[Federal Register Volume 89, Number 182 (Thursday, September 19, 2024)]
[Rules and Regulations]
[Pages 76737-76739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21006]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2017-0454; EPA-R04-OAR-2019-0638; EPA-R04-OAR-2020-0186; 
FRL-11971-02-R4]


Air Plan Approval; North Carolina; Permitting Provisions 
Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is correcting the 
erroneous incorporation of cross-references into the North Carolina 
State Implementation Plan (SIP) using the Clean Air Act (CAA or Act) 
error correction provision. EPA has determined that portions of its May 
23, 2019, July 17, 2020, and March 1, 2021, final SIP rulemaking 
actions were in error and that it is appropriate to correct those 
actions by removing specific cross-references in the permitting rules 
from the SIP.

DATES: This rule is effective October 21, 2024.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2017-0454. Additional supporting 
materials associated with this final action are included in Docket Nos. 
EPA-R04-OAR-2019-0638 and EPA-R04-OAR-2020-0186. All documents in the 
docket are listed on the regulations.gov website. Although listed in 
the index, some information may not be publicly available, i.e., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the Air Regulatory Management Section, Air Planning and 
Implementation Branch, Air and Radiation 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 a.m. to 4:30 p.m., excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Steve Scofield, Multi-Air Pollutant 
Coordination Section, Air Planning and Implementation Branch, Air and 
Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is 
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at 
<a href="/cdn-cgi/l/email-protection#8cffefe3eae5e9e0e8a2fff8e9fae9cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="ea9989858c838f868ec4999e8f9c8faa8f9a8bc48d859c">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    On May 23, 2019, July 17, 2020, and March 1, 2021,\1\ EPA approved 
revisions to 15A North Carolina Administrative Code (NCAC) 02Q .0101, 
02Q .0103, and 02Q .0301 into the North Carolina SIP.\2\ These 
revisions included cross-references to North Carolina General Statutes 
(G.S.) 143-215.108 and 143-215.108A; however, these cross-referenced 
provisions were not incorporated into the SIP. EPA has determined these 
prior approvals of the cross-referenced provisions were in error and is 
finalizing removal of these cross-references from 15A NCAC 02Q.0101, 
02Q.0103 and 02Q.0301 of the SIP. Because the cross-referenced 
provisions are not incorporated into the SIP, changes to those 
provisions could change the SIP without the submission of a SIP 
revision and subsequent EPA action to approve such a change, which is 
inconsistent with the CAA. Specifically, CAA section 110(l) requires 
each SIP revision submitted by a State to undergo reasonable public 
notice and hearing and prevents EPA from approving a SIP revision that 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress, or any other applicable requirement of 
the CAA.\3\

[[Page 76738]]

Changes to the statutory provisions cross-referenced in the SIP could 
change the SIP without fulfilling public notice and hearing 
requirements and without EPA evaluation of the revision pursuant to the 
requirements of section 7410(l) and any other CAA requirements 
applicable to the specific SIP provision at issue.
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    \1\ See 84 FR 23725, 85 FR 43461, and 86 FR 11875.
    \2\ The revisions were submitted by the North Carolina Division 
of Air Quality in submissions dated March 24, 2006, and July 10, 
2019.
    \3\ CAA sections 110(a)(1) and (2) also require each SIP 
submitted by a State to undergo reasonable public notice and 
hearing.
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    Section 110(k)(6) of the CAA authorizes EPA to revise a State's SIP 
when it ``determines that [its] action approving, disapproving, or 
promulgating any plan or plan revision (or part thereof) . . . was in 
error.'' Once EPA has made the determination that it erred, it ``may in 
the same manner as the approval, disapproval, or promulgation revise 
such action as appropriate without requiring any further submission 
from the State.'' Ala. Envtl. Council v. EPA, 711 F.3d 1277, 1286 (11th 
Cir. 2013). This determination and the basis for it must be provided to 
the State and the public. Section 110(k)(6) of the CAA has been 
interpreted by courts as a ``broad provision [that] was enacted to 
provide the EPA with an avenue to correct its own erroneous actions and 
grant the EPA the discretion to decide when to act pursuant to the 
provision.'' Miss. Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 
(D.C. Cir. 2015). EPA can take action under section 110(k)(6) to 
correct an error only if the error existed at the time the SIP was 
originally approved. See Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 
2013) (Kavanaugh, J., dissenting).
    Through a notice of proposed rulemaking (NPRM) published on May 28, 
2024 (89 FR 46049), EPA proposed to correct the erroneous incorporation 
of certain cross-references into 15A NCAC 02Q Section .0101, Required 
Air Quality Permits; .0103, Definitions; and .0301, Applicability of 
the North Carolina SIP. EPA's rationale for removing the cross 
references is described in the May 28, 2024, NPRM. Comments on the May 
28, 2024, NPRM were due on or before June 27, 2024. One comment was 
received on the NPRM and is addressed below.

II. Response to Comments

    EPA received one comment from the North Carolina Department of 
Environmental Quality (NCDEQ)'s Division of Air Quality (DAQ), 
regarding the May 28, 2024, NPRM. The comment is provided in the docket 
for this final action. EPA has summarized and responded to the comment 
below.
    Comment: North Carolina DAQ (NC DAQ) supports EPA's proposal and 
``recommends that the EPA proceed with its error correction regarding 
its prior approvals of the phrases referencing the North Carolina 
General Statutes.'' The commenter further suggests that EPA also 
correct the first line of 15A NCAC 02Q .0103 by removing references to 
G.S. 143-212 and G.S. 143-213.
    Response: EPA acknowledges NC DAQ's suggestion and will consider 
future action(s) to address the first line of 15A NCAC 02Q .0103 and 
other instances where there are cross references to statutory or 
regulatory provisions that are outside the SIP.

III. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, and as discussed in section I of this preamble, EPA is finalizing 
the incorporation by reference of 15A NCAC Section 02Q Rule .0101, 
Required Air Quality Permits, except for the phrase ``With the 
exception allowed by G.S. 143-215.108A'' in paragraph (b); Rule .0103, 
Definitions, except for the phrase ``pursuant to G.S. 143-215.108'' in 
subparagraph (9)(d); and Rule .0301, Applicability, except for the 
phrase ``or as allowed pursuant G.S. 143-215.108A'' in paragraph (a), 
all state-effective April 1, 2018. EPA has made, and will continue to 
make, these materials generally available through www.regulations.gov 
and at the EPA Region 4 Office (please contact the person identified in 
the FOR FURTHER INFORMATION CONTACT section of this preamble for more 
information). Therefore, these materials have been approved by EPA for 
inclusion in the State implementation plan, have been incorporated by 
reference by EPA into that plan, are fully federally enforceable under 
sections 110 and 113 of the CAA as of the effective date of the final 
rulemaking of EPA's approval, and will be incorporated by reference in 
the next update to the SIP compilation.\4\
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    \4\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action

    Pursuant to the error correction provision of section 110(k)(6) of 
the CAA, EPA is finalizing the removal of portions of 15A NCAC Section 
02Q .0101, Required Air Quality Permits, Section 02Q .0103, 
Definitions, and Section 02Q .0301, Applicability, with the cross-
references to North Carolina General Statutes as discussed above 
because the inclusion of these cross-references in the SIP is 
inconsistent with the CAA.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
    <bullet> 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 14094 (88 FR 21879, April 11, 2023);
    <bullet> Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> 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.);
    <bullet> 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);
    <bullet> Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
    <bullet> Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
    <bullet> 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.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian Tribe has 
demonstrated that a Tribe has jurisdiction. In those areas of Indian 
country, the rulemaking does not have Tribal implications and will not 
impose substantial direct costs on Tribal governments or preempt Tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
2000).
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
February 16, 1994) directs Federal

[[Page 76739]]

agencies to identify and address ``disproportionately high and adverse 
human health or environmental effects'' of their actions on communities 
with environmental justice (EJ) concerns to the greatest extent 
practicable and permitted by law. EPA defines EJ as ``the fair 
treatment and meaningful involvement of all people regardless of race, 
color, national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a disproportionate burden of 
environmental harms and risks, including those resulting from the 
negative environmental consequences of industrial, governmental, and 
commercial operations or programs and policies.''
    EPA did not perform an EJ analysis and did not consider EJ in this 
action. Consideration of EJ is not required as part of this action, and 
there is no information in the record inconsistent with the stated goal 
of E.O. 12898 of achieving EJ for communities with EJ concerns.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by November 18, 2024. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements.

    Dated: September 11, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

0
2. In Sec.  52.1770, amend table in paragraph (c)(1) by revising the 
entries for ``Rule .0101'', ``Rule .0103'', and ``Rule .0301'' to read 
as follows:


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                   (1) EPA-Approved North Carolina Regulations
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                                                            State
         State citation              Title/subject     effective date   EPA approval date        Explanation
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                  * * * * * * *
                                       Subchapter 02Q Air Quality Permits
                                        Section .0100 General Provisions
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Rule .0101......................  Required Air               4/1/2018  9/19/2024, [Insert   Except for the
                                   Quality Permits.                     first page of        phrase ``With the
                                                                        Federal Register     exception allowed
                                                                        citation].           by G.S. 143-
                                                                                             215.108A'' in
                                                                                             paragraph (b).
 
                                                  * * * * * * *
Rule .0103......................  Definitions........        4/1/2018  9/19/2024, [Insert   Except for the
                                                                        first page of        phrase ``pursuant
                                                                        Federal Register     to G.S. 143-
                                                                        citation].           215.108'' in
                                                                                             subparagraph
                                                                                             (9)(d).
 
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                                                  * * * * * * *
                                Section .0300 Construction and Operating Permits
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Rule .0301......................  Applicability......        4/1/2018  9/19/2024, [Insert   Except for the
                                                                        first page of        phrase ``or as
                                                                        Federal Register     allowed pursuant to
                                                                        citation].           G.S. 143-215.108A''
                                                                                             in paragraph (a).
 
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[FR Doc. 2024-21006 Filed 9-18-24; 8:45 am]
BILLING CODE 6560-50-P


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