Proposed Rule2024-11457
Air Plan Approval; North Carolina; Permitting Provisions Revisions
Primary source
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Published
May 28, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to correct the erroneous incorporation of cross-references into the North Carolina State Implementation Plan (SIP) using the Clean Air Act (CAA or Act) error correction provision. EPA has determined that portions of its May 23, 2019, July 17, 2020, and March 1, 2021, final SIP rulemaking actions were in error and that it is appropriate to correct those actions by removing specific cross-references in the permitting rules from the SIP.
Full Text
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<title>Federal Register, Volume 89 Issue 103 (Tuesday, May 28, 2024)</title>
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[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Proposed Rules]
[Pages 46049-46051]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11457]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0454; EPA-R04-OAR-2019-0638; EPA-R04-OAR-2020-0186;
FRL-11971-01-R4]
Air Plan Approval; North Carolina; Permitting Provisions
Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
correct the erroneous incorporation of cross-references into the North
Carolina State Implementation Plan (SIP) using the Clean Air Act (CAA
or Act) error correction provision. EPA has determined that portions of
its May 23, 2019, July 17, 2020, and March 1, 2021, final SIP
rulemaking actions were in error and that it is appropriate to correct
those actions by removing specific cross-references in the permitting
rules from the SIP.
DATES: Comments must be received on or before June 27, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0454 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://www.epa.gov/dockets/commenting-epa-dockets">www.epa.gov/dockets/commenting-epa-dockets</a>.
There are three dockets supporting this action, EPA-R04-OAR-2017-
0454, EPA-R04-OAR-2019-0638, and EPA-R04-OAR-2020-0186. Docket No. EPA-
R04-OAR-2017-0454 includes a March 24, 2006, SIP submittal from North
Carolina and EPA's original approval of the cross-references to North
Carolina
[[Page 46050]]
General Statutes that are proposed for removal in this Notice of
Proposed Rulemaking (NPRM). Docket Nos. EPA-R04-OAR-2019-0638 and EPA-
R04-OAR-2020-0186 include a July 10, 2019, SIP submittal from North
Carolina with additional ministerial and minor changes to the
provisions at issue in this NPRM. All comments regarding information in
any of these dockets are to be made in Docket No. EPA-R04-OAR-2017-
0454. For the full EPA public comment policy, information about CBI or
multimedia submissions, and general guidance on making effective
comments, please visit <a href="https://www.epa.gov/dockets/commenting-epadockets">https://www.epa.gov/dockets/commenting-epadockets</a>.
FOR FURTHER INFORMATION CONTACT: Steven Scofield, Multi-Air Pollutant
Coordination 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. The telephone number is
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#8bf8e8e4ede2eee7efa5f8ffeefdeecbeefbeaa5ece4fd"><span class="__cf_email__" data-cfemail="6112020e0708040d054f1215041704210411004f060e17">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On May 23, 2019, July 17, 2020, and March 1, 2021,\1\ EPA approved
revisions to 15A North Carolina Administrative Code (NCAC) 02Q .0101,
02Q .0103, and 02Q .0301 into the North Carolina SIP.\2\ These
revisions include cross-references to North Carolina General Statutes
143-215.108 and 143-215.108A; however, these cross-referenced
provisions are not incorporated into the SIP. EPA has determined these
prior approvals of the cross-referenced provisions were in error and is
proposing to remove these cross-references from 15A NCAC 02Q.0101,
02Q.0103 and 02Q.0301 of the SIP. Because the cross-referenced
provisions are not incorporated into the SIP, changes to those
provisions can change the SIP without the submission of a SIP revision
and subsequent EPA action to approve such a change, which is
inconsistent with the CAA. Specifically, CAA section 110(l) requires
each SIP revision submitted by a state to undergo reasonable public
notice and hearing and prevents EPA from approving a SIP revision that
would interfere with any applicable requirement concerning attainment
and reasonable further progress, or any other applicable requirement of
the CAA.\3\ Changes to the statutory provisions cross-referenced in the
SIP could change the SIP without fulfilling public notice and hearing
requirements and without EPA evaluation of the revision pursuant to the
requirements of section 7410(l) and any other CAA requirements
applicable to the specific SIP provision at issue.
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\1\ See 84 FR 23725, 85 FR 43461, and 86 FR 11875.
\2\ The revisions were submitted by the North Carolina Division
of Air Quality in submissions dated March 24, 2006, and July 10,
2019.
\3\ CAA sections 110(a)(1) and (2) also require each SIP
submitted by a state to undergo reasonable public notice and
hearing.
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II. What is EPA's authority to correct errors in SIP rulemakings?
Section 110(k)(6) of the CAA authorizes EPA to revise a state's SIP
when it ``determines that [its] action approving, disapproving, or
promulgating any plan or plan revision (or part thereof) . . . was in
error.'' Once EPA has made the determination that it erred, it ``may in
the same manner as the approval, disapproval, or promulgation revise
such action as appropriate without requiring any further submission
from the State.'' Ala. Envtl. Council v. EPA, 711 F.3d 1277, 1286 (11th
Cir. 2013). This determination and the basis must be provided to the
state and the public. Section 110(k)(6) of the CAA has been interpreted
by courts as a ``broad provision [that] was enacted to provide the EPA
with an avenue to correct its own erroneous actions and grant the EPA
the discretion to decide when to act pursuant to the provision.'' Miss.
Comm'n on Envtl. Quality v. EPA, 790 F.3d 138, 150 (D.C. Cir. 2015).
EPA can take action under section 110(k)(6) to correct an error only if
the error existed at the time the SIP was originally approved. See
Texas v. EPA, 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J.,
dissenting).
III. Which provisions are EPA proposing to remove?
A. Section 02Q .0101, Required Air Quality Permits
EPA approved changes to 15A North Carolina Administrative Code
(NCAC) 02Q section .0101, Required Air Quality Permits, to include a
cross-reference to a North Carolina General Statute that is not
incorporated into the SIP. Specifically, on May 23, 2019, EPA approved
revisions to subparagraph (b)(1) that added the phrase ``With the
exception allowed by G.S. 143-215.108A''.\4\ Subsequently, on July 17,
2020, EPA approved other changes to paragraph (b), including
consolidating the subparagraphs into one paragraph .0101(b) and making
other ministerial edits which do not otherwise change the meaning of
the provision. This July 17, 2020, revision also included the same
language cross-referencing G.S. 143-215.108A. EPA is proposing to
correct both the May 23, 2019, and July 17, 2020, final actions by
removing the phrase in paragraph .0101(b), ``With the exception allowed
by G.S. 143-215.108A.'' The effect of this change, if finalized, would
merely remove the cross-reference to the statute and would not modify
specific exemptions from permitting and other changes otherwise
approved in EPA's May 23, 2019, and July 17, 2020, actions.
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\4\ The full text of 15A NCAC 02Q .0101(b)(1) (now renumbered to
02Q .0101(b)) in the SIP reads: ``Stationary Source Construction and
Operation Permit: With the exception allowed by G.S. 143-215.108A,
the owner or operator of a new, modified, or existing facility or
source shall not begin construction or operation without first
obtaining a construction and operation permit pursuant to 15A NCAC
02Q .0300. Title V facilities are subject to the Title V procedures
pursuant to 15A NCAC 02Q .0500 including the acid rain procedures
pursuant to 15A NCAC 02Q .0400. A facility may also be subject to
the air toxic procedures pursuant to 15A NCAC 2Q .0700.''
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B. Section 02Q .0103, Definitions
EPA approved changes to 15A NCAC 02Q .0103, Definitions, that
include a cross-reference to a North Carolina General Statute that is
not incorporated into the SIP. Specifically, on July 18, 2017, EPA
approved revisions to the definition of ``construction'' at paragraph
(9) that added subparagraphs (a) through (d). Newly added subparagraph
(9)(d) included the phrase ``for which a permit is required by G.S.
143-215.108.'' \5\ Subsequently, on July 17, 2020, EPA approved a
change to this phrase to read ``for which a permit is required pursuant
to G.S. 143-215.108.'' EPA also approved changes to paragraph .0103(9)
in the July 17, 2020, action which do not alter the meaning of the
definition. EPA is proposing to correct both the July 18, 2017, and
July 17, 2020, final actions by removing the phrase in subparagraph
(9)(d), ``pursuant to G.S. 143-215.108.'' The effect of this change, if
finalized, would merely remove the cross-reference to the statute and
would not modify specific exemptions from permitting and other changes
otherwise approved in EPA's May 23, 2019, and July 17, 2020,
actions.\6\
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\5\ The full text of 15A NCAC 02Q .0103(9)(d) in the SIP
currently reads: ``building ancillary structures, including fences
and office buildings that are not a necessary component of an air
contaminant source, equipment or associated air cleaning device for
which a permit is required pursuant to G.S. 143-215.108'' and is one
of four items listed in the definition of ``construction'' that
shall not be considered part of construction activity.
\6\ In the May 23, 2019, action, EPA approved changes to
definition of ``construction'' in 15A NCAC 02Q .0103, Definitions,
that identified certain activities excluded from the term
``construction'' and those exclusions remain in the SIP.
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[[Page 46051]]
C. Section 02Q .0301, Applicability
EPA approved changes to 15A NCAC 02Q .0301, Applicability, that
include a cross-reference to a North Carolina General Statute that is
not incorporated into the SIP. Specifically, on May 23, 2019, EPA
approved a revision to 15A NCAC 02Q .0301(a) that added the phrase ``or
as allowed under G.S. 143-215.108A''.\7\ Subsequently, on March 1,
2021, EPA approved a change to this phrase to read ``or as allowed
pursuant to G.S. 143-215.108A.'' EPA also approved changes to paragraph
.0301(a) with the March 1, 2021, action which are ministerial and do
not alter the meaning of the provision. EPA is proposing to correct
both the May 23, 2019, and March 1, 2021, final actions by removing the
phrase in paragraph (a), ``or as allowed pursuant to G.S. 143-
215.108A.'' The removal of the cross-reference at 02Q .0301 would
merely remove the cross-reference to the statute and would not modify
specific exemptions from permitting and other changes otherwise
approved in EPA's May 23, 2019, and March 1, 2021, actions.
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\7\ The full text of 15A NCAC 02Q .0301(a) of the SIP currently
reads: ``Except for the permit exemptions allowed pursuant to 15A
NCAC 02Q .0102 and 15A NCAC 02Q .0900, or as allowed pursuant G.S.
143-215 108A, the owner or operator of a new, modified, or existing
facility or source shall not begin construction or operation without
first obtaining a construction and operation permit pursuant to 15A
NCAC 02Q .0300; however, Title V facilities shall be subject to the
Title V procedures pursuant to 15A NCAC 02Q .0500 including the acid
rain procedures pursuant to 15A NCAC 02Q .0400 for Title IV
sources.''
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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, and as discussed in Sections I and III
of this preamble, EPA is proposing to incorporate by reference 15A NCAC
Section 02Q Rule .0101, Required Air Quality Permits, except for the
phrase ``With the exception allowed by G.S. 143-215.108A'' in
subparagraph (b); Rule .0103, Definitions, except for the phrase
``pursuant to G.S. 143-215.108'' in subparagraph (9)(d); and Rule
.0301, Applicability, except for the phrase ``or as allowed pursuant
G.S. 143-215.108A'' in paragraph (a), all state effective April 1,
2018.\8\ 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).
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\8\ If EPA finalizes this proposed action, the ``Explanation''
column for these rules under 40 CFR 52.1770(c) will be revised to
exclude these cross-references to the statutory provisions.
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V. Proposed Action
Pursuant to the error correction provision of section 110(k)(6) of
the CAA, EPA is proposing to remove portions of 15A NCAC section 02Q
.0101, Required Air Quality Permits, section 02Q .0103, Definitions,
and section 02Q .0301, Applicability, with the cross-references to
North Carolina General Statutes as described above because the
inclusion of these cross-references in the SIP is inconsistent with the
CAA.
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 CAA and applicable
Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely 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 14094 (88 FR 21879, April 11, 2023);
<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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a state program;
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
<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.
In addition, 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 rulemaking does not have Tribal implications and will not
impose substantial direct costs on Tribal governments or preempt Tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
EPA did not perform an EJ analysis and did not consider EJ in this
proposed action. Consideration of EJ is not required as part of this
proposed action, and there is no information in the record inconsistent
with the stated goal of E.O. 12898 of achieving EJ for people of color,
low-income populations, and Indigenous peoples.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 20, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-11457 Filed 5-24-24; 8:45 am]
BILLING CODE 6560-50-P
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