Proposed Rule2023-05238
Air Plan Approval; North Carolina; Air Quality Control, Revisions to Particulates From Fugitive Dust Emissions Sources Rule
Primary source
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Published
March 23, 2023
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve changes to the North Carolina State Implementation Plan (SIP), submitted by the State of North Carolina through the North Carolina Division of Air Quality (NCDAQ), through a letter dated September 10, 2021. The SIP revision includes changes to the fugitive dust emissions rule in the State's SIP that modify several definitions, clarify its applicability requirements, adjust the requirement for fugitive dust control plan submissions, and make minor language and formatting changes. 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 88 Issue 56 (Thursday, March 23, 2023)</title>
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[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17479-17481]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05238]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2022-0428; FRL-9991-01-R4]
Air Plan Approval; North Carolina; Air Quality Control, Revisions
to Particulates From Fugitive Dust Emissions Sources Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve changes to the North Carolina State Implementation Plan (SIP),
submitted by the State of North Carolina through the North Carolina
Division of Air Quality (NCDAQ), through a letter dated September 10,
2021. The SIP revision includes changes to the fugitive dust emissions
rule in the State's SIP that modify several definitions, clarify its
applicability requirements, adjust the requirement for fugitive dust
control plan submissions, and make minor language and formatting
changes. EPA is proposing to approve these changes pursuant to the
Clean Air Act (CAA or Act).
DATES: Comments must be received on or before April 24, 2023.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0428 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 making effective comments, please visit <a href="http://www2.epa.gov/dockets/commenting-epa-dockets">www2.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Pearlene Williams-Miles, 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, North Carolina 30303-8960. The
telephone number is (404) 562-9144. Ms. Williams-Miles can also be
reached via electronic mail at <a href="/cdn-cgi/l/email-protection#4d1a242121242c203e002421283e631d282c3f212823280d283d2c632a223b"><span class="__cf_email__" data-cfemail="d483bdb8b8bdb5b9a799bdb8b1a7fa84b1b5a6b8b1bab194b1a4b5fab3bba2">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
North Carolina adopted 15 NCAC 02D .0540, Particulates from
Fugitive Non-Process Dust Emission Sources (hereinafter Rule 02D
.0540), in 1998 to regulate excess non-process fugitive dust emissions
generated from activities associated with four specified source
categories (i.e., hot mix asphalt plants; mica or feldspar processing
plants; sand, gravel, or crushed stone operations; and light weight
aggregate processes). On November 10, 1999, EPA incorporated this
particulate matter fugitive emission control regulation into the North
Carolina SIP at Section .0500--Emission Control Standards under
Subchapter 2D--Air Pollution Control Requirements of the North Carolina
SIP.\1\ See 64 FR 61213. Later,
[[Page 17480]]
on January 31, 2008, North Carolina submitted amendments to EPA that
would make the rule applicable to all fugitive dust emissions instead
of only non-process fugitive dust emissions. See 84 FR 33850 (July 16,
2019). Additionally, 15 NCAC 02D .0540 was renamed Particulates from
Fugitive Dust Emission Sources. Id. EPA approved the January 31, 2008,
SIP submission on July 16, 2019. On September 10, 2021, NCDAQ submitted
another revision to Rule 02D .0540 that includes several
changes.<SUP>2 3</SUP> EPA is proposing to approve these changes
because they are consistent with CAA requirements, including the
requirement that they would not interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable CAA requirement. EPA's rationale for proposing
approval is described in more detail in Section II of this notice of
proposed rulemaking (NPRM).
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\1\ In the table of North Carolina regulations federally
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred
to as ``Subchapter 2D Air Pollution Control Requirements.''
\2\ EPA received the September 10, 2021, submittal on September
14, 2021. For clarity, throughout this notice EPA will refer to the
September 14, 2021, submission by its cover letter date of September
10, 2021.
\3\ The September 10, 2021, submittal included several changes
to other North Carolina SIP-approved rules that are not addressed in
this notice. EPA will act on those rule revisions in separate
rulemakings.
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II. Analysis of the State's Submission
The September 10, 2021, SIP submittal revises Rule 02D .0540 by
modifying several definitions, clarifying its applicability
requirements, adjusting the requirement for fugitive dust control plan
submissions, and making minor language and formatting.
In the September 10, 2021, submission, two definitions in paragraph
.0540(a) have been modified substantively. Other definitions have only
minor, non-substantive language changes that do not alter the meaning
of the rule as well as formatting changes.\4\ All definitions have been
reorganized in alphabetical order. The first definition with a
substantive change is ``Fugitive dust emissions.'' This revised
definition removes the phrase ``from process operations'' from the
definition to better align the rule with the State's intent to make the
rule applicable to all fugitive dust emissions at subject
facilities.\5\ The removal of this limiting language expands
applicability to both process and non-process operations, thus
increasing the rule's scope. The revision also substantively modifies
the definition of ``Substantive complaints.'' This definition is
revised to clarify what kind of physical evidence is necessary to
constitute a substantive complaint and to clarify that verification is
provided by NCDAQ. The revision now requires physical evidence ``of
excess fugitive dust emissions'' and identifies NCDAQ as the verifying
entity. EPA finds this change acceptable because it resolves ambiguity
by clarifying what evidence is required to develop a substantive
complaint.
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\4\ One example is a modification to the definition ``Production
of crops'', which removes the phrase ``them'' and adds ``crops'' in
its place, to specify that the protection of ``crops'' from disease
is included within the definition.
\5\ See the rule applicability exclusions in paragraph .0540(b).
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Paragraph .0540(b) is revised with one substantive change and some
minor non-substantive changes. The substantive change addresses the
limitation that Rule .0540 does not apply to land disturbing activities
generally. The revision cabins that limitation by narrowing the
exemption to apply only to those land disturbing activities that are
not required to obtain a permit pursuant to 15A NCAC 02Q or that are
not subject to a requirement under 15A NCAC 02D.\6\ Previously, even
those land disturbing activities that did require a permit pursuant to
15 NCAC 02Q or were subject to a requirement pursuant to 15 NCAC 02D
were exempt. EPA finds this change acceptable as the language is SIP
strengthening since it narrows an exemption to Rule .0540. In addition
to this substantive change, the revision includes some minor non-
substantive changes to paragraph .0540(b), such as minor language
choice modifications and changes to the formatting of rule titles.
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\6\ Examples of land disturbing activities include clearing,
grading, digging, and related activities such as hauling fill and
cut material, building material, or equipment.
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Paragraphs .0540(c) and (d) are primarily revised with minor and
non-substantive changes, primarily dealing with word choice, such as
changing the word ``under'' to the phrase, ``pursuant to.'' One other
minor change the revision makes is to add a cross-reference to
``Paragraph (g)'' in Paragraph .0540(d)(3). This cross-reference
clarifies when the Director's approval of a fugitive dust control plan
is complete and does not substantively change the requirements of the
rule. One substantive change in the revision removes the word ``non-
process'' from paragraph .0540(d) to increase the rule's scope by
making it applicable to both process and non-process operations.
Another substantive change removes the word ``immediate'' from
Paragraph .0540(d)(1) with respect to the description of ``measures''
used to abate fugitive emissions. Previously, this subparagraph
required that owners/operators of applicable sources submit a report to
the Director that included what immediate measures could be used to
abate fugitive emissions if a substantive complaint was filed. The
change makes the term ``measures'' more inclusive as owners/operators
will now need to include immediate and non-immediate measures in the
report.
Paragraph .0540(e) is revised with two substantive changes.\7\ The
first change occurs at the beginning of paragraph .0540(e), which now
mandates that the Director require the owner or operator of a facility
subject to paragraph (c) of the rule to submit a fugitive dust control
plan if either ambient air quality measurements or dispersion modeling
shows excess fugitive dust emissions cause the ambient air quality
standard for particulates to be exceeded, or if NCDAQ observes excess
fugitive dust emissions beyond the property boundary. The previous
version of paragraph (e) gave the Director the discretion to require
such a plan. The revision is SIP strengthening as the Director's
ability to require the submittal of a fugitive dust control plan is no
longer discretionary. The second change removes the word ``non-
process'' from paragraph .0540(e) to increase the rule's scope by
making it applicable to both process and non-process operations.
Paragraph .0540(e) also includes other minor changes to wording which
do not alter the meaning of the provision.
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\7\ NCDAQ submitted a letter to EPA on January 25, 2023,
requesting withdrawal of the changes to 15 NCAC 02D .0540(e)(1) from
consideration for inclusion in the North Carolina SIP. For this
reason, EPA is not proposing to approve the changes to paragraph 02D
.0540(e)(1) through this rulemaking.
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Next, paragraph .0540(g), which identifies the findings that the
Director must make to approve a fugitive dust control plan, includes
several wording changes. Subparagraph (g)(2) currently requires a
finding that the proposed schedule to implement the fugitive dust plan
required in subparagraph (f)(3) will reduce fugitive emissions ``in a
timely manner.'' The submittal revises this requirement by removing the
phrase ``in a timely manner.'' EPA is proposing to approve this change
because paragraph .0540(c) continues to prohibit visible emissions in
excess of that allowed under paragraph (e) and because the phrase ``in
a timely manner'' was discretionary and never defined. Paragraph (e)
requires a dust control plan if ambient air quality measurements or
dispersion modeling show a violation or potential violation
[[Page 17481]]
of the ambient air quality standards for particulates or if NCDAQ
observes excess fugitive dust emissions from the facility beyond the
property boundary for six minutes in any one hour using Reference
Method 22 in 40 CFR part 60, Appendix A-7. Pursuant to paragraph (g),
the Director must approve the plan if, among other things, the methods
used to control fugitive dust emissions prevent fugitive dust emissions
from causing or contributing to a violation of the ambient air quality
standards for particulates. Paragraph (g) also includes non-substantive
wording changes.
EPA has preliminarily determined that the changes to the
regulations above are consistent with CAA requirements, including the
requirement that they would not interfere with any applicable
requirement concerning attainment and reasonable further progress or
any other applicable CAA requirement. Therefore, EPA is proposing
approval of the changes to these regulations.
III. Incorporation by Reference
In this document, EPA is proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference 15A NCAC Subchapter 02D .0540, Particulates from Fugitive
Dust Emission Sources, state effective on September 1, 2019, as
discussed in sections I. and II. of this preamble. 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 of
this preamble for more information).
IV. Proposed Action
EPA is proposing to approve the September 10, 2021, SIP revision to
incorporate various changes to Rule 02D .0540, Particulates from
Fugitive Dust Emission Sources. EPA is proposing to approve these
changes for the reasons discussed above.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the 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 they meet the criteria of the CAA. This action merely proposes
to approve state law as meeting Federal requirements and does not
impose additional requirements beyond those imposed by state law. For
that reason, this proposed action:
<bullet> Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive 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, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 3, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-05238 Filed 3-22-23; 8:45 am]
BILLING CODE 6560-50-P
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