[Federal Register Volume 80, Number 49 (Friday, March 13, 2015)]
[Proposed Rules]
[Pages 13312-13321]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-05647]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0795; FRL-9924-28-Region 4]


Approval and Promulgation of Implementation Plans; North Carolina 
Infrastructure Requirements for the 2008 8-Hour Ozone National Ambient 
Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the November 2, 2012, State Implementation Plan 
(SIP) submission, provided by the North Carolina Department of 
Environment and Natural Resources (NC DENR), Division of Air Quality 
(NCDAQ) for inclusion into the North Carolina SIP. This proposal 
pertains to the Clean Air Act (CAA or the Act) infrastructure 
requirements for the 2008 8-hour ozone 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. NCDAQ certified that the North Carolina SIP 
contains provisions that ensure the 2008 8-hour ozone NAAQS is 
implemented, enforced, and maintained in North Carolina (hereafter 
referred to as an ``infrastructure SIP submission''). With the 
exception of provisions pertaining to prevention of significant 
deterioration (PSD) permitting, interstate transport, and state boards 
requirements, EPA is proposing to approve North Carolina's 
infrastructure SIP submission provided to EPA on November 2, 2012, as 
satisfying the required infrastructure elements for the 2008 8-hour 
ozone NAAQS.

DATES: Written comments must be received on or before April 3, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0795, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: <a href="/cdn-cgi/l/email-protection#98caacb5d9cad5cbd8fde8f9b6fff7ee"><span class="__cf_email__" data-cfemail="5301677e12011e00133623327d343c25">[email protected]</span></a>.
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2014-0795,'' Air Regulatory Management 
Section, (formerly the Regulatory Development Section), Air Planning 
and Implementation Branch, (formerly the 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, Chief, 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. 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 a.m. to 4:30 p.m., 
excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2014-0795. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The 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 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 
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 www.regulations.gov or 
in hard copy at the 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. 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: Nacosta C. Ward, 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. The telephone number is (404) 562-9140. Ms. Ward can be 
reached via electronic mail at <a href="/cdn-cgi/l/email-protection#592e382b3d7737383a362a2d38193c2938773e362f"><span class="__cf_email__" data-cfemail="d8afb9aabcf6b6b9bbb7abacb998bda8b9f6bfb7ae">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how North Carolina addressed the 
elements of sections 110(a)(1) and (2) ``infrastructure'' 
provisions?

[[Page 13313]]

V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On March 27, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. EPA revised the level of the 8-hour 
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. Pursuant to 
section 110(a)(1) of the CAA, states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. States were required to 
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than 
March 2011.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Unless otherwise indicated, the Title 15A 
regulations (also referred to as rules) of the North Carolina 
Administrative Code (``15A NCAC'') cited throughout this rulemaking 
have been approved 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.
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    This action is proposing to approve North Carolina's infrastructure 
submission for the applicable requirements of the 2008 8-hour ozone 
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). With respect to 
North Carolina's infrastructure SIP submission related to provisions 
pertaining to the PSD permitting requirements for major sources of 
sections 110(a)(2)(C) and (J), the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II), and the state board requirements 
of 110(E)(ii), EPA is not proposing any action today regarding these 
requirements. EPA will act on these portions of North Carolina's 
submission in a separate action. 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 2008 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 the 1997 8-hour 
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 basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements of section 110(a)(2) are summarized below and in EPA's 
September 13, 2013, memorandum entitled ``Guidance on Infrastructure 
State Implementation Plan (SIP) Elements under Clean Air Act Sections 
110(a)(1) and 110(a)(2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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<bullet> 110(a)(2)(A): Emission Limits and Other Control Measures
<bullet> 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
<bullet> 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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<bullet> 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
<bullet> 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
<bullet> 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
<bullet> 110(a)(2)(F): Stationary Source Monitoring and Reporting
<bullet> 110(a)(2)(G): Emergency Powers
<bullet> 110(a)(2)(H): SIP revisions
<bullet> 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to this 
proposed rulemaking.
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<bullet> 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection
<bullet> 110(a)(2)(K): Air Quality Modeling and Submission of Modeling 
Data
<bullet> 110(a)(2)(L): Permitting fees
<bullet> 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 2008 8-hour ozone 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.

[[Page 13314]]

    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 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.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\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.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,'' 
70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship 
between timing requirement of section 110(a)(2)(D) versus section 
110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\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\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM<INF>2.5</INF> NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM<INF>2.5</INF> NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM<INF>2.5</INF> NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM<INF>2.5</INF> 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it

[[Page 13315]]

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 up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\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.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \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.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the DC 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.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and NSR pollutants, including 
greenhouse gases. By contrast, structural PSD program requirements do 
not include provisions that are not required under EPA's regulations at 
40 CFR 51.166 but are merely available as an option for the state, such 
as the option to provide grandfathering of complete permit applications 
with respect to the 2012 PM<INF>2.5</INF> 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 SIP 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 new source review program 
and whether the program addresses the pollutants relevant to that 
NAAQS. In the context of acting on an infrastructure SIP submission, 
however, EPA does not think it is necessary to conduct a review of each 
and every provision of a state's existing minor source program (i.e., 
already in the existing SIP) for compliance with the requirements of 
the CAA and EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such

[[Page 13316]]

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.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\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 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\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's Analysis of How North Carolina addressed the elements 
of 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: There 
are several provisions within the North Carolina General Statutes 
(NCGS) and the North Carolina Administrative Code (NCAC) that provide 
NCDAQ with the necessary authority to adopt and enforce air quality 
controls, which include enforceable emission limitations and other 
control measures. NCGS 143-215.107(a)(5), ``Air quality standards and 
classifications,'' provides North Carolina with the 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.'' Rules 
15A NCAC 2D .0600 ``Monitoring: Recordkeeping: Reporting,'' 15A NCAC 2D 
.1600 ``General Conformity,'' 15A NCAC 2D .2200 ``Special Orders,'' 
and, 15A NCAC 2D .2600 ``Source Testing,'' provide enforceable emission 
limits and other control measures, means, and techniques.\18\ EPA has 
made the preliminary determination that the provisions contained in 
these statutes and regulations and North Carolina's practices are 
adequate to protect the 2008 8-hour ozone NAAQS in the State.
---------------------------------------------------------------------------

    \18\ State rules 15A NCAC 2D .1600 ``General Conformity,'' and 
15A NCAC 2D .2200 ``Special Orders,'' are state-approved rules and 
not incorporated into the federally approved SIP.
---------------------------------------------------------------------------

    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 a separate 
action.\19\ In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
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    \19\ On February 22, 2013, EPA published a proposed action in 
the Federal Register entitled, ``State Implementation Plans: 
Response to Petition for Rulemaking; Findings of Substantial 
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 
Emissions During Periods of Startup, Shutdown, and Malfunction; 
Proposed Rule.'' See 78 FR 12459.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove

[[Page 13317]]

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: SIPs 
are required to 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. 
NCGS 143-215.107(a)(2), ``Air quality standards and classifications,'' 
along with the North Carolina Annual Monitoring Network Plan, provide 
for an ambient air quality monitoring system in the State, which 
includes the monitoring of ozone at appropriate locations throughout 
the state using the EPA approved Federal Reference Method or equivalent 
monitors. NCGS 143-215.107(a)(2) also provides North Carolina 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, includes the annual ambient monitoring network design plan and 
a certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\20\ The latest monitoring network plan for North 
Carolina was submitted to EPA on July 2, 2013, and on November 25, 
2013, EPA approved this plan. North Carolina's approved monitoring 
network plan can be accessed at www.regulations.gov using Docket ID No. 
EPA-R04-OAR-2014-0795. 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 2008 8-hour ozone 
NAAQS.
---------------------------------------------------------------------------

    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new 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 regulations 15A NCAC 2D. 
0500 ``Emissions Control Standards;'' 2D. 0530 ``Prevention of 
Significant Deterioration;'' and, 2D. 0531 ``Sources in Nonattainment 
Area,'' each of which pertain to the construction of any new major 
stationary source or any project at an existing major stationary source 
in an area designated as attainment or unclassifiable and 15A NCAC 2Q 
.0300 ``Construction Operation Permits,'' which pertains to the 
regulation of minor stationary sources. In this action, EPA is only 
proposing to approve North Carolina's infrastructure SIP submission for 
the 2008 8-hour ozone NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that provides for 
the enforcement of emission limits and control measures such as oxides 
of nitrogen (NO<INF>X</INF>) and volatile organic compounds (VOCs) and 
the regulation of minor sources and modifications to assist in the 
protection of air quality in nonattainment, attainment or 
unclassifiable areas.
    Enforcement: NCDAQ's above-described, SIP-approved regulations 
provide for enforcement of ozone precursor (VOC and NO<INF>X</INF>) 
emission limits and control measures and construction permitting for 
new or modified stationary sources.
    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 2008 8-hour ozone NAAQS. 
Regulation 15A NCAC 2Q .0300 ``Construction Operation Permits,'' 
governs the preconstruction permitting of modifications and 
construction of minor stationary sources.
    EPA has made the preliminary determination that North Carolina's 
SIP and practices are adequate for enforcement of control measures and 
regulation of minor sources and modifications related to the 2008 8-
hour ozone NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components 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 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 submissions related to the interstate transport 
requirements of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) 
(prongs 1 through 4), EPA is not proposing any action today regarding 
these requirements and instead will act on these portions of the 
submissions in a separate action.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions insuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 15A 
NCAC 2D .0530 ``Prevention of Significant Deterioration'' and 15A NCAC 
2D .0531 ``Sources of Nonattainment Areas'' provide how NCDAQ will 
notify neighboring states of potential impacts from new or modified 
sources consistent with the requirements of 40 CFR 51.166. This 
regulation requires NCDAQ 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.

[[Page 13318]]

Accordingly, 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 2008 8-hour ozone 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). EPA will act on sub-element (ii) in a 
separate action. EPA's rationale for this proposal respecting sub-
elements (i) and (iii) is described in turn 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 emitted. 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 NCDAQ 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.'' As further evidence of the 
adequacy of NCDAQ's resources, EPA submitted a letter to North Carolina 
on February 28, 2014, outlining 105 grant commitments and the current 
status of these commitments for fiscal year 2013. The letter EPA 
submitted to North Carolina can be accessed at www.regulations.gov 
using Docket ID No. EPA-R04-OAR-2014-0795. 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 2013, therefore North Carolina's 
grants were finalized and closed out. Collectively, these rules and 
commitments provide evidence that NCDAQ has adequate personnel, 
funding, and legal authority to carry out the state's implementation 
plan and related issues. EPA has made the preliminary determination 
that North Carolina has adequate resources and authority to satisfy 
sections 110(a)(2)(E)(i) and (iii) of the 2008 8-hour ozone NAAQS.
    With respect to North Carolina's infrastructure SIP submission 
related to the state board requirements of section 110(a)(2)(E)(ii), 
EPA is not proposing any action today regarding this requirement and 
will act on this portion of the submission in a separate action.
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: North 
Carolina's infrastructure SIP 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. NCDAQ 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, Rule 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.
    Stationary sources are required to submit periodic emissions 
reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions 
Reporting.'' North Carolina is also required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data. See 
73 FR 76539. The AERR shortened the time states had to report emissions 
data from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and the precursors that form them--NO<INF>x</INF>, 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 June 3, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that North Carolina's SIP 
and practices are adequate for the stationary source monitoring systems 
obligations for the 2008 8-hour ozone NAAQS.
    8. 110(a)(2)(G) Emergency powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. North 
Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300 ``Air 
Pollution Emergencies'' as identifying air pollution emergency episodes 
and preplanned abatement strategies, and provides the means to 
implement emergency air pollution episode measures. 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

[[Page 13319]]

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 also notes that NCDAQ maintains a Web site 
that provides the public with notice of the health hazards associated 
with ozone NAAQS exceedances, measures the public can take to help 
prevent such exceedances, and the ways in which the public can 
participate in the regulatory process. See http://www.ncair.org/news/. 
EPA has made the preliminary determination that North Carolina's SIP 
and practices are adequate to satisfy the emergency powers obligations 
of the 2008 8-hour ozone NAAQS.
    9. 110(a)(2)(H) SIP revisions: NCDAQ is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in North Carolina. Statutes NCGS 143-215.107(a)(1) and (a)(10) 
grants NCDAQ the authority to implement the CAA, and as such, provide 
NCDAQ the authority to prepare and develop, after proper study, a 
comprehensive plan for the prevention of air pollution. These 
provisions also provide NCDAQ 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. 
Accordingly, 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 2008 8-hour ozone NAAQS, 
when necessary.
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve North Carolina's infrastructure SIP for the 2008 8-hour ozone 
NAAQS with respect to the general requirement in section 110(a)(2)(J) 
to include a program in the SIP that complies with the applicable 
consultation requirements of section 121, and the public notification 
requirements of section 127. 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 and the public 
notification requirements of section 127 is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
federal land managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 15A NCAC 
2D.1600 ``General Conformity,'' 15A NCAC 2D .2000 ``Transportation 
Conformity,'' and 15A NCAC 2D .0531 ``Sources in Nonattainment Areas,'' 
along with the Regional Haze SIP Plan provide for consultation with 
government officials whose jurisdictions might be affected by SIP 
development activities. These consultation procedures were developed in 
coordination with the transportation partners in the State and are 
consistent with the approaches used for development of mobile 
inventories for SIPs. Implementation of transportation conformity as 
outlined in the consultation procedures requires NCDAQ 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 Federal Land Managers. EPA has made the preliminary 
determination that North Carolina's SIP and practices adequately 
demonstrate that the State meets applicable requirements related to 
consultation with government officials for the 2008 8-hour ozone 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 that a generalized condition of water or air pollution 
which is causing imminent danger to the health or safety of the public. 
In addition, the North Carolina SIP process affords the public an 
opportunity to participate in regulatory and other efforts to improve 
air quality by holding public hearings for interested persons to appear 
and submit written or oral comments. Rule 15A NCAC 2D .0530 
``Prevention of Significant Deterioration,'' requires the owners and 
operators of major stationary sources and major modifications to apply 
for and receive, as appropriate, a permit as described in Rule 15A NCAC 
02Q .0300. Rule 15A NCAC 02Q. 0306 provides for public notice for 
comments with an opportunity to request a public hearing on the draft 
permits required pursuant to Rule 15A NCAC 2D. 0530. EPA also notes 
that NCDAQ maintains a Web site that provides the public with notice of 
the health hazards associated with ozone NAAQS exceedances, measures 
the public can take to help prevent such exceedances, and the ways in 
which the public can participate in the regulatory process. See http://www.ncair.org/ news/.
    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 2008 8-hour ozone NAAQS when 
necessary.
    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 the visibility protection element of 
section 110(a)(2)(J) does not need to be addressed in North Carolina's 
infrastructure SIP related to the 2008 8-hour ozone NAAQS.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the USEPA can be made. 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.'' These regulations demonstrate that North Carolina has the 
authority to

[[Page 13320]]

perform air quality modeling and to provide relevant data for the 
purpose of predicting the effect on ambient air quality of the 2008 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 2008 8-hour 
ozone NAAQS, for the Southeastern states. Taken as a whole, North 
Carolina's air quality regulations demonstrate that NCDAQ has the 
authority to provide relevant data for the purpose of predicting the 
effect on ambient air quality of the 2008 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 2008 8-hour ozone NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: This element necessitates that 
the SIP require the owner or operator of each major stationary source 
to pay to the permitting authority, as a condition of any permit 
required under the CAA, a fee sufficient to cover (i) the reasonable 
costs of reviewing and acting upon any application for such a permit, 
and (ii) if the owner or operator receives a permit for such source, 
the reasonable costs of implementing and enforcing the terms and 
conditions of any such permit (not including any court costs or other 
costs associated with any enforcement action), until such fee 
requirement is superseded with respect to such sources by the 
Administrator's approval of a fee program under title V.
    To satisfy these requirements, North Carolina's infrastructure SIP 
submission cites NCGS 143-215.3 ``General powers of Commission and 
Department; auxiliary Powers,'' which directs NCDAQ to require a 
processing fee in an amount sufficient for the reasonable cost of 
reviewing and acting upon PSD and NNSR permits. Regulation 15A NCAC 2Q 
.0200 ``Permit Fees,'' implements this directive and 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 that covers the cost of implementation and enforcement 
of PSD and NNSR permits after they have been issued. EPA has made the 
preliminary determination that North Carolina's practices adequately 
provide for permitting fees related to the 2008 8-hour ozone NAAQS, 
when necessary.
    13. 110(a)(2)(M) Consultation and Participation by Affected Local 
Entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. North Carolina 15A NCAC 2D .0530 ``Prevention of 
Significant Deterioration,'' and NCGS 150B-21.1 and -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. Furthermore, NCDAQ 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 2008 8-hour ozone NAAQS, when necessary.

V. Proposed Action

    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 section 110(a)(E)(ii), EPA is 
proposing to approve that NCDAQ's infrastructure SIP submissions, 
submitted November 2, 2012, for the 2008 8-hour ozone NAAQS have met 
the above described infrastructure SIP requirements. EPA is proposing 
to approve these portions of North Carolina's infrastructure SIP 
submission for the 2008 8-hour ozone NAAQS because these aspects of the 
submission are consistent with section 110 of the CAA. EPA will address 
those portions of North Carolina's infrastructure SIP submission not 
acted upon through this notice in a separate action.

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:
    <bullet> 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);
    <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 an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <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; and
    <bullet> 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).

[[Page 13321]]

    In addition, the North Carolina 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, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: February 20, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2015-05647 Filed 3-12-15; 8:45 am]
 BILLING CODE 6560-50-P


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