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[Federal Register Volume 81, Number 140 (Thursday, July 21, 2016)]
[Proposed Rules]
[Pages 47314-47323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17301]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0428; FRL-9949-38-Region 4]

Air Plan Approval; North Carolina; Infrastructure Requirements 
for the 2012 PM2.5 National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the State of North Carolina, through the Department of 
Environmental Quality (DEQ), formerly known as the Department of 
Environment and Natural Resources (DENR), Division of Air Quality 
(DAQ), on December 4, 2015, for inclusion into the North Carolina SIP.

[[Page 47315]]

This proposal pertains to the infrastructure requirements of the Clean 
Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter 
(PM2.5) national ambient air quality standard (NAAQS). The 
CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by EPA, which is commonly referred to as an ``infrastructure'' SIP 
submission. DAQ certified that the North Carolina SIP contains 
provisions that ensure the 2012 Annual PM2.5 NAAQS is 
implemented, enforced, and maintained in North Carolina. EPA is 
proposing to determine that portions of North Carolina's infrastructure 
SIP submission, provided to EPA on December 4, 2015, satisfy certain 
infrastructure elements for the 2012 Annual PM2.5 NAAQS.

DATES: Written comments must be received on or before August 22, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0428 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tiereny Bell, 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. Ms. Bell can be reached via electronic mail at 
bell.tiereny@epa.gov or via telephone at (404) 562-9088.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On December 14, 2012 (78 FR 3086, January 15, 2013), EPA 
promulgated a revised primary annual PM2.5 NAAQS. The 
standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/
m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIPs meeting the applicable requirements 
of section 110(a)(2) within three years after promulgation of a new or 
revised NAAQS or within such shorter period as EPA may prescribe. 
Section 110(a)(2) requires states to address basic SIP elements such as 
requirements for monitoring, basic program requirements and legal 
authority that are designed to assure attainment and maintenance of the 
NAAQS. States were required to submit such SIPs for the 2012 Annual 
PM2.5 NAAQS to EPA no later than December 14, 2015.\1\
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    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking unless otherwise 
noted, the cited regulation (North Carolina Administrative Code 
(NCAC)) has either been approved, or submitted for approval into 
North Carolina's federally-approved SIP. The North Carolina 
statutory provisions cited to herein (North Carolina General 
Statutes (NCGS)) have not been approved into the North Carolina SIP, 
unless otherwise noted.
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    This rulemaking is proposing to approve portions of North 
Carolina's PM2.5 infrastructure SIP submissions \2\ for the 
applicable requirements of the 2012 Annual PM2.5 NAAQS, with 
the exception of the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and preconstruction 
Prevention of Significant Deterioration (PSD) permitting requirements 
for major sources of section 110(a)(2)(C) and (J), for which EPA is not 
proposing any action in this rulemaking regarding these requirements. 
For the aspects of North Carolina's submittal proposed for approval in 
this rulemaking, EPA notes that the Agency is not approving any 
specific rule, but rather proposing that North Carolina's already 
approved SIP meets certain CAA requirements.
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    \2\ North Carolina's 2012 Annual PM2.5 NAAQS 
infrastructure SIP submission dated December 4, 2015, is referred to 
as ``North Carolina's PM2.5 infrastructure SIP'' in this 
action.
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II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements that are the subject of this proposed rulemaking are 
summarized below and in EPA's September 13, 2013, memorandum entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act sections 110(a)(1) and 110(a)(2).'' \3\
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    \3\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \4\
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    \4\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution

[[Page 47316]]

 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \5\
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    \5\ As mentioned above, this element is not relevant to this 
proposed rulemaking.
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 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 and Submission of Modeling 
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local 
Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from North Carolina that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2012 Annual PM2.5 NAAQS. The requirement 
for states to make a SIP submission of this type arises out of CAA 
section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\6\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \6\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\7\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\8\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \7\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \8\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\9\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various

[[Page 47317]]

elements and sub-elements of the same infrastructure SIP 
submission.\10\
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    \9\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \10\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007, submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\11\
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    \11\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\12\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\13\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\14\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \12\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \13\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \14\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the United States (U.S.) Supreme Court agreed to review the 
D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) 
which had interpreted the requirements of section 
110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing 
litigation, EPA elected not to provide additional guidance on the 
requirements of section 110(a)(2)(D)(i)(I) at that time. As the 
guidance is neither binding nor required by statute, whether EPA 
elects to provide guidance on a particular section has no impact on 
a state's CAA obligations. On March 17, 2016, EPA released a 
memorandum titled, ``Information on the Interstate Transport `Good 
Neighbor' Provision for the 2012 Fine Particulate Matter National 
Ambient Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I)'' to provide guidance to states for interstate 
transport requirements specific to the PM2.5 NAAQS.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants,

[[Page 47318]]

including greenhouse gases. By contrast, structural PSD program 
requirements do not include provisions that are not required under 
EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the 2012 Annual 
PM2.5 NAAQS. Accordingly, the latter optional provisions are 
types of provisions EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, inter alia, the requirement 
that states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA-approved minor new source review 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an infrastructure SIP 
submission, however, EPA does not think it is necessary to conduct a 
review of each and every provision of a state's existing minor source 
program (i.e., already in the existing SIP) for compliance with the 
requirements of the CAA and EPA's regulations that pertain to such 
programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\15\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \15\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\18\
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    \16\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \18\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how North Carolina addressed the elements 
of the sections 110(a)(1) and (2) ``infrastructure'' provisions?

    The North Carolina infrastructure submission addresses the 
provisions of

[[Page 47319]]

sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. These requirements are met through several 
North Carolina Administrative Code (NCAC) regulations. Specifically, 
15A NCAC 2D .0500 Emission Control Standards establishes emission 
limits for PM2.5. The following State rules address 
additional control measures, means and techniques: 15A NCAC 2D .0600 
Monitoring: Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source 
Testing. In addition North Carolina General Statutes (NCGS)143-
215.107(a)(5), Air quality standards and classifications, provides the 
North Carolina Environmental Management Commission (EMC) with the 
statutory authority, ``To develop and adopt emission control standards 
as in the judgment of the Commission may be necessary to prohibit, 
abate, or control air pollution commensurate with established air 
quality standards.'' EPA has made the preliminary determination that 
the provisions contained in these regulations, and North Carolina's 
statutory authority are adequate for Section 110(a)(2)(A) for the 2012 
Annual PM2.5 NAAQS.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency is addressing such state regulations in a separate action.\19\
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    \19\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to: 
(i) Monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. NCGS 143-
215.107(a)(2), Air quality standards and classifications, provides the 
EMC with the statutory authority ``To determine by means of field 
sampling and other studies, including the examination of available data 
collected by any local, State or federal agency or any person, the 
degree of air contamination and air pollution in the State and the 
several areas of the State.''
    Annually, states develop and submit to EPA for approval statewide 
ambient monitoring network plans consistent with the requirements of 40 
CFR parts 50, 53, and 58. The annual network plan involves an 
evaluation of any proposed changes to the monitoring network, and 
includes the annual ambient monitoring network design plan and a 
certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\20\ The latest monitoring network plan for North 
Carolina was submitted to EPA on July 23, 2015, and on November 19, 
2015, EPA approved this plan. North Carolina's approved monitoring 
network plan can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2014-0428.
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    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    NCGS 143-215.107(a)(2), EPA regulations, along with North 
Carolina's Ambient Air Monitoring Network Plan, provide for the 
establishment and operation of ambient air quality monitors, the 
compilation and analysis of ambient air quality data, and the 
submission of these data to EPA upon request. EPA has made the 
preliminary determination that North Carolina's SIP and practices are 
adequate for the ambient air quality monitoring and data system related 
to the 2012 Annual PM2.5 NAAQS.
    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). To meet these obligations, North Carolina cited the 
following State regulations: 15A NCAC 2D .0500 Emissions Control 
Standards; 15A NCAC 2D .0530 Prevention of Significant Deterioration; 
15A NCAC 2D .0531 Sources in Nonattainment Areas; and 15A NCAC 2Q .0300 
Construction Operation Permits. Collectively, these regulations enable 
North Carolina to regulate sources contributing to the 2012 Annual 
PM2.5 NAAQS through enforceable permits. North Carolina also 
cited to the following statutory provisions as supporting this element: 
NCGS 143-215.108, Control of sources of air pollution; permits 
required; NCGS 143-215.107(a)(7), Air quality standards and 
classifications; and NCGS 143-215.6A, 6B, and 6C, Enforcement 
procedures: Civil penalties, criminal penalties, and injunctive relief.
    In this action, EPA is proposing to approve North Carolina's 
infrastructure SIP for the 2012 Annual PM2.5 NAAQS with 
respect to the general requirement in section 110(a)(2)(C) to include a 
program in the SIP for enforcement of PM2.5 emissions 
controls and measures and the regulation of minor sources and 
modifications to assist in the protection of air quality in 
nonattainment, attainment or unclassifiable areas.
    Enforcement: DAQ's above-described, SIP-approved regulations 
provide for enforcement of PM2.5 emission limits and control 
measures through enforceable permits. In addition, North Carolina cited 
NCGS 143-215.6A, 6B, and 6C, which provides NC DAQ with the statutory 
authority to seek civil and criminal penalties, and injunctive relief 
to enforce air quality rules.
    Preconstruction PSD Permitting for Major Sources: With respect to 
North Carolina's infrastructure SIP submission related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA is not proposing any action in this rule 
making regarding these requirements and instead will act on this 
portion of the submission in a separate action.

[[Page 47320]]

    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2012 Annual 
PM2.5 NAAQS. Regulation 15A NCAC 2Q .0300 Construction 
Operation Permits governs the preconstruction permitting of minor 
modifications and construction of minor stationary sources.
    EPA has made the preliminary determination that North Carolina's 
SIP is adequate for enforcement of control measures and regulation of 
minor sources and modifications related to the 2012 Annual 
PM2.5 NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components has two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4''). EPA is not proposing any action in this 
rulemaking related to the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through 4).
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act relating to interstate and international pollution abatement. 15A 
NCAC 2D .0530 Prevention of Significant Deterioration and 15A NCAC 2D 
.0531 Sources of Nonattainment Areas provide how DAQ will notify 
neighboring states of potential impacts from new or modified sources 
consistent with the requirements of 40 CFR 51.166. These regulations 
require DAQ to provide an opportunity for a public hearing to the 
public, which includes state or local air pollution control agencies, 
``whose lands may be affected by emissions from the source or 
modification'' in North Carolina. In addition, North Carolina does not 
have any pending obligation under sections 115 and 126 of the CAA. 
Accordingly, EPA has made the preliminary determination that North 
Carolina's SIP is adequate for ensuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 2012 Annual PM2.5 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide: 
(i) Necessary assurances that the state will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the state comply with the requirements respecting state 
boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the state has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the state has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
North Carolina's SIP as meeting the requirements of sub-elements 
110(a)(2)(E)(i), (ii) and (iii). EPA's rationale for this proposal 
respecting each sub-element is described below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), 
North Carolina's infrastructure SIP submission cites several 
regulations. Rule 15A NCAC 2Q .0200 ``Permit Fees,'' provides the 
mechanism by which stationary sources that emit air pollutants pay a 
fee based on the quantity of emissions. State statutes NCGS 143-215.3, 
General powers of Commission and Department: Auxiliary powers, and NCGS 
143-215.107(a)(1), Air quality standards and classifications, provide 
the EMC with the statutory authority ``[t]o prepare and develop, after 
proper study, a comprehensive plan or plans for the prevention, 
abatement and control of air pollution in the State or in any 
designated area of the State.'' NCGS 143-215.112, Local air pollution 
control programs, provides the EMC with the statutory authority ``to 
review and have general oversight and supervision over all local air 
pollution control programs.'' North Carolina has three local air 
agencies located in Buncombe, Forsyth, and Mecklenburg Counties that 
implement the air program in these areas.
    As further evidence of the adequacy of DAQ's resources, EPA 
submitted a letter to North Carolina on April 19, 2016, outlining 105 
grant commitments and the current status of these commitments for 
fiscal year 2015. The letter EPA submitted to North Carolina can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-
0428. Annually, states update these grant commitments based on current 
SIP requirements, air quality planning, and applicable requirements 
related to the NAAQS. North Carolina satisfactorily met all commitments 
agreed to in the Air Planning Agreement for fiscal year 2015, therefore 
North Carolina's grants were finalized and closed out. Collectively, 
these rules and commitments provide evidence that DAQ has adequate 
personnel, funding, and legal authority to carry out the State's 
implementation plan and related issues. EPA has made the preliminary 
determination that North Carolina has adequate resources and authority 
to satisfy sections 110(a)(2)(E)(i) and (iii) of the 2012 Annual 
PM2.5 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that the SIP provide: (1) 
The majority of members of the state board or body which approves 
permits or enforcement orders represent the public interest and do not 
derive any significant portion of their income from persons subject to 
permitting or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by such board or body, or the head of an 
executive agency with similar powers be adequately disclosed. For 
purposes of section 128(a)(1), as of October 1, 2012, North Carolina 
has no boards or bodies with authority over air pollution permits or 
enforcement actions. The authority to approve CAA permits or 
enforcement orders are instead delegated to the Secretary of the 
Department of Environment and Natural Resources (DENR) and his/her 
delegatee. As such, a ``board or body'' is not responsible for 
approving permits or enforcement orders in North Carolina, and the 
requirements of section 128(a)(1) are not applicable.
    On November 3, 2015 (80 FR 67645), EPA approved North Carolina's 
section 128(a)(2) conflict of interest disclosure requirements for 
administrative law judges (ALJs) \21\ through NCGS 7A-754 of the North 
Carolina General Statues, which contains provisions related to the 
Office of Administrative Hearings addressing these requirements for the 
ALJ. NCGS 7A-754 requires ALJs to act impartially, which broadly 
includes financial considerations, relationships, and other 
associations. ALJs are prohibited from participating in any

[[Page 47321]]

matter in which the ALJs impartiality might reasonably be questioned or 
the ALJ must disclose the potential conflict of interest on the record 
in the proceeding. In the case of such disclosures, the parties to the 
matter must agree that the disclosed conflict of interest is immaterial 
before the ALJ may continue to participate in the matter.
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    \21\ EPA has determined that ALJs in North Carolina are 
authorized to approve permits and enforcement orders on appeal and 
that the ALJs must therefore meet the conflict of interest 
disclosure requirements of section 128(a)(2).
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    EPA has made the preliminary determination that the State has 
adequately addressed the requirements of section 128(a), and 
accordingly has met the requirements of section 110(a)(2)(E)(ii) with 
respect to infrastructure SIP requirements. Therefore, EPA is proposing 
to approve North Carolina's infrastructure SIP submission as meeting 
the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing: 
(i) The installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. North Carolina's 
infrastructure SIP submission describes how the State establishes 
requirements for emissions compliance testing and utilizes emissions 
sampling and analysis. DAQ uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. North 
Carolina meets these requirements through 15A NCAC 2D .0604 Exceptions 
to Monitoring and Reporting Requirements; 15A NCAC 2D .0605 General 
Recordkeeping and Reporting Requirements; 15A NCAC 2D .0611 Monitoring 
Emissions from Other Sources; 15A NCAC 2D .0612 Alternative Monitoring 
and Reporting Procedures; 15A NCAC 2D .0613 Quality Assurance Program; 
and 15A NCAC 2D .0614 Compliance Assurance Monitoring. In addition, 15A 
NCAC 2D .0605(c) General Recordkeeping and Reporting Requirements 
allows for the use of credible evidence in the event that the DAQ 
Director has evidence that a source is violating an emission standard 
or permit condition, the Director may require that the owner or 
operator of any source submit to the Director any information necessary 
to determine the compliance status of the source. In addition, EPA is 
unaware of any provision preventing the use of credible evidence in the 
North Carolina SIP. Also, NCGS 143-215.107(a)(4), Air quality standards 
and classifications, provides the EMC with the statutory authority ``To 
collect information or to require reporting from classes of sources 
which, in the judgment of the [EMC], may cause or contribute to air 
pollution.''
    Stationary sources are required to submit periodic emissions 
reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions 
Reporting.'' North Carolina is also required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data. See 
73 FR 76539. The AERR shortened the time states had to report emissions 
data from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--nitrogen oxides, sulfur dioxides, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. North Carolina made its latest update to the 
2011 NEI on June 3, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that North Carolina's SIP 
and practices are adequate for the stationary source monitoring systems 
obligations for the 2012 Annual PM2.5 NAAQS. Accordingly, 
EPA is proposing to approve North Carolina's infrastructure SIP 
submission with respect to section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. North 
Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300 Air 
Pollution Emergencies as identifying air pollution emergency episodes 
and preplanned abatement strategies, and provides the means to 
implement emergency air pollution episode measures. Under NCGS 143-
215.3(a)(12), General powers of Commission and Department; auxiliary 
powers, if NC DENR finds that such a ``condition of . . . air pollution 
exists and that it creates an emergency requiring immediate action to 
protect the public health and safety or to protect fish and wildlife, 
the Secretary of the Department [NC DEQ] with the concurrence of the 
Governor, shall order persons causing or contributing to the . . . air 
pollution in question to reduce or discontinue immediately the emission 
of air contaminants or the discharge of wastes.'' In addition, NCGS 
143-215.3(a)(12) provides NC DEQ with the authority to declare an 
emergency when it finds that a generalized condition of water or air 
pollution which is causing imminent danger to the health or safety of 
the public. This statute also allows, in the absence of a generalized 
condition of air pollution, should the Secretary find ``that the 
emissions from one or more air contaminant sources . . . is causing 
imminent danger to human health and safety or to fish and wildlife, he 
may with the concurrence of the Governor order the person or persons 
responsible for the operation or operations in question to immediately 
reduce or discontinue the emissions of air contaminants . . . or to 
take such other measures as are, in his judgment, necessary.'' EPA has 
made the preliminary determination that North Carolina satisfies the 
emergency powers obligations of the annual PM2.5 NAAQS.
    9. 110(a)(2)(H) SIP revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan (i) as may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. DAQ is responsible for adopting air 
quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in North Carolina. NCGS 143-215.107(a)(1) and (a)(10) grant DAQ 
the authority to prepare and develop, after proper study, a 
comprehensive plan for the prevention of air pollution and implement 
the CAA, respectively. These

[[Page 47322]]

provisions also provide DAQ the ability and authority to respond to 
calls for SIP revisions, and North Carolina has provided a number of 
SIP revisions over the years for implementation of the NAAQS. In 
addition, State regulation 15A NCAC 2D .2401(d) states that ``The EMC 
may specify through rulemaking a specific emission limit lower than 
that established under this rule for a specific source if compliance 
with the lower emission limit is required to attain or maintain the 
ambient air quality standard for ozone or PM2.5 or any other 
ambient air quality standard in Section 15A NCAC 2D .0400.'' EPA has 
made the preliminary determination that North Carolina's SIP and 
practices adequately demonstrate a commitment to provide future SIP 
revisions related to the 2012 Annual PM2.5 NAAQS, when 
necessary.
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve North Carolina's infrastructure SIP for the 2012 Annual 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(J) to include a program in the SIP that complies with 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127, and visibility protection. 
With respect to North Carolina's infrastructure SIP submission related 
to the preconstruction PSD permitting, EPA is not proposing any action 
in this rulemaking regarding these requirements and instead will act on 
these portions of the submission in a separate action. EPA's rationale 
for its proposed action regarding applicable consultation requirements 
of section 121, the public notification requirements of section 127, 
and visibility is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
Federal Land Managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 15A NCAC 
2D .1600 General Conformity, 15A NCAC 2D .2000 Transportation 
Conformity, and 15A NCAC 2D .0531 Sources in Nonattainment Areas, along 
with the State's Regional Haze Implementation Plan, provide for 
consultation with government officials whose jurisdictions might be 
affected by SIP development activities. Specifically, North Carolina 
adopted state-wide consultation procedures for the implementation of 
transportation conformity. Implementation of transportation conformity 
as outlined in the consultation procedures requires DAQ to consult with 
Federal, state and local transportation and air quality agency 
officials on the development of motor vehicle emissions budgets. The 
Regional Haze SIP provides for consultation between appropriate state, 
local, and tribal air pollution control agencies as well as the 
corresponding FLMs. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate that the 
State meets applicable requirements related to consultation with 
government officials for the 2012 Annual PM2.5 NAAQS when 
necessary for the consultation with government officials element of 
section 110(a)(2)(J).
    Public notification (127 public notification): Rule 15A NCAC 2D 
.0300 Air Pollution Emergencies provides North Carolina with the 
authority to declare an emergency and notify the public accordingly 
when it finds a generalized condition of water or air pollution which 
is causing imminent danger to the health or safety of the public. 
Additionally, the DAQ has the North Carolina Air Awareness Program 
which is a program to educate the public on air quality issues and 
promote voluntary emission reduction measures. The DAQ also features a 
Web page providing ambient monitoring information regarding current and 
historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which 
enhances public awareness of air quality in North Carolina and 
throughout the country. EPA has made the preliminary determination that 
North Carolina's SIP and practices adequately demonstrate the State's 
ability to provide public notification related to the 2012 Annual 
PM2.5 NAAQS when necessary for the public notification 
element of section 110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. NC 
DEQ referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR 
does not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that North Carolina's infrastructure SIP 
submission is approvable for the visibility protection element of 
section 110(a)(2)(J) related to the 2012 Annual PM2.5 NAAQS 
and that North Carolina does not need to rely on its regional haze 
program to satisfy this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. This infrastructure requirement is met 
through emissions data collected through 15A NCAC 2D .0600 Monitoring: 
Recordkeeping: Reporting (authorized under NCGS 143-215.107(a)(4)), 
which requires sources to provide information needed to model potential 
impacts on air quality). NCGS 143-215.107(a) also provides authority 
for the EMC to determine by means of field sampling and other studies, 
the degree of air contamination and air pollution in the state. 
Collectively, these regulations demonstrate that North Carolina has the 
authority to perform air quality modeling and to provide relevant data 
for the purpose of predicting the effect on ambient air quality of the 
2012 Annual PM2.5 NAAQS. The submittal also states that DAQ 
currently has personnel with training and experience to conduct source-
oriented dispersion modeling that would likely be used in 
PM2.5 NAAQS applications with models approved by EPA. 
Additionally, North Carolina participates in a regional effort to 
coordinate the development of emissions inventories and conduct 
regional modeling for several NAAQS, including the 2012 Annual 
PM2.5 NAAQS, for the Southeastern states. Taken as a whole, 
North Carolina's air quality regulations and practices demonstrate that 
DAQ has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of any emissions of any 
pollutant for which a NAAQS has been promulgated, and to provide such 
information to the EPA Administrator upon request. EPA has made the 
preliminary determination that North Carolina's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
modeling, along

[[Page 47323]]

with analysis of the associated data, related to the 2012 Annual 
PM2.5 NAAQS.
    12. 110(a)(2)(L) Permitting fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover: (i) The reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    To satisfy these requirements, North Carolina's infrastructure SIP 
submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which 
requires the owner or operator of each major stationary source to pay 
to the permitting authority, as a condition of any permit required 
under the CAA, a sufficient fee to cover the costs of the permitting 
program. The 15A NCAC 2D .0500 and 2Q .0500 rules contain the State's 
title V program \22\ which includes provisions to implement and enforce 
PSD and NNSR permits once these permits have been issued. The fees 
collected under 15A NCAC 2Q .0200 also support this activity. NCGS 143-
215.3, General powers of Commission and Department; auxiliary Powers, 
provides authority for DAQ to require a processing fee in an amount 
sufficient for the reasonable cost of reviewing and acting upon PSD and 
NNSR permits. EPA has made the preliminary determination that North 
Carolina's SIP and practices adequately provide for permitting fees 
related to the 2012 Annual PM2.5 NAAQS, when necessary.
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    \22\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. 15A NCAC 2D .0530 
Prevention of Significant Deterioration requires that NC DEQ notify the 
public, including affected local entities, of PSD permit applications 
and associated information related to PSD permits, and the opportunity 
for comment prior to making final permitting decisions. NCGS 150B-21.1 
and 150B-21.2 authorize and require DAQ to advise, consult, cooperate 
and enter into agreements with other agencies of the state, the Federal 
Government, other states, interstate agencies, groups, political 
subdivisions, and industries affected by the provisions of this act, 
rules, or policies of the Department. Also, 15A NCAC 2D .2000 
Transportation Conformity requires a consultation with all affected 
partners to be implemented for transportation conformity 
determinations. Furthermore, DAQ has demonstrated consultation with, 
and participation by, affected local entities through its work with 
local political subdivisions during the developing of its 
Transportation Conformity SIP, Regional Haze Implementation Plan, and 
the 8-Hour Ozone Attainment Demonstration for the North Carolina 
portion of the Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. 
EPA has made the preliminary determination that North Carolina's SIP 
and practices adequately demonstrate consultation with affected local 
entities related to the 2012 Annual PM2.5 NAAQS, when 
necessary.

V. Proposed Action

    EPA is proposing to approve that portions of DAQ's infrastructure 
SIP submission, submitted December 4, 2015, for the 2012 Annual 
PM2.5 NAAQS, has met the above described infrastructure SIP 
requirements. The PSD permitting requirements for major sources of 
section 110(a)(2)(C) and (J), the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), will not be 
addressed by EPA at this time. EPA is proposing to approve these 
portions of North Carolina's infrastructure SIP submission for the 2012 
Annual PM2.5 NAAQS because these aspects of the submission 
are consistent with section 110 of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the 
rulemaking does not have tribal implications as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000), nor will it impose 
substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17301 Filed 7-20-16; 8:45 am]
 BILLING CODE 6560-50-P
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