[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Proposed Rules]
[Pages 52226-52230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20874]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2005-0534-200816; FRL-8712-5]
Approval and Promulgation of Implementation Plans North Carolina:
Prevention of Significant Deterioration and Nonattainment New Source
Review Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve revisions to the North Carolina
State Implementation Plan (SIP) submitted by the State of North
Carolina in three submittals dated November 30, 2005, March 16, 2007,
and June 20, 2008. The proposed revisions modify North Carolina's
Prevention of Significant Deterioration (PSD) and Nonattainment New
Source Review (NNSR) permitting regulations in the SIP to address
changes to the federal New Source Review (NSR) regulations, which were
promulgated by EPA on December 31, 2002, and reconsidered with minor
changes on November 7, 2003 (collectively, these two final actions are
referred to as the ``2002 NSR Reform Rules''). In addition, the
proposed revisions address an update to the NSR regulations promulgated
by EPA on November 29, 2005 (``Ozone Implementation NSR update'')
relating to the implementation of the 1997 8-hour ozone National
Ambient Air Quality Standards (NAAQS). The proposed revisions include
provisions for baseline emissions calculations, an actual-to-projected-
actual methodology for calculating emissions changes, options for
plantwide applicability limits (PALs), recordkeeping and reporting
requirements, and provisions recognizing nitrogen oxides
(NOX) as a precursor to ozone. The June 20, 2008, SIP
submittal also contains proposed revisions that are not related to
EPA's 2002 NSR Reform Rules. EPA will propose action on those revisions
in a separate Federal Register notice.
DATES: Comments must be received on or before October 9, 2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2005-0534, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: 404-562-9019.
4. Mail: ``EPA-R04-OAR-2005-0534'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Ms. Yolanda Adams, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-8960. Such deliveries are only accepted during
the Regional Office's normal hours of operation. The Regional Office's
official hours of business are Monday through Friday, 8:30 a.m. to 4:30
p.m., excluding federal holidays.
Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2005-0534.'' EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov Web site is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you
[[Page 52227]]
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through http://www.regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI 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 in http://www.regulations.gov or in hard copy at the Regulatory Development
Section, Air Planning 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: For information regarding the North
Carolina State Implementation Plan, contact Ms. Nacosta Ward,
Regulatory Development Section, Air Planning Branch, Air, Pesticides
and Toxics Management Division, U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
Telephone number: (404) 562-9140; e-mail address: [email protected].
For information regarding New Source Review, contact Ms. Yolanda Adams,
Air Permits Section, at the same address above. Telephone number: (404)
562-9214; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, references to
``EPA,'' ``we,'' ``us,'' or ``our,'' are intended to mean the
Environmental Protection Agency. The supplementary information is
arranged as follows:
I. What action is EPA proposing today?
II. Why is EPA proposing this action?
III. What is EPA's analysis of North Carolina's NSR rule revisions?
IV. What action is EPA taking today?
V. Statutory and Executive Order Reviews
I. What action is EPA proposing today?
On November 30, 2005, March 16, 2007, and June 20, 2008, the State
of North Carolina, through the North Carolina Department of Environment
and Natural Resources (DENR), submitted revisions to the North Carolina
SIP. The SIP submittals consist of revisions to North Carolina Air
Quality Rules, Subchapter 2D. Specifically, the November 30, 2005,
proposed SIP revisions include changes to Regulation 15A (North
Carolina Administrative Code) NCAC 2D .0531, ``Sources in Nonattainment
Areas.'' The March 16, 2007, submittal includes changes to Regulation
15A NCAC 2D .0530, ``Prevention of Significant Deterioration.'' The
June 20, 2008, submittal consists of additional changes to Regulations
15A NCAC 2D .0530, and .0531. DENR submitted these revisions in
response to EPA's December 31, 2002, November 7, 2003, and November 29,
2005, revisions to the Federal NSR program. Pursuant to section 110 of
the Clean Air Act (``CAA'' or ``Act''), EPA is now proposing to approve
these SIP revisions. The June 20, 2008, submittal also included
revisions to NCAC Subchapter 2D, Section .2400, Clean Air Interstate
Rules, which EPA is not taking action on at this time.
II. Why is EPA proposing this action?
On December 31, 2002 (67 FR 80186), EPA published final rule
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52,
regarding the CAA's PSD and NNSR programs. On November 7, 2003 (68 FR
63021), EPA published a notice of final action on the reconsideration
of the December 31, 2002, final rule changes. In that November 7, 2003,
final action, EPA added the definition of ``replacement unit,'' and
clarified an issue regarding PALs. The December 31, 2002, and the
November 7, 2003, final actions are collectively referred to as the
``2002 NSR Reform Rules.'' The purpose of this action is to propose to
approve the SIP submittals from the State of North Carolina that
include the provisions of EPA's 2002 NSR Reform Rules.
The 2002 NSR Reform Rules are part of EPA's implementation of Parts
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I
of the CAA, 42 U.S.C. 7470-7492, is the PSD program, which applies in
areas that meet the NAAQS--``attainment'' areas--as well as in areas
for which there is insufficient information to determine whether the
area meets the NAAQS--``unclassifiable'' areas. Part D of title I of
the CAA, 42 U.S.C. 7501-7515, is the NNSR program, which applies in
areas that are not in attainment of the NAAQS--``nonattainment'' areas.
Collectively, the PSD and NNSR programs are referred to as the ``New
Source Review'' or NSR programs. EPA regulations implementing these
programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24, and part
51, Appendix S.
The CAA's NSR programs are preconstruction review and permitting
programs applicable to new and modified stationary sources of air
pollutants regulated under the CAA. The NSR programs of the CAA include
a combination of air quality planning and air pollution control
technology program requirements. Briefly, section 109 of the CAA, 42
U.S.C. 7409, requires EPA to promulgate primary NAAQS to protect public
health and secondary NAAQS to protect public welfare. Once EPA sets
those standards, states must develop, adopt, and submit to EPA for
approval, a SIP that contains emissions limitations and other control
measures to attain and maintain the NAAQS. Each SIP is required to
contain a preconstruction review program for the construction and
modification of any stationary source of air pollution to assure that
the NAAQS are achieved and maintained; to protect areas of clean air;
to protect air quality related values (such as visibility) in national
parks and other areas; to assure that appropriate emissions controls
are applied; to maximize opportunities for economic development
consistent with the preservation of clean air resources; and to ensure
that any decision to increase air pollution is made only after full
public consideration of the consequences of the decision.
The 2002 NSR Reform Rules made changes to five areas of the NSR
programs. In summary, the 2002 Rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with PALs to avoid having a
[[Page 52228]]
significant emissions increase that triggers the requirements of the
major NSR program; (4) provided a new applicability provision for
emissions units that are designated clean units; and (5) excluded
pollution control projects (PCPs) from the definition of ``physical
change or change in the method of operation.'' On November 7, 2003 (68
FR 63021), EPA published a notice of final action on its
reconsideration of the 2002 NSR Reform Rules, which added a definition
for ``replacement unit'' and clarified an issue regarding PALs. For
additional information on the 2002 NSR Reform Rules, see, 67 FR 80186
(December 31, 2002), and http://www.epa.gov/nsr.
After the 2002 NSR Reform Rules were finalized and effective (March
3, 2003), industry, state, and environmental petitioners challenged
numerous aspects of the 2002 NSR Reform Rules, along with portions of
EPA's 1980 NSR Rules (45 FR 52676, August 7, 1980). On June 24, 2005,
the United States Court of Appeals for the District of Columbia Circuit
(D.C. Circuit Court) issued a decision on the challenges to the 2002
NSR Reform Rules. New York v. United States, 413 F.3d 3 (D.C. Cir.
2005). In summary, the D.C. Circuit Court vacated portions of the rules
pertaining to clean units and PCPs, remanded a portion of the rules
regarding recordkeeping, e.g. 40 CFR 52.21(r)(6) and 40 CFR
51.166(r)(6), and either upheld or did not comment on the other
provisions included as part of the 2002 NSR Reform Rules. On June 13,
2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform
Rules to remove from federal law all provisions pertaining to clean
units and the PCP exemption that were vacated by the D.C. Circuit
Court.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping, on December 21, 2007, EPA took final action
and established that a ``reasonable possibility'' applies where source
emissions equal or exceed 50 percent of the CAA NSR significance levels
for any pollutant (72 FR 72607). The ``reasonable possibility''
provision identifies for sources and reviewing authorities the
circumstances under which a major stationary source undergoing a
modification that does not trigger major NSR must keep records.
Also relevant to DENR's submittals, on November 29, 2005 (70 FR
71612), EPA promulgated implementation provisions for the 1997 8-Hour
Ozone NAAQS--Phase 2, which made changes to the NSR regulations. These
included, among other requirements, a requirement that emissions of
NOX be considered ozone precursors. States were required to
submit SIP revisions incorporating these changes by no later than June
15, 2007.
The 2002 NSR Reform Rules require that state agencies adopt and
submit revisions to their SIP permitting programs implementing the
minimum program elements of the 2002 NSR Reform Rules no later than
January 2, 2006. (Consistent with changes to 40 CFR 51.166(a)(6)(i),
state agencies are now required to adopt and submit SIP revisions
within three years after new amendments are published in the Federal
Register.) State agencies may meet the requirements of 40 CFR part 51
and the 2002 NSR Reform Rules with different but equivalent
regulations.
On November 30, 2005, March 16, 2007, and June 20, 2008, the North
Carolina DENR submitted revisions to EPA for the purpose of revising
the State's NSR permitting provisions to adopt EPA's NSR Reform Rules
and the Ozone Implementation NSR update. EPA is proposing to approve
these submittals pursuant to section 110 of the CAA.
III. What is EPA's analysis of North Carolina's NSR rule revisions?
North Carolina currently has a SIP-approved NSR program for new and
modified stationary sources. EPA is now proposing to approve revisions
to North Carolina's existing NSR program. North Carolina's SIP
submittals consist of a compilation of amendments to State rules that
became State-effective between May 1, 2005, and May 1, 2008. Copies of
North Carolina's revised NSR rules, as well as the State's Technical
Support Document, can be obtained from the Docket, as discussed in the
ADDRESSES section above. A discussion of the specific changes to North
Carolina's rules comprising the proposed SIP revisions follows.
North Carolina Regulation 15A NCAC 2D .0530, ``Prevention of
Significant Deterioration,'' contains the preconstruction review
program that provides for the prevention of significant deterioration
of ambient air quality as required under Part C of title I of the CAA
(the PSD program). The PSD program applies to sources that are major
stationary sources or undergoing major modifications in areas that are
designated as attainment or unclassifiable with regard to any NAAQS.
North Carolina's PSD program was originally approved into the SIP by
EPA on February 23, 1982, and has been revised several times since then
in order to remain consistent with federal rule changes.
North Carolina's permitting requirements for major sources in or
impacting upon nonattainment areas are set forth at Regulation 15A NCAC
2D .0531, ``Sources in Nonattainment Areas'' (NNSR program). The North
Carolina NNSR program was originally approved into the North Carolina
SIP on July 26, 1982, and has been revised several times since then in
order to remain consistent with federal rule changes. The NNSR
requirements apply to the construction and modification of any major
stationary source of air pollution in a nonattainment area, as required
by Part D of title I of the CAA. To receive approval to construct, a
source that is subject to these requirements must show that it will not
cause a net increase in pollution, will not create a delay in meeting
the NAAQS, and that the source will install and use control technology
that achieves the lowest achievable emissions rate (LAER).
The changes to North Carolina's NSR rules, which EPA is now
proposing to approve into the North Carolina SIP, were submitted to
update the existing North Carolina rules to meet the requirements of
the 2002 NSR Reform Rules and the Ozone Implementation NSR update.
These SIP revisions address baseline actual emissions, actual-to-
projected actual applicability tests, PALs, recordkeeping and reporting
requirements, and provisions recognizing NOX as a precursor
to ozone. North Carolina's NSR rules incorporate by reference (IBR) the
federal NSR rules at 40 CFR 51.166 and 51.165, as amended June 13,
2007, except for the definition of ``baseline actual emissions,'' the
stayed equipment replacement provisions (ERP) (69 FR 40274, July 1,
2004),\1\ the PAL adjustment provisions at 51.166(w)(10)(iv)(a) and
51.165(f)(10)(iv)(A), the recordkeeping and reporting requirements at
51.166(r)(6) and 51.165(a)(6), and the Ozone Implementation NSR update
provisions at 51.165(a)(8), (a)(9) and (a)(10).
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\1\ EPA promulgated the ERP on October 27, 2003 (68 FR 61248).
The ERP was challenged and the D.C. Circuit Court of Appeals stayed
the ERP on December 24, 2003. On March 17, 2006, the Court vacated
the ERP. See New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
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EPA's evaluation of the North Carolina SIP submittals included a
line-by-line comparison of the proposed revisions with the federal
requirements. As a general matter, state agencies may meet the
requirements of 40 CFR part 51, and the 2002 NSR Reform Rules, with
different but equivalent regulations. As mentioned above, North
Carolina chose to IBR the federal rules with several changes. The
definition of
[[Page 52229]]
``baseline actual emissions'' at subchapter 2D .0530(b)(1) and
.0531(a)(1) was changed to remove the provision allowing emissions
units that are not electric utility steam generating units (EUSGUs) to
look back 10 years to select the baseline period. North Carolina rules
treat EUSGUs and non-EUSGUs the same by allowing a look back of only 5
years. However, North Carolina rules provide the option of allowing a
different time period, not to exceed 10 years, if the owner or operator
demonstrates that it is more representative of normal source operation.
In addition, North Carolina rules require EUSGUs to adjust downward the
baseline emissions to account for reductions required under the North
Carolina Clean Smokestack Act.
With regard to the PAL adjustment provisions at
51.166(w)(10)(iv)(a) and 51.165(f)(10)(iv)(A), the federal regulations
provide the option that if the emissions level is equal to or greater
than 80 percent of the PAL level, the reviewing authority may renew the
PAL at the same level or it may set the PAL at a different level
considering other factors per 51.166(w)(10)(iv)(b) and 51.165(f)(iv)(B)
respectively. North Carolina rules at subchapter 2D .0530(i) and
.0531(h) require that the PAL be renewed at the same level if emissions
are greater than or equal to 80 percent of the PAL.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping and EPA's December 21, 2007, clarifications of
the term ``reasonable possibility'' (72 FR 72607), North Carolina did
not incorporate by reference all the provisions at 40 CFR 51.166(r)(6)
and 51.165(a)(6) or adopt the federal ``reasonable possibility''
standard. Instead, North Carolina adopted recordkeeping and reporting
requirements that apply to all modifications that use the actual-to-
projected-actual applicability test. Therefore, the North Carolina
provisions meet the minimum recordkeeping and reporting requirements of
the federal rule. Pursuant to the EPA December 21, 2007, rulemaking on
the ``reasonable possibility'' standard, North Carolina is required to
submit a notice to EPA within 3 years to acknowledge that its
regulations fulfill these requirements.
With regard to the Ozone Implementation NSR update, North Carolina
incorporated by reference all the November 29, 2005, rule revisions
except for the provisions at 40 CFR 51.165(a)(8), (9) and (10). North
Carolina did not IBR 40 CFR 51.165(a)(10), which addresses
PM10 precursors in PM10 nonattainment areas,
because there are no PM10 nonattainment areas in North
Carolina. North Carolina did not IBR 40 CFR 51.165(a)(8) and (a)(9),
which relate to the applicability of NOX as a precursor for
ozone and offset ratios in nonattainment areas; however, North Carolina
rules have equivalent requirements at subchapter 2D .0531(c) and (f).
With respect to the offset ratios, North Carolina's rules only address
the offset ratio for moderate nonattainment areas, which is the current
``highest'' classification in the State. There is only one 8-hour ozone
nonattainment area in North Carolina--the Charlotte-Gastonia-Rock Hill
area--which is classified as moderate nonattainment. At the time that
any area(s) in North Carolina are reclassified to any level above
moderate during a future designation process, North Carolina rules will
have to be revised to address the appropriate offset ratios.
In addition to incorporating the federal rules by reference with
several changes, North Carolina's rule revisions include two additional
provisions that do not directly relate to the 2002 NSR Reform rules,
including: (1) Incorporating by reference 40 CFR 52.21(r)(2) to clarify
the period of validity of approval to construct; and (2) requiring that
all new natural gas-fired electrical utility generating units install
best available control technology (BACT) or LAER, as appropriate. This
second requirement was included in the North Carolina rules for clarity
and consistency with restrictions on use of allowances imposed by an
agreement resulting from provisions of the North Carolina Clean
Smokestacks Act.\2\
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\2\ Any allowances for emissions reductions achieved under the
Clean Smokestacks Act are not available to the subject facilities,
nor any other sources, and may not be used to offset emissions and
avoid installation of BACT or LAER on new natural gas-fired units.
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After evaluation of the submittals and supporting documentation for
revisions to North Carolina's NSR regulations, EPA has determined that
the differences from the federal regulations discussed above do not
make North Carolina's NSR program less stringent than the federal
program. Therefore, EPA has determined that the proposed SIP revisions
are consistent with the federal program requirements for the
preparation, adoption and submittal of implementation plans for NSR set
forth at 40 CFR 51.165 and 51.166, and are therefore approvable.
IV. What action is EPA taking today?
EPA is proposing to approve the changes made to North Carolina's
Regulations 15A NCAC 2D .0530 and .0531, as submitted by the North
Carolina DENR on November 30, 2005, March 16, 2007, and June 20, 2008,
as revisions to the North Carolina SIP.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 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 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 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).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that
[[Page 52230]]
it will not impose substantial direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 29, 2008.
Russell L. Wright, Jr.,
Acting Regional Administrator, Region 4.
[FR Doc. E8-20874 Filed 9-8-08; 8:45 am]
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