is today relying upon an earlier commitment by North Carolina to address the CAA section 128(a)(1) and (2) requirements in order to conditionally approve its 1997 annual and 2006 24-hour PM
With the exception of 110(a)(2)(D)(i), related to interstate transport, EPA is today taking final action to determine that North Carolina's infrastructure submissions, provided to EPA on April 1, 2008, and September 21, 2009, and the January 11, 2012, and July 3, 2012, letters of commitment address all the required infrastructure elements for the 1997 annual and 2006 24-hour PM
EPA received adverse comments from the Sierra Club on the July 24, 2012, proposed rulemaking to approve North Carolina's April 1, 2008, and September 21, 2009, infrastructure submissions as meeting the requirements of certain sections of 110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour PM
Comment 1: The Commenter contends that North Carolina's SIP does not contain the requisite enforceable limits for PM
The Commenter asserts that North Carolina's SIP does not distinguish between filterable and condensable PM to demonstrate that condensable PM
Response 1: EPA disagrees with the Commenter's contention that the State's
With respect to the Commenter's specific concerns about the adequacy of emissions limitations at stationary sources, the Commenter is incorrect with respect both to the scope of what is germane to an action on an infrastructure SIP and with respect to when certain regulatory requirements for stationary sources became operative. This comment pertains to EPA's action on an infrastructure SIP, which must meet the general structural requirements described in section 110(a)(2)(A). Section 110(a)(2)(A) of the CAA reads as follows:
Each implementation plan submitted by a State under this Act shall be adopted by the State after reasonable notice and public hearing. Each such plan shall 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 of this Act.
The Commenter seems to believe that in the context of an infrastructure SIP submission, section 110(a)(2)(A) explicitly requires that a state adopt all possible new enforceable emission limits, control measures and other means developed specifically for attaining and maintaining the new NAAQS within the state.
EPA does not believe that this is a reasonable interpretation of the provision with respect to infrastructure SIP submissions. Rather, EPA believes that different requirements for SIPs become due at different times depending on the precise applicable requirements in the CAA. For example, some state regulations are required pursuant to CAA section 172(b), as part of an attainment demonstration for areas designated as nonattainment for the standard. The timing of such an attainment demonstration would be after promulgation of a NAAQS, after completion of designations, and after the development of the applicable nonattainment plans. The Commenter seems to believe that EPA should disapprove a states infrastructure SIP if the state has not already developed all the substantive emissions limitations that may ultimately be required for all purposes, such as attainment and maintenance of the NAAQS as part of an attainment plan for a designated nonattainment area.
The Commenter focuses upon the adequacy of specific stationary source maximum emission rates in the North Carolina SIP—specifically the existing emissions rates for the Allen and Asheville coal-fired power plants provided at 15A N.C. Admin. Code 02D.0536—to support its argument that the SIP does not require adequate enforceable emissions limitations for PM
Likewise, the fact that existing sources which have not gone through new source review in recent years are not subject to PM
For purposes of section 110(a)(2)(A), and for purposes of an infrastructure SIP submission, EPA believes that the proper inquiry is whether the state has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon it. As stated in EPA's proposed approval for this rule, to meet section 110(a)(2)(A), North Carolina submitted a list of existing emission reduction measures in the SIP that control PM emissions. These include all the required measures previously adopted for the control of PM. The Commenter identifies a number of ways in which it believes that the State's implementation plan fails to meet such current requirements, but EPA concludes that the Commenter has not identified any deficiency that justifies disapproval of the infrastructure SIP submission in this action.
Comment 2: The Commenter states that North Carolina's SIP does not meet
Response 2: This comment pertains to infrastructure requirements described in section 110(a)(2)(D)(ii) of the CAA. Section 110(a)(2)(D)(ii) of the CAA requires that “each implementation plan submitted by a State under this Act shall * * * contain adequate provisions * * * insuring compliance with applicable requirements of sections  and  * * * relating to interstate and international pollution.” EPA disagrees with the Commenter's assertion that none of the state regulations referenced in the proposed rule make any mention of this notification requirement, nor make any other reference to interstate or international transport issues.” Specifically, NCAC 2D.0530,
The Commenter also alleges deficiencies with respect to section 110(a)(2)(D)(ii) and section 115 international transport requirements, without articulating any specific reason. EPA does not believe that a state has any SIP requirements with respect to section 115 unless EPA has previously made a finding that emissions from the state cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country. EPA has made no such finding with respect to North Carolina, and thus the infrastructure SIP of that state need not contain or reference any provisions to address that requirement substantively.
Comment 3: The Commenter states that, although EPA is proposing to conditionally approve North Carolina's infrastructure submissions with respect to sections 110(a)(2)(C), (D) and (J), North Carolina's SIP must include PM
Response 3: EPA first notes that the Commenter mischaracterizes the scope of EPA's proposed conditional approval of North Carolina's infrastructure submissions. As described in the proposed rule for today's action, EPA only proposed to conditionally approve sections 110(a)(2)(C) and (J) as they relate to PSD requirements, and section 110(a)(2)(E)(ii).
With respect to the Commenter's statements as they relate to EPA's proposed conditional approval of sections 110(a)(2)(C) and (J) related to PSD requirements, EPA agrees that presently the North Carolina SIP does not contain the requisite significant emissions rate provisions necessary for EPA to approve these sections of the State's infrastructure SIP submissions. As such, EPA proposed conditional approval for sections 110(a)(2)(C) and (J) consistent with EPA's authority under section 110(k)(4), and based upon a commitment by the State to address these deficiencies within one year. As described in section 110(k)(4), should North Carolina fail to meet its commitment to address these deficiencies, a final conditional approval for these elements would become a disapproval. The Commenter has failed to state a reason why this proposed action is inconsistent with the requirements of the CAA.
In addition, EPA disagrees with Commenter's suggestion that EPA must approve North Carolina's PM
The Commenter's concerns relate to the timing of agency action on collateral, yet related, SIP submissions. These concerns highlight an important overarching question that the EPA has to confront when assessing the various infrastructure SIP submittals addressed in the proposed rule: how to proceed when the timing and sequencing of multiple related SIP submissions impact the ability of the State and the Agency to address certain substantive issues in the infrastructure SIP submission in a reasonable fashion.
It is appropriate for EPA to take into consideration the timing and sequence of related SIP submissions as part of determining what it is reasonable to expect a state to have addressed in an infrastructure SIP submission for a NAAQS at the time when EPA acts on such submission. EPA has historically interpreted section 110(a)(2)(C) and section 110(a)(2)(J) to require EPA to assess a State's infrastructure SIP submission with respect to the then-applicable and federally enforceable PSD regulations required to be included in a State's implementation plan at the time EPA takes action on the SIP. However, EPA does not consider it reasonable to interpret section 110(a)(2)(C) and section 110(a)(2)(J) to require EPA to propose to disapprove a State's infrastructure SIP submissions because the State had not yet, at the time of proposal, made a submission that was not yet due for the 2010 PM
EPA acknowledges that it is important that these additional PSD program revisions be evaluated and approved into the State's SIP in accordance with the CAA, and EPA intends to address the PM
Finally, EPA notes that the Commenter's statements regarding future EPA action on potential North Carolina PM
Comment 4: The Commenter states that EPA cannot approve future North Carolina submissions to meet CAA section 110(2)(D)(i) interstate transport and visibility obligations if it relies on the now vacated Cross State Air Pollution Rule to satisfy such obligations.
Response 4: As described in the proposed rule for today's action, EPA is not taking any action with respect to North Carolina's infrastructure SIP submissions related to section 110(a)(2)(D)(i). Comments related to EPA action on SIP submissions from North Carolina to address the requirements of 110(a)(2)(D)(i), including the interference with visibility prong in section 110(a)(2)(D)(i)(II), are not relevant to today's action.
As already described, North Carolina has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 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 action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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
• 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 Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 17, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(b) North Carolina submitted a letter to EPA on July 10, 2012, with a commitment to address the State Implementation Plan deficiencies regarding requirements of Clean Air Act sections 110(a)(2)(C) and 110(a)(2)(J) as they both relate to Prevention of Significant Deterioration (PSD) infrastructure requirements for the 1997 annual and 2006 24-hour fine particulate matter (PM