Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 63107 

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. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 14, 2016. 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, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: September 2, 2016. 

V. Anne Heard, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart L—Georgia 

■ 2. Section 52.570(e), is amended by 

adding the entry ‘‘110(a)(1) and (2) 

Infrastructure Requirements for the 2010 

1-hour NO2 NAAQS’’ at the end of the 

table to read as follows: 

§ 52.570 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS

Name of nonregulatory 

SIP provision 

Applicable geographic or 

nonattainment area 

State 

submittal date/ 

effective date 

EPA approval 

date Explanation 

*******

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

NO2 NAASQ.

Georgia .......................................... 3/25/2013 9/14/2016 With the exception of sections 

110(a)(2)(C), prong 3 of D(i), 

and (J) and sections 

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

1, 2, and 4). 

[FR Doc. 2016–21991 Filed 9–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2015–0501; FRL–9952–31– 

Region 4] 

Air Plan Approval and Disapproval; 

North Carolina: New Source Review for 

Fine Particulate Matter (PM2.5) 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving, in part, and 

disapproving, in part, changes to the 

North Carolina State Implementation 

Plan (SIP), provided by the North 

Carolina Department of Environmental 

Quality (NC DEQ) through the Division 

of Air Quality (DAQ), to EPA in 

submittals dated May 16, 2011, (two 

separate submittals) and September 5, 

2013. These SIP submittals modify 

North Carolina’s New Source Review 

(NSR)—Prevention of Significant 

Deterioration (PSD) and Nonattainment 

New Source Review (NNSR)— 

permitting regulations and include the 

adoption of some federal requirements 

regarding implementation of the fine 

particulate matter (PM2.5) national 

ambient air quality standards (NAAQS) 

through the NSR permitting program. As 

a result of the disapproval of a portion 

of the State’s NSR requirements, EPA is 

also approving, in part, and 

disapproving, in part, the PSD elements 

of North Carolina’s infrastructure SIP 

submittals for the 2008 lead, 2008 8- 

hour ozone, 2010 sulfur dioxide (SO2), 

2010 nitrogen dioxide (NO2) and the 

2012 PM2.5 NAAQS, and converting the 

Agency’s previous conditional 

approvals of the PSD elements of North 


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63108 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 

1North Carolina’s regulations at 15A NCAC 02D 

.0530 use incorporation by reference (IBR) to adopt 

the federal regulations in the CFR as of May 16, 

2008, which do not include the definitions of 

‘‘major source baseline,’’ ‘‘minor source baseline,’’ 

and ‘‘baseline area’’ that EPA promulgated in the 

2010 PSD PM2.5 rule. Thus, the definition of ‘‘major 

source baseline date’’ incorporated into 15A NCAC 

02D .0530 does not include the federally required 

PM2.5 major source baseline date of October 20, 

2010, but instead states: ‘‘In the case of particulate 

matter and sulfur dioxide, January 6, 1975.’’ 

Likewise, the definition of ‘‘minor source baseline 

date’’ incorporated into 15A NCAC 02D .0530 does 

not include the federally required PM2.5 trigger date 

of October 20, 2011, but instead states: ‘‘In the case 

of particulate matter and sulfur dioxide, August 7, 

1977.’’ It is EPA’s understanding that North 

Carolina interprets the term ‘‘particulate matter’’ in 

North Carolina’s regulations to encompass PM2.5, 

resulting in a PM2.5 major source baseline date of 

January 6, 1975, and a PM2.5 trigger date of August 

7, 1977. 

2Paragraph (v) establishes the numerical PM2.5

increments. Paragraph (q) addresses the Class I 

PM2.5 variances. Paragraph (e) incorporates 

paragraph (v) by reference. EPA proposed to 

disapprove 15A NCAC 02D .0530, paragraphs (e), 

(q), and (v) in part, rather than in their entirety, 

because the paragraphs also include previously 

approved PM10 increment requirements. 

Specifically, in addition to making the PM2.5-related 

changes to these paragraphs, North Carolina also 

revised 15A NCAC 02D .0530, paragraphs (e), (q), 

and (v), to directly incorporate the PM10

increments. Previously, North Carolina had 

incorporated the PM10 increments into 15A NCAC 

02D .0530 by reference to the CFR. EPA is 

approving the PM10-related changes to paragraphs 

(e), (q), and (v). 

Carolina’s infrastructure SIP submittals 

for the 1997 Annual PM2.5 and 2006 24- 

hour PM2.5 NAAQS to partial approvals 

and partial disapprovals. This partial 

disapproval triggers the requirement for 

EPA to promulgate a Federal 

Implementation Plan (FIP) no later than 

two years from the date of the 

disapproval unless the State corrects the 

deficiencies through a SIP revision and 

EPA approves the SIP revision before 

EPA promulgates such a FIP. 

DATES: This rule will be effective 

October 14, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2015–0501. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not 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, 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: Joel 

Huey of the 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. Huey 

can be reached by telephone at (404) 

562–9104 or via electronic mail at 

huey.joel@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background and Overview 

In submittals dated May 16, 2011 (two 

separate submittals), and September 5, 

2013, DAQ submitted to EPA changes to 

the North Carolina SIP with regard to 

the State’s PSD and NNSR regulations 

found at 15A North Carolina 

Administrative Code (NCAC) 02D .0530 

and 15A NCAC 02D .0531. These SIP 

submittals modify North Carolina’s NSR 

permitting regulations (for both PSD and 

NNSR) and include the adoption of 

some federal requirements regarding 

implementation of the PM2.5 NAAQS 

through the NSR permitting program. In 

the notice of proposed rulemaking 

(NPRM) published on May 10, 2016 (81 

FR 28797), EPA proposed to take the 

following four actions, some with 

multiple parts, regarding the North 

Carolina submittals: 

• Approval of a May 16, 2011, SIP 

submittal from North Carolina (as 

revised and updated by the State’s 

September 5, 2013, SIP submittal) as 

meeting the requirements of EPA’s rule, 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5),’’ Final Rule, 73 FR 28321 (May 

16, 2008) (hereafter referred to as the 

‘‘2008 NSR PM2.5 Implementation 

Rule’’). 

• Disapproval of the portions of North 

Carolina’s September 5, 2013, SIP 

submittal pertaining to adoption and 

implementation of the PM2.5 increments 

because North Carolina’s proposed SIP 

revisions do not fully meet the 

requirements of EPA’s rulemaking, 

‘‘Prevention of Significant Deterioration 

(PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, 

Significant Impact Levels (SILs) and 

Significant Monitoring Concentration 

(SMC),’’ Final Rule, 75 FR 64864 

(October 20, 2010) (hereafter referred to 

as the ‘‘2010 PSD PM2.5 Rule’’). 

Specifically, though paragraphs (q) and 

(v) of North Carolina’s revised PSD 

regulations at 15A NCAC 02D .0530 

incorporate the federally required 

numerical PM2.5 increments, North 

Carolina’s regulations fail to include 

other federally required provisions 

needed to implement the PM2.5

increments, including (1) the definition 

of ‘‘[m]ajor source baseline date’’ for 

PM2.5 codified at 40 CFR 

51.166(b)(14)(i)(c) (defined as October 

20, 2010); (2) the definition of ‘‘[m]inor 

source baseline date’’ for PM2.5 codified 

at 40 CFR 51.166(b)(14)(ii)(c) (which 

establishes the PM2.5 trigger date as 

October 20, 2011); and (3) the definition 

of ‘‘[b]aseline area’’ codified at 40 CFR 

51.166(b)(15)(i).1 Without these 

definitions, North Carolina’s PSD 

regulations do not require PSD sources 

to conduct the appropriate analyses 

demonstrating that emissions from 

proposed construction of new major 

stationary sources or major 

modifications will not cause or 

contribute to air quality deterioration 

beyond the amount allowed by the 

PM2.5 increments. Therefore, EPA 

proposed to disapprove all of the PM2.5

increment provisions set forth in North 

Carolina’s September 5, 2013, SIP 

submittal, including all of the PM2.5- 

related changes to 15A NCAC 02D .0530 

at paragraphs (e), (q), and (v).2

• Approval of administrative changes 

to North Carolina’s PSD and NNSR 

regulations at 15A NCAC 02D .0530 and 

15A NCAC 02D .0531 provided by the 

State in a SIP submittal also dated May 

16, 2011, including clarification of the 

applicability of best available control 

technology (BACT) and lowest 

achievable emission rate (LAER) for 

electrical generating units (EGUs) in the 

State, and the inclusion of an additional 

Federal Land Manager (FLM) 

notification provision. 

• Approval, in part, and disapproval, 

in part, of the PSD elements of North 

Carolina’s infrastructure SIP submittals 

for the 2008 lead, 2008 8-hour ozone, 

2010 SO2, 2010 NO2 and 2012 PM2.5

NAAQS and conversion of the Agency’s 

previous conditional approvals of the 

PSD elements of North Carolina’s 

infrastructure SIP submittals for the 

1997 Annual PM2.5 and 2006 24-hour 

PM2.5 NAAQS to partial approvals and 

partial disapprovals. 

Comments on the NPRM were due on or 

before June 9, 2016. The details of North 

Carolina’s submittals and the rationale 

for EPA’s actions are explained in the 

NPRM. 


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Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 63109 

3The North Carolina Department of Environment 

and Natural Resources is now the North Carolina 

Department of Environmental Quality. 

4 In the D.C. Circuit litigation, North Carolina 

argued that the 2013 NRDC decision constituted 

grounds arising after the 60th day following EPA’s 

publication of the 2010 PSD PM2.5 Rule in the 

Federal Register, and therefore started a new 60- 

day period during which North Carolina could 

petition the D.C. Circuit to review the 2010 PM2.5

PSD Rule. North Carolina, 614 Fed. Appx. at 518. 

The D.C. Circuit found that even if NRDC 

constituted after-arising grounds, ‘‘North Carolina 

brought its petition more than ten months after [the 

Court] issued NRDC—well outside of the sixty-day 

window for petitions that the after-arising grounds 

exception [in CAA section 307(b)] provides.’’ Id. 

Therefore, the Court concluded: ‘‘Even assuming, 

without deciding, that NRDC constituted afterarising grounds, North Carolina’s petition is thus 

still untimely.’’ Id. 

II. Response to Comments 

EPA received one adverse comment 

submission, from DAQ, on the May 10, 

2016, NPRM to approve, in part, and 

disapprove, in part, changes to North 

Carolina’s SIP-approved NSR permitting 

regulations. The comment submission is 

available in the docket for this final 

rulemaking action. 

In its comments, DAQ objects to 

EPA’s proposed disapproval of the PM2.5

increment-related portions of 

paragraphs (e), (q) and (v) of North 

Carolina’s PSD rule 15A NCAC 02D 

.0530 for failing to incorporate the 

definitions of ‘‘major source baseline 

date,’’ ‘‘minor source baseline date,’’ 

and ‘‘baseline area’’ as found in EPA’s 

2010 PSD PM2.5 Rule. DAQ contends 

that EPA’s proposed disapproval of 

North Carolina’s PM2.5 increment 

provisions fails to properly account for 

the decision by the United States Court 

of Appeals for the District of Columbia 

(D.C. Circuit) in Natural Resource 

Defense Council v. EPA, 706 F.3d 428 

(D.C. Cir., 2013) (NRDC), where the 

Court determined that PM2.5 is not a 

new pollutant, but rather is 

encompassed by the statutory definition 

of the pollutant PM10. According to 

DAQ, North Carolina’s regulations, 

which incorporate by reference the prior 

federal definitions applicable to 

‘‘particulate matter’’ (rather than the 

definitions applicable to PM2.5

promulgated in EPA’s 2010 PSD PM2.5

Rule), are consistent with the Clean Air 

Act (CAA or Act) and NRDC and can be 

approved into the SIP as written. For the 

same reason, DAQ also objects to EPA’s 

proposed disapproval of the PSD 

elements of seven infrastructure SIP 

submittals. DAQ’s comments 

incorporate by reference the following 

documents: (1) Opening Brief of 

Petitioner in North Carolina v. United 

States Environmental Protection 

Agency, 13–1312 and 14–1186, dated 

October 9, 2014; (2) Reply Brief of 

Petitioner for North Carolina v. United 

States Environmental Protection 

Agency, 13–1312 and 14–1186, dated 

February 10, 2015; and (3) letter from 

John Skvarla (North Carolina 

Department of Environment and Natural 

Resources 3) to Gina McCarthy (EPA), 

dated August 22, 2013. 

The legal briefs attached to DAQ’s 

comments were filed in the D.C. Circuit 

by the State of North Carolina in 

support of the State’s consolidated 

petitions for review of EPA’s 2010 PSD 

PM2.5 Rule and of EPA’s denial of the 

State’s administrative petition for 

reconsideration of the PSD PM2.5 Rule. 

In the briefs, the State challenged the 

2010 PSD PM2.5 Rule on the basis that 

the rule improperly set new baseline 

dates for calculating PM2.5 increment 

consumption rather than using the preexisting particulate matter baseline 

dates set forth in the CAA. EPA filed a 

Response Brief in that case disputing 

the legal arguments in the briefs that 

DAQ has now submitted to support its 

comments on this SIP rule. The D.C. 

Circuit dismissed both of North 

Carolina’s petitions for review as 

untimely. See North Carolina v. EPA, 

614 Fed. Appx. 517, 2015 U.S. App. 

LEXIS 16246 (D.C. Cir. 2015). 

The August 22, 2013, letter from John 

Skvarla that DAQ attached to its 

comments was sent by North Carolina to 

EPA prior to the D.C. Circuit litigation 

and raised the same concern regarding 

the PM2.5 increment baseline dates in 

the 2010 PSD PM2.5 Rule that North 

Carolina raised in the D.C. Circuit 

litigation. EPA responded to the April 

22, 2013, letter from Secretary Skvarla 

to Administrator McCarthy in 

conjunction with EPA’s August 28, 

2014, response to the State’s petition for 

EPA to reconsider or revise the 2010 

PSD PM2.5 Rule. 

In response to DAQ’s comments, EPA 

notes that DAQ does not claim that 

North Carolina’s PM2.5 increment 

provisions satisfy the relevant federal 

criteria for state PSD programs set forth 

at 40 CFR 51.166 (as promulgated in the 

2010 PSD PM2.5 Rule). Rather, DAQ’s 

opposition to EPA’s proposed 

disapproval of North Carolina’s PM2.5

increment provisions is based entirely 

on DAQ’s claim that the federal PM2.5

increment baseline provisions set forth 

at 40 CFR 51.166 are unlawful. In 

determining whether to approve North 

Carolina’s PM2.5 increment submittal, 

however, EPA considers only whether 

North Carolina’s proposed SIP revision 

satisfies the minimum federal criteria 

set forth at 50 CFR 51.166 and other 

requirements governing SIP revisions. 

EPA’s action on North Carolina’s 

submittal does not reopen for comment 

EPA’s determination of the appropriate 

PM2.5 increment baselines for SIPapproved PSD programs, which were 

established in the final 2010 PSD PM2.5

Rule published in the Federal Register 

on October 20, 2010 (75 FR 64864). 

Under CAA section 307(b)(1), 42 

U.S.C. 7607(b)(1), any petition for 

review of the 2010 PSD PM2.5 Rule had 

to be filed in the D.C. Circuit within 60 

days of EPA’s publication of the rule in 

the Federal Register, unless such 

petition is based solely on grounds 

arising after the 60th day, in which case 

the petition had to be filed within 60 

days after such grounds arose. As the 

D.C. Circuit explained in dismissing 

North Carolina’s petition for review of 

the 2010 PSD PM2.5 Rule, North 

Carolina missed the statutory deadline 

for filing a petition for review of the 

PM2.5 increment baseline provisions set 

forth in that Rule and did not file its 

court challenge within 60 days of the 

NRDC court decision that the State 

alleged to establish ‘‘after arising’’ 

grounds for such a challenge. See North 

Carolina, 614 Fed. Appx. at 517.4

Based on its view of the NRDC court 

decision, North Carolina separately 

petitioned EPA to reconsider or revise 

the baseline date in the 2010 PSD PM2.5

Rule and subsequently challenged 

EPA’s response to that petition in the 

D.C. Circuit. EPA determined that 

revision of the baseline dates for PM2.5

in the 2010 rule was not appropriate or 

compelled by the court decision cited 

by North Carolina. EPA also considered 

and responded to the April 22, 2013, 

letter from Secretary Skvarla in the 

manner described above. Accordingly, 

EPA has already given due 

consideration to the concern raised by 

North Carolina in its comment regarding 

the content of the EPA regulations. The 

Court upheld EPA’s response to the 

State’s petition to change the rule. 614 

Fed. Appx. at 519. 

Thus, the legal issues raised by North 

Carolina concerning the content of 

EPA’s regulations are settled and not 

open to reconsideration in this action 

regarding North Carolina’s SIP 

submittal. For purposes of this action, 

the PM2.5 increment baseline provisions 

for SIP-approved state PSD programs set 

forth in 40 CFR 51.166 are final and 

effective for all states, including North 

Carolina. EPA is required to apply its 

regulations as they are presently 

written. See, e.g., 78 FR 63883, 63885 

(Oct. 25, 2013) (EPA action on the Utah 

SIP based on the terms of the current 

version of 40 CFR 51.166). Accordingly, 

DAQ’s comments regarding alleged 

defects in the PM2.5 increment baseline 

dates established in the 2010 PSD PM2.5


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63110 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 

5 62 FR 27968 (May 22, 1997). 

6As explained in the NPRM (81 FR at 28803, fn. 

17), the revisions to paragraphs (e), (q), and (v) 

provided in North Carolina’s September 5, 2013, 

SIP submittal include PM10 increment provisions in 

addition to PM2.5 provisions. Prior to these rule 

changes, North Carolina had incorporated the PM10

increments into 15A NCAC 02D .0530 by reference 

to the CFR. North Carolina’s decision to write the 

PM10 increment requirements directly into its rule 

rather than to incorporate them by reference does 

not change the applicable SIP requirements with 

respect to PM10 increments. 

7EPA expects North Carolina sources that are 

subject (or become subject) to PSD requirements to 

continue complying with federal PM2.5 increment 

requirements following this disapproval action, 

including use of the federally required baseline 

dates for calculating PM2.5 increment consumption. 

Rule (including arguments made in 

attachments to DAQ’s comment 

submission) are not relevant to EPA’s 

determination in this final action of 

whether the PM2.5 increment provisions 

in North Carolina’s September 5, 2013, 

SIP submittal are approvable. 

To be federally-approvable, North 

Carolina’s PM2.5 increment provisions 

must meet the requirements of 40 CFR 

51.166 unless North Carolina can 

demonstrate that it has alternative 

measures in its plan other than PM2.5

increments that satisfy the PSD 

requirements under sections 166(c) and 

166(d) of the CAA. See 40 CFR 

51.166(c)(2). Specifically regarding the 

definitions of key terms set forth at 40 

CFR 51.166(b), the regulations state that 

‘‘[a]ll State plans shall use’’ these 

definitions, unless ‘‘the State 

specifically demonstrates that the 

submitted definition is more stringent, 

or at least as stringent, in all respects’’ 

as the federal definition. See 40 CFR 

51.166(b). As EPA explained in the 

NPRM, North Carolina’s PM2.5

increment provisions at 15A NCAC 02D 

.0530 do not incorporate the federally 

required definitions of ‘‘major source 

baseline date,’’ ‘‘minor source baseline 

date,’’ and ‘‘baseline area.’’ Nor has 

North Carolina demonstrated—or even 

claimed—that alternative definitions in 

the State’s plan are more stringent, or at 

least as stringent, as the federal 

definitions set forth at 40 CFR 51.166. 

Likewise, North Carolina has not 

identified measures in its plan other 

than PM2.5 increments that satisfy the 

PSD requirements under sections 166(c) 

and 166(d) of the CAA and would 

warrant approval under 40 CFR 

51.166(c)(2). DAQ’s comments do not 

refute EPA’s determination that North 

Carolina’s PM2.5 increment provisions 

are not in compliance with 40 CFR 

51.166. Therefore, EPA disagrees with 

DAQ’s comment that North Carolina’s 

rules can be approved into the SIP as 

written. 

III. Incorporation by Reference 

In this rule, EPA is including in a 

final EPA rule regulatory text that 

includes incorporation by reference. In 

accordance with requirements of 1 CFR 

51.5, EPA is incorporating by reference 

portions of North Carolina’s regulations 

15A NCAC 02D .0530 and 15A NCAC 

02D .0531, entitled ‘‘Prevention of 

Significant Deterioration’’ and ‘‘Sources 

in Nonattainment Areas,’’ effective 

September 1, 2013. Therefore, these 

materials have been approved by EPA 

for inclusion in the SIP, 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 by the 

Director of the Federal Register in the 

next update to the SIP compilation.5

EPA has made, and will continue to 

make, these materials generally 

available through www.regulations.gov 

and/or at the EPA Region 4 Office 

(please contact the person identified in 

the FOR FURTHER INFORMATION CONTACT

section of this preamble for more 

information). 

IV. Final Actions 

EPA is approving, in part, and 

disapproving, in part, changes to the 

North Carolina SIP provided by the 

DAQ to EPA on May 16, 2011, (two 

submittals) and September 5, 2013. 

These changes modify North Carolina’s 

NSR permitting regulations codified at 

15A 02D .0530—Prevention of 

Significant Deterioration and 15A NCAC 

02D.0531—Sources in Nonattainment 

Areas, and include the adoption of some 

federal requirements respecting 

implementation of the PM2.5 NAAQS 

through the NSR permitting program. 

Specifically, EPA is approving the 

State’s changes as they relate to the 

requirements to comply with EPA’s 

2008 NSR PM2.5 Implementation Rule 

(provided in the first May 16, 2011, SIP 

submittal and the September 5, 2013, 

SIP submittal) and the State’s 

miscellaneous changes as described in 

Section III.C. of the NPRM (provided in 

the second May 16, 2011, SIP submittal 

and the September 5, 2013, SIP 

submittal). EPA is disapproving North 

Carolina’s September 5, 2013, SIP 

submittal as it relates to the 

requirements to comply with EPA’s 

2010 PSD PM2.5 Rule. The versions of 

15A NCAC 02D .0530 (PSD) and 15A 

NCAC 02D .0531 (NNSR) that became 

effective in the State on September 1, 

2013, will be incorporated into North 

Carolina’s SIP, with the exception of the 

portions of paragraphs 15A NCAC 02D 

.0530(e), (q), and (v) that pertain to 

PM2.5 increments. EPA is approving the 

portions of paragraphs 15A NCAC 02D 

.0530(e), (q), and (v) that pertain to 

PM10.6 As a result of the disapproval of 

a portion of the State’s NSR 

requirements, EPA also is disapproving 

the PSD elements of the North 

Carolina’s infrastructure SIP submittals 

for the 2008 lead, 2008 8-hour ozone, 

2010 SO2, 2010 NO2 and the 2012 PM2.5

NAAQS; and is converting the Agency’s 

previous conditional approvals of the 

PSD elements of North Carolina’s 

infrastructure SIP submittals for the 

1997 Annual PM2.5 and 2006 24-hour 

PM2.5 NAAQS to partial approvals and 

partial disapprovals. 

North Carolina did not submit its 

PM2.5 increment provisions or its 

infrastructure SIPs to meet requirements 

for Part D of the CAA or a SIP call; 

therefore, EPA’s final action to 

disapprove North Carolina’s PM2.5

increment provisions and to partially 

disapprove the PSD portions of the 

State’s infrastructure SIP submittals 

does not trigger sanctions. However, this 

final disapproval action does trigger the 

requirement under section 110(c) for 

EPA to promulgate a FIP no later than 

two years from the date of the 

disapproval unless the State corrects the 

deficiency through a SIP revision and 

EPA approves the SIP revision before 

EPA promulgates such a FIP.7

V. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submittal 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 submittals, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. This action approves, in part, 

and disapproves, in part, state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. EPA 

is determining that the PSD portion of 

some of the aforementioned SIP 

submittals do not meet federal 

requirements. For that reason, this 

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 


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Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 63111 

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, 

Lead, Nitrogen dioxide, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

Dated: September 6, 2016. 

V. Anne Heard, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart II—North Carolina 

■ 2. Section 52.1770 is amended by: 

■ a. In paragraph (c), Table 1, under 

Subchapter 2D, Section .0500, revising 

the entries for ‘‘Sect .0530’’ and ‘‘Sect 

.0531’’. 

■ b. In paragraph (e), adding entries for 

‘‘110(a)(1) and (2) Infrastructure 

Requirements for 1997 Fine Particulate 

Matter NAAQS’’, ‘‘110(a)(1) and (2) 

Infrastructure Requirements for 2006 

Fine Particulate Matter NAAQS’’, 

‘‘110(a)(1) and (2) Infrastructure 

Requirements for the 2008 Lead 

NAAQS’’, ‘‘110(a)(1) and (2) 

Infrastructure Requirements for the 2008 

8-Hour Ozone NAAQS’’, ‘‘110(a)(1) and 

(2) Infrastructure Requirements for the 

2010 1-hour NO2 NAAQS’’, ‘‘110(a)(1) 

and (2) Infrastructure Requirements for 

the 2010 1-hour SO2 NAAQS’’ and 

‘‘110(a)(1) and (2) Infrastructure 

Requirements for the 2012 Annual PM2.5

NAAQS’’ at the end of the table. 

The revisions and additions read as 

follows: 

§ 52.1770 Identification of plan. 

* * * * * 

(c) * * * 

TABLE 1—EPA APPROVED NORTH CAROLINA REGULATIONS

State citation Title/subject State effective 

date EPA approval date Explanation 

Subchapter 2D Air Pollution Control Requirements 

*******

Section .0500 Emission Control Standards 

*******

Sect .0530 ......... Prevention of Significant Deterioration.9/1/2013 ....................................................... Disapproved the portions of paragraphs 15A NCAC 02D 

.0530(e), (q), and (v) that pertain to PM2.5 increments. 

Sect .0531 ......... Sources in Nonattainment Areas .. 9/1/2013 9/14/2016, [Insert citation of publication in Federal Register].

* * * * * * * 

* * * * * (e) * * * 


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63112 Federal Register / Vol. 81, No. 178 / Wednesday, September 14, 2016 / Rules and Regulations 

EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS

Provision State effective 

date 

EPA Approval 

date Federal Register citation Explanation 

*******

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

for 1997 Fine Particulate Matter NAAQS.

4/1/2008 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for 2006 Fine Particulate Matter NAAQS.

9/21/2009 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for the 2008 Lead 

NAAQS.

6/15/2012 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for the 2008 8-Hour 

Ozone NAAQS.

11/2/2012 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for the 2010 1-hour NO2

NAAQS.

8/23/2013 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for the 2010 1-hour SO2

NAAQS.

3/18/2014 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

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

for the 2012 Annual 

PM2.5 NAAQS.

12/4/2015 9/14/2016 [Insert citation of publication in Federal Register].Partially approve the PSD elements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 

110(a)(2)(J) and disapprove with respect to the 

PM2.5 increment requirements of 2010 PSD PM2.5

Rule. 

§ 52.1773 [Removed and Reserved] 

■ 3. Section 52.1773 is removed and 

reserved. 

[FR Doc. 2016–21994 Filed 9–13–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2006–0790; FRL–9951–64– 

OAR] 

RIN 2060–AS10 

National Emission Standards for 

Hazardous Air Pollutants for Area 

Sources: Industrial, Commercial, and 

Institutional Boilers 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of final action 

on reconsideration. 

SUMMARY: This action sets forth the 

Environmental Protection Agency’s 

(EPA’s) final decision on the issues for 

which it announced reconsideration on 

January 21, 2015, that pertain to certain 

aspects of the February 1, 2013, final 

amendments to the ‘‘National Emission 

Standards for Hazardous Air Pollutants 

for Area Sources: Industrial, 

Commercial, and Institutional Boilers’’ 

(Area Source Boilers Rule). The EPA is 

retaining the subcategory and separate 

requirements for limited-use boilers, 

consistent with the February 2013 final 

rule. In addition, the EPA is amending 

three reconsidered provisions regarding: 

The alternative particulate matter (PM) 

standard for new oil-fired boilers; 

performance testing for PM for certain 

boilers based on their initial compliance 

test; and fuel sampling for mercury (Hg) 

for certain coal-fired boilers based on 

their initial compliance demonstration, 

consistent with the alternative 

provisions for which comment was 

solicited in the January 2015 proposal. 

The EPA is making minor changes to the 

proposed definitions of startup and 

shutdown based on comments received. 

This final action also addresses a 

limited number of technical corrections 

and clarifications on the rule, including 

removal of the affirmative defense for 

malfunction in light of a court decision 

on the issue. These corrections will 

clarify and improve the implementation 

of the February 2013 final Area Source 

Boilers Rule. In this action, the EPA is 

also denying the requests for 

reconsideration with respect to the 

issues raised in the petitions for 

reconsideration of the final Area Source 

Boilers Rule for which reconsideration 

was not granted. 

DATES: This final rule is effective on 

September 14, 2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2006–0790. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., 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 


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