Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49313 

1The June 20, 2008, SIP revision also included 

changes to NCAC Subchapter 2D, Section .2400, 

Clean Air Interstate Rule (CAIR). EPA took final 

action approving the CAIR portion of the June 20, 

2008, SIP revision on November 30, 2009. See 74 

FR 62496. 

2For more information on the 2002 NSR Reform 

Rules, and its supporting technical documents, see, 

http://www.epa.gov/nsr/actions.html#2002 (last 

visited February 16, 2011). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2005–0534–201113; FRL– 

9449–8] 

Approval and Promulgation of 

Implementation Plans North Carolina: 

Prevention of Significant Deterioration 

and Nonattainment New Source 

Review Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

approve revisions to the North Carolina 

State Implementation Plan (SIP) 

submitted by the State of North Carolina 

in three submittals dated November 30, 

2005, March 16, 2007, and June 20, 

2008. The revisions modify North 

Carolina’s Prevention of Significant 

Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) permitting 

regulations in the SIP to address 

changes to the federal New Source 

Review (NSR) regulations, which were 

promulgated by EPA on December 31, 

2002, and reconsidered with minor 

changes on November 7, 2003 

(collectively, these two final actions are 

referred to as the ‘‘2002 NSR Reform 

Rules’’). In addition, the revisions 

address an update to the NSR 

regulations promulgated by EPA on 

November 29, 2005 (hereafter referred to 

as the Ozone Implementation NSR 

Update) relating to the implementation 

of the 1997 8-hour ozone National 

Ambient Air Quality Standards 

(NAAQS). EPA proposed to approve 

these revisions on September 9, 2008, 

and received adverse comments. In this 

final action, EPA is also responding to 

the adverse comments. 

DATES: This rule will be effective 

September 9, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2005–0534. All documents in the docket 

are listed on the http:// 

www.regulations.gov Web site. Although 

listed in the index, some information 

may not be 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 to 

schedule your inspection. 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 NSR Reform, 

contact Ms. Yolanda Adams, Air 

Permits Section, at the same address 

above. Ms. Adam’s telephone number is: 

(404) 562–9214; e-mail address: 

adams.yolanda@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, references 

to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are 

intended to mean the Environmental 

Protection Agency. The supplementary 

information is arranged as follows: 

I. What action is EPA taking? 

II. What is the background for EPA’s action? 

III. Response to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. What action is EPA taking? 

EPA is taking final action to approve 

revisions to the North Carolina SIP 

regarding the State’s NSR programs. On 

November 30, 2005, March 16, 2007, 

and June 20, 2008, the State of North 

Carolina, through the North Carolina 

Department of Environment and Natural 

Resources (NC DENR), submitted 

revisions to the North Carolina SIP. The 

SIP revisions consist of changes to 

North Carolina Air Quality Rules, 

Subchapter 2D. Specifically, the 

November 30, 2005, proposed SIP 

revision includes changes to Regulation 

15A North Carolina Administrative 

Code (NCAC) 2D .0531, ‘‘Sources in 

Nonattainment Areas.’’ The March 16, 

2007, proposed SIP revision includes 

changes to Regulation 15A NCAC 2D 

.0530, ‘‘Prevention of Significant 

Deterioration.’’ The June 20, 2008, 

proposed SIP revision 1 includes 

additional changes to Regulations 15A 

NCAC 2D .0530, and .0531. NC DENR 

submitted these revisions in response to 

EPA’s December 31, 2002, November 7, 

2003, and November 29, 2005, revisions 

to the federal NSR program. Pursuant to 

section 110 of the Clean Air Act (CAA 

or Act), EPA is taking final action to 

approve these SIP revisions. 

II. What is the background for EPA’s 

action? 

On December 31, 2002 (67 FR 80186), 

EPA published final rule changes to 40 

Code of Federal Regulations (CFR) parts 

51 and 52, regarding the CAA’s PSD and 

NNSR programs. On November 7, 2003 

(68 FR 63021), EPA published a notice 

of final action on the reconsideration of 

the December 31, 2002, final rule 

changes. The December 31, 2002, and 

the November 7, 2003, final actions are 

collectively referred to as the ‘‘2002 

NSR Reform Rules.’’ 2 For additional 

information on the 2002 NSR Reform 

Rules, see 67 FR 80186 (December 31, 

2002). For information on the 

subsequent revisions to these rules, see 

http://www.epa.gov/nsr. 

Also relevant to NC DENR’s SIP 

revisions, on November 29, 2005 (70 FR 

71612), EPA promulgated 

implementation provisions for the 1997 

8-hour NAAQS which made changes to 

the NSR regulations. These included, 

among other changes, a requirement that 

emissions of nitrogen oxides (NOx) be 

considered a precursor to ozone. These 

rules are commonly referred to as the 

Ozone Implementation NSR Update. 

On November 30, 2005, March 16, 

2007, and June 20, 2008, NC DENR 

submitted SIP revisions to EPA for the 

purpose of revising the State’s NSR 

permitting provisions to adopt EPA’s 

2002 NSR Reform Rules and the Ozone 

Implementation NSR Update. These SIP 

revisions incorporate by reference (IBR) 

the federal NSR rules at 40 CFR 51.166 

and 51.165, as amended on June 13, 

2007, with several changes. See EPA’s 

analysis of the State’s NSR SIP revisions 

in the September 9, 2008, proposed 

rulemaking. See 73 FR 52226. Copies of 

North Carolina’s revised NSR rules, as 

well as the State’s Technical Support 

Document, can be obtained from the 

docket, as discussed in the ADDRESSES

section above. 

On September 9, 2008 (73 FR 52226), 

EPA proposed to approve the abovereferenced SIP revisions. In response to 

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49314 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

3NRDC notes that, ‘‘[t]he 2002 rule provisions 

considered by the D.C. Circuit in New York v. EPA 

were EPA regulations, not state ones. The court thus 

had no occasion to decide whether EPA could 

approve any state’s versions of any of the 2002 rule 

provisions consistently with section 110(l) of the 

Act.’’ NRDC Comments at 3. The North Carolina 

rules at issue here track the federally approved 

rules (upheld by the DC Circuit) (which NRDC 

admits—NRDC Comments at 4) and NRDC 

supported all its comments with information 

related to the challenge of EPA’s 2002 NSR Reform 

Rules. NRDC provided no North Carolina-specific 

support for its comments. 

4Similar comments were filed by Sierra Club on 

the Wisconsin NSR Reform SIP revision. EPA’s 

response to comments in that matter may be 

reviewed at http://www.regulations.gov—document 

ID EPA–R05–OAR–2006–0609–0009. EPA was 

successful in defending a challenge to approval of 

Wisconsin’s NSR Reform SIP revision. See NRDC v. 

Jackson, Nos. 09–1405 & 10–2123 (7th Cir., Jun. 16, 

2011), 2011 US App LEXIS 12116. 

a request for an extension of the public 

comment period for EPA’s September 9, 

2008, proposed rulemaking, EPA 

extended the public comment period 

through November 10, 2008 (73 FR 

58084). EPA received adverse comments 

from the National Resource Defense 

Council (NRDC) and the Duke Energy 

Corporation (DEC) regarding North 

Carolina’s NSR Reform Rule changes. 

No adverse comments were received for 

North Carolina’s rule changes to adopt 

the provisions of the Ozone 

Implementation NSR Update. EPA’s 

response to these comments is below in 

section III of this final rulemaking. 

EPA’s analysis of the State’s NSR SIP 

revisions is contained in the September 

9, 2008, proposed rulemaking, and 

briefly summarized as follows. See 73 

FR 52226. 

EPA’s evaluation of the North 

Carolina SIP submittals included a lineby-line comparison of the proposed 

revisions with the federal requirements. 

As a general matter, state agencies may 

meet the requirements of 40 CFR part 

51, and the 2002 NSR Reform Rules, 

with different but equivalent 

regulations. As mentioned above, North 

Carolina chose to IBR the federal rules 

with several changes. The definition of 

‘‘baseline actual emissions’’ at 

subchapter 2D .0530(b)(1) and 

.0531(a)(1) was changed to remove the 

provision allowing emissions units that 

are not electric utility steam generating 

units (EUSGUs) to look back 10 years to 

select the baseline period. North 

Carolina rules treat EUSGUs and nonEUSGUs the same by allowing a look 

back of only 5 years. However, North 

Carolina rules provide the option of 

allowing a different time period, not to 

exceed 10 years, if the owner or operator 

demonstrates that it is more 

representative of normal source 

operation. In addition, North Carolina 

rules require EUSGUs to adjust 

downward the baseline emissions to 

account for reductions required under 

the North Carolina Clean Smokestack 

Act (CSA) (a state law mandating 

emission reductions from certain 

EUSGUs). North Carolina’s rules also 

include some changes from the federal 

rules regarding recordkeeping and 

reporting; plant-wide applicability 

limits; and clarifications regarding the 

use of emissions reductions from the 

CSA. One such clarification is that any 

allowances for emissions reductions 

achieved under the CSA are not 

available to the subject facilities, nor 

any other sources, and may not be used 

to offset emissions and avoid 

installation of best available control 

technology or lowest achievable 

emissions rate on new natural gas-fired 

units. A full discussion of the 

differences between the North Carolina 

rules and the federal rules is available 

in the proposal action. See 73 FR 52226. 

III. Response to Comments 

EPA received two sets of adverse 

comments on the September 9, 2008, 

proposed rulemaking to approve North 

Carolina’s November 30, 2005, March 

16, 2007, and June 20, 2008, SIP 

revisions. Specifically, adverse 

comments were received from NRDC 

and DEC. A complete set of these 

comments is provided in the docket for 

today’s rulemaking. EPA’s response to 

these adverse comments is provided 

below. 

A. EPA’s Response to NRDC Comments 

NRDC commented on EPA’s proposed 

rulemaking to approve North Carolina’s 

NSR rule changes. Specifically, NRDC 

primarily commented on the 

requirements of the federal NSR rules, 

not North Carolina’s application of the 

federal requirements in its own rules. 

Notably, NRDC participated in litigation 

challenging EPA’s 2002 promulgation of 

the NSR Reform Rules, where similar 

arguments were made by NRDC and 

dismissed by the D.C. Circuit Court. 

New York v. EPA, 413 F.3d 3 (DC Cir. 

2005). NRDC’s comments, including 

exhibits, do not raise any specific 

concerns with North Carolina’s rules, 

but rather, reiterate arguments made by 

NRDC to the D.C. Circuit regarding 

sections 110(l) and 193 of the CAA.3

While NRDC’s comments provide 

citations to eleven portions of the North 

Carolina rules, the comments make no 

attempt to specifically explain or 

demonstrate how those identified 

provisions are inconsistent with either 

section 110(l) or section 193 of the CAA. 

Furthermore, NRDC provides no 

evidence supporting its allegations that 

approval of the specific provisions 

would result in a violation of the CAA 

or otherwise be ‘‘arbitrary, capricious, 

an abuse of discretion, and otherwise 

not in accordance with law.’’ NRDC 

Comments at 2. 

The NRDC comments include a list of 

31 exhibits which the comment letter 

incorporates by reference into the 

comments. NRDC Comments at 1. The 

31 exhibits appear to all be related to 

the DC Circuit Court case New York v. 

EPA, and were either submitted to that 

Court for review, or are relevant to that 

adjudication. To the extent that these 

exhibits were provided to the DC 

Circuit, those issues were previously 

resolved by the Court and/or already 

responded to by EPA in its responsive 

court papers. Any other documents 

included in the 31 exhibits that were 

not provided to the DC Circuit Court do 

not provide EPA with any comments 

specific to the North Carolina rules at 

issue. 

Despite the lack of North Carolinaspecific discussion in NRDC’s letter, 

EPA has responded to the few 

comments that appear related to the 

September 9, 2008, proposed 

rulemaking to approve North Carolina’s 

SIP revision pertaining to EPA’s 2002 

NSR Reform Rules.4

Comment 1: In summary, NRDC 

stated that finalizing the EPA September 

9, 2008, proposed rulemaking to 

approve North Carolina’s November 30, 

2005, March 16, 2007, and June 20, 

2008, SIP revisions would violate 

section 110(l) of the Act. NRDC 

comments at 1–6. As support for its 

conclusion, NRDC asserted that ‘‘[t]he 

2002 NSR Reform Rule provisions that 

were not vacated by the DC Circuit in 

New York v. EPA [citation omitted] 

allow previously-prohibited emissionsincreases to occur.’’ NRDC comments at 

4. Further, that ‘‘North Carolina 

nevertheless has made no 

‘demonstration that the emissions that 

are allowed by its revised rule but are 

prohibited by the current SIP would not 

interfere with attainment or other 

applicable requirements.’ ’’ As a result, 

NRDC stated that, ‘‘it cannot be said of 

North Carolina’s plan that it ‘will cause 

no degradation of air quality.’ ’’ NRDC 

comments at 5. NRDC also stated that 

EPA has not made any findings that 

North Carolina’s rule will not cause 

degradation of air quality or interfere 

with any applicable requirements 

concerning attainment and reasonable 

further progress, or any other applicable 

requirements of the CAA. NRDC 

comments at 5. 

Response 1: EPA’s 2002 NSR Reform 

Rules were upheld by the DC Circuit 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49315 

5 In reviewing EPA’s approval of a Wisconsin SIP 

amendment that adopted the 2002 NSR Reform 

rules, a federal appeals court recently held that EPA 

could rely on the Supplemental Analysis in support 

of its approval. See NRDC v. Jackson, Nos. 09–1405 

& 10–2123 (7th Cir., Jun. 16, 2011), 2011 US App 

LEXIS 12116. 

Court which reviewed them, with the 

exception of the pollution control 

project and clean unit provisions (and 

the remanded matters). The three 

significant changes in NSR Reform that 

were upheld by the DC Circuit were: (1) 

Plant-wide applicability limits (PALs), 

(2) the 2-in-10 baseline, and (3) the 

actual-to-projected actual emission test. 

The Supplemental Environmental 

Analysis of the Impact of the 2002 Final 

NSR Improvement Rules (November 21, 

2002) (Supplemental Analysis) 

discussed each of these three changes 

individually, and addresses some of the 

issues raised by NRDC. 

With regard to PALs, the 

Supplemental Analysis explained, 

‘‘[t]he EPA expects that the adoption of 

PAL provisions will result in a net 

environmental benefit. Our experience 

to date is that the emissions caps found 

in PAL-type permits result in real 

emissions reductions, as well as other 

benefits.’’ Supplemental Analysis at 6. 

EPA further explained that, 

‘‘Although it is impossible to predict how 

many and which sources will take PALs, and 

what actual reductions those sources will 

achieve for what pollutants, we believe that, 

on a nationwide basis, PALs are certain to 

lead to tens of thousands of tons of 

reductions of [volatile organic compounds] 

from source categories where frequent 

operational changes are made, where these 

changes are time-sensitive, and where there 

are opportunities for economical air 

pollution control measures. These reductions 

occur because of the incentives that the PAL 

creates to control existing and new units in 

order to provide room under the cap to make 

necessary operational changes over the life of 

the PAL.’’ 

Supplemental Analysis at 7. The 

Supplemental Analysis, and particularly 

Appendix B, provided additional details 

regarding EPA’s analysis of PALs and 

anticipated associated emission 

decreases. 

With regard to the 2-in-10 baseline, 

EPA concluded that, ‘‘[t]he EPA believes 

that the environmental impact from the 

change in baseline EPA is now 

finalizing will not result in any 

significant change in benefits derived 

from the NSR program.’’ Supplemental 

Analysis at 13. This is mainly because 

‘‘the number of sources receiving 

different baselines likely represents a 

very small fraction of the overall NSR 

permit universe, excludes new sources 

and coal fired power plants, and 

because the baseline may shift in either 

direction, we conclude that any overall 

consequences would be negligible.’’ 

Supplemental Analysis at 14. 

Additional information regarding the 2- 

in-10 baseline changes is available in 

the Supplemental Analysis, Appendix 

F. 

With regard to the actual-to-projected 

actual test, EPA concluded, ‘‘we believe 

that the environmental impacts of the 

switch to the actual-to-projected actual 

test are likely to be environmentally 

beneficial. However, as with the change 

to the baseline, we believe the vast 

majority of sources, including new 

sources, new units, electric utility steam 

generating units, and units that actually 

increase emissions as a result of a 

change, will be unaffected by this 

change. Thus, the overall impacts of the 

NSR changes are likely to be 

environmentally beneficial, but only to 

a small extent.’’ Supplemental Analysis 

at 14 (see also Supplemental Analysis 

Appendix G). 

Section 110(l) of the CAA states, in 

relevant part, that ‘‘[t]he Administrator 

shall not approve a revision of a plan if 

the revision would interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress * * * or any other applicable 

requirement of this chapter.’’ CAA, 42 

U.S.C. 7410(l). In ‘‘Approval and 

Promulgation of Implementation Plans; 

New Source Review; State of Nevada, 

Clark County Department of Air Quality 

and Environmental Management,’’ 69 

FR 54006 (September 7, 2004), EPA 

stated that section 110(l) does not 

preclude SIP relaxations. Rather, EPA 

stated that section 110(l) only requires 

that the ‘‘relaxations not interfere with 

specified requirements of the Act 

including requirements for attainment 

and reasonable further progress,’’ and 

that, therefore, a state can relax its SIP 

provisions if it is able to show that it can 

attain or maintain the NAAQS and meet 

any applicable reasonable further 

progress goals or other specific 

requirements. See 69 FR at 54011–12. 

North Carolina’s November 30, 2005, 

March 16, 2007, and June 20, 2008, SIP 

revisions track the federal NSR Reform 

Rules, with changes, as described in 

North Carolina’s SIP revisions. EPA 

evaluated North Carolina’s rules 

consistent with its evaluation of the 

federal rules, and determined that North 

Carolina’s rules were equivalent to or 

more stringent than the 2002 NSR 

Reform Rules. Overall, as summarized 

above, EPA expects that changes in air 

quality as a result of implementing 

North Carolina’s rules as updated by the 

aforementioned SIP revisions is 

consistent with EPA’s position on the 

federal NSR Reform Rules—that there 

will be somewhere between neutral and 

providing modest contribution to 

reasonable further progress between the 

NSR Reform and pre-Reform provisions. 

EPA’s analysis for the environmental 

impacts of the three components of the 

NSR Reform rules (discussed earlier) is 

informative of how North Carolina’s 

adoption of NSR Reform (based on the 

federal rules) will affect emissions. EPA 

has no reason to believe that the 

environmental impacts will be different 

from those discussed in the 

Supplemental Analysis for the NSR 

Reform Rules, and thus, approval of the 

November 30, 2005, March 16, 2007, 

and June 20, 2008, SIP revisions related 

to NSR Reform would not be contrary to 

section 110(l) of the CAA.5

Comment 2: NRDC cites to eleven 

general portions of North Carolina’s 

rules as provisions that would violate 

section 110(l). These provisions are: 

Regulation 15A North Carolina 

Administrative Code (NCAC), 

Subchapter 2D .0530, subsections (a), 

(b), (g), (i), (u), and (v) (from North 

Carolina’s PSD rules); and Subchapter 

2D .0531, subsections (a), (c), (n), (o), 

and (p) (from North Carolina’s NNSR 

rules). 

Response 2: With regard to the 

comments, NRDC provides no evidence 

supporting its contention that these 

specific provisions violate section 

110(l). The first provision noted by 

NRDC, 15A NCAC 02D .0530(a) states 

the general purpose of the rule to 

implement North Carolina’s PSD 

program, which does include some 

changes per the SIP revisions at issue. 

Nonetheless, without further specificity, 

it is not clear why or how NRDC 

believes this provision is a violation of 

section 110(l). In addition, NRDC has 

provided no North Carolina-specific 

documentation that indicates that EPA’s 

analysis and conclusions regarding the 

impact of NSR Reform, in the 

Supplemental Analysis, is not 

applicable to North Carolina’s rules, 

which are equivalent to or more 

stringent than the federal rules. 

In evaluating North Carolina’s 

November 30, 2005, March 16, 2007, 

and June 20, 2008, SIP revisions, EPA 

compared North Carolina’s rules with 

the existing federal rules and 

determined that North Carolina’s rules 

were equivalent to or more stringent 

than the NSR Reform (federal) rules. 

EPA also considered North Carolina’s 

changes to the federal NSR Reform 

provisions. These changes were 

discussed in EPA’s September 9, 2008, 

proposed rulemaking to approve North 

Carolina’s three SIP revisions related to 

NSR Reform, and are discussed in North 

Carolina’s final submittal (including 

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49316 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

North Carolina’s response to comments 

received during the State public 

process), which are included in the 

docket for today’s final action. As was 

explained in EPA’s September 9, 2008, 

proposed rulemaking, EPA agrees with 

North Carolina’s conclusion that the 

changes are at least equivalent to the 

Federal rules. See 73 FR 52228–52229. 

EPA also considered the Supplemental 

Analysis in reviewing North Carolinas’s 

three SIP revisions related to NSR 

Reform, and NRDC’s comments. EPA 

concluded that approval of North 

Carolina’s SIP revisions would not be 

contrary to section 110(l) of the CAA. 

Absent more explicit information 

demonstrating that North Carolina’s 

plan for implementation of a specific 

provision of its rules would interfere 

with any applicable requirement of the 

CAA and thus should be disapproved 

under section 110(l), EPA is concluding 

that North Carolina’s Technical Support 

Document and the Supplemental 

Analysis supports approval. As a result, 

there is no basis on which to determine 

that approval of North Carolina’s rules 

would violate section 110(l). 

Comment 3: NRDC states that NSR is 

a ‘‘control requirement’’ and thus the 

requirements of section 193 apply to the 

NSR rules at issue in North Carolina’s 

November 30, 2005, March 16, 2007, 

and June 20, 2008, SIP revisions. NRDC 

comments at 7. NRDC further alleges 

that North Carolina’s revisions ‘‘ensure 

that emissions will not be reduced as 

much as under the pre-existing rules. In 

fact, the modifications allow emissions 

to increase in North Carolina’s 

nonattainment areas.’’ NRDC comments 

at 9. Finally, NRDC states that ‘‘because 

section 193 lies within part D,’’ ‘‘if EPA 

approves North Carolina’s revised plan, 

that action will additionally exceed the 

agency’s authority under section 

110(k)(3) and violate section 100(l).’’ 

(Note, the last citation to 100(l) appears 

to be a typographical error and should 

read 110(l).) NRDC comments at 10. 

Response 3: EPA’s response to the 

section 193 issues raised by NRDC 

involves many of the same elements of 

the response above to the section 110(l) 

comments, which is also incorporated 

by reference here. Section 193 states (in 

relevant part), that ‘‘[n]o control 

requirement in effect, or required to be 

adopted by an order, settlement 

agreement, or plan in effect before 

November 15, 1990, in any area which 

is a nonattainment area for any air 

pollutant may be modified after 

November 15, 1990, in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant.’’ 

Assuming for purposes of this 

discussion that section 193 does apply 

to the instant action, as was discussed 

earlier in this notice, EPA has 

previously determined and explained in 

the Supplemental Analysis, that 

implementation of the 2002 NSR Reform 

Rule provisions still in effect (that is, 

those not vacated by the DC Circuit) are 

expected to have at least a neutral 

environmental benefit. While North 

Carolina’s rules do include some 

changes from the Federal rules, in the 

September 9, 2008, proposed 

rulemaking, EPA explained the basis for 

its evaluation that the differences do not 

make North Carolina’s NSR program 

less stringent than the federal program. 

EPA has no information indicating that 

findings associated with EPA’s 

Supplemental Analysis would not apply 

in North Carolina—that is, that North 

Carolina’s SIP revisions would have at 

least a neutral environmental benefit. 

See e.g., NRDC v. Jackson, Nos. 09–1405 

& 10–2123 (7th Cir., Jun. 16, 2011), 2011 

US App LEXIS 12116 (upholding EPA’s 

reliance on the Supplemental Analysis 

where there was no information 

indicating an alternative outcome or 

analysis). Therefore, even if section 193 

did apply to this action, EPA does not 

agree with commenter’s assertions that 

the SIP revisions approved in this action 

raise a section 193 concern. 

In addition, the core of NRDC’s 

argument seems to revolve around the 

DC Circuit Court decision in South 

Coast Air Quality Management District 

v. EPA, 472 F.3d 882 (DC Cir. 2006) 

(finding that NSR associated with the 1- 

hour ozone NAAQS included control 

requirements). At issue in South Coast 

v.EPA was EPA’s determination 

regarding the revocation of the entire 1- 

hour ozone program (and corresponding 

SIP elements), including all the 1-hour 

nonattainment NSR elements, and 

whether such elements would continue 

to be required as part of SIPs 

implementing the new (at that time) 8- 

hour ozone NAAQS. The facts in the 

South Coast v. EPA case are 

distinguishable from the instant matter 

where the North Carolina SIP is merely 

being updated to include changes to the 

Federal NSR program. EPA is not 

removing the entirety of North 

Carolina’s NNSR program from the SIP 

as it pertains to a particular NAAQS. 

Rather, EPA is simply approving North 

Carolina’s SIP revisions that adopt rules 

equivalent to or more stringent than the 

federal rules; and as discussed earlier in 

this notice, EPA developed a 

Supplemental Analysis to support 

adoption of the federal rules. The North 

Carolina SIP will continue to operate 

with the full suite of NSR related 

elements, including a comprehensive 

minor source program. 

B. EPA’s Response to DEC Comments 

DEC also commented on EPA’s 

September 9, 2008, proposed 

rulemaking to approve North Carolina’s 

NSR rule. DEC primarily commented on 

the requirements that electric utilities 

adjust downward the baseline emissions 

to account for reductions achieved and 

paid for as a result of the North Carolina 

CSA. Below summarizes DEC’s 

comment and EPA’s response. 

Comment 4: DEC indicated that EPA 

should not approve these provisions 

into North Carolina’s SIP because: (1) 

They are not required by the CAA and 

the federal NSR regulations; (2) they 

have nothing to do with air quality 

concerns; and (3) the General Assembly 

of North Carolina adopted legislation 

which provides specific exceptions from 

the requirement to adjust baseline 

emissions downward based on the CSA. 

Response 4: As a point of background, 

on August 21, 2009, North Carolina 

provided a SIP revision to EPA 

requesting that EPA incorporate the 

provisions of the CSA into the SIP. The 

submittal was necessary to ensure 

attainment and maintenance of the 

NAAQS within North Carolina (North 

Carolina has relied, and continues to 

rely, on the CSA reductions to 

demonstrate attainment with more than 

one NAAQS). As part of redesignation 

submittals for at least two areas in North 

Carolina, for the 1997 annual PM2.5

NAAQS, North Carolina is relying on 

the CSA as containing ‘‘permanent and 

enforceable’’ measures that ensure 

maintenance for that NAAQS. That 

reliance necessitated that North 

Carolina submit to EPA the CSA for 

approval into the SIP. On June 22, 2011, 

EPA proposed to approve the CSA into 

the North Carolina SIP. See 76 FR 

36468. 

As was explained in the proposal 

action, North Carolina’s rules include a 

requirement that EUSGUs adjust 

downward the baseline emissions to 

account for reductions required under 

the North Carolina Clean Smokestack 

Act. DEC’s comments appear to suggest 

that because the CSA reductions are not 

required, this provision should not be 

approved into the SIP. Further, that the 

North Carolina legislature took action to 

eliminate this provision for at least a 

certain period of time. Consistent with 

the background information provided 

above, because North Carolina is in fact 

relying on the CSA reductions for 

attainment and maintenance of NAAQS 

for various areas around North Carolina, 

the provision is actually necessary to 

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Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 49317 

ensure that the reductions remain 

permanent and enforceable. While there 

remains some flexibility in how those 

reductions are achieved per the CSA, 

once achieved, they must be permanent. 

With regard to the action taken by the 

legislature on July 17, 2006 (the text of 

which DEC included as part of its 

comments), the language itself in Senate 

Bill 1587 only applies between April 21, 

2005, and August 1, 2006. Because that 

time period has lapsed, there is nothing 

apparent in Senate Bill 1587 that could 

impact approval of the SIP revisions 

currently being approved today. The 

comment letter does not explain why a 

provision that lapsed on August 1, 2006, 

would apply to today’s rulemaking and 

PSD applicability going forward from 

the effective date of today’s rule. As a 

general matter, EPA does not necessarily 

agree with DEC’s legal arguments; 

however, given that Senate Bill 1587 

does not apply currently, these 

differences need not be resolved at this 

time. The NSR reform rules being 

approved today would apply to the 

facilities at issue under the CSA once 

today’s action is final and effective, per 

the provisions of the State rules now 

being incorporated into the SIP. 

IV. Final Action 

EPA is taking final action to approve 

revisions to the North Carolina SIP for 

Regulations 15A NCAC 2D .0530 and 

.0531, as submitted by the NC DENR on 

November 30, 2005, March 16, 2007, 

and June 20, 2008. These SIP revisions 

address changes to North Carolina’s PSD 

and NNSR programs. EPA is approving 

these revisions into the North Carolina 

SIP because they are consistent with 

section 110 of the CAA and its 

implementing regulations. 

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 

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 October 11, 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 section 

307(b)(2). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: July 25, 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 revising the entries for ‘‘Sect 

.0530’’ and ‘‘Sect .0531’’ to read as 

follows: 

§ 52.1770 Identification of plan. 

* * * * * 

(c) * * * 

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49318 Federal Register / Vol. 76, No. 154 / Wednesday, August 10, 2011 / Rules and Regulations 

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 .0530 ..................... Prevention of Significant 

Deterioration.

5/1/2008 8/10/2011 [Insert citation 

of publication].

15 NCAC .0530 incorporates by reference the 

regulations found at 40 CFR 51.166, with 

changes, as of June 13, 2007. This EPA action is approving the incorporation by reference with the exception of the phrase ‘‘except ethanol production facilities producing 

ethanol by natural fermentation under the 

North American Industry Classification System 

(NAICS) codes 325193 or 312140,’’ (as 

amended at 40 CFR 51.166(b)(1)(i)(a), 

(b)(1)(iii)(t), and (i)(1)(ii)(t). 

Sect .0531 ..................... Sources in Nonattainment Areas.5/1/2008 8/10/2011 [Insert citation 

of publication].

15 NCAC .0531 incorporates by reference the 

regulations found at 40 CFR 51.165, with 

changes, as of June 13, 2007. This EPA action is approving the incorporation by reference with the exception of the phrase ‘‘except ethanol production facilities producing 

ethanol by natural fermentation under the 

North American Industry Classification System 

(NAICS) codes 325193 or 312140,’’ (as 

amended at 40 CFR 51.165(a)(1)(iv)(C)(20) 

and (a)(4)(xx). 

*******

* * * * * 

[FR Doc. 2011–20167 Filed 8–9–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2009–0629; FRL–8882–5] 

Import Tolerances; Order Denying 

ABC’s Petition to Revoke Import 

Tolerances for Various Pesticides 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Order. 

SUMMARY: In this Order, EPA denies a 

petition requesting that EPA revoke all 

pesticide ‘‘import’’ tolerances for 

cadusafos, cyproconazole, diazinon, 

dithianon, diquat, dimethoate, 

fenamiphos, mevinphos, methomyl, 

naled, phorate, terbufos, and dichlorvos 

(DDVP) under section 408(d) of the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA). The petition was filed on July 

23, 2009, by the American Bird 

Conservancy (ABC). 

DATES: This order is effective August 10, 

2011. Objections and requests for 

hearings must be received on or before 

October 11, 2011, and must be filed in 

accordance with the instructions 

provided in 40 CFR part 178 (see also 

Unit I.C. of the SUPPLEMENTARY

INFORMATION). 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPP–2009–0629. To access the 

electronic docket, go to http://www.

regulations.gov, select ‘‘Advanced 

Search,’’ then ‘‘Docket Search.’’ Insert 

the docket ID number where indicated 

and select the ‘‘Submit’’ button. Follow 

the instructions on the regulations.gov 

Web site to view the docket index or 

access available documents. All 

documents in the docket are listed in 

the docket index available in 

regulations.gov. Although listed in the 

index, some information is not publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPP 

Regulatory Public Docket in Rm. S– 

4400, One Potomac Yard (South Bldg.), 

2777 S. Crystal Dr., Arlington, VA. The 

Docket Facility is open from 8:30 a.m. 

to 4 p.m., Monday through Friday, 

excluding legal holidays. The Docket 

Facility telephone number is (703) 305– 

5805. 

FOR FURTHER INFORMATION CONTACT: 

Richard Dumas, Pesticide Re-evaluation 

Division (7508P), Office of Pesticide 

Programs, Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001; telephone 

number: (703) 308–8015; e-mail 

address: dumas.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

In this document EPA denies a 

petition by the American Bird 

Conservancy (ABC) to revoke pesticide 

tolerances. This action may also be of 

interest to agricultural producers, food 

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