77952 Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Proposed Rules 

As shown above in Table 1, during 

the 2008–2010 design period, the 

Atlanta Area met the 1997 8-hour ozone 

NAAQS. The official annual design 

value for the Atlanta Area for the 2008– 

2010 period is 0.080 ppm. More detailed 

information on the monitoring data for 

the Atlanta Area during the 2008–2010 

design period is provided in EPA’s June 

23, 2011, final rulemaking to approve 

the clean data determination for the 

Atlanta Area for the 1997 8-hour ozone 

NAAQS. See 76 FR 36873. 

IV. What is the proposed action and 

what is the effect of this action? 

This action is a proposed 

determination that the Atlanta Area has 

attained the 1997 8-hour ozone NAAQS 

by its applicable attainment date of June 

15, 2011, consistent with the CAA 

section 179(c)(1). Finalizing this 

proposed action would not constitute a 

redesignation of the Atlanta Area to 

attainment of 1997 8-hour ozone 

NAAQS under section 107(d)(3) of the 

CAA. Further, finalizing this proposed 

action does not involve approving a 

maintenance plan for the Atlanta Area 

as required under section 175A of the 

CAA, nor would it find that the Atlanta 

Area has met all other requirements for 

redesignation. Even if EPA finalizes 

today’s proposed action, the designation 

status of the Atlanta Area would remain 

nonattainment for the 1997 8-hour 

ozone NAAQS until such time as EPA 

determines that the Area meets the CAA 

requirements for redesignation to 

attainment and takes action to 

redesignate the Area. 

V. Statutory and Executive Order 

Reviews 

This action proposes to make a 

determination of attainment based on 

air quality, and would not impose 

additional requirements beyond those 

imposed by state law. For that reason, 

this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed 

determination that the Atlanta Area 

attained the 1997 8-hour ozone NAAQS 

by its applicable attainment date does 

not have tribal implications as specified 

by Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIPs are 

not approved to apply in Indian country 

located in the states, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: December 8, 2011. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2011–32178 Filed 12–14–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2011–0352–201120; FRL– 

9507–4] 

Approval and Promulgation of 

Implementation Plans; North Carolina; 

110(a)(1) and (2) Infrastructure 

Requirements for the 1997 8-Hour 

Ozone National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

in part, and to conditionally approve or 

disapprove in part, the State 

Implementation Plan (SIP), submitted 

by the State of North Carolina, through 

the Department of Environment and 

Natural Resources (NC DENR), Division 

of Air Quality (DAQ), to demonstrate 

that the State meets the requirements of 

sections 110(a)(1) and (2) of the Clean 

Air Act (CAA or Act) for the 1997 

8-hour ozone national ambient air 

quality standards (NAAQS). Section 

110(a) of the CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by the EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. DAQ certified that 

the North Carolina SIP contains 

provisions that ensure the 1997 8-hour 

ozone NAAQS are implemented, 

enforced, and maintained in North 

Carolina (hereafter referred to as 

‘‘infrastructure submission’’). With the 

exception of sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

determine that North Carolina’s 

infrastructure submission, provided to 

EPA on December 12, 2007, and 

clarified in a subsequent submission 

submitted on June 20, 2008, addressed 

the required infrastructure elements for 

the 1997 8-hour ozone NAAQS. 

DATES: Written comments must be 

received on or before January 17, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2011–0352, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. Email: benjamin.lynorae@epa.gov. 

3. Fax: (404) 562–9140. 

4. Mail: ‘‘EPA–R04–OAR–2011– 

0352,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, 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. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding federal 

holidays. 


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Federal Register / Vol. 76, No. 241 / Thursday, December 15, 2011 / Proposed Rules 77953 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2011– 

0352. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

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

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

Table of Contents 

I. Background 

II. What elements are required under sections 

110(a)(1) and (2)? 

III. Scope of Infrastructure SIPs 

IV. What is EPA’s analysis of how North 

Carolina addressed the elements of 

sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997, EPA promulgated a 

new NAAQS for ozone based on 8-hour 

average concentrations. The 8-hour 

averaging period replaced the previous 

1-hour averaging period, and the level of 

the NAAQS was changed from 0.12 

parts per million (ppm) to 0.08 ppm. 

See 62 FR 38856. Pursuant to section 

110(a)(1) of the CAA, states are required 

to submit SIPs meeting the requirements 

of section 110(a)(2) within three years 

after promulgation of a new or revised 

NAAQS. Sections 110(a)(2) require 

states to address basic SIP requirements, 

including emissions inventories, 

monitoring, and modeling to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 1997 8-hour ozone 

NAAQS to EPA no later than June 2000. 

However, intervening litigation over the 

1997 8-hour ozone NAAQS created 

uncertainty about how to proceed and 

many states did not provide the 

required ‘‘infrastructure’’ SIP 

submission for these newly promulgated 

NAAQS. 

On March 4, 2004, Earthjustice 

submitted a notice of intent to sue 

related to EPA’s failure to issue findings 

of failure to submit related to the 

‘‘infrastructure’’ requirements for the 

1997 8-hour ozone NAAQS. EPA 

entered into a consent decree with 

Earthjustice which required EPA, among 

other things, to complete a Federal 

Register notice announcing EPA’s 

determinations pursuant to section 

110(k)(1)(B) as to whether each state had 

made complete submissions to meet the 

requirements of section 110(a)(2) for the 

1997 8-hour ozone NAAQS by 

December 15, 2007. Subsequently, EPA 

received an extension of the date to 

complete this Federal Register notice 

until March 17, 2008, based upon 

agreement to make the findings with 

respect to submissions made by January 

7, 2008. In accordance with the consent 

decree, EPA made completeness 

findings for each state based upon what 

the Agency received from each state as 

of January 7, 2008. 

On March 27, 2008, EPA published a 

final rulemaking entitled, 

‘‘Completeness Findings for Section 

110(a) State Implementation Plans; 8- 

Hour Ozone NAAQS,’’ making a finding 

that each state had submitted or failed 

to submit a complete SIP that provided 

the basic program elements of section 

110(a)(2) necessary to implement the 

1997 8-hour ozone NAAQS. See 73 FR 

16205. For those states that did receive 

findings, such as North Carolina, the 

findings of failure to submit for all or a 

portion of a state’s implementation plan 

established a 24-month deadline for 

EPA to promulgate a Federal 

Implementation Plan (FIP) to address 

the outstanding SIP elements unless, 

prior to that time, the affected states 

submitted, and EPA approved, the 

required SIPs. However, the findings of 

failure to submit did not impose 

sanctions or set deadlines for imposing 

sanctions as described in section 179 of 

the CAA, because these findings do not 

pertain to the elements contained in the 

Title I part D plan for nonattainment 

areas as required under section 

110(a)(2)(I). Additionally, the findings 

of failure to submit for the infrastructure 

submittals are not a SIP call pursuant to 

section 110(k)(5). 

The finding that all or portions of a 

state’s submission are complete 

established a 12-month deadline for 

EPA to take action upon the complete 

SIP elements in accordance with section 

110(k). North Carolina’s infrastructure 

submission was received by EPA on 

December 12, 2007, and was determined 

to be complete on March 27, 2008, for 

all elements with the exception of 

110(a)(2)(C) and (J). Specifically, 

110(a)(2)(C) and (J) relate to a SIP 

addressing changes to its part C 

prevention of significant deterioration 

(PSD) permit program required by the 

November 29, 2005, final rule (See 70 

FR 71612, 71699) that made nitrogen 

oxides (NOX) a precursor for ozone in 40 

CFR 51.166 and 40 CFR 52.21. North 

Carolina was among other states that 

received a finding of failure to submit 

because its infrastructure submission 

was not complete for elements (C) and 

(J) for the 1997 8-hour ozone NAAQS by 

March 1, 2008. The finding of failure to 

submit action triggered a 24-month 


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1Two 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. Today’s proposed 

rulemaking does not address infrastructure 

elements related to section 110(a)(2)(I) or the 

nonattainment planning requirements of 

110(a)(2)(C). 

2This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

3Today’s proposed rule does not address element 

110(a)(2)(D)(i) (Interstate Transport) for the 1997 8- 

hour ozone NAAQS. Interstate transport 

requirements were formerly addressed by North 

Carolina consistent with the Clean Air Interstate 

Rule (CAIR). On December 23, 2008, CAIR was 

remanded by the DC Circuit Court of Appeals, 

without vacatur, back to EPA. See North Carolina 

v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this 

remand, EPA took final action to approve North 

Carolina’s SIP revision, which was submitted to 

comply with CAIR. See 72 FR 56914 (October 5, 

2007). In so doing, North Carolina’s CAIR SIP 

revision addressed the interstate transport 

provisions in section 110(a)(2)(D)(i) for the 1997 

8-hour ozone NAAQS. In response to the remand 

of CAIR, EPA has promulgated a new rule to 

address the interstate transport. See 76 FR 48208 

(August 8, 2011). EPA’s action on element 

110(a)(2)(D)(i) will be addressed in a separate 

action. 

4This requirement was inadvertently omitted 

from EPA’s October 2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required Under 

Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards,’’ but as mentioned above is not relevant 

to today’s proposed rulemaking. 

5See Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # 

EPA–R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

clock for EPA to either issue a FIP or 

take final action on a SIP revision which 

corrects the deficiency for which the 

finding of failure to submit was 

received. 

On June 20, 2008, DAQ submitted a 

SIP revision to EPA for federal approval 

which includes revisions to rules North 

Carolina’s Air Pollution Control 

Requirements (NCAC) 02D.0530 and 

.0531 that address the infrastructure 

requirements (C) and (J). On August 10, 

2011, EPA finalized approval of North 

Carolina’s June 20, 2008, SIP revision. 

See 76 FR 49313. With the exception of 

element 110(a)(2)(E)(ii), today’s action is 

proposing to approve North Carolina’s 

infrastructure submission for which 

EPA made the completeness 

determination and finding of failure to 

submit on March 27, 2008. This action 

is not approving any specific rule, but 

rather proposing that North Carolina’s 

already approved SIP meets certain 

CAA requirements. 

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. In the 

case of the 1997 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous ozone NAAQS. 

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 SIP infrastructure elements 

such as modeling, monitoring, and 

emissions inventories that are designed 

to assure attainment and maintenance of 

the NAAQS. The requirements that are 

the subject of this proposed rulemaking 

are listed below 1 and in EPA’s October 

2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 

1997 8-Hour Ozone and PM2.5 National 

Ambient Air Quality Standards.’’ 

• 110(a)(2)(A): Emission limits and 

other control measures. 

• 110(a)(2)(B): Ambient air quality 

monitoring/data system. 

• 110(a)(2)(C): Program for 

enforcement of control measures.2

• 110(a)(2)(D): Interstate transport.3

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

• 110(a)(2)(H): Future SIP revisions. 

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on those infrastructure SIP 

submissions.5 Those Commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements in other proposals that 

it would address two issues separately 

and not as part of actions on the 

infrastructure SIP submissions: (i) 

Existing provisions related to excess 

emissions during periods of start-up, 

shutdown, or malfunction at sources, 

that may be contrary to the CAA and 

EPA’s policies addressing such excess 

emissions (‘‘SSM’’); and (ii) existing 

provisions related to ‘‘director’s 

variance’’ or ‘‘director’s discretion’’ that 

purport to permit revisions to SIP 

approved emissions limits with limited 

public process or without requiring 

further approval by EPA, that may be 

contrary to the CAA (‘‘director’s 

discretion’’). EPA notes that there are 

two other substantive issues for which 

EPA likewise stated in other proposals 

that it would address the issues 

separately: (i) Existing provisions for 

minor source new source review 

programs that may be inconsistent with 

the requirements of the CAA and EPA’s 

regulations that pertain to such 

programs (‘‘minor source NSR [New 

Source Review]’’); and (ii) 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’’). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIPs 

for the 1997 8-hour ozone NAAQS from 

North Carolina. 


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6For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

7For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See ‘‘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 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

8See Id., 70 FR 25162, at 63–65 (May 12, 2005) 

(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

9EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Continued 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a re-approval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit re-approval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on the 

infrastructure SIP for North Carolina. 

Unfortunately, the Commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

110(a)(2) includes a list of specific 

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, new source review permitting 

program submissions required to 

address the requirements of part D, and 

a host of other specific types of SIP 

submissions that address other specific 

matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

for both authority and substantive 

provisions.6 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.7

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).8 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.9 This illustrates that EPA 


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Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 10For 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. 

11See ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I—X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

12 Id., at page 2. 

13 Id., at attachment A, page 1. 

14 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

15See ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T, 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I—X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s implementation 

plans. Finally, 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 and the attendant infrastructure 

SIP submission for that NAAQS. For 

example, the monitoring requirements 

that might be necessary for purposes of 

section 110(a)(2)(B) for one NAAQS 

could be very different than what might 

be necessary for a different pollutant. 

Thus, the content of an infrastructure 

SIP submission to meet this element 

from a state might be very different for 

an entirely new NAAQS, versus a minor 

revision to an existing NAAQS.10

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

list of requirements in section 110(a)(2), 

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.11 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 12 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 13 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 14

However, for the one exception to that 

general assumption (i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS), EPA gave 

much more specific recommendations. 

But for other infrastructure SIP 

submittals, and for certain elements of 

the submittals for the 1997 PM2.5

NAAQS, EPA assumed that each State 

would work with its corresponding EPA 

regional office to refine the scope of a 

State’s submittal based on an 

assessment of how the requirements of 

section 110(a)(2) should reasonably 

apply to the basic structure of the State’s 

implementation plans for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.15 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS (e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 

Guidance explicitly referred to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

required by section 110(a)(1) and (2), 

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 


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16EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 74 FR 21639 (April 

18, 2011). 

17EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See 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). 

18EPA has recently disapproved 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 75 FR 42342, 42344 (July 

21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the infrastructure SIPs for North 

Carolina. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP 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 that, 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 considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 p.m.2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate 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 otherwise to 

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 the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action 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 the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.18

IV. What is EPA’s analysis of how 

North Carolina addressed the elements 

of sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

The North Carolina infrastructure 

submission addresses the provisions of 

sections 110(a)(1) and (2) as described 

below. 

1. 110(a)(2)(A): Emission limits and 

other control measures: North Carolina’s 

SIP provides an overview of the 

provisions of the North Carolina Air 

Pollution Control Regulations relevant 

to air quality control regulations. The 

regulations described below have been 

federally approved in the North 

Carolina SIP and include enforceable 

emission limitations and other control 

measures. NCAC 2D.0400, Ambient Air 

Quality Standards, and 2D.0500, 

Emissions Control Standards, establish 

emission limits for ozone and address 

the required control measures, means 

and techniques for compliance with the 

ozone NAAQS. EPA has made the 

preliminary determination that the 

provisions contained in these chapters 

and North Carolina’s practices are 

adequate to protect the 1997 8-hour 

ozone NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing 

State provisions with regard to excess 

emissions during SSM of 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 plans to address such state 

regulations in the future. In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

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: NCAC 

2D.0600, Monitoring, and 2D.0806, 

Ambient Monitoring and Modeling 

Analysis, along with the North Carolina 

Network Description and Ambient Air 

Monitoring Network Plan, provide for 

an ambient air quality monitoring 

system in the State. Annually, EPA 

approves the ambient air monitoring 

network plan for the State agencies. On 

July 1, 2011, North Carolina submitted 

its plan to EPA, and on October 20, 

2011, EPA approved this plan. North 

Carolina’s approved monitoring network 

plan can be accessed at http:// 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2011–0352. 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 1997 8-hour ozone NAAQS. 

3. 110(a)(2)(C) Program for 

enforcement of control measures 

including review of proposed new 

sources: Regulation NCAC 2D.0530, 

Prevention of Significant Deterioration, 

and 2D.0531, Sources in a 

Nonattainment Area, pertain to the 

construction or modification of any 

major stationary source in areas 

designated as attainment, nonattainment 

or unclassifiable. On December 20, 

2005, May 16, 2007, and June 20, 2008, 


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DAQ submitted revisions to its PSD/ 

NSR regulations for EPA approval. In 

North Carolina’s December 12, 2007, 

infrastructure submission, the State 

certified that it has treated NOX as a 

precursor to ozone since 1995 and that 

it has addressed the 110(a)(2)(J) 

requirement (relating to prevention of 

significant deterioration of air quality 

and visibility protection) with rule 

amendments that include reference to 

definitions in 40 CFR 51.166— 

Prevention of significant deterioration of 

air quality. These rule amendments 

became state-effective in March 2008. In 

the June 20, 2008, SIP revision, North 

Carolina included revisions to NCAC 

02D.0530 and .0531 that address the 

infrastructure requirements of sections 

110(a)(2)(C) and (J). On August 10, 2011, 

EPA finalized approval of the December 

20, 2005, May 16, 2007, and June 20, 

2008, SIP revisions. The June 20, 2008, 

SIP revision addresses the Ozone 

Implementation NSR Update 

requirements to include NOX as an 

ozone precursor for permitting 

purposes. Specifically, the Ozone 

Implementation NSR Update 

requirements include changes to major 

source thresholds for sources in certain 

classes of nonattainment areas, changes 

to offset ratios for marginal, moderate, 

serious, severe, and extreme ozone 

nonattainment areas, provisions 

addressing offset requirements for 

facilities that shut down or curtail 

operation, and a requirement stating 

that NOX emissions are ozone 

precursors. 

EPA finalized approval of North 

Carolina’s greenhouse gas (GHG) 

regulations on October 18, 2011 (76 FR 

64240). The proposed revisions 

establish appropriate emission 

thresholds for determining which new 

stationary sources and modification 

projects become subject to North 

Carolina’s PSD permitting requirements 

for their GHG emissions. The October 

18, 2011, rulemaking finalizes approval 

of the North Carolina rules which 

address the thresholds for GHG 

permitting applicability in North 

Carolina. 

On December 30, 2010, EPA 

published a final rulemaking, ‘‘Action 

To Ensure Authority To Implement Title 

V Permitting Programs Under the 

Greenhouse Gas Tailoring Rule’’ (75 FR 

82254) to narrow EPA’s previous 

approval of State title V operating 

permit programs that apply (or may 

apply) to GHG-emitting sources; this 

rule hereafter is referred to as the 

‘‘Narrowing Rule.’’ EPA narrowed its 

previous approval of certain State 

permitting thresholds, for GHG 

emissions so that only sources that 

equal or exceed the GHG thresholds, as 

established in the final Tailoring Rule, 

would be covered as major sources by 

the Federally-approved programs in the 

affected States. North Carolina was 

included in this rulemaking. 

In this action, EPA is proposing to 

approve North Carolina’s infrastructure 

SIP for the 1997 8-hour ozone NAAQS 

with respect to the general requirement 

in section 110(a)(2)(C) to include a 

program in the SIP that regulates the 

modification and construction of any 

stationary source as necessary to assure 

that the NAAQS are achieved. EPA is 

not proposing to approve or disapprove 

the State’s existing minor NSR program 

to the extent that it is inconsistent with 

EPA’s regulations governing this 

program. EPA believes that a number of 

states may have minor NSR provisions 

that are contrary to the existing EPA 

regulations for this program. EPA 

intends to work with States to reconcile 

state minor NSR programs with EPA’s 

regulatory provisions for the program. 

The statutory requirements of section 

110(a)(2)(C) provide for considerable 

flexibility in designing minor NSR 

programs, and EPA believes it may be 

time to revisit the regulatory 

requirements for this program to give 

the States an appropriate level of 

flexibility to design a program that 

meets their particular air quality 

concerns, while assuring reasonable 

consistency across the country in 

protecting the NAAQS with respect to 

new and modified minor sources. 

EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices are adequate for program 

enforcement of control measures 

including review of proposed new 

sources related to the 1997 8-hour ozone 

NAAQS. 

4. 110(a)(2)(D)(ii) Interstate and 

International transport provisions: 

NCAC 2D.0530, Prevention of 

Significant Deterioration, 2D.0531, 

Sources in a Nonattainment Area, and 

2D.0532, Sources Contributing to an 

Ambient Violation, outline how the 

State will notify neighboring States of 

potential impacts from new or modified 

sources. Additionally, North Carolina 

has federally-approved regulations in its 

SIP that satisfy the requirements for the 

NOX SIP Call. See 67 FR 78987 

(December 27, 2002). EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices are 

adequate for insuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

abatement for the 1997 8-hour ozone 

NAAQS. 

5. 110(a)(2)(E) Adequate resources: 

EPA is proposing two separate actions 

with respect to the sub-elements 

required pursuant to section 

110(a)(2)(E). 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. 

As with the remainder of the 

infrastructure elements addressed by 

this notice, EPA is proposing to approve 

North Carolina’s SIP as meeting the 

requirements of sub-elements 

110(a)(2)(E)(i) and (iii). With respect to 

110(a)(2)(E)(ii) (regarding State Boards), 

EPA is proposing to either conditionally 

approve, or in the alternative, proposing 

to disapprove this sub-element. EPA’s 

rationale for today’s proposals 

respecting each sub-element is 

described in turn below. 

In support of EPA’s proposal to 

approve sub-elements 110(a)(2)(E)(i) and 

(iii), EPA notes that DAQ is responsible 

for adopting air quality rules, revising 

SIPs, developing and tracking the 

budget, establishing the title V fees, and 

other planning needs. DAQ also 

coordinates agreements with local air 

pollution control programs. 

Additionally, the SIP submittal cover 

letter provided by North Carolina 

certifies the sufficiency of the State 

program with 110(a)(2)(E)(i) and (iii) 

requirements. As evidence of the 

adequacy of DAQ’s resources with 

respect to sub-elements (i) and (iii), EPA 

submitted a letter to North Carolina on 

March 17, 2011, outlining 105 grant 

commitments and the current status of 

these commitments for fiscal year 2010. 

The letter EPA submitted to North 

Carolina can be accessed at http:// 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2011–0352. 

Annually, States update these grant 

commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. There were no outstanding 

issues for fiscal year 2010, therefore, 

North Carolina’s grants were finalized 

and closed out. EPA has made a 

preliminary determination that, for 

purposes of 110(a)(2)(E)(i) and (iii), 

North Carolina has adequate resources 

for implementation of the 1997 8-hour 

ozone NAAQS. 


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19 Initial permit approvals and enforcement 

orders are issued by delegated officials within NC 

DENR. Pursuant to N.C.G.S. § 143–215.114A, the 

Secretary NC DENR is authorized to assess civil 

penalties for violations of the State’s Air Pollution 

Control laws. NC DENR is also authorized pursuant 

to N.C.G.S. § 143–215.114C to request the Attorney 

General of the State to institute a civil action 

seeking injunctive relief to restrain the violation or 

threatened violation of the State’s Air Pollution 

Control laws. The North Carolina Environmental 

Management Commission is authorized pursuant to 

N.C.G.S. § 143–215.108, to approve Air Pollution 

Control permits in the State, however, the 

Commission has delegated by regulation this 

authority to the Secretary of the Department of 

Environment, Health, and Natural Resources. See 

15A N.C. Admin. Code 02A.0105(a)(2). 

20Pursuant to section 55.2 of N.C. Session Law 

2011–398, the North Carolina Office of 

Administrative Hearings is required to seek U.S. 

EPA approval to become an agency responsible for 

administering programs under the Clean Air Act. 

This ongoing separate process may result in 

additional SIP revisions implicating section 

110(a)(2)(E)(ii). Any such actions are distinct from 

today’s proposed actions and would be address in 

a separate rulemaking. 

As discussed above, with respect to 

sub-element 110(a)(2)(E)(ii), EPA is 

proposing to conditionally approve, and 

in the alternative, to disapprove North 

Carolina’s infrastructure SIP as to this 

requirement. North Carolina’s March 27, 

2008, infrastructure certification letter 

did not certify the adequacy of the 

State’s implementation plan to meet the 

requirements of section 110(a)(2)(E)(ii) 

(requiring state compliance with section 

128 of the CAA), and presently North 

Carolina’s SIP does not include 

provisions to meet section 128 

requirements. 

As a result, EPA is proposing to 

conditionally approve North Carolina’s 

infrastructure SIP with respect to 

element 110(a)(2)(E)(ii) based upon 

assurances by the State that DAQ will 

submit to EPA a formal commitment to 

adopt specific enforceable measures into 

its SIP within one year to address the 

applicable portions of section 128. In 

order for EPA to take final action 

conditionally approving the State’s 

infrastructure SIP with respect to 

element 110(a)(2)(E)(ii), DAQ must 

formally commit to taking the actions 

described in this notice prior to EPA’s 

final action on North Carolina’s 

infrastructure SIP. As described further 

below, in the event DAQ should fail to 

provide an adequate commitment to 

address the applicable 110(a)(2)(E)(ii) 

infrastructure requirements, EPA is 

hereby proposing, in the alternative, to 

disapprove the State’s infrastructure SIP 

with respect to this sub-element. 

The section 128 State Board 

requirements—as applicable to the 

infrastructure SIP pursuant to section 

110(a)(2)(E)(ii)—provide at subsection 

(a)(1) that each SIP shall contain 

requirements that any board or body 

which approves permits or enforcement 

orders be subject to the described public 

interest and income restrictions. It 

further requires at subsection (a)(2) that 

any board or body, or the head of an 

executive agency with similar power to 

approve permits or enforcement orders 

under the CAA, shall also be subject to 

conflict of interest disclosure 

requirements. EPA’s proposed 

conditional approval of North Carolina’s 

110(a)(2)(E)(ii) infrastructure SIP 

requires the State to commit to adopting 

specific enforceable measures related to 

both 128(a)(1) and 128(a)(2) to address 

current deficiencies in the North 

Carolina SIP. 

For purposes of section 128(a)(1), a 

recent North Carolina law, which 

becomes effective no later than June 15, 

2012, rescinds the authority of the 

State’s Environmental Management 

Commission to issue final decisions on 

contested cases involving permits and 

enforcement orders. See North Carolina 

Session Law 2011–398, Section 18. 

Instead, Session Law 2011–398 shifts 

this authority to individual State 

Administrative Law Judges in the North 

Carolina Office of Administrative 

Hearings. Once corresponding revisions 

have been made to the federallyapproved SIP to effectuate this change, 

a ‘‘board or body’’ will no longer be 

responsible for approving permits or 

enforcement orders in North Carolina.19

As such, EPA is proposing to 

conditionally approve element 

110(a)(2)(E)(ii) with respect to 128(a)(1) 

based upon a commitment by the State 

to timely submit any SIP revisions 

necessary to remove the Environmental 

Management Commission’s authority to 

approve permits or enforcement orders 

under the State’s Air Pollution Act.20

Regarding section 128(a)(2) (also 

made applicable to the infrastructure 

SIP pursuant to section 110(a)(2)(E)(ii)), 

North Carolina has indicated that it 

intends to commit to EPA to submit for 

incorporation into the SIP relevant 

provisions of N.C.G.S. § 138A, Article 3: 

Public Disclosure of Economic Interests, 

sufficient to satisfy the conflict of 

interest provisions applicable to the 

head of NC DENR and those officials 

within the Department delegated his 

authority. 

Both commitments described above 

must be received by EPA prior to final 

action on this proposed conditional 

approval with respect to element 

110(a)(2)(E)(ii). Furthermore, these 

commitments must provide that the 

State will adopt the specified 

enforceable provisions by a date certain 

within one year from EPA’s final action 

in this matter. See section 110(k)(4) of 

the CAA, 42 U.S.C. 7410(k)(4). Failure 

to adopt these provisions into the North 

Carolina SIP within one year would 

result in the conditional approval 

becoming a disapproval. 

EPA is also proposing, in the 

alternative, to disapprove North 

Carolina’s 110(a)(2)(E)(ii) infrastructure 

SIP because North Carolina has yet to 

submit to EPA a formal commitment to 

make the changes described in this 

notice. In the event that North Carolina 

fails to provide such commitment, or 

commits to addressing the section 128 

requirements in a manner materially 

different from that which is described 

herein, EPA is proposing to disapprove 

North Carolina’s infrastructure SIP with 

respect to section 110(a)(2)(E)(ii). 

Should North Carolina provide the 

requisite timely commitment, EPA 

intends to move forward with finalizing 

the conditional approval consistent with 

section 110(k)(4) of the Act. 

6. 110(a)(2)(F) Stationary source 

monitoring system: North Carolina’s 

infrastructure submission describes how 

the State establishes requirements for 

emissions compliance testing and 

utilizes emissions sampling and 

analysis. It further describes how the 

State ensures the quality of its data 

through observing emissions and 

monitoring operations. North Carolina 

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. These 

requirements are provided in NCAC 

2D.0605, General Recordkeeping and 

Reporting Requirements, 2D.0613, 

Quality Assurance Program, and 

2D.0614, Compliance Assurance 

Monitoring. 

Additionally, North Carolina is 

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—NOX, sulfur dioxide, ammonia, 


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lead, carbon monoxide, particulate 

matter, and volatile organic compounds 

(VOCs). Many states also voluntarily 

report emissions of hazardous air 

pollutants. North Carolina made its 

latest update to the NEI on March 25, 

2011. 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 related to the 1997 

8-hour ozone NAAQS. 

7. 110(a)(2)(G) Emergency power: 

NCAC 2D.0300 Air Pollution 

Emergencies, authorizes the North 

Carolina DAQ Director to determine the 

existence of an air pollution emergency 

and it describes the preplanned 

abatement strategies triggered by the 

occurrence of such an emergency. These 

criteria have previously been approved 

by EPA. EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices are adequate for 

emergency powers related to the 1997 

8-hour ozone NAAQS. 

8. 110(a)(2)(H) Future SIP revisions: 

DAQ is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in North Carolina. DAQ has the 

ability and authority to respond to calls 

for SIP revisions, and has provided a 

number of SIP revisions over the years 

for implementation of the NAAQS. 

Specific to the 1997 8-hour ozone 

NAAQS, North Carolina has provided a 

number of submissions, including the 

following: 

• June 19, 2006, SIP Revision—(EPA 

approval, 71 FR 64891, November 6, 

2006) Redesignation of the Rocky 

Mount, North Carolina Area; 

• June 15, 2007, SIP Revision, 

Charlotte, North Carolina (North 

Carolina portion)—8-hr Ozone 

Reasonably Available Control 

Technology and Reasonable Further 

Progress; 

• February 4, 2008, SIP Revision 

(EPA approval, 73 FR 18963, April 8, 

2008) Raleigh/Durham and Greensboro 

1-hour Maintenance Plan Update; 

• July 24, 2009, SIP Revision (EPA 

approval, 74 FR 63995, December 7, 

2009) Great Smoky Mountains National 

Park Redesignation; 

• November 30, 2009, SIP Revision— 

Charlotte, North Carolina (North 

Carolina portion)—8-hr Ozone 

Reasonable Further Progress Update; 

• April 5, 2010, SIP Revision— 

Supplement and Resubmission of the 

1997 8-hour Ozone Charlotte 

Attainment Demonstration (North 

Carolina portion); and 

• November 2, 2011, SIP Revision— 

Charlotte, North Carolina (North 

Carolina portion) 1997 8-hour Ozone 

Redesignation/Maintenance Plan. 

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 1997 8-hour 

ozone NAAQS when necessary. EPA 

notes, however, that North Carolina’s 

one remaining 1997 8-hour ozone 

NAAQS nonattainment area—the 

Charlotte-Gastonia-Rock Hill, NC-SC 

Area (hereafter referred to as the 

‘‘Charlotte Area’’)—is currently 

attaining 1997 8-hour ozone NAAQS. In 

a November 15, 2011, final rulemaking, 

EPA determined that the Charlotte Area 

has attained the 1997 8-hour ozone 

NAAQS. See 76 FR 70656. That final 

action, in accordance with 40 CFR 

51.918, suspended the requirements for 

the Charlotte Area to submit attainment 

demonstrations, associated RACM, RFP 

plans, contingency measures, and other 

planning SIPs related to attainment of 

the 1997 8-hour ozone NAAQS so long 

as the Charlotte Area continues to meet 

the 1997 8-hour ozone NAAQS. 

9. 110(a)(2)(J) (121 consultation) 

Consultation with government officials: 

NCAC 2D.0530, Prevention of 

Significant Deterioration, and 2D.0531, 

Sources in a Nonattainment Area, as 

well as North Carolina’s Regional Haze 

Implementation Plan (which allows for 

consultation between appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

Federal Land Managers), provide for 

consultation with government officials 

whose jurisdictions might be affected by 

SIP development activities. North 

Carolina adopted state-wide 

consultation procedures for the 

implementation of transportation 

conformity. These consultation 

procedures include considerations 

associated with the development of 

mobile inventories for SIPs. 

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. EPA 

approved North Carolina’s consultation 

procedures on December 27, 2002 (See 

67 FR 78983). EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices adequately 

demonstrate consultation with 

government officials related to the 1997 

8-hour ozone NAAQS when necessary. 

10. 110(a)(2)(J) (127 public 

notification) Public notification: DAQ 

has public notice mechanisms in place 

to notify the public of ozone and other 

pollutant forecasting, including an air 

quality monitoring Web site providing 

ground level ozone alerts, http:// 

xapps.enr.state.nc.us/aq/ 

ForecastCenter. North Carolina also has 

an outreach program to educate the 

public and promote voluntary emissions 

reduction measures including the ‘‘Turn 

Off Your Engine’’ idling reduction 

program. NCAC 2D.0300, Air Pollution 

Emergencies, requires that DAQ notify 

the public of any air pollution episode 

or NAAQS violation. 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 1997 8-hour ozone NAAQS when 

necessary. 

11. 110(a)(2)(J) (PSD) PSD and 

visibility protection: North Carolina 

demonstrates its authority to regulate 

new and modified sources of ozone 

precursors, VOCs and NOx to assist in 

the protection of air quality in NCAC 

2D.0530, Prevention of Significant 

Deterioration, and 2D.0531, Sources in a 

Nonattainment Area. On December 20, 

2005, May 16, 2007, and June 20, 2008, 

DAQ submitted revisions to its PSD/ 

NSR regulations for EPA approval. In 

North Carolina’s December 12, 2007, 

infrastructure submission, the State 

certified that it has treated NOX as a 

precursor to ozone since 1995 and has 

addressed the requirement for 

110(a)(2)(J) with rule amendments that 

include reference to definitions in 40 

CFR 51.166—Prevention of significant 

deterioration of air quality. These 

revisions addressing section 110(a)(2)(J) 

requirements became state-effective in 

March 2008. 

As described above, the June 20, 2008, 

SIP revision, includes revisions to rules 

NCAC 02D.0530 and .0531 that address 

the infrastructure requirements of 

sections 110(a)(2)(C) and (J). SIP 

revision addressed the Ozone 

Implementation NSR Update 

requirements to include NOx as an 

ozone precursor for permitting 

purposes. This involved changes to 

major source thresholds for sources in 

certain classes of nonattainment areas, 

changes to offset ratios for marginal, 

moderate, serious, severe, and extreme 

ozone nonattainment areas, provisions 

addressing offset requirements for 

facilities that shut down or curtail 

operation, and a requirement stating 

that NOx emissions are ozone 

precursors. In a August 10, 2011, final 

rulemaking action, EPA approved the 

December 20, 2005, May 16, 2007, and 


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21Notably, EPA is currently engaged in 

discussions with North Carolina and Federal Land 

Managers regarding an aspect of visibility analysis 

for Class I areas under the State’s PSD Program. 

June 20, 2008, SIP revisions. See 76 FR 

49313. 

With regard to the applicable 

requirements for visibility protection, 

EPA recognizes that states are subject to 

visibility and regional haze program 

requirements under part C of the Act 

(which includes sections 169A and 

169B). In the event of the establishment 

of a new NAAQS, however, the 

visibility and regional haze program 

requirements under part C do not 

change. Thus, EPA finds that there is no 

new visibility obligation ‘‘triggered’’ 

under section 110(a)(2)(J) when a new 

NAAQS becomes effective. This would 

be the case even in the event a 

secondary PM2.5 NAAQS for visibility is 

established, because this NAAQS would 

not affect visibility requirements under 

part C. North Carolina has submitted 

SIP revisions for approval to satisfy the 

requirements of the CAA Section 169A 

and 169B, and the regional haze and 

best available retrofit technology rules 

contained in 40 CFR 51.308. These 

revisions are currently under review 

and will be acted on in a separate 

action. EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices adequately demonstrate 

the State’s ability to implement PSD 

programs and to provide for visibility 

protection related to the 1997 8-hour 

ozone NAAQS when necessary.21

12. 110(a)(2)(K) Air quality and 

modeling/data: NCAC 2D.0300, Air 

Pollution Emergencies, and NCAC 

2D.0806, Ambient Monitoring and 

Modeling Analysis, require that air 

modeling be conducted to determine 

permit applicability. These regulations 

demonstrate that North Carolina has the 

authority to provide relevant data for 

the purpose of predicting the effect on 

ambient air quality of the 8-hour ozone 

NAAQS. Additionally, North Carolina 

supports a regional effort to coordinate 

the development of emissions 

inventories and conduct regional 

modeling for several NAAQS, including 

the 1997 8-hour ozone NAAQS, for the 

Southeastern states. Taken as a whole, 

North Carolina’s air quality regulations 

demonstrate that DAQ has the authority 

to provide relevant data for the purpose 

of predicting the effect on ambient air 

quality of the 8-hour ozone NAAQS. 

EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices adequately demonstrate 

the State’s ability to provide for air 

quality and modeling, along with 

analysis of the associated data, related 

to the 1997 8-hour ozone NAAQS when 

necessary. 

13. 110(a)(2)(L) Permitting fees: North 

Carolina addresses the review of 

construction permits as previously 

discussed in 110(a)(2)(C). Permitting 

fees in North Carolina are collected 

through the State’s federally-approved 

title V fees program, according to State’s 

federally-approved title V fees program 

according to State Regulation NCAC 

2Q.0200, Permit Fees. EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices adequately 

provide for permitting fees related to the 

1997 8-hour ozone NAAQS when 

necessary. 

14. 110(a)(2)(M) Consultation/ 

participation by affected local entities: 

NCAC 2Q.0307, Public Participation 

Procedures requires that DAQ notify the 

public of an application, preliminary 

determination, the activity or activities 

involved in a permit action, any 

emissions associated with a permit 

modification, and the opportunity for 

comment prior to making a final 

permitting decision. 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, Early Action 

Compacts, and the 8-Hour Ozone 

Attainment Demonstration for the North 

Carolina portion of the CharlotteGastonia-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 1997 8-hour 

ozone NAAQS when necessary. 

V. Proposed Action 

As described above, with the 

exception of sub-element 

110(a)(2)(E)(ii), EPA is proposing to 

determine that North Carolina’s 

infrastructure submission, provided to 

EPA on December 12, 2007, and 

clarified in a subsequent submission 

submitted on June 20, 2008, addressed 

the required infrastructure elements for 

the 1997 8-hour ozone NAAQS. EPA is 

proposing to approve in part, and to 

conditionally approve or disapprove in 

part consistent with section 110 of the 

CAA. 

With respect to 110(a)(2)(E)(ii) 

(referencing section 128 of the CAA), 

EPA is proposing to conditionally 

approve North Carolina’s infrastructure 

SIP with respect to element 

110(a)(2)(E)(ii) based upon assurances 

by the State that DAQ will submit to 

EPA a formal commitment to adopt 

specific enforceable measures into its 

SIP within one year to address the 

applicable portions of section 128. In 

order for EPA to take final action 

conditionally approving the State’s 

infrastructure SIP with respect to 

element 110(a)(2)(E)(ii), DAQ must 

formally commit to taking the actions 

described in this notice prior to EPA’s 

final action on North Carolina’s 

infrastructure SIP. In the event DAQ 

fails to provide an adequate 

commitment to address the applicable 

110(a)(2)(E)(ii) infrastructure 

requirements, EPA is hereby proposing, 

in the alternative, to disapprove the 

State’s infrastructure SIP with respect to 

this sub-element. EPA is also proposing 

to approve North Carolina’s 

infrastructure submission for the 1997 

8-hour ozone NAAQS, with the 

exception of sub-element 110(a)(2)(E)(ii) 

because its December 12, 2007, and June 

20, 2008, submissions 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 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); 


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• 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 proposed 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Ozone, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: December 7, 2011. 

Gwendolyn Keyes Fleming, 

Regional Administrator, Region 4. 

[FR Doc. 2011–32183 Filed 12–14–11; 8:45 am] 

BILLING CODE 6560–50–P 


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