Federal Register / Vol. 81, No. 139 / Wednesday, July 20, 2016 / Proposed Rules 47115 

1 In these infrastructure SIP submissions states 

generally certify evidence of compliance with 

sections 110(a)(1) and (2) of the CAA through a 

combination of state regulations and statutes, some 

of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be 

appropriate for demonstrating compliance with 

sections 110(a)(1) and (2). Unless otherwise 

indicated, the Title 15A regulations of the North 

Carolina Administrative Code (‘‘15A NCAC’’) cited 

throughout this rulemaking have either been 

approved, or submitted for approval into North 

Carolina’s federally-approved SIP. The North 

Carolina General Statutes (‘‘NCGS’’) cited 

throughout this rulemaking, however, are not 

approved into the North Carolina SIP unless 

otherwise indicated. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2015–0362; FRL–9949–26– 

Region 4] 

Air Plan Approval; North Carolina 

Infrastructure Requirements for the 

2010 Nitrogen Dioxide National 

Ambient Air Quality Standard 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of the State Implementation 

Plan (SIP) submission, submitted by the 

State of North Carolina, through the 

North Carolina Department of 

Environment and Natural Resources (NC 

DENR), Division of Air Quality 

(NCDAQ) on August 23, 2013, for 

inclusion into the North Carolina SIP. 

This proposal pertains to the 

infrastructure requirements of the Clean 

Air Act (CAA or Act) for the 2010 

1-hour nitrogen dioxide (NO2) national 

ambient air quality standards (NAAQS). 

The CAA requires that each state adopt 

and submit a SIP for the 

implementation, maintenance and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP submission. 

NCDAQ certified that the North 

Carolina SIP contains provisions that 

ensure the 2010 1-hour NO2 NAAQS is 

implemented, enforced, and maintained 

in North Carolina. EPA is proposing to 

find that portions of North Carolina’s 

infrastructure SIP submission, provided 

to EPA on August 23, 2013, satisfy 

certain infrastructure elements for the 

2010 1-hour NO2 NAAQS. 

DATES: Written comments must be 

received on or before August 19, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2015–0362 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

FOR FURTHER INFORMATION CONTACT: 

Richard Wong, Air Regulatory 

Management Section, Air Planning and 

Implementation Branch, Air, Pesticides 

and Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Mr. Wong 

can be reached via telephone at (404) 

562–8726 or via electronic mail at 

wong.richard@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background and Overview 

On February 9, 2010, EPA published 

a new 1-hour primary NAAQS for NO2

at a level of 100 parts per billion (ppb), 

based on a 3-year average of the 98th 

percentile of the yearly distribution of 

1-hour daily maximum concentrations. 

See 75 FR 6474. 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. Section 110(a)(2) requires 

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 2010 1-hour NO2

NAAQS to EPA no later than January 

22, 2013.1

This action is proposing to approve 

North Carolina’s infrastructure 

submission for the applicable 

requirements of the 2010 1-hour NO2

NAAQS, with the exception of the PSD 

permitting requirements for major 

sources of section 110(a)(2)(C) and (J), 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), and the state board 

requirements of 110(E)(ii). On 

November 3, 2015, EPA took final action 

to approve North Carolina’s August 23, 

2013, infrastructure SIP submission 

regarding the state board requirements 

of section 110(a)(2)(E)(ii), for the 2010 

1-hour NO2 NAAQS. See 80 FR 67645. 

Therefore, EPA is not proposing any 

action today pertaining to section 

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

Carolina’s infrastructure SIP submission 

related to the provisions pertaining to 

the PSD permitting requirements for 

major sources of section 110(a)(2)(C) 

and (J) and the interstate transport 

requirements of section 110(a)(2)(D)(i)(I) 

and (II) (prongs 1 through 4), EPA is not 

proposing any action at this time. For 

the aspects of North Carolina’s submittal 

proposed for approval today, EPA notes 

that the Agency is not approving any 

specific rule, but rather proposing that 

North Carolina’s already approved SIP 

meets certain CAA requirements. 

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 2010 1-hour NO2 NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with 

previous 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 basic SIP elements such as 

modeling, monitoring, and emissions 

inventories that are designed to assure 

attainment and maintenance of the 

NAAQS. The requirements that are the 

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2Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

necessary local nonattainment area controls are not 

due within three years after promulgation of a new 

or revised NAAQS, but rather due at the time the 

nonattainment area plan requirements are due 

pursuant to section 172. These requirements are: (1) 

Submissions required by section 110(a)(2)(C) to the 

extent that subsection refers to a permit program as 

required in part D Title I of the CAA; and (2) 

submissions required by section 110(a)(2)(I) which 

pertain to the nonattainment planning requirements 

of part D, Title I of the CAA. This proposed 

rulemaking does not address infrastructure 

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

nonattainment planning requirements of 

110(a)(2)(C). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned above, this element is not 

relevant to this proposed rulemaking. 

5For example: Section 110(a)(2)(E)(i) provides 

that states must provide assurances that they have 

adequate legal authority under state and local law 

to carry out the SIP; section 110(a)(2)(C) provides 

that states must have a SIP-approved program to 

address certain sources as required by part C of title 

I of the CAA; and section 110(a)(2)(G) provides that 

states must have legal authority to address 

emergencies as well as contingency plans that are 

triggered in the event of such emergencies. 

6See, e.g., ‘‘Rule To Reduce Interstate Transport 

of Fine Particulate Matter and Ozone (Clean Air 

Interstate Rule); Revisions to Acid Rain Program; 

Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 

25162, at 25163–65 (May 12, 2005) (explaining 

relationship between timing requirement of section 

110(a)(2)(D) versus section 110(a)(2)(I)). 

7EPA notes that this ambiguity within section 

110(a)(2) is heightened by the fact that various 

subparts of part D set specific dates for submission 

of certain types of SIP submissions in designated 

nonattainment areas for various pollutants. Note, 

e.g., that section 182(a)(1) provides specific dates 

for submission of emissions inventories for the 

ozone NAAQS. Some of these specific dates are 

necessarily later than three years after promulgation 

of the new or revised NAAQS. 

subject of this proposed rulemaking are 

listed below and in EPA’s September 13, 

2013, memorandum entitled ‘‘Guidance 

on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and 110(a)(2).’’ 2

• 110(a)(2)(A): Emission Limits and 

Other Control Measures 

• 110(a)(2)(B): Ambient Air Quality 

Monitoring/Data System 

• 110(a)(2)(C): Programs for 

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources 3

• 110(a)(2)(D)(i)(I) and (II): Interstate 

Pollution Transport 

• 110(a)(2)(D)(ii): Interstate Pollution 

Abatement and International Air 

Pollution 

• 110(a)(2)(E): Adequate Resources and 

Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies 

• 110(a)(2)(F): Stationary Source 

Monitoring and Reporting 

• 110(a)(2)(G): Emergency Powers 

• 110(a)(2)(H): SIP Revisions 

• 110(a)(2)(I): Plan Revisions for 

Nonattainment Areas 4

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting Fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local 

Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from North Carolina that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2010 1-hour NO2

NAAQS. The requirement for states to 

make a SIP submission of this type 

arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states 

must make SIP submissions ‘‘within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a national primary 

ambient air quality standard (or any 

revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review (NNSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

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

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

Another example of ambiguity within 

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

respect to infrastructure SIPs pertains to 

whether states must meet all of the 

infrastructure SIP requirements in a 

single SIP submission, and whether EPA 

must act upon such SIP submission in 

a single action. Although section 

110(a)(1) directs states to submit ‘‘a 

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8See, e.g., ‘‘Approval and Promulgation of 

Implementation Plans; New Mexico; Revisions to 

the New Source Review (NSR) State 

Implementation Plan (SIP); Prevention of 

Significant Deterioration (PSD) and Nonattainment 

New Source Review (NNSR) Permitting,’’ 78 FR 

4339 (January 22, 2013) (EPA’s final action 

approving the structural PSD elements of the New 

Mexico SIP submitted by the State separately to 

meet the requirements of EPA’s 2008 PM2.5 NSR 

rule), and ‘‘Approval and Promulgation of Air 

Quality Implementation Plans; New Mexico; 

Infrastructure and Interstate Transport 

Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 

4337) (January 22, 2013) (EPA’s final action on the 

infrastructure SIP for the 2006 PM2.5 NAAQS). 

9On December 14, 2007, the State of Tennessee, 

through the Tennessee Department of Environment 

and Conservation, made a SIP revision to EPA 

demonstrating that the State meets the requirements 

of sections 110(a)(1) and (2). EPA proposed action 

for infrastructure SIP elements (C) and (J) on 

January 23, 2012 (77 FR 3213) and took final action 

on March 14, 2012 (77 FR 14976). On April 16, 

2012 (77 FR 22533) and July 23, 2012 (77 FR 

42997), EPA took separate proposed and final 

actions on all other section 110(a)(2) infrastructure 

SIP elements of Tennessee’s December 14, 2007 

submittal. 

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. 

11EPA notes, however, that nothing in the CAA 

requires EPA to provide guidance or to promulgate 

regulations for infrastructure SIP submissions. The 

CAA directly applies to states and requires the 

submission of infrastructure SIP submissions, 

regardless of whether or not EPA provides guidance 

or regulations pertaining to such submissions. EPA 

elects to issue such guidance in order to assist 

states, as appropriate. 

12 ‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements under Clean 

Air Act Sections 110(a)(1) and 110(a)(2),’’ 

Memorandum from Stephen D. Page, September 13, 

2013. 

13EPA’s September 13, 2013, guidance did not 

make recommendations with respect to 

infrastructure SIP submissions to address section 

110(a)(2)(D)(i)(I). EPA issued the guidance shortly 

after the U.S. Supreme Court agreed to review the 

D.C. Circuit decision in EME Homer City, 696 F.3d7 

(D.C. Cir. 2012) which had interpreted the 

requirements of section 110(a)(2)(D)(i)(I). In light of 

the uncertainty created by ongoing litigation, EPA 

elected not to provide additional guidance on the 

requirements of section 110(a)(2)(D)(i)(I) at that 

time. As the guidance is neither binding nor 

required by statute, whether EPA elects to provide 

guidance on a particular section has no impact on 

a state’s CAA obligations. 

plan’’ to meet these requirements, EPA 

interprets the CAA to allow states to 

make multiple SIP submissions 

separately addressing infrastructure SIP 

elements for the same NAAQS. If states 

elect to make such multiple SIP 

submissions to meet the infrastructure 

SIP requirements, EPA can elect to act 

on such submissions either individually 

or in a larger combined action.8

Similarly, EPA interprets the CAA to 

allow it to take action on the individual 

parts of one larger, comprehensive 

infrastructure SIP submission for a 

given NAAQS without concurrent 

action on the entire submission. For 

example, EPA has sometimes elected to 

act at different times on various 

elements and sub-elements of the same 

infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) 

and 110(a)(2) may also arise with 

respect to infrastructure SIP submission 

requirements for different NAAQS. 

Thus, EPA notes that not every element 

of section 110(a)(2) would be relevant, 

or as relevant, or relevant in the same 

way, for each new or revised NAAQS. 

The states’ attendant infrastructure SIP 

submissions for each NAAQS therefore 

could be different. For example, the 

monitoring requirements that a state 

might need to meet in its infrastructure 

SIP submission for purposes of section 

110(a)(2)(B) could be very different for 

different pollutants because the content 

and scope of a state’s infrastructure SIP 

submission to meet this element might 

be very different for an entirely new 

NAAQS than for a minor revision to an 

existing NAAQS.10

EPA notes that interpretation of 

section 110(a)(2) is also necessary when 

EPA reviews other types of SIP 

submissions required under the CAA. 

Therefore, as with infrastructure SIP 

submissions, EPA also has to identify 

and interpret the relevant elements of 

section 110(a)(2) that logically apply to 

these other types of SIP submissions. 

For example, section 172(c)(7) requires 

that attainment plan SIP submissions 

required by part D have to meet the 

‘‘applicable requirements’’ of section 

110(a)(2). Thus, for example, attainment 

plan SIP submissions must meet the 

requirements of section 110(a)(2)(A) 

regarding enforceable emission limits 

and control measures and section 

110(a)(2)(E)(i) regarding air agency 

resources and authority. By contrast, it 

is clear that attainment plan SIP 

submissions required by part D would 

not need to meet the portion of section 

110(a)(2)(C) that pertains to the PSD 

program required in part C of title I of 

the CAA, because PSD does not apply 

to a pollutant for which an area is 

designated nonattainment and thus 

subject to part D planning requirements. 

As this example illustrates, each type of 

SIP submission may implicate some 

elements of section 110(a)(2) but not 

others. 

Given the potential for ambiguity in 

some of the statutory language of section 

110(a)(1) and section 110(a)(2), EPA 

believes that it is appropriate to 

interpret the ambiguous portions of 

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

in the context of acting on a particular 

SIP submission. In other words, EPA 

assumes that Congress could not have 

intended that each and every SIP 

submission, regardless of the NAAQS in 

question or the history of SIP 

development for the relevant pollutant, 

would meet each of the requirements, or 

meet each of them in the same way. 

Therefore, EPA has adopted an 

approach under which it reviews 

infrastructure SIP submissions against 

the list of elements in section 110(a)(2), 

but only to the extent each element 

applies for that particular NAAQS. 

Historically, EPA has elected to use 

guidance documents to make 

recommendations to states for 

infrastructure SIPs, in some cases 

conveying needed interpretations on 

newly arising issues and in some cases 

conveying interpretations that have 

already been developed and applied to 

individual SIP submissions for 

particular elements.11 EPA most 

recently issued guidance for 

infrastructure SIPs on September 13, 

2013 (2013 Guidance).12 EPA developed 

this document to provide states with upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

As an example, section 110(a)(2)(E)(ii) 

is a required element of section 

110(a)(2) for infrastructure SIP 

submissions. Under this element, a state 

must meet the substantive requirements 

of section 128, which pertain to state 

boards that approve permits or 

enforcement orders and heads of 

executive agencies with similar powers. 

Thus, EPA reviews infrastructure SIP 

submissions to ensure that the state’s 

implementation plan appropriately 

addresses the requirements of section 

110(a)(2)(E)(ii) and section 128. The 

2013 Guidance explains EPA’s 

interpretation that there may be a 

variety of ways by which states can 

appropriately address these substantive 

statutory requirements, depending on 

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14By contrast, EPA notes that if a state were to 

include a new provision in an infrastructure SIP 

submission that contained a legal deficiency, such 

as a new exemption for excess emissions during 

SSM events, then EPA would need to evaluate that 

provision for compliance against the rubric of 

applicable CAA requirements in the context of the 

action on the infrastructure SIP. 

15For example, EPA issued a SIP call to Utah to 

address specific existing SIP deficiencies related to 

the treatment of excess emissions during SSM 

events. See ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revisions,’’ 74 FR 21639 

(April 18, 2011). 

16EPA has used this authority to correct errors in 

past actions on SIP submissions related to PSD 

programs. See ‘‘Limitation of Approval of 

Prevention of Significant Deterioration Provisions 

Concerning Greenhouse Gas Emitting-Sources in 

State Implementation Plans; Final Rule,’’ 75 FR 

82536 (December 30, 2010). EPA has previously 

used its authority under CAA section 110(k)(6) to 

remove numerous other SIP provisions that the 

Agency determined it had approved in error. See, 

e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 

(June 27, 1997) (corrections to American Samoa, 

Arizona, California, Hawaii, and Nevada SIPs); 69 

FR 67062 (November 16, 2004) (corrections to 

California SIP); and 74 FR 57051 (November 3, 

2009) (corrections to Arizona and Nevada SIPs). 

the structure of an individual state’s 

permitting or enforcement program (e.g., 

whether permits and enforcement 

orders are approved by a multi-member 

board or by a head of an executive 

agency). However they are addressed by 

the state, the substantive requirements 

of section 128 are necessarily included 

in EPA’s evaluation of infrastructure SIP 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and new 

source review (NSR) pollutants, 

including greenhouse gases (GHGs). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

fine particulate matter (PM2.5) NAAQS. 

Accordingly, the latter optional 

provisions are types of provisions EPA 

considers irrelevant in the context of an 

infrastructure SIP action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s 

implementation plan meets basic 

structural requirements. For example, 

section 110(a)(2)(C) includes, among 

other things, the requirement that states 

have a program to regulate minor new 

sources. Thus, EPA evaluates whether 

the state has an EPA-approved minor 

NSR program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) Existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). Finally, EPA believes 

that its approach with respect to 

infrastructure SIP requirements is based 

on a reasonable reading of sections 

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

provides other avenues and mechanisms 

to address specific substantive 

deficiencies in existing SIPs. These 

other statutory tools allow EPA to take 

appropriately tailored action, depending 

upon the nature and severity of the 

alleged SIP deficiency. Section 110(k)(5) 

authorizes EPA to issue a ‘‘SIP call’’ 

whenever the Agency determines that a 

state’s implementation plan is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or to otherwise 

comply with the CAA.15 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

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

the basis for action to correct those 

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17See, e.g., EPA’s disapproval of a SIP submission 

from Colorado on the grounds that it would have 

included a director’s discretion provision 

inconsistent with CAA requirements, including 

section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 

(July 21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

18On June 12, 2015, EPA published a final action 

entitled, ‘‘State Implementation Plans: Response to 

Petition for Rulemaking; Restatement and Update of 

EPA’s SSM Policy Applicable to SIPs; Findings of 

Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During 

Periods of Startup, Shutdown, and Malfunction.’’ 

See 80 FR 33840. 

19On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR part 58. 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

North Carolina addressed the elements 

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

‘‘Infrastructure’’ provisions? 

North Carolina’s 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: Section 

110(a)(2)(A) requires that each 

implementation plan include 

enforceable emission limitations and 

other control measures, means, or 

techniques (including economic 

incentives such as fees, marketable 

permits, and auctions of emissions 

rights), as well as schedules and 

timetables for compliance, as may be 

necessary or appropriate to meet the 

applicable requirements. These 

requirements are met through several 

North Carolina Administrative Code 

(NCAC) regulations. Specifically, 15A 

NCAC 2D .0500 Emission Control 

Standards establishes emission limits 

for NO2. The following rules address 

additional control measures, means and 

techniques: 15A NCAC 2D .0600 

Monitoring: Recordkeeping: Reporting, 

and 15A NCAC 2D .2600 Source 

Testing. In addition, NCGS 143– 

215.107(a)(5), Air quality standards and 

classifications, provides the North 

Carolina Environmental Management 

Commission (EMC) with the statutory 

authority, ‘‘To develop and adopt 

emission control standards as in the 

judgment of the Commission may be 

necessary to prohibit, abate, or control 

air pollution commensurate with 

established air quality standards.’’ EPA 

has made the preliminary determination 

that the cited provisions are adequate 

for enforceable emission limitations and 

other control measures, means, or 

techniques, as well as schedules and 

timetables for compliance for the 2010 

1-hour NO2 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 is addressing such state 

regulations in a separate action.18

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing State rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient air quality 

monitoring/data system: Section 

110(a)(2)(B) requires SIPs to provide for 

establishment and operation of 

appropriate devices, methods, systems, 

and procedures necessary to: (i) 

Monitor, compile, and analyze data on 

ambient air quality, and (ii) upon 

request, make such data available to the 

Administrator. NCGS 143–215.107(a)(2), 

Air quality standards and 

classifications, provides the EMC with 

the statutory authority ‘‘To determine by 

means of field sampling and other 

studies, including the examination of 

available data collected by any local, 

State or federal agency or any person, 

the degree of air contamination and air 

pollution in the State and the several 

areas of the State.’’ 

Annually, states develop and submit 

to EPA for approval statewide ambient 

monitoring network plans consistent 

with the requirements of 40 CFR parts 

50, 53, and 58. The annual network plan 

involves an evaluation of any proposed 

changes to the monitoring network, and 

includes the annual ambient monitoring 

network design plan and a certified 

evaluation of the state’s ambient 

monitors and auxiliary support 

equipment.19 The latest monitoring 

network plan for North Carolina was 

submitted to EPA on July 23, 2015, and 

on November 19, 2015, EPA approved 

this plan. North Carolina’s approved 

monitoring network plan can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2015– 

0362. 

NCGS 143–215.107(a)(2), EPA 

regulations, along with North Carolina’s 

Ambient Air Monitoring Network Plan, 

provide for the establishment and 

operation of ambient air quality 

monitors, the compilation and analysis 

of ambient air quality data, and the 

submission of these data to EPA upon 

request. EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices are adequate for the 

ambient air quality monitoring and data 

system requirements related to the 2010 

1-hour NO2 NAAQS. 

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

Enforcement of Control Measures and 

for Construction or Modification of 

Stationary Sources: This element 

consists of three sub-elements: 

enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and preconstruction permitting of major 

sources and major modifications in 

areas designated attainment or 

unclassifiable for the subject NAAQS as 

required by CAA title I part C (i.e., the 

major source PSD program). To meet 

these obligations, North Carolina cited 

the following regulations: 15A NCAC 

2D. 0500 Emissions Control Standards; 

15A NCAC 2D. 0530 Prevention of 

Significant Deterioration; 15A NCAC 

2D. 0531 Sources in Nonattainment 

Areas; 15A NCAC 2Q .0300 

Construction Operation Permits; and 

15A NCAC 2Q .0500 Title V Procedures. 

Collectively, these regulations enable 

North Carolina to regulate sources 

contributing to the 2010 1-hour NO2

NAAQS through enforceable permits. 

North Carolina also cited to the 

following statutory provisions as 

supporting this element: NCGS 143– 

215.108, Control of sources of air 

pollution; permits required; NCGS 143– 

215.107(a)(7), Air quality standards and 

classifications; and NCGS 143–215.6A, 

6B, and 6C, Enforcement procedures: 

civil penalties, criminal penalties, and 

injunctive relief. 

In this action, EPA is proposing to 

approve North Carolina’s infrastructure 

SIP for the 2010 1-hour NO2 NAAQS 

with respect to the general requirement 

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

program in the SIP for enforcement of 

NO2 emissions controls and measures 

and the regulation of minor sources and 

modifications to assist in the protection 

of air quality in nonattainment, 

attainment or unclassifiable areas. 

Enforcement: NC DAQ’s abovedescribed, SIP-approved regulations 

provide for enforcement of NO2

emission limits and control measures 

through enforceable permits. In 

addition, North Carolina cited NCGS 

143–215.6A, 6B, and 6C, Enforcement 

procedures: civil penalties, criminal 

penalties, and injunctive relief, which 

provides NC DENR with the statutory 

authority to seek civil and criminal 

penalties, and injunctive relief to 

enforce air quality rules. 

Preconstruction PSD Permitting for 

Major Sources: With respect to North 

Carolina’s infrastructure SIP submission 

related to the preconstruction PSD 

permitting requirements for major 

sources of section 110(a)(2)(C), EPA is 

not proposing any action today 

regarding these requirements and 

instead will act on this portion of the 

submission in a separate action. 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source program 

that regulates emissions of the 2010 1- 

hour NO2 NAAQS. Regulation 15A 

NCAC 2Q .0300 Construction Operation 

Permits governs the preconstruction 

permitting of minor modifications and 

construction of minor stationary 

sources. 

EPA has made the preliminary 

determination that North Carolina’s SIP 

is adequate for enforcement of control 

measures and regulation of minor 

sources and construction or 

modifications related to the 2010 1-hour 

NO2 NAAQS. 

4. 110(a)(2)(D)(i) Interstate Pollution 

Transport: Section 110(a)(2)(D)(i) has 

two components; 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II). Each of these 

components have two subparts resulting 

in four distinct components, commonly 

referred to as ‘‘prongs,’’ that must be 

addressed in infrastructure SIP 

submissions. The first two prongs, 

which are codified in section 

110(a)(2)(D)(i)(I), are provisions that 

prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 

nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

from interfering with measures required 

to prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). With respect to North 

Carolina’s infrastructure SIP in relation 

to the interstate transport requirements 

of section 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II) (prongs 1 through 4), 

EPA is not proposing any action today 

regarding these requirements. 

5. 110(a)(2)(D)(ii) Interstate Pollution 

Abatement and International Air 

Pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

ensuring compliance with sections 115 

and 126 of the Act relating to interstate 

and international pollution abatement. 

Regulations 15A NCAC 2D .0530, 

Prevention of Significant Deterioration, 

and 15A NCAC 2D .0531, Sources of 

Nonattainment Areas, provide how 

NCDAQ will notify neighboring states of 

potential impacts from new or modified 

sources consistent with the 

requirements of 40 CFR 51.166. These 

regulations require NC DAQ to provide 

an opportunity for a public hearing to 

the public, which includes state or local 

air pollution control agencies, ‘‘whose 

lands may be affected by emissions from 

the source or modification’’ in North 

Carolina. In addition, North Carolina 

does not have any pending obligation 

under sections 115 and 126 of the CAA. 

Accordingly, EPA has made the 

preliminary determination that North 

Carolina’s SIP is adequate for ensuring 

compliance with the applicable 

requirements relating to interstate and 

international pollution abatement for 

the 2010 1-hour NO2 NAAQS. 

6. 110(a)(2)(E) Adequate Resources 

and Authority, Conflict of Interest, and 

Oversight of Local Governments and 

Regional Agencies: Section 110(a)(2)(E) 

requires that each implementation plan 

provide: (i) Necessary assurances that 

the State will have adequate personnel, 

funding, and authority under state law 

to carry out its implementation plan, (ii) 

that the State comply with the 

requirements respecting State Boards 

pursuant to section 128 of the Act, and 

(iii) necessary assurances that, where 

the State has relied on a local or 

regional government, agency, or 

instrumentality for the implementation 

of any plan provision, the State has 

responsibility for ensuring adequate 

implementation of such plan provisions. 

EPA is proposing to approve North 

Carolina’s SIP as meeting the 

requirements of sub-elements 

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

North Carolina’s August 23, 2013, 

infrastructure SIP submission related to 

the state board requirements of section 

110(a)(2)(E)(ii), EPA took final action to 

approve these provisions for the 2010 1- 

hour NO2 NAAQS on November 3, 

2015. See 80 FR 67645. EPA’s rationale 

for today’s proposal respecting subelements (i) and (iii) is described below. 

To satisfy the requirements of sections 

110(a)(2)(E)(i) and (iii), North Carolina’s 

infrastructure SIP submission cites 

several regulations. Rule 15A NCAC 2Q. 

0200, Permit Fees, provides the 

mechanism by which stationary sources 

that emit air pollutants pay a fee based 

on the quantity of emissions. State 

statutes NCGS 143–215.3, General 

Powers of Commission and Department: 

Auxiliary Powers, and NCGS 143– 

215.107(a)(1), Air Quality Standards 

and Classifications, provide the EMC 

with the statutory authority ‘‘[t]o 

prepare and develop, after proper study, 

a comprehensive plan or plans for the 

prevention, abatement and control of air 

pollution in the State or in any 

designated area of the State.’’ NCGS 

143–215.112, Local air pollution control 

programs, provides the EMC with the 

statutory authority ‘‘to review and have 

general oversight and supervision over 

all local air pollution control programs.’’ 

North Carolina has three local air 

agencies located in Buncombe, Forsyth, 

and Mecklenburg Counties that 

implement the air program in these 

areas. 

As further evidence of the adequacy 

of NCDAQ’s resources with respect to 

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

submitted a letter to North Carolina on 

April 19, 2016, outlining section 105 

grant commitments and the current 

status of these commitments for fiscal 

year 2015. The letter EPA submitted to 

North Carolina can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2015–0362. 

Annually, states update these grant 

commitments based on current SIP 

requirements, air quality planning, and 

applicable requirements related to the 

NAAQS. North Carolina satisfactorily 

met all commitments agreed to in the 

Air Planning Agreement for fiscal year 

2015, therefore North Carolina’s grants 

were finalized and closed out. 

Collectively, these rules and 

commitments provide evidence that NC 

DAQ has adequate personnel, funding, 

and legal authority to carry out the 

State’s implementation plan and related 

issues. EPA has made the preliminary 

determination that North Carolina has 

adequate resources and authority to 

satisfy sections 110(a)(2)(E)(i) and (iii), 

North Carolina has adequate resources 

for implementation of the 2010 1-hour 

NO2 NAAQS. 

7. 110(a)(2)(F) Stationary source 

monitoring system: Section 110(a)(2)(F) 

requires SIPs to meet applicable 

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requirements addressing: (i) The 

installation, maintenance, and 

replacement of equipment, and the 

implementation of other necessary 

steps, by owners or operators of 

stationary sources to monitor emissions 

from such sources, (ii) periodic reports 

on the nature and amounts of emissions 

and emissions related data from such 

sources, and (iii) correlation of such 

reports by the state agency with any 

emission limitations or standards 

established pursuant to this section, 

which reports shall be available at 

reasonable times for public inspection. 

North Carolina’s infrastructure 

submission describes how the State 

establishes requirements for emissions 

compliance testing and utilizes 

emissions sampling and analysis. 

NC DAQ uses these data to track 

progress towards maintaining the 

NAAQS, develop control and 

maintenance strategies, identify sources 

and general emission levels, and 

determine compliance with emission 

regulations and additional EPA 

requirements. North Carolina meets 

these requirements through 15A NCAC 

2D .0604 Exceptions to Monitoring and 

Reporting Requirements; 15A NCAC 2D 

.0605 General Recordkeeping and 

Reporting Requirements; 15A NCAC 2D 

.0611 Monitoring Emissions from Other 

Sources; 15A NCAC 2D .0612 

Alternative Monitoring and Reporting 

Procedures; 15A NCAC 2D .0613 

Quality Assurance Program; and 15A 

NCAC 2D .0614 Compliance Assurance 

Monitoring. In addition, 15A NCAC 2D 

.0605(c) General Recordkeeping and 

Reporting Requirements allows for the 

use of credible evidence in the event 

that the NCDAQ Director has evidence 

that a source is violating an emission 

standard or permit condition, the 

Director may require that the owner or 

operator of any source submit to the 

Director any information necessary to 

determine the compliance status of the 

source. In addition, EPA is unaware of 

any provision preventing the use of 

credible evidence in the North Carolina 

SIP. Also, NCGS 143–215.107(a)(4), Air 

quality standards and classifications, 

provides the EMC with the statutory 

authority ‘‘To collect information or to 

require reporting from classes of sources 

which, in the judgment of the [EMC], 

may cause or contribute to air 

pollution.’’ 

Stationary sources are required to 

submit periodic emissions reports to the 

State by Rule 15A NCAC 2Q .0207 

‘‘Annual Emissions Reporting.’’ North 

Carolina is also required to submit 

emissions data to EPA for purposes of 

the National Emissions Inventory (NEI). 

The NEI is EPA’s central repository for 

air emissions data. EPA published the 

AERR on December 5, 2008, which 

modified the requirements for collecting 

and reporting air emissions data (73 FR 

76539). The AERR shortened the time 

states had to report emissions data from 

17 to 12 months, giving states one 

calendar year to submit emissions data. 

All states are required to submit a 

comprehensive emissions inventory 

every three years and report emissions 

for certain larger sources annually 

through EPA’s online Emissions 

Inventory System. States report 

emissions data for the six criteria 

pollutants and the precursors that form 

them—nitrogen oxides, sulfur dioxide, 

ammonia, lead, carbon monoxide, 

particulate matter, and volatile organic 

compounds. Many states also 

voluntarily report emissions of 

hazardous air pollutants. North Carolina 

made its latest update to the 2011 NEI 

on December 5, 2014. EPA compiles the 

emissions data, supplementing it where 

necessary, and releases it to the general 

public through the Web site http://

www.epa.gov/ttn/chief/

eiinformation.html. EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 2010 

1-hour NO2 NAAQS. Accordingly, EPA 

is proposing to approve North Carolina’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(F). 

8. 110(a)(2)(G) Emergency Powers: 

Section 110(a)(2)(G) requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. North Carolina’s 

infrastructure SIP submission cites 15A 

NCAC 2D .0300, Air Pollution 

Emergencies, as identifying air pollution 

emergency episodes and preplanned 

abatement strategies, and provides the 

means to implement emergency air 

pollution episode measures. Under 

NCGS 143–215.3(a)(12), General powers 

of Commission and Department; 

auxiliary powers, if NC DENR finds that 

such a ‘‘condition of . . . air pollution 

exists and that it creates an emergency 

requiring immediate action to protect 

the public health and safety or to protect 

fish and wildlife, the Secretary of the 

Department [NC DENR] with the 

concurrence of the Governor, shall order 

persons causing or contributing to the 

. . . air pollution in question to reduce 

or discontinue immediately the 

emission of air contaminants or the 

discharge of wastes.’’ In addition, NCGS 

143–215.3(a)(12) provides NC DENR 

with the authority to declare an 

emergency when it finds that a 

generalized condition of water or air 

pollution which is causing imminent 

danger to the health or safety of the 

public. This statute also allows, in the 

absence of a generalized condition of air 

pollution, should the Secretary find 

‘‘that the emissions from one or more air 

contaminant sources . . . is causing 

imminent danger to human health and 

safety or to fish and wildlife, he may 

with the concurrence of the Governor 

order the person or persons responsible 

for the operation or operations in 

question to immediately reduce or 

discontinue the emissions of air 

contaminants . . . or to take such other 

measures as are, in his judgment, 

necessary.’’ EPA has made the 

preliminary determination that North 

Carolina’s SIP submission is adequate to 

satisfy the emergency powers 

obligations of the 2010 1-hour NO2

NAAQS. 

9. 110(a)(2)(H) Future SIP Revisions: 

Section 110(a)(2)(H), in summary, 

requires each SIP to provide for 

revisions of such plan (i) as may be 

necessary to take account of revisions of 

such national primary or secondary 

ambient air quality standard or the 

availability of improved or more 

expeditious methods of attaining such 

standard, and (ii) whenever the 

Administrator finds that the plan is 

substantially inadequate to attain the 

NAAQS or to otherwise comply with 

any additional applicable requirements. 

NC DAQ is responsible for adopting air 

quality rules and revising SIPs as 

needed to attain or maintain the 

NAAQS in North Carolina. NCGS 143– 

215.107(a)(1) and (a)(10) grant NC DAQ 

the authority to prepare and develop, 

after proper study, a comprehensive 

plan for the prevention of air pollution 

and implement the CAA, respectively. 

These provisions also provide NC DAQ 

the ability and authority to respond to 

calls for SIP revisions, and North 

Carolina has provided a number of SIP 

revisions over the years for 

implementation of the NAAQS. In 

addition, State regulation 15A NCAC 2D 

.2401(d) states that ‘‘The EMC may 

specify through rulemaking a specific 

emission limit lower than that 

established under this rule for a specific 

source if compliance with the lower 

emission limit is required to attain or 

maintain the ambient air quality 

standard for ozone or PM2.5 or any other 

ambient air quality standard in Section 

15A NCAC 2D .0400.’’ EPA has made 

the preliminary determination that 

North Carolina’s SIP and practices 

adequately demonstrate a commitment 

to provide future SIP revisions related to 

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the 2010 1-hour NO2 NAAQS when 

necessary. 

10. 110(a)(2)(J) Consultation with 

Government Officials, Public 

Notification, and PSD and Visibility 

Protection: EPA is proposing to approve 

North Carolina’s infrastructure SIP 

submission for the 2010 1-hour NO2

NAAQS with respect to the general 

requirement in section 110(a)(2)(J) to 

include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127, and the 

visibility requirements. With respect to 

North Carolina’s infrastructure SIP 

submission related to the 

preconstruction PSD permitting, EPA is 

not proposing any action today 

regarding these requirements and 

instead will act on these portions of the 

submission in a separate action. EPA’s 

rationale for its proposed action 

regarding applicable consultation 

requirements of section 121, the public 

notification requirements of section 127, 

and visibility is described below. 

Consultation with government 

officials (121 consultation): Section 

110(a)(2)(J) of the CAA requires states to 

provide a process for consultation with 

local governments, designated 

organizations and federal land managers 

(FLMs) carrying out NAAQS 

implementation requirements pursuant 

to section 121 relative to consultation. 

Rules 15A NCAC 2D .0531, Sources in 

a Nonattainment Areas, 2D .1600, 

General Conformity, 2D .2000, 

Transportation Conformity, along with 

the State’s Regional Haze 

Implementation Plan, (which allows for 

consultation between appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

FLMs), provide for consultation with 

government officials whose jurisdictions 

might be affected by SIP development 

activities. North Carolina adopted statewide consultation procedures for the 

implementation of transportation 

conformity. Implementation of 

transportation conformity as outlined in 

the consultation procedures requires NC 

DAQ to consult with Federal, state and 

local transportation and air quality 

agency officials on the development of 

motor vehicle emissions budgets. The 

Regional Haze SIP provides for 

consultation between appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

FLMs. EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices adequately demonstrate 

consultation with government officials 

related to the 2010 1-hour NO2 NAAQS 

when necessary. 

Public notification (127 public 

notification): Rule 15A NCAC 2D .0300 

Air Pollution Emergencies provides 

North Carolina with the authority to 

declare an emergency and notify the 

public accordingly when it finds a 

generalized condition of water or air 

pollution which is causing imminent 

danger to the health or safety of the 

public. Additionally, the NC DAQ has 

the North Carolina Air Awareness 

Program which is a program to educate 

the public on air quality issues and 

promote voluntary emission reduction 

measures. The NC DAQ also features a 

Web page providing ambient monitoring 

information regarding current and 

historical air quality across the State at 

http://www.ncair.org/monitor/. North 

Carolina participates in the EPA 

AirNOW program, which enhances 

public awareness of air quality in North 

Carolina and throughout the country. 

EPA has made the preliminary 

determination that North Carolina’s SIP 

and practices adequately demonstrate 

the State’s ability to provide public 

notification related to the 2010 1-hour 

NO2 NAAQS when necessary for the 

public notification element of section 

110(a)(2)(J). 

Visibility protection: EPA’s 2013 

Guidance notes that it does not treat the 

visibility protection aspects of section 

110(a)(2)(J) as applicable for purposes of 

the infrastructure SIP approval process. 

NC DENR referenced its regional haze 

program as germane to the visibility 

component of section 110(a)(2)(J). EPA 

recognizes that states are subject to 

visibility protection and regional haze 

program requirements under part C of 

the Act (which includes sections 169A 

and 169B). However, there are no newly 

applicable visibility protection 

obligations after the promulgation of a 

new or revised NAAQS. Thus, EPA has 

determined that states do not need to 

address the visibility component of 

110(a)(2)(J) in infrastructure SIP 

submittals so NC DENR does not need 

to rely on its regional haze program to 

fulfill its obligations under section 

110(a)(2)(J). As such, EPA has made the 

preliminary determination that North 

Carolina’s infrastructure SIP submission 

is approvable for the visibility 

protection element of section 

110(a)(2)(J) related to the 2010 1-hour 

NO2 NAAQS and that North Carolina 

does not need to rely on its regional 

haze program to satisfy this element. 

11. 110(a)(2)(K) Air Quality Modeling 

and Submission of Modeling Data: 

Section 110(a)(2)(K) of the CAA requires 

that SIPs provide for performing air 

quality modeling so that effects on air 

quality of emissions from NAAQS 

pollutants can be predicted and 

submission of such data to EPA can be 

made. This infrastructure requirement is 

met through emissions data collected 

through 15A NCAC 2D .0600 

Monitoring: Recordkeeping: Reporting 

(authorized under NCGS 143– 

215.107(a)(4)), which provides 

information to model potential impact 

of major and some minor sources. 15A 

NCAC 2D .0530 Prevention of 

Significant Deterioration and 15A NCAC 

2D .0531 Sources in Nonattainment 

Areas require that air modeling be 

conducted in accordance with 40 CFR 

part 51, Appendix W, Guideline on Air 

Quality Models. NCGS 143–215.107(a) 

also provides authority for the EMC to 

determine by means of field sampling 

and other studies, the degree of air 

contamination and air pollution in the 

State. These regulations demonstrate 

that North Carolina has the authority to 

perform air quality modeling and to 

provide relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 2010 1-hour NO2 NAAQS. 

The NC DAQ currently has personnel 

with training and experience to conduct 

source-oriented dispersion modeling 

that would likely be used in NO2

NAAQS applications with models 

approved by EPA. Additionally, North 

Carolina participates in a regional effort 

to coordinate the development of 

emissions inventories and conduct 

regional modeling for several NAAQS, 

including the 2010 1-hour NO2 NAAQS, 

for the Southeastern states. Taken as a 

whole, North Carolina’s air quality 

regulations and practices demonstrate 

that NC DAQ has the authority to 

provide relevant data for the purpose of 

predicting the effect on ambient air 

quality of any emissions of any 

pollutant for which a NAAQS has been 

promulgated, and to provide such 

information to the EPA Administrator 

upon request. EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices adequately 

demonstrate the State’s ability to 

provide for air quality and modeling, 

along with analysis of the associated 

data, related to the 2010 1-hour NO2

NAAQS when necessary. 

12. 110(a)(2)(L) Permitting fees: 

Section 110(a)(2)(L) requires the owner 

or operator of each major stationary 

source to pay to the permitting 

authority, as a condition of any permit 

required under the CAA, a fee sufficient 

to cover (i) the reasonable costs of 

reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

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20Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

To satisfy these requirements, North 

Carolina’s infrastructure SIP submission 

cites Regulation 15A NCAC 2Q .0200 

Permit Fees, which requires the owner 

or operator of each major stationary 

source to pay to the permitting 

authority, as a condition of any permit 

required under the CAA, a sufficient fee 

to cover the costs of the permitting 

program. Additionally, North Carolina 

has a fully approved title V operating 

permit program at 15A NCAC.0500 

Emissions Control Standards and 2Q 

.0500, Title V Procedures,20 which 

include provisions to implement and 

enforce PSD and NNSR permits once 

Title V permits have been issued. The 

fees collected under 15A NCAC 2Q 

.0200 also support this activity. NCGS 

143–215.3, General powers of 

Commission and Department; auxiliary 

Powers, provides authority for NC DAQ 

to require a processing fee in an amount 

sufficient for the reasonable cost of 

reviewing and acting upon PSD and 

NNSR permits. EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices adequately 

provide for permitting fees related to the 

2010 1-hour NO2 NAAQS, when 

necessary. 

13. 110(a)(2)(M) Consultation/

participation by affected local entities: 

Section 110(a)(2)(M) of the Act requires 

states to provide for consultation and 

participation in SIP development by 

local political subdivisions affected by 

the SIP. Rule 15A NCAC 2Q .0530, 

Prevention of Significant Deterioration, 

requires that the NCDAQ notify the 

public, including affected local entities, 

of PSD permit applications and 

associated information related to PSD 

permits, and the opportunity for 

comment prior to making final 

permitting decisions. NCGS 150B–21.1 

and 150B–21.2 authorize and require 

NCDAQ to advise, consult, cooperate 

and enter into agreements with other 

agencies of the state, the Federal 

government, other states, interstate 

agencies, groups, political subdivisions, 

and industries affected by the 

provisions of this act, rules, or policies 

of the Department. Also, Rule 15A 

NCAC 2D .2000 Transportation 

Conformity requires consultation with 

all affected partners to be implemented 

for transportation conformity 

determinations. Furthermore, NC DAQ 

has demonstrated consultation with, 

and participation by, affected local 

entities through its work with local 

political subdivisions during the 

developing of its Transportation 

Conformity SIP, Regional Haze 

Implementation Plan, and the 8-Hour 

Ozone Attainment Demonstration for 

the North Carolina portion of the 

Charlotte-Gastonia-Rock Hill NC–SC 

nonattainment area. EPA has made the 

preliminary determination that North 

Carolina’s SIP and practices adequately 

demonstrate consultation with affected 

local entities related to the 2010 1-hour 

NO2 NAAQS when necessary. 

V. Proposed Action 

EPA is proposing to approve that 

portions of NCDAQ’s infrastructure SIP 

submission, submitted August 23, 2013, 

for the 2010 1-hour NO2 NAAQS, has 

met the above described infrastructure 

SIP requirements. EPA is proposing to 

approve these portions of North 

Carolina’s infrastructure SIP submission 

for the 2010 1-hour NO2 NAAQS 

because these aspects of the submission 

are consistent with section 110 of the 

CAA. The PSD permitting requirements 

for major sources of section 110(a)(2)(C) 

and (J), the interstate transport 

requirements of section 110(a)(2)(D)(i)(I) 

and (II) (prongs 1 through 4), will not be 

addressed by EPA at this time. EPA has 

already taken action to approve North 

Carolina’s infrastructure SIP submission 

related to section 110(a)(2)(E)(ii) for the 

2010 NO2 NAAQS. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

The SIP is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Reporting and 

recordkeeping requirements. 

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

Dated: July 8, 2016. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2016–17071 Filed 7–19–16; 8:45 am] 

BILLING CODE 6560–50–P 

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