Proposed Rule2022-18172
Air Plan Approval; North Carolina; Prevention of Significant Deterioration for Mecklenburg County
Primary source
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Published
August 24, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a portion of a State Implementation Plan (SIP) revision to the Mecklenburg County portion of the North Carolina SIP, hereinafter referred to as the Mecklenburg County Local Implementation Plan (LIP). The revision was submitted through the North Carolina Division of Air Quality (NCDAQ), on behalf of Mecklenburg County Air Pollution Control (MCAQ), via a letter dated April 24, 2020, which was received by EPA on June 19, 2020. This SIP revision includes changes to Mecklenburg County Air Pollution Control Ordinance (MCAPCO) rules incorporated into the LIP regarding Prevention of Significant Deterioration (PSD) permitting to address changes to the Federal new source review (NSR) regulations in recent years. EPA is proposing to approve these changes pursuant to the Clean Air Act (CAA or Act).
Full Text
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<title>Federal Register, Volume 87 Issue 163 (Wednesday, August 24, 2022)</title>
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[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Proposed Rules]
[Pages 51946-51955]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18172]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2021-0867; FRL-9377-01-R4]
Air Plan Approval; North Carolina; Prevention of Significant
Deterioration for Mecklenburg County
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a portion of a State Implementation Plan (SIP) revision to the
Mecklenburg County portion of the North Carolina SIP, hereinafter
referred to as the Mecklenburg County Local Implementation Plan (LIP).
The revision was submitted through the North Carolina Division of Air
Quality (NCDAQ), on behalf of Mecklenburg County Air Pollution Control
(MCAQ), via a letter dated April 24, 2020, which was received by EPA on
June 19, 2020. This SIP revision includes changes to Mecklenburg County
Air Pollution Control Ordinance (MCAPCO) rules incorporated into the
LIP regarding Prevention of Significant Deterioration (PSD) permitting
to address changes to the Federal new source review (NSR) regulations
in recent years. EPA is proposing to approve these changes pursuant to
the Clean Air Act (CAA or Act).
DATES: Comments must be received on or before September 23, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2021-0867 at <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from <a href="http://Regulations.gov">Regulations.gov</a>. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on
[[Page 51947]]
making effective comments, please visit <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
FOR FURTHER INFORMATION CONTACT: D. Brad Akers, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Akers can be
reached via electronic mail at <a href="/cdn-cgi/l/email-protection#3c5d57594e4f125e4e5d587c594c5d125b534a"><span class="__cf_email__" data-cfemail="77161c12050459150516133712071659101801">[email protected]</span></a> or via telephone at
(404) 562-9089.
SUPPLEMENTARY INFORMATION:
I. Background and Overview of Mecklenburg LIP
II. Background on PSD Updates
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM<INF>2.5</INF>) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
III. Analysis of Mecklenburg's April 24, 2020 Submittal
A. 2002 NSR Reform Rules
B. Fine Particulate Matter (PM<INF>2.5</INF>) NAAQS
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
E. Equipment Replacement Provision
F. Ethanol Rule
IV. Incorporation by Reference
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background and Overview of Mecklenburg LIP
The Mecklenburg LIP was submitted to EPA on June 14, 1990, and EPA
approved the plan on May 2, 1991. See 56 FR 20140. Mecklenburg County
is now requesting that EPA approve changes to the LIP for, among other
things, general consistency with the North Carolina SIP.\1\ Mecklenburg
County prepared three submittals in order to update the LIP and reflect
regulatory and administrative changes that NCDAQ made to the North
Carolina SIP since EPA's 1991 LIP approval.\2\ The three submittals
were submitted as follows: NCDAQ transmitted the October 25, 2017,
submittal to EPA but later withdrew it from review through a letter
dated February 15, 2019. On April 24, 2020, NCDAQ resubmitted the
October 25, 2017, update to EPA and submitted the January 21, 2016, and
January 14, 2019, updates. Each of these submittals were properly
noticed to the public in compliance with 40 CFR 51.102.
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\1\ Hereinafter, the terms ``North Carolina SIP'' and ``SIP''
refer to the North Carolina regulatory portion of the North Carolina
SIP (i.e., the portion that contains SIP-approved North Carolina
regulations).
\2\ The Mecklenburg County, North Carolina revision that is
dated April 24, 2020, and received by EPA on June 19, 2020, is
comprised of three previous submittals--one dated January 21, 2016;
one dated October 25, 2017; and one dated January 14, 2019.
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This proposed rulemaking would modify the LIP by updating the PSD
program rules incorporated into the LIP in Rule 2.0530, Prevention of
Significant Deterioration, and by adding into the LIP rule 2.0544,
Prevention of Significant Deterioration Requirements for Greenhouse
Gases.
II. Background on PSD Updates
The PSD program is a preconstruction permitting program that
requires ``major'' stationary sources of air pollution to obtain a PSD
permit prior to beginning construction in areas classified as either in
attainment with the National Ambient Air Quality Standards (NAAQS) or
unclassifiable.\3\ See CAA section 165. EPA requires PSD SIPs to meet
the standards codified at 40 CFR 51.166.\4\ Over the years, EPA has
updated these rules, and as a result of these amendments, states and
localities similarly are required to update their SIP-approved rules to
ensure compliance with the PSD standards set forth at 40 CFR 51.166.
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\3\ A separate NSR preconstruction permitting program applies to
nonattainment areas pursuant to CAA section 173. NSR permits in
nonattainment areas are referred to as nonattainment NSR (NNSR)
permits.
\4\ Related rules setting forth the Federal PSD program for
areas without an approved PSD permitting program are codified at 40
CFR 52.21.
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In this Notice of Proposed Rulemaking (NPRM), EPA is proposing to
approve Mecklenburg's PSD rule revisions as meeting the requirements of
the CAA and 40 CFR 51.166. EPA most recently approved Mecklenburg's PSD
rules on May 2, 1991, with a local effective date of June 14, 1990. See
56 FR 20140. Since then, EPA's PSD permitting rules have undergone a
number of changes. For historical context, this NPRM first provides a
summary of significant amendments to EPA's PSD permitting rules made
after the date of approval of Mecklenburg's LIP-approved PSD permitting
rules. The NPRM then discusses the PSD rules contained in the proposed
SIP revision.
A. 2002 NSR Reform Rules
On December 31, 2002, EPA published final rule revisions to 40 CFR
parts 51 and 52, regarding the CAA's PSD and Nonattainment New Source
Review (NNSR) programs. See 67 FR 80186 (hereinafter referred to as the
2002 NSR Rule). The revisions included five changes to the major NSR
program that would reduce regulatory burdens, maximize operating
flexibility, improve environmental quality, provide additional
certainty, and promote administrative efficiency. Initially, these
updates to the Federal NSR program included the revision of baseline
actual emissions and adoption of actual-to-projected-actual emissions
methodology, plant-wide applicability limits (PALs), Clean Units, and
pollution control projects (PCPs). The final rule also codified a
longstanding policy regarding the calculation of baseline emissions for
electric utility steam generating units and the definition of
``regulated NSR pollutant'' that clarifies which pollutants are
regulated under the Act for purposes of major NSR.
Following publication of the 2002 NSR Rule, EPA received numerous
petitions requesting reconsideration of several aspects of the final
rule, along with portions of EPA's 1980 NSR Rules.\5\ On July 30, 2003,
EPA granted petitions for reconsideration of six issues presented by
the petitioners and opened a new comment period for the public.\6\ As a
result of the reconsideration, on November 7, 2003 (68 FR 63021), EPA
published the NSR Reform Reconsideration Rule, which made two
clarifications to EPA's underlying NSR rules. These two clarifications
included: (1) adding the definition of ``replacement unit'' to indicate
that it is considered an existing unit in terms of major NSR
applicability, and (2) specifying that the PAL baseline calculation
procedures for newly constructed units do not apply to modified units.
The 2002 NSR Rule and the NSR Reform Reconsideration Rule are
hereinafter collectively referred to as the ``2002 NSR Reform Rules.''
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\5\ See 45 FR 52676 (August 7, 1980) for EPA's 1980 NSR Rules.
\6\ For full details on the six issues reconsidered by EPA,
refer to the July 30, 2003, publication. See 68 FR 44624.
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The 2002 NSR Reform Rules were challenged in the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit), and the
court issued a decision on the challenges on June 24, 2005. See New
York v. EPA, 413 F.3d 3 (DC Cir. 2005). In summary, the D.C. Circuit
vacated portions of EPA's NSR Reform Rules pertaining to Clean Units
and PCPs, remanded a portion of the rules regarding recordkeeping and
the term ``reasonable possibility'' found in 40 CFR 52.21(r)(6), 40 CFR
51.166(r)(6), and 40 CFR 51.165(a)(6) to EPA, and either upheld or did
not comment on the other provisions included as part of the 2002 NSR
Reform Rules. On June 13, 2007 (72 FR 32526), EPA took final action to
revise the 2002 NSR Reform
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Rules to exclude the portions that were vacated by the D.C. Circuit.
Meanwhile, EPA continued to move forward with its evaluation of the
portion of its NSR Reform Rules that were remanded by the D.C. Circuit.
On March 8, 2007 (72 FR 10445), EPA responded to the Court's remand
regarding the recordkeeping provisions by proposing two alternative
options to clarify what constitutes ``reasonable possibility'' and when
the ``reasonable possibility'' recordkeeping requirements apply. The
``reasonable possibility'' standard identifies the circumstances under
which a major stationary source must keep records for modifications
that do not trigger major NSR. EPA later finalized these changes on
December 21, 2007 (72 FR 72607).
Separately from the petitions received that led to the 2002 NSR
Reconsideration Rule, EPA received another petition for reconsideration
on July 11, 2003. Specifically, the petitioner requested EPA to
reconsider the inclusion of ``fugitive emissions'' when assessing
whether a proposed physical or operational change qualified as a
``major modification.'' On November 13, 2007, EPA granted the petition
for reconsideration, and on December 19, 2008, finalized the revision
of the language to clarify which types of sources were required to
include ``fugitive emissions'' in their calculations. See 73 FR 77882
(hereinafter referred to as the Fugitive Emissions Rule).
Finally, on February 17, 2009, EPA received a petition for
reconsideration of the Fugitive Emissions Rule. Due to this petition,
and after several stays,\7\ EPA established an indefinite stay of the
Fugitive Emissions Rule language on March 30, 2011 (76 FR 17548). This
indefinite stay also clarified EPA's intent to ``correct ambiguity'' in
the March 31, 2010 stay. With the March 30, 2011, stay, EPA specified
which portions of 40 CFR 51.165, 40 CFR 51.166, and 40 CFR 52.21 were
stayed indefinitely, which were reinstated, and which were revised, in
order to revert the Federal rules to the regulatory language that
existed prior to the Fugitive Emissions Rule.\8\
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\7\ EPA originally established a three-month stay that became
effective September 30, 2009 (74 FR 50115), which was later extended
for an additional three months, effective December 31, 2009. See 74
FR 65692. In order to allow for more time for reconsideration and
for public comment on any potential revisions to the Fugitive
Emissions Rule, EPA established a longer 18-month stay that became
effective on March 31, 2010. See 75 FR 16012.
\8\ In this NPRM, EPA is not proposing to act on certain
provisions addressing the treatment of fugitive emissions, as
provided in EPA's December 19, 2008, rule. See 73 FR 77882.
Specifically, EPA is not acting on the incorporation by reference of
40 CFR 51.166(b)(2)(v), nor 51.166(b)(3)(iii)(d), which were
subsequently stayed indefinitely in a March 30, 2011, final rule.
See 76 FR 17548.
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In summary, after several court decisions and public petitions, the
Federal major NSR program (found in 40 CFR 51.165, 51.166, and 52.21)
no longer includes the provisions related to Clean Units or PCPs that
were part of the 2002 NSR reform rules. Additionally, an indefinite
stay has been placed on the Fugitive Emissions Rule. Mecklenburg County
is adopting most of the surviving provisions from the 2002 NSR Reform
Rules, with changes. More details on Mecklenburg County's adoption of
the 2002 NSR Reform Rules and EPA's analysis of its submittal can be
found in section III.A of this NPRM.
B. Fine Particulate Matter (PM2.5) NAAQS
1. Implementation of NSR for the PM<INF>2.5</INF> NAAQS and
Grandfathering Provisions
On May 16, 2008 (73 FR 28321), EPA published the ``Implementation
of the New Source Review (NSR) Program for Particulate Matter Less than
2.5 Micrometers (PM<INF>2.5</INF>)'' Final Rule (hereinafter referred
to as the NSR PM<INF>2.5</INF> Rule). The NSR PM<INF>2.5</INF> Rule
revised the NSR program requirements to establish the framework for
implementing preconstruction permit review for the PM<INF>2.5</INF>
NAAQS in both attainment and nonattainment areas. As indicated in the
NSR PM<INF>2.5</INF> Rule, major stationary sources seeking permits
must begin directly satisfying the PM<INF>2.5</INF> requirements, as of
the effective date of the rule, rather than relying on PM<INF>10</INF>
as a surrogate, with two exceptions. The first exception was a
``grandfathering'' provision in the Federal PSD program at 40 CFR
52.21(i)(1)(xi). This grandfathering provision applied to sources that
had applied for, but had not yet received, a final and effective PSD
permit before the July 15, 2008, effective date of the May 2008 final
rule. The second exception was that states with SIP-approved PSD
programs could continue to implement a policy in which PM<INF>10</INF>
served as a surrogate for PM<INF>2.5</INF> for up to three years (until
May 2011) or until the individual revised state PSD programs for
PM<INF>2.5</INF> are approved by EPA, whichever came first.\9\
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\9\ After EPA promulgated the NAAQS for PM<INF>2.5</INF> in
1997, the Agency issued a guidance document entitled ``Interim
Implementation of New Source Review Requirements for
PM<INF>2.5</INF>,'' which allowed for the regulation of
PM<INF>10</INF> as a surrogate for PM<INF>2.5</INF> until
significant technical issues were resolved (the ``PM<INF>10</INF>
Surrogate Policy''). John S. Seitz, EPA, October 23, 1997.
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On February 11, 2010 (75 FR 6827), EPA proposed to repeal the
grandfathering provision for PM<INF>2.5</INF> contained in the Federal
PSD program at 40 CFR 52.21(i)(1)(xi) and to end early the
PM<INF>10</INF> Surrogate Policy applicable in states that have a SIP-
approved PSD program. In support of this proposal, EPA explained that
the PM<INF>2.5</INF> implementation issues that led to the adoption of
the PM<INF>10</INF> Surrogate Policy in 1997 had been largely resolved
to a degree sufficient for sources and permitting authorities to
conduct meaningful permit related PM<INF>2.5</INF> analyses. On May 18,
2011 (76 FR 28646), EPA took final action to repeal the
PM<INF>2.5</INF> grandfathering provision at 40 CFR 52.21(i)(1)(xi).
This final action ended the use of the 1997 PM<INF>10</INF> Surrogate
Policy for PSD permits under the Federal PSD program at 40 CFR 52.21.
In effect, any PSD permit applicant previously covered by the
grandfathering provision (for sources that completed and submitted a
permit application before July 15, 2008) \10\ that did not have a final
and effective PSD permit before the effective date of the repeal will
not be able to rely on the 1997 p.m.<INF>10</INF> Surrogate Policy to
satisfy the PSD requirements for PM<INF>2.5</INF> unless the
application includes a valid surrogacy demonstration.
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\10\ Sources that applied for a PSD permit under the Federal PSD
program on or after July 15, 2008, are already excluded from using
the 1997 p.m.<INF>10</INF> Surrogate Policy as a means of satisfying
the PSD requirements for PM<INF>2.5</INF>. See 73 FR 28321.
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The NSR PM<INF>2.5</INF> Rule also established the following NSR
requirements for PSD to implement the PM<INF>2.5</INF> NAAQS: (1)
required NSR permits to address directly emitted PM<INF>2.5</INF> and
precursor pollutants; (2) established significant emission rates for
direct PM<INF>2.5</INF> and precursor pollutants (including sulfur
dioxide (SO<INF>2</INF>) and nitrogen oxides (NO<INF>X</INF>)); and (3)
required states to account for gases that condense to form particles
(``condensables'') in PM<INF>2.5</INF> and PM<INF>10</INF> emission
limits in PSD or NNSR permits.
2. PM<INF>2.5</INF> Condensables Correction
Among the changes included in the NSR PM<INF>2.5</INF> Rule
mentioned above, EPA also revised the definition of ``regulated NSR
pollutant'' for PSD to add a paragraph providing that ``particulate
matter (PM) emissions, PM<INF>2.5</INF> emissions and PM<INF>10</INF>
emissions shall include gaseous emissions from a source or activity
which condense to form particulate matter at ambient temperatures'' and
that on or after January 1, 2011, ``such condensable particulate matter
shall be accounted for in applicability determinations and in
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establishing emissions limitations for PM, PM<INF>2.5</INF> and
PM<INF>10</INF> in permits.'' See 73 FR 28321 at 28348 (May 16, 2008).
A similar paragraph added to the NNSR rule did not include
``particulate matter (PM) emissions.'' See 40 CFR
51.165(a)(1)(xxxvii)(D).
On October 25, 2012 (77 FR 65107), EPA took final action to amend
the definition, promulgated in the 2008 NSR PM<INF>2.5</INF> Rule, of
``regulated NSR pollutant'' contained in the PM condensable provision
at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and appendix S to 40 CFR
part 51 (hereinafter referred to as the PM<INF>2.5</INF> Condensables
Correction Rule). The PM<INF>2.5</INF> Condensables Correction Rule
removed the inadvertent requirement in the NSR PM<INF>2.5</INF> Rule
that the measurement of condensable particulate matter be included as
part of the measurement and regulation of ``particulate matter
emissions'' under the PSD program. The term ``particulate matter
emissions'' includes only filterable particles that are larger than
PM<INF>10</INF>.
3. PM<INF>2.5</INF> PSD Increments, Significant Impact Levels (SILs),
and Significant Monitoring Concentration (SMC) Rule
On October 20, 2010 (75 FR 64863), EPA published a final rule
entitled ``Prevention of Significant Deterioration (PSD) for
Particulate Matter less than 2.5 Micrometers (PM<INF>2.5</INF>),''
amending the requirements for PM<INF>2.5</INF> under the Federal PSD
program (also referred to as the PM<INF>2.5</INF> PSD-Increments-SILs-
SMC Rule). The final rule established the following: (1)
PM<INF>2.5</INF> increments pursuant to section 166(a) of the CAA to
prevent significant deterioration of air quality in areas attaining the
NAAQS; (2) PM<INF>2.5</INF> Significant Impact Levels (SILs) for PSD
and NNSR; and (3) Significant Monitoring Concentration (SMC) for PSD
purposes.
Subsequently, in response to a challenge to the PM<INF>2.5</INF>
SILs and SMC provisions of the PM<INF>2.5</INF> PSD-Increment-SILs-SMC
Rule, the D.C. Circuit vacated and remanded to EPA the portions of the
rule addressing PM<INF>2.5</INF> SILs, except for the PM<INF>2.5</INF>
SILs promulgated in EPA's NNSR rules at 40 CFR 51.165(b)(2). See Sierra
Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013). The D.C. Circuit also
vacated the parts of the rule establishing a PM<INF>2.5</INF> SMC for
PSD purposes. Id. EPA removed these vacated provisions in a December 9,
2013 (78 FR 73698), final rule.
The PM<INF>2.5</INF> SILs promulgated in EPA's NNSR regulations at
40 CFR 51.165(b)(2) were not vacated by the D.C. Circuit because,
unlike the SILs promulgated in the PSD regulations (40 CFR 51.166,
52.21), the SILs promulgated in the NNSR regulations at 40 CFR
51.165(b)(2) do not serve to exempt a source from conducting a
cumulative air quality analysis. Rather, the SILs promulgated at 40 CFR
51.165(b)(2) establish levels at which a proposed new major source or
major modification located in an area designated as attainment or
unclassifiable for any NAAQS would be considered to cause or contribute
to a violation of a NAAQS in any area. For this reason, the D.C.
Circuit left the PM<INF>2.5</INF> SILs at 40 CFR 51.165(b)(2) in place.
Mecklenburg County is adopting the Federal provisions relevant to
PSD permitting for PM<INF>2.5</INF> in the April 24, 2020, submittal.
This update to Mecklenburg's PSD regulations is necessary and is
consistent with North Carolina's rules and the Federal rules. See
section III.B of this NPRM for more details on the adoption of
provisions to implement PM<INF>2.5</INF> for PSD permitting.
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
On November 29, 2005 (70 FR 71612), EPA published a final rule
entitled ``Final Rule To Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule To Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter and Ozone NAAQS; Final Rule for Reformulated Gasoline''
(hereinafter referred to as the Phase 2 Rule). The Phase 2 Rule
addressed control and planning requirements as they applied to areas
designated nonattainment for the 1997 8-hour ozone NAAQS \11\ such as
reasonably available control technology, reasonably available control
measures, reasonable further progress, modeling and attainment
demonstrations, NSR, and the impact to reformulated gasoline for the
1997 8-hour ozone NAAQS transition. Additionally, regarding the NSR
permitting requirements which are relevant to this proposed action, the
Phase 2 Rule included the following provisions: (1) recognized
NO<INF>X</INF> as an ozone precursor for PSD purposes; and (2)
established significant emission rates for the ozone precursors
volatile organic compounds (VOCs) and NO<INF>X</INF> in the PSD
regulations.\12\
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\11\ On July 18, 1997, EPA promulgated a revised 8-hour ozone
NAAQS of 0.08 parts per million (ppm)--also referred to as the 1997
8-hour ozone NAAQS. On April 30, 2004, EPA designated areas as
unclassifiable/attainment, nonattainment, and unclassifiable for the
1997 8-hour ozone NAAQS. In addition, on April 30, 2004 (69 FR
23951), as part of the framework to implement the 1997 8-hour ozone
NAAQS, EPA promulgated an implementation rule in two phases (Phases
I and II). The Phase I Rule (effective on June 15, 2004), provided
the implementation requirements for designating areas under subpart
1 and subpart 2 of the CAA.
\12\ This action also established significant emission rates for
PM<INF>10</INF> and carbon monoxide in EPA's Federal NNSR
regulations. MCAQ has not transmitted any changes to its LIP-
approved NNSR program at Rule 2.0531, Sources in Nonattainment
Areas, in the April 24, 2020, LIP revision. There are no designated
nonattainment areas in Mecklenburg County at this time.
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The April 24, 2020, LIP revision adopts the relevant PSD provisions
of 40 CFR 51.166, thus recognizing NO<INF>X</INF> as a precursor to
ozone alongside VOCs. The adoption of these provisions is consistent
with the Federal PSD provisions as well as North Carolina's rules. More
details on Mecklenburg County's adoption of the Ozone Phase 2 Rule
provisions for PSD and EPA's analysis of its submittal can be found in
section III.C of this NPRM.
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
On January 2, 2011, emissions of greenhouse gases (GHGs) were, for
the first time, covered by the PSD and title V operating permit
programs.\13\ To establish a process for phasing in the permitting
requirements for stationary sources of GHGs under the CAA's PSD and
title V programs, on June 3, 2010, EPA published a final rule entitled
``Prevention of Significant Deterioration and Title V Greenhouse Gas
Tailoring Rule'' (hereinafter referred to as the ``GHG Tailoring
Rule''). See 75 FR 31514. In Step 1 of the GHG Tailoring Rule, which
took effect on January 2, 2011, EPA limited application of PSD and
title V requirements to sources and modifications of GHG emissions, but
only if they were subject to PSD or title V ``anyway'' due to their
emissions of pollutants other than GHGs. These sources and
modifications covered under Step 1 are commonly referred to as ``anyway
sources'' and ``anyway modifications,'' respectively.
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\13\ See 75 FR 17004 (April 2, 2010).
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In Step 2 of the GHG Tailoring Rule, which took effect on July 1,
2011, the PSD and title V permitting requirements extended beyond the
sources and modifications covered under Step 1 to apply to sources that
were classified as major sources based solely on their GHG emissions or
potential to emit GHGs. Step 2 also applied PSD permitting requirements
to modifications of otherwise major sources that would increase only
GHG emissions above the threshold in the Federal PSD regulations. EPA
generally described the
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sources and modifications covered by PSD under Step 2 of the Tailoring
Rule as ``Step 2 sources and modifications'' or ``GHG-only sources and
modifications.''
Subsequently, EPA published Step 3 of the GHG Tailoring Rule on
July 12, 2012. See 77 FR 41051. In the rule, EPA decided against
further phase-in of the PSD and title V requirements for sources
emitting lower levels of GHG emissions. Thus, the thresholds for
determining PSD and title V applicability based on emissions of GHGs
remained the same as established in Steps 1 and 2 of the Tailoring
Rule.
On June 23, 2014, the U.S. Supreme Court addressed the application
of stationary source permitting requirements to GHG emissions in
Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (UARG). The
Supreme Court upheld EPA's regulation of GHG Step 1--or ``anyway''
sources--but held that EPA may not treat GHGs as air pollutants for the
purpose of determining whether a source is a major source (or is
undergoing a major modification) and thus require the source to obtain
a PSD or title V permit. Therefore, the Court invalidated the PSD and
title V permitting requirements for GHG Step 2 sources and
modifications.
In accordance with the Supreme Court's decision, on April 10, 2015,
the D.C. Circuit issued an Amended Judgment vacating the regulations
that implemented Step 2 of the GHG Tailoring Rule, but not the
regulations that implement Step 1 of the GHG Tailoring Rule. See
Coalition for Responsible Regulation, Inc. v. EPA, 606 Fed. Appx. 6, 7
(D.C. Cir. 2015). The Amended Judgment specifically vacated the EPA
regulations under review (including 40 CFR 51.166(b)(48)(v) and 40 CFR
52.21(b)(49)(v)) ``to the extent they require a stationary source to
obtain a PSD permit if greenhouse gases are the only pollutant (i) that
the source emits or has the potential to emit above the applicable
major source thresholds, or (ii) for which there is a significant
emissions increase from a modification.'' Id. at 7-8.
In response, EPA promulgated a good cause final rule on August 19,
2015, entitled ``Prevention of Significant Deterioration and Title V
Permitting for Greenhouse Gases: Removal of Certain Vacated Elements.''
See 80 FR 50199 (August 19, 2015) (hereinafter referred to as the
``Good Cause GHG Rule''). The rule removed from the Federal regulations
the portions of the PSD permitting provisions for Step 2 sources that
were vacated by the D.C. Circuit (i.e., 40 CFR 51.166(b)(48)(v) and
52.21(b)(49)(v)). Therefore, EPA no longer has the authority to conduct
PSD permitting for Step 2 sources, nor can the Agency approve
provisions submitted by a state for inclusion in its SIP providing this
authority. On October 3, 2016, EPA proposed to revise provisions in the
PSD permitting regulations applicable to GHGs to address the GHG
applicability threshold for PSD in order to fully conform with UARG and
the Amended Judgment, but those revisions have not been finalized. See
81 FR 68110.
On July 20, 2011, EPA finalized the Biomass Deferral Rule, which
deferred for a period of three years, the application of PSD and Title
V permitting requirements to carbon dioxide (CO<INF>2</INF>) emissions
from bioenergy and other biogenic stationary sources (also known as
biogenic CO<INF>2</INF> emissions). See 76 FR 43490. During this three-
year period, stationary sources that combust biomass and constructed or
modified a facility would have avoided the application of PSD to
biogenic CO<INF>2</INF> emissions resulting from construction or
modification. The deferral applied only to biogenic CO<INF>2</INF>
emissions and did not affect other GHGs emitted from the combustion of
biomass fuel and decomposition of biogenic material or non-GHG
pollutants. Additionally, the deferral only applied to biogenic
CO<INF>2</INF> emissions in the PSD and Title V programs; it did not
apply to any other EPA programs, such as the GHG Reporting Program.\14\
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\14\ See <a href="https://www.epa.gov/ghgreporting">https://www.epa.gov/ghgreporting</a> for information on the
GHG Reporting Program.
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On July 12, 2013, the D.C. Circuit vacated the Biomass Deferral
Rule, but on November 14, 2013, issued an order delaying the vacatur of
the Biomass Deferral Rule until the U.S. Supreme Court made a final
decision in the UARG case related to the GHG Tailoring Rule. See Center
for Biological Diversity v. EPA, 722 F.3d 401. After a final decision
was made by the Supreme Court on June 23, 2014, in UARG, EPA did not
immediately take formal action to remove the Biomass Deferral Rule from
the CFR. On July 19, 2021, EPA removed the vacated text of the Biomass
Deferral Rule from 40 CFR 51.166(b)(48)(ii)(a), 52.21(b)(49)(ii)(a),
70.2(2), and 71.2(2). See 86 FR 37918.
The April 24, 2020, LIP revision adopts the PSD plan requirements
of 40 CFR 51.166, and adopts other relevant provisions directly to
implement PSD for greenhouse gases, consistent with the Federal PSD
provisions as well as North Carolina's rules. See section III.D of this
NPRM for more details.
E. Equipment Replacement Provision
Under Federal regulations, certain activities are not considered to
be a physical change or a change in the method of operation at a
source, and thus do not trigger NSR review. One category of such
activities is routine maintenance, repair and replacement (RMRR). On
October 27, 2003 (68 FR 61248), EPA published a rule entitled
``Prevention of Significant Deterioration (PSD) and Non-Attainment New
Source Review (NSR): Equipment Replacement Provision of the Routine
Maintenance, Repair and Replacement Exclusion'' (hereinafter referred
to as the ``ERP Rule''). The ERP Rule provided criteria for determining
whether an activity falls within the RMRR exemption. The ERP Rule also
provided a list of equipment replacement activities that are exempt
from NSR permitting requirements, while ensuring that industries
maintain safe, reliable, and efficient operations that will have little
or no impact on emissions. Under the ERP Rule, a facility undergoing
equipment replacement would not be required to undergo NSR review if
the facility replaced any component of a process unit with an identical
or functionally equivalent component. The rule included several
modifications to the NSR rules to explain what would qualify as an
identical or functionally equivalent component.
Shortly after the October 27, 2003, rule, several parties filed
petitions for review of the ERP Rule in the D.C. Circuit. The court
stayed the effective date of the rule pending resolution of the
petitions. A collection of environmental groups, public interest
groups, and states, subsequently filed a petition for reconsideration
with EPA, requesting that the Agency reconsider certain aspects of the
ERP Rule. EPA granted the petition for reconsideration on July 1, 2004
(69 FR 40278).\15\ After reconsideration, EPA published its final
response on June 10, 2005 (70 FR 33838), which stated that the Agency
would not change any aspects of the ERP. On March 17, 2006, the D.C.
Circuit acted on the petitions for review and vacated the ERP Rule.\16\
EPA removed the vacated language from the
[[Page 51951]]
Federal rules in a final rule published on July 19, 2021 (86 FR 37918).
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\15\ The reconsideration granted by EPA opened a new 60-day
public comment period, including a new public hearing, on three
issues of the ERP: (1) the basis for determining that the ERP was
allowable under the CAA; (2) the basis for selecting the cost
threshold (20 percent of the replacement cost of the process unit)
that was used in the final rule to determine if a replacement was
routine; and (3) a simplified procedure for incorporating a Federal
Implementation Plan into state plans to accommodate changes to the
NSR rules.
\16\ New York v. EPA, 443 F.3d 880 (D.C. Cir. 2006).
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Rule 2.0530 in the April 24, 2020, Mecklenburg submittal adopts the
requirements of 40 CFR 51.166 as amended July 1, 2014, with exceptions.
Likewise, Rule 2.0544 of the April 24, 2020, Mecklenburg submittal
adopts the requirements of 40 CFR 51.166 as amended July 20, 2011, with
exceptions. In this NPRM, EPA is not proposing to act on the
incorporation by reference of language to implement the ERP, as
provided in EPA's October 27, 2003, rule. See 68 FR 61248.
Specifically, EPA is not acting on the incorporation by reference of
the 2003 changes to 40 CFR 51.166(b)(2)(iii)(a), the incorporation by
reference of 40 CFR 51.166(b)(53) through (56), nor the incorporation
by reference of 40 CFR 51.166(y). These provisions were in the Federal
rule as of July 1, 2014; but, previously vacated by the D.C.
Circuit.\17\ EPA subsequently removed the vacated provisions from the
CFR. See 86 FR 37918 (July 19, 2021).
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\17\ See footnote 16.
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F. Ethanol Rule
Under the CAA, there are two possible thresholds for determining
whether a source is a major emitting facility that is potentially
subject to the construction permitting requirements under the PSD
program; one threshold is 100 tons per year (tpy) per pollutant, and
the other is 250 tpy per pollutant. Section 169(1) of the CAA lists
twenty-eight source categories that qualify as major emitting
facilities if their emissions equal or exceed the 100 tpy threshold. If
the source does not fall within one of twenty-eight source categories
listed in section 169, then the 250 tpy threshold is applicable.
One of the source categories in the list of twenty-eight source
categories, to which the 100 tpy threshold applies, is chemical process
plants. Since the Standard Industrial Classification (SIC) code for
chemical process plants includes facilities primarily engaged in
manufacturing ethanol fuel, EPA and states had previously considered
such facilities to be subject to the 100 tpy thresholds.
As a result of this classification, pursuant to EPA's major NSR
regulations, chemical process plants were also required to include
fugitive emissions for determining the potential emissions of such
sources. Thus, prior to promulgation of the 2007 Ethanol Rule, the
classification of fuel and industrial ethanol facilities as chemical
process plants had the effect of requiring these plants to include
fugitive emissions when determining whether their emissions exceed the
applicability thresholds for the PSD and NNSR permit programs.
On May 1, 2007, EPA published the 2007 Ethanol Rule (72 FR 24060),
which amended EPA's PSD and NNSR regulations to exclude ethanol
manufacturing facilities that produce ethanol by natural fermentation
processes from the ``chemical process plants'' category under the
regulatory definition of ``major stationary source.'' This change to
EPA's NSR regulations affected the threshold used to determine PSD
applicability for these ethanol production facilities, clarifying that
such facilities were subject to the 250 tpy major source threshold. The
2007 Ethanol Rule also included changes to other provisions which
established that ethanol facilities need not count fugitive emissions
when determining whether such a source is ``major'' under the Federal
PSD, NNSR, and Title V permitting programs.
On July 2, 2007, the National Resources Defense Council (NRDC)
petitioned the D.C. Circuit to review the 2007 Ethanol Rule. On that
same day, EPA received a petition for administrative reconsideration
and request for stay of the 2007 Ethanol Rule from NRDC. On March 27,
2008, EPA denied NRDC's 2007 administrative petition for
reconsideration.
On March 2, 2009, EPA received a second petition for
reconsideration and request for stay from NRDC. In 2009, NRDC also
filed a petition for judicial review challenging EPA's March 27, 2008,
denial of NRDC's 2007 administrative petition in the D.C. Circuit. This
challenge was consolidated with NRDC's challenge to the 2007 Ethanol
Rule. In August of 2009, the D.C. Circuit granted a joint motion to
hold the case in abeyance, and the case has remained in abeyance.
On October 21, 2019, EPA partially granted and partially denied
NRDC's 2009 administrative petition for reconsideration. See 84 FR
59743 (November 6, 2019). Specifically, EPA granted the request for
reconsideration with regard to NRDC's claim that the 2007 Ethanol Rule
did not appropriately address the CAA section 193 anti-backsliding
requirements for nonattainment areas. EPA denied the remainder of the
requests for reconsideration on the grounds that NRDC failed to
establish that reconsideration was warranted under CAA section
307(d)(7)(B).
Mecklenburg County's incorporation by reference of Federal PSD
provisions as of July 1, 2014, includes the 2007 Ethanol Rule's changes
to the treatment of ethanol production facilities. See section III.F of
this NPRM and EPA's technical support document in the docket for this
proposed action for more details.
III. Analysis of Mecklenburg's April 24, 2020 Submittal
MCAQ adopts the Federal PSD requirements of 40 CFR 51.166 with
several changes, consistent with the State of North Carolina's PSD
provisions.\18\ MCAPCO Rule 2.0530 adopts certain provisions of the
version of 40 CFR 51.166 effective on July 1, 2014, with certain
revisions described in this document, and Rule 2.0544 adopts certain
provisions of the version of the Federal rule effective on July 20,
2011, with certain revisions described in this document. EPA's analysis
of several features of the April 24, 2020, LIP revision related to
Mecklenburg County's PSD program at Rules 2.0530 and 2.0544 is included
in the following subsections.
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\18\ See, e.g., 76 FR 49313 (August 10, 2011); 76 FR 64240
(October 18, 2011); 81 FR 63107 (September 14, 2016); 83 FR 45827
(September 11, 2018); 84 FR 38876 (August 8, 2019); and 85 FR 57707
(September 16, 2020).
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A. 2002 NSR Reform Rules
This SIP revision addresses baseline actual emissions, actual-to-
projected actual applicability tests, PALs, recordkeeping requirements,
and reporting requirements.\19\ Rule 2.0530 adopts the Federal PSD
requirements at 40 CFR 51.166, as amended July 1, 2014, with certain
revisions described in this document. These revisions include a non-
substantive update to the definition of ``baseline actual emissions;''
an amendment pursuant to the PAL adjustment provision at
51.166(w)(10)(iv)(a); and streamlined language to adopt the
recordkeeping and reporting requirements at 51.166(r)(6).
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\19\ As noted in section II.A, EPA is not proposing to act on
the incorporation by reference of EPA's indefinitely stayed fugitive
emissions provisions at 40 CFR 51.166(b)(2)(v) and
51.166(b)(3)(iii)(d).
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As a general matter, state and local agencies may meet the
requirements of 40 CFR part 51 with different but equivalent (or more
stringent) regulations. As mentioned above, MCAQ chose to adopt the
Federal rules with several changes, consistent with North Carolina's
SIP-approved PSD provisions. The definition of ``baseline actual
emissions'' at Rule 2.0530(b)(1) was changed from the Federal
provisions to remove the provision allowing emissions units that are
not electric utility steam generating units (EUSGUs) to look back 10
years to select the baseline period. Mecklenburg
[[Page 51952]]
County rules treat EUSGUs and non-EUSGUs the same by allowing a look-
back of only five years. However, Mecklenburg County rules provide the
option of allowing a different time period, not to exceed 10 years, if
the owner or operator demonstrates that it is more representative of
normal source operation as required by 40 CFR 51.166(b)(47)(i). In
addition, Mecklenburg County rules require EUSGUs to adjust downward
the baseline emissions to account for reductions required under the
North Carolina Clean Smokestacks Act, which is a North Carolina law
that became effective in 2007 and set caps on NO<INF>X</INF> and
SO<INF>2</INF> emissions from public utilities operating coal-fired
power plants in the State that cannot be met by purchasing emissions
credits. See N.C. Gen. Stat. section 143-215.107D; N.C. Gen. Stat.
section 62-133.6.
With regard to the PAL adjustment provision at
51.166(w)(10)(iv)(a), the Federal regulations provide the option that
if the emissions level is equal to or greater than 80 percent of the
PAL level, the reviewing authority may renew the PAL at the same level
or it may set the PAL at a different level considering other factors
per 40 CFR 51.166(w)(10)(iv)(b). Rule 2.0530(i) instead requires that
the PAL be renewed at the same level if emissions are equal to or
greater than 80 percent of the PAL.
With regard to the remanded portions of the 2002 NSR Reform Rules
related to recordkeeping and EPA's December 21, 2007, clarifications of
the term ``reasonable possibility'' (72 FR 72607), Mecklenburg County
did not adopt all the provisions at 40 CFR 51.166(r)(6) or adopt the
Federal ``reasonable possibility'' standard. Instead, Mecklenburg
County adopted recordkeeping and reporting requirements at paragraph
2.0530(u) that apply to all modifications that use the actual-to-
projected-actual applicability test. Therefore, the Mecklenburg County
provisions meet the minimum recordkeeping and reporting requirements of
the Federal rule.
In addition to incorporating the Federal rules by reference with
several changes, Mecklenburg County's rule revisions include two
additional provisions that do not directly relate to the 2002 NSR
Reform rules, including: (1) incorporating by reference 40 CFR
52.21(r)(2) to clarify the period of validity of approval to construct;
and (2) requiring that all new natural gas-fired EUSGUs install best
available control technology or lowest achievable emission rate, as
appropriate. This second requirement was included in the North Carolina
rules originally for clarity and consistency with restrictions on use
of allowances imposed by an agreement resulting from provisions of the
North Carolina Clean Smokestacks Act, and Mecklenburg County adopted
the same provision to be consistent with the State.\20\
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\20\ Any allowances for emissions reductions achieved under the
North Carolina Clean Smokestacks Act are not available to the
subject facilities for Federal Clean Air Act programs because they
are ``state only'' reductions, and such reductions may not be used
to offset emissions and avoid installation of BACT or LAER on new
natural gas-fired units. See generally <a href="https://deq.nc.gov/about/divisions/air-quality/air-quality-outreach/news/clean-air-legislation/clean-smokestacks-act">https://deq.nc.gov/about/divisions/air-quality/air-quality-outreach/news/clean-air-legislation/clean-smokestacks-act</a> (last accessed March 23, 2022).
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EPA believes that approval of these changes would not have a
negative impact on air quality in the Mecklenburg County area. With
these proposed changes, the local regulations will now be consistent
with the State's current SIP-approved PSD program, which already
underwent updates concerning the 2002 NSR Reform Rules on August 10,
2011. See 76 FR 49313.
B. Fine Particulate Matter (PM<INF>2.5</INF>) NAAQS
The April 24, 2020, submittal adopts the PM<INF>2.5</INF>
provisions necessary to implement PSD for the PM<INF>2.5</INF> NAAQS.
First, regarding the 2008 NSR PM<INF>2.5</INF> Rule, the incorporation
by reference date of July 1, 2014, captures the requirement for PSD
permits to address directly emitted PM<INF>2.5</INF> and precursor
pollutants as codified at 40 CFR 51.166(b)(49). This incorporation by
reference date also includes the PSD requirement that condensable
PM<INF>10</INF> and PM<INF>2.5</INF> emissions be accounted for in PSD
applicability determinations and in establishing emissions limitations
for permitting, as codified at section 51.166(b)(49) and corrected in
EPA's October 25, 2012 PM<INF>2.5</INF> Condensable Correction Rule (77
FR 65107). The significant emission rates for direct PM<INF>2.5</INF>
and its precursors of SO<INF>2</INF> and NO<INF>X</INF> are adopted at
Rule 2.0530(b)(4), which references 40 CFR 51.166(b)(23)(i), and which
also notes that VOCs and ammonia are not significant precursors to
PM<INF>2.5</INF> in attainment and unclassifiable areas where Rule
2.0530 would apply. This is consistent with Federal language on
PM<INF>2.5</INF> precursor pollutants at 40 CFR 51.166(b)(23)(i) and
51.166(b)(49)(i)(b)(4).
Next, Rule 2.0530(e)'s adoption of the July 1, 2014, requirements
of 40 CFR 51.166(c) include required elements of EPA's PM<INF>2.5</INF>
PSD-Increments-SILs-SMC Rule. Specifically, adopting the Federal rule
as of July 1, 2014, includes the PM<INF>2.5</INF> increments at 40 CFR
51.166(c)(1). Additionally, by adopting the definitions contained in 40
CFR 51.166(b) as of July 1, 2014, Rule 2.0530(b) has the effect of
adding to the Mecklenburg County LIP the required definitions of
``major source baseline date,'' ``minor source baseline date,'' and
``baseline area.''
Finally, Rule 2.0530 does not include (1) the grandfathering
provisions from the PM<INF>2.5</INF> NSR Rule, or (2) the
PM<INF>2.5</INF> SILs and SMC provisions from the PM<INF>2.5</INF>
Increments-SILs-SMC Rule, as the July 1, 2014, date captures EPA's May
18, 2011, and December 9, 2013, actions to remove these provisions,
respectively. See 76 FR 28646 and 78 FR 73698. Therefore, EPA has
preliminarily determined that Mecklenburg County's incorporation by
reference of EPA's PSD regulations as of July 1, 2014, is consistent
with current Federal provisions to implement PM<INF>2.5</INF> for PSD.
C. 1997 8-Hour Ozone NAAQS Phase 2 Rule
Mecklenburg County adopts the PSD provisions from the Ozone Phase 2
Rule, as noted in section II.C of this NPRM. Consistent with North
Carolina's rules and the Federal rules, Rule 2.0530(b) adopts the same
language regarding the Phase 2 Rule via the incorporation by reference
of 40 CFR 51.166(b)(1)(ii), 51.166(b)(2)(ii), 51.166(b)(23)(i), and
51.166(b)(49)(i), which effectively recognizes VOCs and NOx as
precursors to ozone for purposes of PSD. Therefore, EPA has
preliminarily determined that MCAQ's proposed LIP revision is
consistent with the Ozone Phase 2 Rule.
D. Greenhouse Gas Tailoring Rule and Biomass Deferral Rule
The April 24, 2020, SIP revision establishes thresholds for
determining which new stationary sources and modification projects
become subject to permitting requirements for GHG emissions under
Mecklenburg County's PSD program. This SIP revision updates MCAQ's
existing PSD program to include a new rule applicable to GHGs only.
Specifically, the revision incorporates a new PSD rule into Mecklenburg
County's LIP, at MCAPCO Rule 2.0544, Prevention of Significant
Deterioration Requirements for Greenhouse Gases, to address the
thresholds for GHG permitting applicability. This new regulation adopts
the provisions of 40 CFR 51.166 as effective on July 26, 2011, to
specifically include the Federal Tailoring Rule requirements still in
place and defined at 40 CFR 51.166. For all other regulated NSR
pollutants, the provisions of Rule 2.0530 apply.
[[Page 51953]]
Additionally, Rule 2.0544(a) reflects the effects of the 2014 UARG
decision on PSD permitting requirements for GHG-only, or Step 2,
sources, by including the following language: ``A major stationary
source or major modification shall not be required to obtain a
prevention of significant deterioration (PSD) permit on the sole basis
of its greenhouse gas emissions. For all other regulated NSR
pollutants, the provisions of MCAPCO Regulation 2.0530 of this [sic]
apply.''
The Rule also includes a mechanism at Rule 2.0554(d) to
automatically incorporate any changes to the Federal GHG global warming
potentials into the definition of ``subject to regulation''
incorporated by reference from 40 CFR 51.166(b)(48) that may occur
after the incorporation by reference (``IBR'') date. In order to
determine if a source is subject to regulation for GHGs, a source's
total GHG emissions are calculated using the global warming potentials
published in Table A-1 of Subpart A of 40 CFR part 98.\21\ MCAQ's
submittal ensures that any future changes EPA makes to Table A-1 are
concurrently incorporated into the Mecklenburg County LIP-approved PSD
program for greenhouse gases without the need for further LIP
revisions.
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\21\ GHGs, as defined in the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48), is the aggregate of six
different gases: carbon dioxide, nitrous oxide, methane,
hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. To
calculate the total GHG emissions for a source: (1) the mass amount
of emissions, in tpy, of each individual GHG is multiplied by its
global warming potential found in Table A-1 of Subpart A of 40 CFR
part 98, and (2) the resulting values for each individual GHG are
added. This results in the total GHG emissions for the source
expressed in tpy of CO<INF>2</INF> equivalent (tpy CO<INF>2</INF>e).
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The July 20, 2011, version of the definition of ``subject to
regulation'' at 40 CFR 51.166(b)(48) includes the text of the Biomass
Deferral Rule, discussed in section II.D of this NPRM, at
51.166(b)(48)(ii)(a). However, MCAQ submitted a letter on February 4,
2022, through NCDAQ, clarifying its intent for EPA not to adopt the
since-vacated text of the Biomass Deferral Rule into the federally-
approved LIP. The letter withdraws this portion of the adoption of PSD
provisions in its submittal from EPA consideration.
In the February 4, 2022, supplemental letter, Mecklenburg County
also clarifies that while Rule 2.0544's definition of ``baseline actual
emissions'' does not include the term ``immediately'' at subparagraph
2.0544(b)(1), MCAQ will enforce the provision as if the term were
present based on MCAQ's interpretation and North Carolina's
interpretation that this word is extraneous. This rule previously
included the term ``immediately'' in its locally effective version, as
follows:
For an existing emissions unit, baseline actual emissions means
the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month
period selected by the owner or operator within the 5-year period
immediately preceding the date that a complete permit application is
received by the Department for a permit required under this Rule.
The Director shall allow a different time period, not to exceed 10
years immediately preceding the date that a complete permit
application is received by the Department, if the owner or operator
demonstrates that it is more representative of normal source
operation. . . .
Without the term ``immediately,'' this provision reads as follows:
For an existing emissions unit, baseline actual emissions mean
the average rate, in tons per year, at which the emissions unit
actually emitted the pollutant during any consecutive 24-month
period selected by the owner or operator within the 5-year period
preceding the date that a complete permit application is received by
the Department for a permit required under this Rule. The Director
shall allow a different time period, not to exceed 10 years
preceding the date that a complete permit application is received by
the Department, if the owner or operator demonstrates that it is
more representative of normal source operation. . . .
The term ``immediately'' was eliminated from the State's analogous
rule at 15A North Carolina Administrative Code Rule 02D .0544
subparagraph (b)(1) as the result of a technical correction from the
North Carolina Rules Review Commission to remove this word as
extraneous text. North Carolina previously submitted a letter
clarifying that the State intends to enforce its provision at 15A North
Carolina Administrative Code Rule 02D .0544 subparagraph (b)(1) as if
the term ``immediately'' were present in the rule. MCAQ's February 4,
2022, letter notes that MCAQ intends to be consistent with the State
and therefore also intends to enforce subparagraph 2.0544(b)(1) as if
the term ``immediately'' were present. EPA also notes that the
definition of ``baseline actual emissions,'' as included in Rule
2.0530(b)(1) for other regulated NSR pollutants, includes the term
``immediately.'' Therefore, MCAQ would be enforcing 2.0544(b)(1)
consistent with how the term is defined at 2.0530(b)(1). EPA's proposed
action to incorporate the definition of ``baseline actual emissions''
is based on Mecklenburg County's interpretation of this subparagraph as
explained in the February 4, 2022, letter.\22\
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\22\ EPA incorporated this language into the SIP on August 8,
2019 (84 FR 38876).
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EPA has preliminarily determined that MCAQ's proposed LIP revision
is consistent with the Tailoring Rule. Furthermore, EPA has
preliminarily determined that this revision to Mecklenburg County's LIP
is consistent with section 110 of the CAA. Therefore, EPA is proposing
to incorporate Rule 2.0544 into the Mecklenburg County LIP, excluding
the language of the Biomass Deferral Rule from the incorporation by
reference of 40 CFR 51.166.\23\
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\23\ If EPA finalizes this proposed action, it will include a
note in the table in paragraph (c)(3) of 40 CFR 52.1770 identifying
the exclusion of the Biomass Deferral Rule language from the LIP-
approved version of Rule 2.0544.
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E. Equipment Replacement Provision
As noted in section II.E of this NPRM, the April 24, 2020,
submittal adopts the Federal PSD plan requirements contained within 40
CFR 51.166 as amended July 1, 2014, with certain revisions, into Rule
2.0530, Prevention of Significant Deterioration. The language of the
ERP was vacated by court order before July 1, 2014, and therefore, as
noted in section II.E of this NPRM, EPA is not proposing to act on the
incorporation by reference of the 2003 changes to 40 CFR
51.166(b)(2)(iii)(a), the incorporation by reference of paragraphs 40
CFR 51.166(b)(53) through (56), nor the incorporation by reference of
40 CFR 51.166(y) in Rule 2.0530 or Rule 2.0544.
F. Ethanol Rule
MCAPCO Rule 2.0530 is consistent with EPA's PSD program
requirements in 40 CFR 51.166, as amended in the 2007 Ethanol Rule.\24\
EPA prepared a Technical Support Document (TSD) related to the 2007
Ethanol Rule adoption that is available as part of the docket to this
proposed rulemaking that contains an analysis of the potential impact
of the SIP revision on air quality and whether approval of the SIP
revision will interfere with attainment
[[Page 51954]]
or maintenance of the national ambient air quality standards (or
standards) or any other CAA requirement. As discussed therein, there
are no existing ethanol plants in Mecklenburg County. The one existing
ethanol plant in the State is mapped in the TSD along with the ambient
air monitors to demonstrate the relationship between ethanol production
and air quality.
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\24\ The term ``major stationary source'' is defined in 40 CFR
51.166(b)(1)(i)(a) as ``[a]ny of the following stationary sources of
air pollutants which emits, or has the potential to emit, 100 tons
per year or more of any regulated NSR pollutant: . . . Chemical
process plants (which does not include ethanol production facilities
that produce ethanol by natural fermentation included in NAICS codes
325193 or 312140).'' Additionally, 40 CFR 51.166(b)(1)(iii) excludes
fugitive emissions from ethanol production facilities from the
``chemical process plants'' category such that fugitive emissions
are not considered in determining whether the facility is subject to
PSD. Because Mecklenburg County's incorporation by reference of 40
CFR 51.166 includes the ethanol exclusion, ethanol facilities
emitting less than 250 tpy of a regulated air pollutant are not
subject to PSD, and fugitive emissions from ethanol facilities are
not considered in determining whether the facility is subject to
PSD.
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Emissions for four criteria pollutants are analyzed in the TSD. EPA
also graphed air quality trends in the TSD in Mecklenburg County, since
the date of promulgation of the 2007 Ethanol Rule, until 2021, for all
criteria pollutants associated with ethanol production. The air quality
trends reveal air quality improved for generally every pollutant
monitored. Additionally, there has been no ethanol production in or
near Mecklenburg County, North Carolina.
EPA also describes requirements for MCAQ's minor source NSR program
in the TSD because the facilities that would be below the 250 tpy PSD
major source threshold under this rulemaking will still need to obtain
minor source construction permits. EPA further analyzes the impact of
increasing the threshold to 250 tpy on ozone and PM precursors. As the
analysis for ozone and secondary PM in the TSD demonstrates that
sources below the 250 tpy threshold will not cause any interference
with attainment or maintenance of the standard in Mecklenburg County.
Based on EPA's analysis in the TSD, EPA's exclusion of these
facilities from MCAQ's PSD program, as proposed herein, would not
interfere with any applicable requirement concerning attainment and
reasonable further progress (as defined in section 171 of the CAA) or
any other applicable requirement of the CAA. Therefore, this proposed
action is consistent with CAA section 110(l).
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the following Mecklenburg County Rules: 2.0530, Prevention of
Significant Deterioration, effective October 17, 2017; \25\ and 2.0544,
Prevention of Significant Deterioration Requirements for Greenhouse
Gases, effective December 15, 2015.\26\ EPA has made, and will continue
to make, these materials generally available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 4 office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section in the
preamble of this document for more information).
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\25\ EPA is not proposing to incorporate by reference the
provisions of the Equipment Replacement Rule and Fugitive Emissions
Rule contained in 40 CFR 51.166(b)(2)(iii)(a), 40 CFR
51.166(b)(2)(v), 51.166(b)(3)(iii)(d), 40 CFR 51.166(b)(53) through
(56), and 40 CFR 51.166(y) as those CFR provisions existed on July
1, 2014.
\26\ EPA is not proposing to incorporate by reference the
provisions of the Biomass Deferral Rule contained in 40 CFR
51.166.(b)(48)(ii)(a) as that CFR provision existed on July 20,
2011.
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V. Proposed Action
EPA is proposing to approve the aforementioned changes to the
Mecklenburg County LIP. Specifically, EPA is proposing to incorporate
updates to PSD permitting provisions in Rule 2.0530, Prevention of
Significant Deterioration, and incorporate new Rule 2.0544, Prevention
of Significant Deterioration Requirements for Greenhouse Gases, with
the exception of those provisions described in footnotes 25 and 26 of
this document. EPA believes that approval of these changes and
additions, including all amendments mentioned in the preceding
sections, would not have a negative impact on air quality in the
Mecklenburg County area. With these proposed changes and additions, the
local regulations will now be consistent with the State's current SIP-
approved PSD program and Federal PSD rules. Additionally, these updates
include important provisions such as recognizing NO<INF>X</INF> as a
precursor to ozone, incorporating provisions to regulate
PM<INF>2.5</INF>, and incorporating provisions to regulate GHGs for the
purposes of PSD. Therefore, EPA is proposing to approve the April 24,
2020, LIP revision changes to Mecklenburg County's PSD permitting
program, pursuant to the Act and EPA's implementing regulations.
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. This action merely
proposes to approve local law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by local 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
<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).
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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
[[Page 51955]]
Dated: August 18, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-18172 Filed 8-23-22; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.