61556 Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R04–OAR–2005–NC–0001–200503, FRL–

7988–2] 

Approval and Promulgation of 

Implementation Plans: NC: Approval of 

Revisions to the Control of Visible 

Emissions Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule 

SUMMARY: EPA is taking final action to 

approve the Control of Visible 

Emissions portion of a State 

Implementation Plan (SIP) revision 

submitted to EPA, by the State of North 

Carolina, on December 14, 2004. EPA is 

approving changes to the opacity 

standards for sources required to install, 

operate and maintain continuous 

opacity monitoring systems (COMs). 

These changes do not increase the 

number of exceptions or the number of 

minutes per day for exceptions, but 

allow the aggregation of the daily 

exceptions. At this time, we are not 

taking final action on the remaining 

portions of the SIP revision submitted 

by the State on December 14, 2004. 

DATES: This rule will be effective 

November 25, 2005. 

ADDRESSES: EPA has established a 

docket for this action under Regional 

Material in EDocket (RME) ID No. R04–

OAR–2005–NC–0001. All documents in 

the docket are listed in the RME index 

at http://docket.epa.gov/rmepub/, once 

in the system, select ‘‘quick search,’’

then key in the appropriate RME Docket 

identification number. 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 RME or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

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

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: Jane 

Spann, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, Region 4, U.S. Environmental 

Protection Agency, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9029. 

Ms. Spann can also be reached via 

electronic mail at spann.jane@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. Today’s Action 

III. Response to Comments 

IV. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

On December 14, 2004, the North 

Carolina Department of Environment 

and Natural Resources (NC DENR) 

submitted to EPA revisions to the North 

Carolina SIP. In the December 14, 2004 

submittal, the State of North Carolina 

requested adoption of new rules and 

amendments to existing rules including 

NCAC 2D. 0521 Control of Visible 

Emissions. On May 18, 2005, EPA 

proposed approval of the NCAC 2D. 

0521 Control of Visible Emissions 

portion of the December 14, 2004, 

submittal. Additional information 

regarding the specific proposed SIP 

revisions is available in the proposed 

rule (70 FR 28495, May 18, 2005) 

included in this docket. EPA provided 

the public with thirty days to submit 

comments on the proposed SIP 

revisions and we received six comment 

letters. The comments and our 

responses are discussed below in Part 

III., ‘‘Response to Comments.’’ One 

commenter requested that EPA hold a 

public hearing to discuss the proposed 

SIP revision. NC DENR held seven 

public hearings. Four public hearings 

were held in Raleigh, North Carolina on 

June 6, 2000; August 16, 2000; August 

20, 2002; and August 12, 2004. Public 

hearings were also held in Winterville, 

North Carolina on October 30, 2003; in 

Enka, North Carolina on November 5, 

2003; and in Charlotte, North Carolina 

on August 2, 2004. The revisions 

ultimately included in the December 14, 

2004, SIP submission were discussed in 

these hearings, including the revisions 

to Rule NCAC 2D .0521 Control of 

Visible Emissions. The Administrative 

Procedure Act does not require EPA to 

hold a public hearing for SIP revisions 

and, as a matter of practice EPA rarely 

provides for public hearing for SIP 

revisions. We see no reason to depart 

from that practice here, particularly in 

light of the numerous public hearings 

held by the State to discuss the changes 

being made to this rule. 

II. Today’s Action 

Today’s action addresses only the 

NCAC 2D .0521 Control of Visible 

Emissions portion of the December 14, 

2004, submittal. EPA is approving 

portions of Rule NCAC 2D. 0521 as 

submitted December 14, 2004, and is 

not taking action on the remainder of 

NCAC 2D .0521. EPA does not intend to 

act on previous versions of NCAC 2D 

.0521 which are not part of the 

December 14, 2004 submittal. In light of 

the public comments received on the 

May 18, 2005 proposal, EPA needs to 

consider further the remaining portions 

of NCAC 2D .0521 in the December 14, 

2004, SIP submission and is taking no 

action on those portions of the SIP 

revision in this action. 

Today’s action includes the following: 

1. EPA is approving the amendments 

to Paragraphs (c) and (d) of Rule NCAC 

2D .0521. These amendments add 

references to a new Paragraph (g) that 

has been added. 

2. EPA is approving a portion of 

Paragraph (g) of Rule NCAC 2D .0521 to 

allow sources required to install, 

operate and maintain COMs, to 

aggregate opacity exceptions on a daily 

basis rather than being restricted to one 

opacity exception per hour. Specifically, 

under the new amendment, sources 

with COMs are allowed no more than 

four six-minute opacity exception 

periods in any one day with no hourly 

restriction provided that no excess 

emissions during these periods cause or 

contribute to a violation of any emission 

standard or any ambient air quality 

standard. The new amendment also 

further restricts the exception periods 

by requiring that the opacity exceptions 

for these sources shall not exceed 0.8 

percent of the total operating hours in 

a calendar quarter. Opacity exceptions 

greater than 0.8 percent of the total 

operating hours per calendar quarter 

will be considered a violation of this 

rule. EPA is not taking action on that 

portion of Rule NCAC 2D .0521(g) that 

excludes startups, shutdowns, 

maintenance periods when fuel is not 

being combusted, and malfunctions 

approved as such according to 

procedures approved under Rule .0535. 

3. No action is being taken on 

Paragraphs (a), (b), (e) and Paragraph (f) 

of Rule NCAC 2D .0521. 

III. Response to Comments 

Comment 1: Numerous commenters 

objected to changes made to the 

provisions in Rule NCAC 2D .0521 

regarding the exclusion of startup, 

shutdown, maintenance and 

Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 61557 

malfunction periods. Two commenters 

objected to how the proposed rule 

creates ‘‘an automatic exemption from 

excess emissions violations during 

startup, shutdown, malfunctions and 

maintenance periods.’’ They went on to 

say that by creating ‘‘an automatic 

exemption,’’ the proposed rule revision 

violates the continuous compliance 

requirements of the Clean Air Act (CAA 

or the Act) and EPA policy, citing EPA’s 

‘‘State Implementation Plans (SIPs): 

Policy Regarding Excess Emissions 

During Malfunctions, Startup and 

Shutdown,’’ issued September 20, 1999 

(September 20, 1999 EPA guidance 

document). The commenters cited 

examples where EPA struck down 

‘‘similar automatic exemption’’

proposals put forward by the States of 

Colorado and Michigan. They also cited 

the Sixth Circuit Court of Appeals 

decision to uphold EPA’s 

aforementioned decision to disapprove 

the State of Michigan’s SIP revision 

allowing ‘‘automatic exemptions.’’ One 

commenter stated that according to the 

memorandum accompanying EPA’s 

September 20, 1999 policy ‘‘[a]ll 

Regions should review the SIPs for their 

states in light of this clarification and 

take steps to insure that excess 

emissions provisions in these SIPs are 

consistent with the attached guidance. 

(See, Memorandum of Steven A. 

Herman regarding State Implementation 

Plans: Policy Regarding Excess 

Emissions During Malfunctions, 

Startup, and Shutdown. 20 September 

1999).’’ As such, the commenter stated 

that EPA must review the existing SIP 

in the same light. They stated that EPA 

must determine whether the existing 

SIP’s automatic exemption for excess 

emissions during startup complies with 

the Act and EPA’s regulations and 

policy governing excess emissions. 

Response: We believe that the 

portions of the submitted SIP revision 

that address emissions during start-up, 

shutdown, maintenance and 

malfunction deserve further evaluation 

in light of the comments received 

during the comment period. Therefore, 

we are not taking action on those 

provisions at this time. We will respond 

to these comments at the time we take 

final action on these provisions of the 

SIP revision. 

Comment 2: One commenter stated 

that Rule 15A NCAC 2D .0535 Excess 

Emissions and Reporting and 

Malfunctions ‘‘violates the Act and EPA 

Policy and should be removed from the 

SIP.’’ The commenter asserted this is 

true for several reasons. 

Response: Rule 15A NCAC 2D .0535 

is not before the Agency in this action. 

Comment 3: A number of commenters 

objected to the change in paragraph (f) 

of Rule .0521 from ‘‘may’’ to ‘‘shall’’. 

The commenter stated that under the 

current SIP ‘‘the Director is allowed to 

grant an exception and allow a source 

to comply with a 40% standard if the 

owner demonstrates compliance with 

applicable particulate matter (PM) 

standards and submits data necessary to 

show that opacity emissions at 40% will 

not violate any NAAQS.’’ In the 

commenter’s opinion the revision states 

‘‘the Director is required to grant the 

exception and allow sources 

manufactured after July 1, 1971 to 

comply with a 40% rather than 20% 

opacity standard if the owner meets 

(certain) conditions.’’ In the 

commenter’s opinion, the required 

‘‘proof’’ to demonstrate that conditions 

are met is not adequate to ensure that 

sources will not exceed particulate 

emission standards or will not 

cumulatively cause an exceedance of 

the NAAQS. The commenter 

recommended that the source be 

required to install PM Continuous 

Emissions Monitoring Systems (CEMS). 

They stated that a stack test is 

insufficient proof that a source 

operating at 40%, rather than 20% 

opacity will not exceed its PM limits. 

The commenter also recommends that 

modeling must be conducted assuming 

that all sources are operating at 40% 

opacity. 

Response: We believe that this 

provision of the submitted SIP revision 

deserves further evaluation in light of 

the comments received during the 

comment period. Therefore, we are not 

taking action on section (f) at this time. 

We will respond to this comment at the 

time we take final action on section (f) 

of the SIP revision. 

Comment 4: Some commenters 

opposed EPA’s approval of Paragraph 

(g) of Rule 15A NCAC 2D .0521 because 

it would be less protective than the 

existing opacity limit. One commenter 

specifically objected to the change from 

a standard that is measured on a rolling 

‘‘24 hour period’’ to one that is 

measured on the basis of the opacity 

limit exceptions allowed ‘‘in any one 

day.’’ The commenter argued that a 

‘‘rolling average’’ is by its nature more 

protective, and pointed to a previous 

EPA statement to that effect in 

connection with a Colorado SIP 

revision. A number of commenters 

objected more generally that EPA 

should not approve the revision to the 

standard for sources required to operate 

COMs which, in effect, eliminates the 

current hourly limit on opacity 

exceptions, and would allow a source to 

aggregate the currently allowed 24 

minutes of opacity exception time in a 

given day. The commenters argued that 

such a change would be contrary to 

CAA section 110(l). 

Response: EPA agrees that North 

Carolina’s submittal includes revisions 

that will allow sources using COMS to 

aggregate currently allowed opacity 

exceptions. EPA does not, however, 

believe that approval of the revisions is 

in conflict with either section 110(l) or 

section 193 of the Clean Air Act. The 

current SIP approved opacity 

regulations in North Carolina allow all 

affected sources to have exceptions to 

the opacity standard for up to four 

periods of six minute duration in a 24 

hour period. In addition, the current 

State regulation also imposes other more 

specific limits on the percentage of 

opacity that a source may emit during 

an exception period, based upon the age 

of the source (e.g., pursuant to 

Paragraph (c), a source built before 1971 

may have no more than four six minute 

periods at over 40% opacity in a given 

day, no more than one six minute 

period at over 40% opacity in a given 

hour, and no six minute period that 

exceeds 90% opacity). By the addition 

of Paragraph (g), the State will allow 

sources that are required to install, 

operate, and maintain COMs to 

aggregate the currently existing opacity 

exception periods, but maintains the 

restriction that there may be no more 

than four six minute opacity exception 

periods in any calendar day. In effect, 

such a change eliminates only the 

current limit of one six minute period 

per hour, and potentially allows the 

source to aggregate the four daily six 

minute periods together for a 24 minute 

period on a given day. Paragraph (g) of 

the North Carolina regulation does not 

permit additional minutes of opacity 

limit exception in a day, and does not 

change the percentage of opacity 

allowed during those exception periods 

as otherwise required in Paragraphs (c) 

and (d). EPA notes, however, that by 

changing from a rolling 24-hour basis to 

a calendar day basis, there is the 

potential for a source to utilize the daily 

24 minutes of exception period at the 

end of one calendar day and the 24 

minutes of exception period at the 

beginning of the next calendar day, for 

a combined 48 continuous minutes of 

exception period at the opacity limits 

otherwise required by Paragraphs (c) 

and (d). Significantly, Paragraph (g) also 

imposes a new quarterly cap on the 

amount of time that a source may 

exceed the opacity limit, which will 

significantly reduce the total amount of 

exception period that would otherwise 

have been permissible under the 

61558 Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 

existing regulation. EPA has evaluated 

whether this revision to 15A NCAC 2D 

.0521 would pose concerns under both 

section 110(l) and section 193. 

Section 110(l) requires that revisions 

to SIPs do not interfere with any 

applicable requirement concerning 

attainment and reasonable further 

progress, or any other applicable 

requirement. EPA notes that the 

evaluation of compliance with section 

110(l) must take into account all 

relevant impacts of the proposed 

change, and that those impacts may 

differ depending upon the 

circumstances. In this instance, EPA 

believes that because the State 

regulation at issue pertains to opacity, 

the primary CAA requirements of 

concern should be impacts on 

compliance with the NAAQS for PM10

and PM2.5, and impacts on regional 

haze. Opacity standards are, even if only 

indirectly, standards that restrict the 

emissions of particulate matter, whether 

solid or liquid. Thus, EPA has looked 

first to the relevant PM standards and 

how compliance with those standards is 

to be determined, as provided in 40 CFR 

part 50, appendices K, L, and M. In the 

case of the 24-hour PM10 NAAQS, that 

standard is calculated or measured from 

midnight to midnight on calendar days, 

and evaluated for the number of 

calendar days exceeding the standard 

per calendar year. For the annual PM10

NAAQS, compliance is evaluated based 

upon the average mean for four calendar 

quarters, to derive the expected annual 

arithmetic mean. In the case of the 24 

hour PM2.5 NAAQS, compliance is 

determined by measuring the 

concentration from midnight to 

midnight on calendar days, and based 

upon the 98th percentile concentration. 

For the annual PM2.5 NAAQS, the 

determination is made by averaging the 

annual average over three years. This is 

a simplification of the calculations, but 

illustrates the essential point that for 

purposes of the NAAQS, the shortest 

period of time against which 

compliance is measured is a calendar 

day. In the case of regional haze, the 

relevant time periods are also longer. 

That program relies on a comparison of 

a number of most and least impaired 

days over the course of a calendar year. 

See, 40 CFR 51.308. Therefore, the 

shortest time period for which an 

evaluation of possible impacts on 

regional haze would also be a calendar 

day. 

EPA acknowledges that there is not 

necessarily a direct correlation between 

PM mass and opacity. However, the 

time duration of opacity exceptions and 

the percentage of opacity during those 

exceptions can be appropriate measures 

for evaluating whether a change in an 

opacity standard may be contrary to 

110(l). In the case of the revision to add 

Paragraph (g) to 15A NCAC 2D .0521, 

EPA notes that the State has not 

increased the number of minutes of 

opacity exception permitted in a day, 

and has not altered the permissible 

opacity percentage during those 

exception periods. The next relevant 

question is whether the elimination of 

the current restriction of no more than 

one six minute exception period per 

hour would pose a problem for purposes 

of section 110(l). From this perspective, 

the CAA requirements of concern would 

be the PM10 and PM2.5 NAAQS, and 

regional haze. Because compliance with 

those requirements entails evaluation of 

compliance in periods no shorter than a 

calendar day, EPA concludes that 

whether the 24 minutes of opacity 

exception occur together at one time, or 

spaced out over four six minute periods 

over the course of a given day, should 

have no meaningful impact on the 

compliance with the NAAQS or regional 

haze requirements. In other words, for 

example, because ambient PM2.5

concentrations would be measured over 

the course of a calendar day, when the 

24 minutes of opacity exception periods 

occur during the course of the day 

should not matter for purposes of the 24 

hour PM2.5 NAAQS. 

The next question of concern is 

whether aggregation of the total daily 

exception periods back to back on two 

successive calendar days would pose a 

problem for purposes of section 110(l). 

EPA agrees that there are situations in 

which a 24 hour rolling standard can be 

more protective, and situations where 

revising such a standard would 

potentially be problematic. Here, 

however, EPA believes that because 

calculation of compliance with the 

NAAQS is gauged over no shorter time 

period than a calendar day, the 

aggregation of the opacity exception 

periods from two calendar days should 

have no significant impacts for purposes 

of section 110(l). Moreover, given the 

type of sources likely to be governed by 

Paragraph (g), i.e., large electric 

generation units, EPA believes that such 

sources are unlikely to be operated in 

such a fashion that they would typically 

use all of the exception period minutes 

from two successive days back to back. 

EPA’s understanding of the methods of 

operation of these sources is that the 

exception periods are typically more 

likely to be used in shorter increments 

throughout a given day, thereby 

minimizing the possibility of 48 

continuous minutes over two successive 

days that would previously have been 

precluded by a 24 hour rolling standard. 

Finally, EPA notes that the revised 

North Carolina opacity standard in 

Paragraph (g) explicitly provides that 

sources cannot rely on the opacity 

exception periods, if excess emissions 

during such periods would ‘‘cause or 

contribute to a violation of an emission 

standard in this Subchapter or 40 CFR 

part 60, 61, or 63, or any ambient air 

quality standard in Section 15A NCAC 

2D .0400 or 40 CFR part 50.’’ EPA 

interprets this provision as a federally 

enforceable limitation on opacity 

exception periods that will help to 

insure that emissions during such 

periods do not interfere with other 

requirements of the CAA. 

Section 193 requires that no control 

requirement in effect before November 

15, 1990, in any nonattainment area for 

any air pollutant may be modified after 

November 15, 1990 in any manner 

unless the modification insures 

equivalent or greater emission 

reductions of such air pollutant. EPA 

has evaluated the inclusion of Paragraph 

(g) in light of this requirement and 

concluded that the revision is 

approvable following the same logic. 

Because the revision has not increased 

the total number of minutes of opacity 

exception periods during the course of 

a day, or altered the percentage of 

opacity permissible during such 

periods, EPA does not think that the 

revision will allow an increase in 

opacity during the course of a day. EPA 

agrees that the change from a rolling 24- 

hour period to a calendar day period for 

purposes of limiting exception periods 

could potentially have posed a problem 

in the context of section 193 if looked 

at solely from the perspective of a given 

rolling 24 hour period, but the State’s 

inclusion of a quarterly cap on the 

number of minutes of exception period 

serves to negate that concern. EPA 

believes that the imposition of the 

quarterly cap on exception periods 

provides assurances that the revised 

standard will provide equivalent or 

greater protection on a quarterly or 

annual basis. 

Comment 5: One commenter stated 

that no worst-case analysis has been 

conducted for these proposed 

amendments. Previous worst-case 

analysis (based on modeling data 

collected during a Method-5 stack test of 

a large boiler at an electrical generation 

unit) fails to adequately establish that 

any small group of sources subject to the 

proposed exemption does not have the 

potential to cause an exceedance of the 

NAAQS or PSD increments. 

Another commenter stated that North 

Carolina has not adequately addressed 

Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 61559 

the requirements of section 110(l) of the 

Act because the State did not provide 

modeling data and analysis to justify its 

proposed SIP revisions. The commenter 

stated that NC DENR established a 

relationship between opacity and 

emission rate of particulate from data 

collected during a Method-5 stack test of 

a large boiler at an electrical generation 

unit (EGU). The commenter argued that 

because EPA disapproved a similar 

Colorado SIP revision based on data 

from one out of twenty-five statewide 

boilers, EPA should not approve North 

Carolina’s SIP revisions because they 

are based on data obtained from only 

one boiler out of, at least, forty-one in 

the State of North Carolina. The 

commenter also stated that it appears 

that the modeling analysis was based on 

actual emissions from a sample startup/ 

shutdown sequence that was simply 

repeated in the model throughout the 

year. The commenter cites EPA’s 

Guidelines on Air Quality Models to 

argue that North Carolina did not use 

worst case hourly emissions rates (from 

the test sequence) in the model for every 

hour of the year when testing for 

compliance with 24-hour standards. 

Response: EPA believes that allowing 

aggregation of the daily exceptions 

allowed will not result in additional 

opacity. Therefore, EPA has concluded 

that a worst-case demonstration is not 

required. 

Comment 6: One commenter stated 

that NCDENR has not adequately 

addressed the requirements of Section 

193. The commenter stated that because 

the SIP provision governing visible 

emissions was initially approved by 

EPA prior to November 15, 1990, North 

Carolina must demonstrate compliance 

with this provision prior to EPA 

approval of its proposed SIP revisions. 

The commenter believes that these 

demonstrations must be conducted for 

all sources within nonattainment areas. 

Response: As mentioned previously, 

these rule changes are not allowing any 

increase in the number of minutes per 

day for exceptions from the opacity 

standard or any increase in the 

percentage of opacity during such 

periods. In addition, the imposition of 

the quarterly cap on minutes of 

exception to the opacity standard 

provides assurances that the revised 

standards will provide equivalent or 

greater protection on a quarterly or 

annual basis. Therefore, EPA has 

concluded that the SIP revision meets 

the requirements of Section 193 of the 

Act. 

Comment 7: One commenter stated 

that NCDENR has not adequately 

addressed the requirements of 40 CFR 

51.166(a)(2) (PSD Plan Revisions) in the 

revision to the rule. The commenter 

stated that ‘‘if a SIP revision would 

result in increased air quality 

deterioration over any baseline 

concentration, the SIP revision must 

include a demonstration that it will not 

cause or contribute to a violation of the 

applicable increments.’’ The commenter 

stated that EPA must disapprove the 

proposed revision if EPA finds that the 

proposed revisions represent a 

relaxation from existing requirements 

that will allow increased emissions into 

the air. 

Response: As explained more fully 

above, these rule changes are not 

allowing a relaxation from existing 

requirements because there is no 

increase in the minutes of daily opacity 

exceptions and there is a reduction of 

such exceptions on a quarterly basis. 

Thus, EPA has concluded that these 

revisions do not require the suggested 

demonstration. 

Comment 8: The commenter stated 

that the SIP revisions do not meet the 

Clean Air Act requirements that SIP 

measures be enforceable. The 

commenter cited EPA’s disapproval of 

Colorado’s proposed SIP revisions based 

on the fact that those revisions did not 

comply with the Clean Air Act’s 

requirement that such revisions be 

enforceable. The commenter noted that 

‘‘EPA held that Colorado’s proposed 

revisions were insufficient because ‘the 

State does not specify whether 

exceedances will be measured against 

the 20% opacity limit * * *, the 30% 

opacity limit * * *, or both. Id.’ ’’ The 

commenter believes that EPA must 

disapprove NC DENR’s revisions 

because the North Carolina regulations 

are likewise vague and ambiguous, and 

do not clearly specify whether the 

exceedances will be measured against 

the 90%, 87%, 20% or 40% opacity 

limits, or some combination thereof. 

As an example, the commenter argued 

that the North Carolina revisions do not 

clearly define whether or not various 

activities, such as fire building, process 

modification and adjustment of control 

equipment are to be counted in 

determining the number of exceedances 

in a given quarter. Similarly, the 

commenter argued that the SIP revisions 

do not clearly indicate how sources 

must conduct required recordkeeping 

and reporting. Also, the commenter 

stated that the State has failed to 

address issues relating to significant 

planned maintenance outage (PMO) 

startups. 

Response: EPA believes that the NC 

rule is clear about how the opacity 

exceptions will be measured. Depending 

on the source, 40% opacity or 20% 

opacity are the standards. 15A NCAC 2D 

.0521 paragraphs (c) and (d) include 

exception periods that allow a source to 

go above the 40% or 20% opacity for a 

short period of time (four six minute 

periods in any 24-hour period). At no 

time can opacity exceed the upper 

limits of 90% or 87%, depending on the 

source. EPA notes that because the 

sources governed by paragraph (g) have 

COMs, it should be easier to assure 

compliance with these limits. 

The current rule does not provide for 

specific exemptions for fire building 

activities, process modification, 

adjustment of control equipment or 

planned maintenance outage (PMO) 

startups and the rule revisions do not 

change this. Also, neither the current 

Rule .0521 nor the rule revision 

addresses reporting and recordkeeping. 

Therefore, it is not necessary for the rule 

revision to address these issues as 

recommended by the commenter. There 

will be no change to the scope of Rule 

.0521 and EPA is not taking action on 

changes in provisions related to startup, 

shutdown, maintenance and 

malfunction. 

Comment 9: One commenter stated 

that the new standard could not be a 

relaxation of the existing standard 

because continuous measurement of 

emissions is more stringent than the 

visual observation method, implying 

that more frequent monitoring renders a 

standard more stringent. 

Response: The revision to Rule NCAC 

2D .0521 is not a relaxation of the 

standard for the reasons already given in 

this Federal Register document. EPA 

does not agree with the commenter’s 

assertion that more frequent monitoring 

automatically renders a standard more 

stringent. 

IV. Final Action 

EPA is taking final action on the 

Control of Visible Emissions portion of 

a State Implementation Plan (SIP) 

revision submitted to EPA, by the State 

of North Carolina on December 14, 

2004. EPA is approving the changes to 

Paragraphs (c) and (d) of Rule NCAC 2D 

.0521 Control of Visible Emissions that 

reference new Paragraph (g) of said rule. 

EPA is also approving Paragraph (g) of 

Rule NCAC 2D .0521, with the 

exception of the clause that provides 

‘‘excluding startups, shutdowns, 

maintenance periods when fuel is not 

being combusted, and malfunctions 

approved as such according to 

procedures approved under Rule .0535 

of this Section.’’ We are not taking 

action at this time on that portion of 

Paragraph (g) or on Paragraphs (a), (b), 

(e), and (f). 

61560 Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 

Statutory and Executive Order Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely approves 

State law as meeting Federal 

requirements and imposes no additional 

requirements beyond those imposed by 

State law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule approves pre-existing requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by State law, it 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). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

approves a State rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

Clean Air Act. This rule also is not 

subject to Executive Order 13045 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997), 

because it is not economically 

significant. 

In reviewing SIP submissions, EPA’s 

role is to approve State choices, 

provided that they meet the criteria of 

the Clean Air Act. In this context, in the 

absence of a prior existing requirement 

for the State to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a SIP submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a SIP submission, 

to use VCS in place of a SIP submission 

that otherwise satisfies the provisions of 

the Clean Air Act. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. This rule does 

not impose an information collection 

burden under the provisions of the 

Paperwork Reduction Act of 1995 (44 

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

The Congressional Review Act, 5 

U.S.C. section 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 rule 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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by December 27, 

2005. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule 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, Carbon monoxide, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: October 17, 2005. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

■ 40 CFR Part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 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. In Section 52.1770(c), table 1 is 

amended under subchapter 2D by 

revising the entry for ‘‘.0521 Control of 

Visible Emissions’’ to 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 

* * * * * * 

.0521 Control of Visible 

Emissions.

01/01/05 10/25/05 [Insert 

first page of 

publication].

Approving changes to Paragraphs (c) and (d) that reference new Paragraph (g). Also, approving Paragraph (g) excluding the following language: ‘‘excluding startups, shutdowns, maintenance periods when fuel 

is not being combusted, and malfunctions approved as such according 

to procedures approved under Rule .0535 of this Section.’’

* * * * * * * 

Federal Register / Vol. 70, No. 205 / Tuesday, October 25, 2005 / Rules and Regulations 61561 

* * * * * 

[FR Doc. 05–21261 Filed 10–24–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[R09–OAR–2005–CA–0005; FRL–7986–8] 

Revisions to the California State 

Implementation Plan, Ventura County 

Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Ventura County Air Pollution Control 

District (VCAPCD) portion of the 

California State Implementation Plan 

(SIP). These revisions concern volatile 

organic compound (VOC) emissions 

from surface cleaning operations. We 

are approving local rules that regulate 

these emission sources under the Clean 

Air Act as amended in 1990 (CAA or the 

Act). 

DATES: This rule is effective on 

December 27, 2005 without further 

notice, unless EPA receives adverse 

comments by November 25, 2005. If we 

receive such comments, we will publish 

a timely withdrawal in the Federal 

Register to notify the public that this 

direct final rule will not take effect. 

ADDRESSES: Submit comments, 

identified by docket number R09–OAR–

2005–CA–0005, by one of the following 

methods: 

1. Agency Web site: http:// 

docket.epa.gov/rmepub/. EPA prefers 

receiving comments through this 

electronic public docket and comment 

system. Follow the on-line instructions 

to submit comments. 

2. Federal eRulemaking Portal: 

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

on-line instructions. 

3. E-mail: steckel.andrew@epa.gov. 

4. Mail or deliver: Andrew Steckel 

(Air–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at http://docket.epa.gov/ 

rmepub/, including any personal 

information provided, unless the 

comment includes Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through the 

agency Web site, eRulemaking portal or 

e-mail. The agency Web site and 

eRulemaking portal are ‘‘anonymous 

access’’ systems, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

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. 

Docket: The index to the docket for 

this action is available electronically at 

http://docket.epa.gov/rmepub and in 

hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California. While all documents in the 

docket are listed in the index, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material), and some may 

not be publicly available in either 

location (e.g., CBI). To inspect the hard 

copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia G. Allen, EPA Region IX, (415) 

947–4120, allen.cynthia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rules did the State submit? 

B. Are there other versions of these rules? 

C. What is the purpose of the submitted 

rule revisions? 

II. EPA’s Evaluation and Action. 

A. How is EPA evaluating the rules? 

B. Do the rules meet the evaluation 

criteria? 

C. EPA recommendations to further 

improve the rules. 

D. Public comment and final action. 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What Rules Did the State Submit? 

Table 1 lists the rules we are 

approving with the dates that they were 

adopted by the local air agencies and 

submitted by the California Air 

Resources Board (CARB). 

TABLE 1.—SUBMITTED RULES

Local agency Rule No. Rule title Adopted Submitted 

VCAPCD .................................... 74 .6 Surface Cleaning and Degreasing ................................................ 11/11/03 04/26/05 

VCAPCD .................................... 74 .6.1 Batch Loaded Vapor Degreasers .................................................. 11/11/03 04/26/05 

VCAPCD .................................... 74 .12 Surface Coating of Metal Parts and Products .............................. 11/11/03 04/26/05 

VCAPCD .................................... 74 .13 Aerospace Assembly and Component Manufacturing Operations 11/11/03 04/26/05 

VCAPCD .................................... 74 .19 Graphic Arts ................................................................................... 11/11/03 04/26/05 

VCAPCD .................................... 74 .19.1 Screen Printing Operations ........................................................... 11/11/03 04/26/05 

VCAPCD .................................... 74 .24 Marine Coating Operations ........................................................... 11/11/03 04/26/05 

VCAPCD .................................... 74 .30 Wood Products Coatings ............................................................... 11/11/03 04/26/05 

On June 3, 2005, these rule submittals 

were found to meet the completeness 

criteria in 40 CFR part 51, appendix V, 

which must be met before formal EPA 

review. 

B. Are There Other Versions of These 

Rules? 

We approved versions of these rules 

into the SIP on the dates listed: Rule 

74.6 on December 11, 2000 (adopted on 

November 10, 1998 and submitted on 

February 16, 1999), Rules 74.6.1, 74.6.2, 

and 74.6.3 on July 21, 2000 (adopted on 

July 9, 1996 and submitted on October 

18, 1996), Rules 74.12, 74.13, 74.24, and 

74.30 on April 19, 2001 (adopted on 

September 10, 1996 and submitted on 

March 3, 1997), 74.19 on May 23, 2002 

(adopted on April 10, 2001 and 

submitted on October 30, 2001), and 

74.19.1 on August 21, 1998 (adopted on 

June 11, 1996 and submitted on October 

18, 1996. 

C. What Is the Purpose of the Submitted 

Rule Revisions? 

VOCs help produce ground-level 

ozone and smog, which harm human 

health and the environment. Section 

110(a) of the CAA requires states to 

submit regulations that control VOC 

emissions.