64240 Federal Register / Vol. 76, No. 201 / Tuesday, October 18, 2011 / Rules and Regulations 

1 ‘‘Endangerment and Cause or Contribute 

Findings for Greenhouse Gases Under Section 

202(a) of the Clean Air Act.’’ 74 FR 66496 

(December 15, 2009). 

2 ‘‘Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs.’’ 75 FR 17004 (April 2, 2010). 

3 ‘‘Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule.’’ 75 FR 25324 (May 7, 2010). 

4 ‘‘Prevention of Significant Deterioration and 

Title V Greenhouse Gas Tailoring Rule; Final Rule.’’ 

75 FR 31514 (June 3, 2010). 

* * * * * 

[FR Doc. 2011–26900 Filed 10–17–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0741–201071; FRL– 

9476–5] 

Approval and Promulgation of 

Implementation Plans; North Carolina: 

Prevention of Significant Deterioration; 

Greenhouse Gas Tailoring Rule 

Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve a revision to the State 

Implementation Plan (SIP), submitted 

by the State of North Carolina, through 

the North Carolina Department of 

Environment and Natural Resources’ 

(NC DENR) Division of Air Quality, to 

EPA on August 11, 2010, for parallel 

processing. NC DENR submitted the 

final version of this SIP revision on May 

17, 2011. The SIP revision establishes 

new NC DENR air quality regulations, 

specific to the regulation of greenhouse 

gases (GHGs) under North Carolina’s 

New Source Review (NSR) Prevention of 

Significant Deterioration (PSD) program. 

Specifically, the SIP revision establishes 

appropriate emission thresholds for 

determining which new stationary 

sources and modification projects 

become subject to North Carolina’s PSD 

permitting requirements for their GHG 

emissions. This rule incorporates state 

law changes into the federally approved 

SIP, and specifically, clarifies the 

applicable thresholds in the North 

Carolina SIP for GHG PSD requirements. 

EPA is approving North Carolina’s May 

17, 2011, SIP revision because the 

Agency has made the determination that 

this SIP revision is in accordance with 

the Clean Air Act (CAA or Act) and EPA 

regulations, including regulations 

pertaining to PSD permitting for GHGs. 

Additionally, EPA is responding to 

adverse comments received on EPA’s 

November 5, 2010, proposed approval of 

North Carolina’s August 11, 2010, draft 

SIP revision. 

DATES: Effective Date: This rule will be 

effective November 17, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2010–0741. All documents in the docket 

are listed on the http:// 

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 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 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

information regarding the North 

Carolina SIP, contact Ms. Twunjala 

Bradley, 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. Ms. 

Bradley’s telephone number is (404) 

562–9352; e-mail address: 

bradley.twunjala@epa.gov. For 

information regarding the Tailoring 

Rule, contact Ms. Heather Abrams, Air 

Permits Section, at the same address 

above. Ms. Abrams’ telephone number 

is (404) 562–9185; e-mail address: 

abrams.heather@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of this final action? 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What is the background for this final 

action? 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action on the North Carolina SIP. Four 

of these actions include, as they are 

commonly called, the ‘‘Endangerment 

Finding’’ and ‘‘Cause or Contribute 

Finding,’’ which EPA issued in a single 

final action,1 the ‘‘Johnson Memo 

Reconsideration,’’ 2 the ‘‘Light-Duty 

Vehicle Rule,’’ 3 and the ‘‘Tailoring 

Rule.’’ 4 Taken together and in 

conjunction with the CAA, these actions 

established regulatory requirements for 

GHGs emitted from new motor vehicles 

and new motor vehicle engines; 

determined that such regulations, when 

they took effect on January 2, 2011, 

subjected GHGs emitted from stationary 

sources to PSD requirements; and 

limited the applicability of PSD 

requirements to GHG sources on a 

phased-in basis. 

On August 11, 2010, in response to 

the Tailoring Rule and earlier GHGrelated EPA rules, NC DENR submitted 

a draft revision to EPA for approval into 

the North Carolina SIP to establish 

appropriate emission thresholds for 

determining which new or modified 

stationary sources become subject to 

North Carolina’s PSD permitting 

requirements for GHG emissions. 

Subsequently, on November 5, 2010, 

EPA published a proposed rulemaking 

to approve a portion of North Carolina’s 

August 11, 2010, SIP revision under 

parallel processing. See 75 FR 68279. 

Specifically, North Carolina’s August 

11, 2010, draft SIP revision incorporates 

by reference the Tailoring Rule 

provisions at 40 Code of Federal 

Regulations (CFR) 51.166 (as amended 

June 3, 2010, and effective August 2, 

2010), into the North Carolina SIP at 

15A North Carolina Administrative 

Code (NCAC) 02D .0544—Prevention of 

Significant Deterioration Requirements 

for Greenhouse Gases, to address the 

thresholds for GHG permitting 

applicability. Detailed background 

information and EPA’s rationale for the 

proposed approval are provided in 

EPA’s November 5, 2010, Federal 

Register notice. 

EPA’s November 5, 2010, proposed 

approval was contingent upon North 

Carolina providing a final SIP revision 

that was substantively the same as the 

revision proposed for approval by EPA 

in the November 5, 2010, proposed 

rulemaking. See 75 FR 68279. North 

Carolina provided its final SIP revision 

on May 17, 2011. In its final SIP 

revision, North Carolina made minor 


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Federal Register / Vol. 76, No. 201 / Tuesday, October 18, 2011 / Rules and Regulations 64241 

5 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas Emitting-Sources in State 

Implementation Plans.’’ 75 FR 82536 (December 30, 

2010). 

formatting changes, and added a couple 

of clarifications. The formatting changes 

included changing a couple of periods 

to semicolons and adding the word 

‘‘and’’ behind a semicolon to transition 

to the next statement. With regard to the 

clarifications, North Carolina deleted 

the phrase ‘‘Except for 40 CFR 81.334’’ 

and added a notation to explicitly 

identify the effective date of the Federal 

Tailoring Rule (i.e., August 2, 2010) that 

is being incorporated by reference by 

North Carolina. Besides the minor 

formatting changes and the 

aforementioned clarifications, there 

were no differences between North 

Carolina’s August 11, 2010, draft SIP 

revision, and the final SIP revision 

which was provided on May 17, 2011. 

On December 30, 2010, EPA 

published a final rule which narrowed 

its previous approval of PSD programs 

as applicable to GHG-emitting sources 

in SIPs for 24 states, including North 

Carolina.5 See 75 FR 82536 (PSD 

Narrowing Rule). Specifically, in the 

PSD Narrowing Rule, EPA withdrew its 

previous approval of North Carolina’s 

SIP to the extent it applied PSD to GHGemitting sources below the thresholds in 

the final Tailoring Rule. 

The effect of the PSD Narrowing Rule 

on the approved North Carolina SIP was 

to establish that new and modified 

sources are subject to PSD permitting 

requirements for their GHG emissions 

only if they emit GHGs at or above the 

Tailoring Rule’s emission thresholds. As 

result of today’s action approving North 

Carolina’s incorporation of the 

appropriate GHG permitting thresholds 

into its SIP, paragraph (c) in 40 CFR 

52.1772, as included in EPA’s 

Narrowing Rule, is no longer necessary, 

Thus, today’s action also amends 

section 40 CFR 52.572 to remove this 

unnecessary regulatory language. 

II. What is EPA’s response to comments 

received on this action? 

EPA received three sets of comments 

on the November 5, 2010, proposed 

rulemaking to approve revisions to 

North Carolina’s SIP. One set of 

comments, provided by the Sierra Club, 

was in favor of EPA’s November 5, 2010, 

proposed action. The other two sets of 

comments, provided by the Air 

Permitting Forum and the John Locke 

Foundation, raised concerns with final 

action on EPA’s November 5, 2010, 

proposed action. A full set of the 

comments provided by the Sierra Club, 

the Air Permitting Forum (hereinafter 

referred to as the ‘‘Commenter’’) and the 

John Locke Foundation (also hereinafter 

referred to as the ‘‘Commenter’’) is 

provided in the docket for today’s final 

action. The comments can be accessed 

at http://www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2010– 

0741. A summary of the adverse 

comments and EPA’s responses are 

provided below. 

Generally, the adverse comments fall 

into six categories. First, the Commenter 

asserts that PSD requirements cannot be 

triggered by GHGs. Second, the 

Commenter expresses concerns 

regarding a footnote in the November 5, 

2010, proposal describing EPA’s 

previously announced intention to 

narrow its prior approval of some SIPs 

to ensure that sources with GHG 

emissions that are less than the 

Tailoring Rule’s thresholds will not be 

obligated under federal law to obtain 

PSD permits prior to a SIP revision 

incorporating those thresholds. The 

Commenter explains that the planned 

SIP approval narrowing action, which 

has now resulted in the PSD Narrowing 

Rule, ‘‘is illegal.’’ Third, the Commenter 

states that EPA has failed to meet 

applicable statutory and executive order 

review requirements. Fourth, the 

Commenter states: ‘‘EPA should 

explicitly state in any final rule that the 

continued enforceability of these 

provisions in the North Carolina SIP is 

limited to the extent to which the 

federal requirements remain 

enforceable.’’ Fifth, the Commenter 

states that ‘‘EPA does not have statutory 

authority for the Tailoring Rule.’’ Lastly, 

the Commenter recommends that EPA 

re-propose the action once North 

Carolina has finalized its changes to the 

SIP. EPA’s responses to these six 

categories of comments are provided 

below. 

Comment 1: The Commenter asserts 

that PSD requirements cannot be 

triggered by GHGs. In its letter, the 

Commenter reiterates EPA’s statement 

that without the Tailoring Rule 

thresholds, PSD will apply as of January 

2, 2011, to all stationary sources that 

emit or have the potential to emit, 

depending on the source category, either 

100 or 250 tons of GHG per year. The 

Commenter also reiterates EPA’s 

statement that beginning January 2, 

2011, a source owner proposing to 

construct any new major source that 

emits at or above the GHG applicability 

levels, or modifies any existing major 

source in a way that would increase 

GHG emissions, would need to obtain a 

PSD permit that addresses these 

emissions before construction could 

begin. In raising concerns with the two 

aforementioned statements, the 

Commenter states: ‘‘[n]o area in the 

State of North Carolina has been 

designated attainment or unclassifiable 

for greenhouse gases (GHGs), as there is 

no national ambient air quality standard 

(NAAQS) for GHGs. Therefore, GHGs 

cannot trigger PSD permitting.’’ The 

Commenter notes that it made this 

argument in detail in comments 

submitted to EPA on the Tailoring Rule 

and other related GHG rulemakings. The 

Commenter attached those previously 

submitted comments to its comments on 

the proposed rulemaking related to this 

action. Finally, the Commenter states 

that ‘‘EPA should immediately provide 

notice that it is now interpreting the Act 

not to require that GHGs trigger PSD and 

allow North Carolina to rescind that 

portion of its rules that would allow 

GHGs to trigger PSD.’’ 

Response 1: EPA established the 

requirement that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants such 

as GHGs, in earlier national rulemakings 

concerning the PSD program, and EPA 

has not re-opened that issue in this 

rulemaking. In an August 7, 1980, 

rulemaking at 45 FR 52676, 45 FR 

52710–52712, and 45 FR 52735, EPA 

stated that a ‘‘major stationary source’’ 

was one which emitted ‘‘any air 

pollutant subject to regulation under the 

Act’’ at or above the specified numerical 

thresholds; and defined a ‘‘major 

modification,’’ in general, as a physical 

or operational change that increased 

emissions of ‘‘any pollutant subject to 

regulation under the Act’’ by more than 

an amount that EPA variously termed as 

de minimis or significant. In addition, 

EPA’s 2002 NSR Reform rules EPA 

added to the PSD regulations the new 

definition of ‘‘regulated NSR pollutant’’ 

(currently codified at 40 CFR 

52.21(b)(50) and 40 CFR 51.166(a)(49)) 

and; noted that EPA added this term 

based on a request from a commenter to 

‘‘clarify which pollutants are covered 

under the PSD program.’’ Further EPA 

explained that in addition to criteria 

pollutants for which a NAAQS has been 

established, ‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS [new source 

performance standard] applicable to a 

previously unregulated pollutant.’’ See 

67 FR 80186, 80240 and 80264 

(December 31, 2002). Among other 

things, the definition of ‘‘regulated NSR 

pollutant’’ includes ‘‘[a]ny pollutant 

that otherwise is subject to regulation 

under the Act.’’ See 40 CFR 

52.21(b)(50)(d)(iv); 40 CFR 

51.166(a)(49)(iv). 

EPA disagrees with the Commenter’s 

underlying premise that PSD 


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64242 Federal Register / Vol. 76, No. 201 / Tuesday, October 18, 2011 / Rules and Regulations 

requirements were not triggered for 

GHGs when GHGs became subject to 

regulation on January 2, 2011. This has 

been well established and discussed in 

connection with prior EPA actions, 

including, most recently, the Johnson 

Reconsideration and the Tailoring Rule. 

In addition, EPA’s November 5, 2010, 

proposed rulemaking action provides 

the general basis for the Agency’s 

rationale that GHGs, while not a 

NAAQS pollutant, can trigger PSD 

permitting requirements. The November 

5, 2010, action also refers the reader to 

the preamble of the Tailoring Rule for 

further information on this rationale. In 

that rulemaking, EPA addressed at 

length the comment that PSD can be 

triggered only by pollutants subject to 

the NAAQS, and concluded such an 

interpretation of the Act would 

contravene Congress’ unambiguous 

intent. See 75 FR 31560–31562. Further 

discussion of EPA’s rationale for 

concluding that PSD requirements are 

triggered by non-NAAQS pollutants 

such as GHGs appears in the Tailoring 

Rule Response-to-Comments document 

(‘‘Prevention of Significant Deterioration 

and Title V GHG Tailoring Rule: EPA’s 

Response to Public Comments’’), pp. 

34–41; and in EPA’s response to 

motions for a stay filed in the litigation 

concerning those rules (‘‘EPA’s 

Response to Motions for Stay,’’ 

Coalition for Responsible Regulation v. 

EPA, D.C. Cir. No. 09–1322 (and 

consolidated cases)), at pp. 47–59, and 

are incorporated by reference here. 

These documents have been placed in 

the docket for today’s action and can be 

accessed at http://www.regulations.gov 

using Docket ID No. EPA–R04–OAR– 

2010–0741. 

Comment 2: The Commenter 

expresses concerns regarding a footnote 

in which EPA describes its previously 

announced intention to narrow its prior 

approval of some SIPs. In the footnote, 

EPA explained that such narrowing 

would ensure that sources with GHG 

emissions that are less than the 

Tailoring Rule’s thresholds are not 

obligated under federal law to obtain 

PSD permits during any gap between 

the effective date of GHG-permitting 

requirements (January 2, 2011) and the 

date that a SIP is revised to incorporate 

the Tailoring Rule thresholds. The 

Commenter asserts that EPA’s 

narrowing of its prior SIP approvals ‘‘is 

illegal.’’ Further, the Commenter states 

that ‘‘EPA has not proposed to narrow 

North Carolina’s SIP approval here and 

any such proposal must be explicit and 

address the action specifically made 

with respect to North Carolina’s. EPA 

cannot sidestep these important 

procedural requirements.’’ 

Response 2: While EPA disagrees with 

the Commenter’s assertion that the 

narrowing approach discussed in EPA’s 

Tailoring Rule is illegal, the narrowing 

approach was not the subject of EPA’s 

November 5, 2010, proposed rulemaking 

to approve North Carolina’s August 11, 

2010, SIP revision. Rather, the 

narrowing approach was the subject of 

a separate rulemaking, which was 

considered and finalized in the PSD 

Narrowing Rule in an action separate 

from today’s rulemaking. See 75 FR 

82536 (December 30, 2010). In today’s 

final action, EPA is acting to approve a 

SIP revision submitted by North 

Carolina, and is not otherwise 

narrowing its approval of prior 

submitted and approved provisions in 

the North Carolina SIP. Accordingly, the 

legality of the narrowing approach is not 

at issue in this rulemaking. 

Comment 3: The Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Specifically, the 

Commenter refers to the statutory and 

executive orders for the Paperwork 

Reduction Act, the Regulatory 

Flexibility Act (RFA), Unfunded 

Mandates Reform Act, and Executive 

Order 13132 (Federalism). Additionally, 

the Commenter mentions that EPA has 

never analyzed the costs and benefits 

associated with triggering PSD for 

stationary sources in North Carolina, 

much less nationwide. 

Response 3: EPA disagrees with the 

Commenter’s statement that EPA has 

failed to meet applicable statutory and 

executive order review requirements. As 

stated in EPA’s proposed approval of 

North Carolina’s May 17, 2011, SIP 

revision, this action merely approves 

state law as meeting federal 

requirements and does not impose 

additional requirements beyond those 

imposed by state law. Accordingly, EPA 

approval, in and of itself, does not 

impose any new information collection 

burden, as defined in 5 CFR 1320.3(b) 

and (c), that would require additional 

review under the Paperwork Reduction 

Act. In addition, because today’s action 

simply approves existing state law, it 

will not have a significant economic 

impact on a substantial number of small 

entities beyond the impact of existing 

state law requirements. Thus, a 

regulatory flexibility analysis is not 

required under the RFA. Accordingly, 

this rule is appropriately certified under 

section 605(b) of the RFA. Moreover, as 

this action approves pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandates or significantly or uniquely 

affect small governments, such that it 

would be subject to the Unfunded 

Mandates Reform Act. Finally, this 

action does not have federalism 

implications that would make Executive 

Order 13132 applicable because it 

merely approves a state rule 

implementing a federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

In sum, today’s rule is a routine 

approval of a SIP revision, approving 

state law, and does not impose any 

requirements beyond those imposed by 

state law. To the extent these comments 

are directed more generally to the 

application of the statutory and 

executive order reviews to the required 

regulation of GHGs under PSD 

programs, EPA provided an extensive 

response to similar comments in 

promulgating the Tailoring Rule. EPA 

refers the Commenter to the sections in 

the Tailoring Rule entitled ‘‘VII. 

Comments on Statutory and Executive 

Order Reviews,’’ 75 FR 31601–31603, 

and ‘‘VI. What are the economic impacts 

of the final rule?,’’ 75 FR 31595–31601. 

EPA also notes that today’s action is not 

itself the trigger for regulation of GHGs. 

To the contrary, by helping to clarify 

that higher PSD applicability thresholds 

for GHGs apply than would otherwise 

be in effect under the Act, this 

rulemaking, as well as EPA’s Tailoring 

Rule, is part of the effort to provide 

relief to smaller GHG-emitting sources 

that would otherwise be subject to PSD 

permitting requirements for their GHG 

emissions. 

Comment 4: The Commenter states 

that ‘‘[i]f EPA proceeds with this action, 

it must condition approval on the 

continued validity of its determination 

that PSD can be triggered by or is 

applicable to GHGs.’’ Further, the 

Commenter remarks on the ongoing 

litigation in the U.S. Court of Appeals 

for the D.C. Circuit. Specifically, 

regarding EPA’s determination that PSD 

can be triggered by GHGs or is 

applicable to GHGs, the Commenter 

mentions that ‘‘EPA should explicitly 

state in any final rule that continued 

enforceability of these provisions in the 

North Carolina SIP is limited to the 

extent to which the federal requirements 

remain enforceable.’’ The Commenter 

notes that if a stay is issued, these 

requirements should also be stayed. 

Response 4: EPA believes that it is 

most appropriate to take actions that are 

consistent with the federal regulations 

that are in place at the time the action 

is being taken. To the extent that any 

changes to federal regulations related to 


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Federal Register / Vol. 76, No. 201 / Tuesday, October 18, 2011 / Rules and Regulations 64243 

today’s action result from pending legal 

challenges or other actions, EPA will 

process appropriate SIP revisions in 

accordance with the procedures 

provided in the Act and EPA’s 

regulations. EPA notes that in an order 

dated December 10, 2010, the United 

States Court of Appeals for the D.C. 

Circuit denied motions to stay EPA’s 

regulatory actions related to GHGs. 

Coalition for Responsible Regulation, 

Inc. v. EPA, Nos. 09–1322, 10–1073, 10– 

1092 (and consolidated cases), Slip Op. 

at 3 (D.C. Cir. December 10, 2010) (order 

denying stay motions). 

Comment 5: The Commenter states 

that ‘‘EPA does not have statutory 

authority for the Tailoring Rule.’’ 

Additionally, the Commenter states that 

‘‘EPA’s proposal to revise North 

Carolina’s SIP to include greenhouse 

gases (GHG) is grounded in an improper 

interpretation of the Clean Air Act 

(CAA). Specifically, the EPA is ignoring 

the plain and unambiguous language of 

the CAA to justify the regulation of 

GHG. If the EPA did not change the 

threshold levels for GHG, by the 

agency’s own admission, there would be 

‘absurd’ results.’’ 

Response 5: While EPA does not agree 

with the Commenter’s statement that 

‘‘EPA does not have statutory authority 

for the Tailoring Rule,’’ EPA notes that 

the statutory authority for the Tailoring 

Rule was not the subject of EPA’s 

November 5, 2010, proposed rulemaking 

to approve North Carolina’s August 11, 

2010, SIP revision. Rather, the 

requirements of the Tailoring Rule were 

the subject of a separate rulemaking. In 

EPA’s final action for the Tailoring Rule, 

EPA provided extensive discussion and 

response to comments regarding legality 

of the Tailoring Rule in a section 

entitled, ‘‘V. What is the Legal and 

Policy Rationale for the Final Action?’’ 

See 75 FR 31527–31595. In today’s final 

action, EPA is taking action to approve 

a SIP revision submitted by North 

Carolina, and is not reopening comment 

on the legality of the Tailoring Rule. 

Comment 6: The Commenter 

mentions that the ‘‘comments being 

provided to EPA are based on proposed 

revisions, not final revisions,’’ and that 

‘‘the differences between the proposed 

and final North Carolina revisions may 

or may not be substantial, but they 

certainly could affect how the public 

comments on the EPA’s proposed rule.’’ 

The Commenter states ‘‘it is unclear 

why the EPA believes it is appropriate 

and legally supportable to seek 

comments on a yet-to-be finalized 

revision to a SIP. Further, it is not clear 

what would constitute ‘significant 

changes’ that would require the EPA to 

re-propose the action.’’ The Commenter 

concludes by recommending that EPA 

re-propose the action once North 

Carolina has finalized its changes to the 

SIP. 

Response 6: The procedure utilized by 

EPA to solicit public comment on North 

Carolina’s SIP revision was appropriate 

and lawful. As explained in EPA’s 

proposal at 75 FR 68279, EPA utilized 

a ‘‘parallel processing’’ procedure for 

this SIP revision. Under this procedure, 

EPA proposes rulemaking action 

concurrently with the State’s procedures 

for approving a SIP submittal and 

amending its regulations (40 CFR part 

51, appendix V, 2.3). EPA reviews that 

SIP submittal, even though the 

regulation is not yet adopted in final 

form by the State, as if it were a final, 

adopted regulation. In doing so, EPA 

evaluates the draft regulation against the 

same approvability criteria as any other 

SIP submittal. Thus, EPA has not used 

the ‘‘parallel processing’’ procedure to 

avoid any statutory requirements. In this 

case, as explained earlier in this action, 

EPA has determined that the minor 

differences between the draft and final 

regulations are insignificant and do not 

warrant re-proposal of this action. 

Accordingly, the proposal gave the 

public the appropriate opportunity to 

comment on the substance of the SIP 

revision for which EPA is today issuing 

a final approval. 

III. What is the effect of this final 

action? 

Final approval of North Carolina’s 

May 17, 2011, SIP revision will put in 

place the GHG emission thresholds for 

PSD applicability set forth in EPA’s 

Tailoring Rule (75 FR 31514, June 3, 

2010) and adopted as state law, making 

clear that smaller GHG sources emitting 

less than these thresholds will not be 

subject to permitting requirements 

under the approved North Carolina SIP. 

Pursuant to section 110 of the CAA, 

EPA is approving the changes made in 

North Carolina’s May 17, 2011, SIP 

revision into North Carolina’s SIP. 

North Carolina’s May 17, 2011, 

revision establishes a new regulation 

specifically to incorporate by reference 

the relevant federal Tailoring Rule 

provisions set forth at 40 CFR 51.166 

into the North Carolina SIP at 15A 

North Carolina Administrative Code 

(NCAC) 02D .0544—Prevention of 

Significant Deterioration Requirements 

for Greenhouse Gases. EPA has 

determined that North Carolina’s May 

17, 2011, SIP revision is consistent with 

the Tailoring Rule. Furthermore, EPA 

has determined that the May 17, 2011, 

revision to North Carolina’s SIP is 

consistent with section 110 of the CAA. 

See, e.g., Tailoring Rule, 75 FR 31561. 

IV. Final Action 

EPA is taking final action to approve 

North Carolina’s May 17, 2011, SIP 

revision which includes updates to 

North Carolina’s air quality regulations, 

15A North Carolina Administrative 

Code (NCAC) 02D .0544—Prevention of 

Significant Deterioration Requirements 

for Greenhouse Gases. Specifically, 

North Carolina’s May 17, 2011, SIP 

revision clarifies appropriate emissions 

thresholds for determining PSD 

applicability with respect to new or 

modified GHG-emitting sources in 

accordance with EPA’s Tailoring Rule, 

and incorporates those thresholds in the 

form in which they are stated in state 

law. EPA has made the determination 

that the May 17, 2011, SIP revision is 

approvable because it is in accordance 

with the CAA and EPA regulations, 

including regulations pertaining to PSD 

permitting for GHGs. 

As result of EPA’s approval of North 

Carolina’s changes to its air quality 

regulations to incorporate the 

appropriate thresholds for GHG 

permitting applicability into North 

Carolina’s SIP, paragraph (c) in Section 

52.1772 of 40 CFR part 52, as included 

in EPA’s Narrowing Rule, is no longer 

necessary. In today’s final action EPA is 

also amending Section 52.1772 of 40 

CFR part 52 to remove this unnecessary 

regulatory language. 

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 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 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 


srobinson on DSK4SPTVN1PROD with RULES
64244 Federal Register / Vol. 76, No. 201 / Tuesday, October 18, 2011 / Rules and Regulations 

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 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 19, 2011. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2), 42 U.S.C. 7607(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Greenhouse gases, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: September 20, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart II—North Carolina 

■ 2. Section 52.1770(c) Table 1, is 

amended under Subchapter 2D, Section 

.0500 by adding a new entry ‘‘Sect 

.0544’’ to read as follows: 

§ 52.1770 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 1—EPA APPROVED NORTH CAROLINA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 

Subchapter 2D Air Pollution Control Requirements 

*******

Section .0500 Emission Control Standards 

*******

Sect .0544 ...................................... Prevention of Significant Deterioration Requirements for Greenhouse Gases.12/16/10 October 18, 2011, [Insert citation 

of publication].

* * * * * * * 

* * * * * § 52.1772 [Amended] 

■ 3. Section 52.1772 is amended by 

removing paragraph (c). 

[FR Doc. 2011–26898 Filed 10–17–11; 8:45 am] 

BILLING CODE 6560–50–P 


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