Proposed Rule2024-20666
Air Plan Approval; Forsyth County, North Carolina; Removal of Excess Emissions Provisions
Primary source
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Published
September 12, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the North Carolina Division of Air Quality (NCDAQ) on behalf of the Forsyth County Office of Environmental Assistance and Protection (FCEAP or Forsyth County) on November 28, 2022. The revision was submitted in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, concerning excess emissions during startup, shutdown, and malfunction (SSM) events, and is intended to correct deficiencies in the Forsyth County portion of the North Carolina SIP identified by EPA in the SIP call. EPA is proposing to approve the SIP revision in accordance with requirements for SIP provisions under the Clean Air Act (CAA or Act). In addition, EPA is proposing to approve minor and administrative changes to certain regulatory provisions that have been revised by the local agency since EPA's last approval of those provisions.
Full Text
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<title>Federal Register, Volume 89 Issue 177 (Thursday, September 12, 2024)</title>
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[Federal Register Volume 89, Number 177 (Thursday, September 12, 2024)]
[Proposed Rules]
[Pages 74171-74174]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20666]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2023-0466; FRL-12179-01-R4]
Air Plan Approval; Forsyth County, North Carolina; Removal of
Excess Emissions Provisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
North Carolina Division of Air Quality (NCDAQ) on behalf of the Forsyth
County Office of Environmental Assistance and Protection (FCEAP or
Forsyth County) on November 28, 2022. The revision was submitted in
response to a finding of substantial inadequacy and SIP call published
on June 12, 2015, concerning excess emissions during startup, shutdown,
and malfunction (SSM) events, and is intended to correct deficiencies
in the Forsyth County portion of the North Carolina SIP identified by
EPA in the SIP call. EPA is proposing to approve the SIP revision in
accordance with requirements for SIP provisions under the Clean Air Act
(CAA or Act). In addition, EPA is proposing to approve minor and
administrative changes to certain regulatory provisions that have been
revised by the local agency since EPA's last approval of those
provisions.
DATES: Comments must be received on or before October 3, 2024.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2023-0466 at <a href="http://regulations.gov">regulations.gov</a>. Follow the online instructions for
submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. 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
[[Page 74172]]
multimedia submissions, and general guidance on making effective
comments, please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Faith Goddard, 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) 562-8757. Ms. Goddard can also be reached via electronic mail at
<a href="/cdn-cgi/l/email-protection#a3c4ccc7c7c2d1c78dc5c2cad7cbe3c6d3c28dc4ccd5"><span class="__cf_email__" data-cfemail="781f171c1c190a1c561e19110c10381d0819561f170e">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
A. EPA's 2015 SSM SIP Action
On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying
to Excess Emissions During Periods of Startup, Shutdown and
Malfunction,'' hereinafter referred to as the ``2015 SSM SIP Action.''
See 80 FR 33840 (June 12, 2015). The 2015 SSM SIP Action clarified,
restated, and updated EPA's interpretation that SSM exemption and
affirmative defense SIP provisions are inconsistent with CAA
requirements. The 2015 SSM SIP Action found that certain SIP provisions
in 36 States, applicable in 45 statewide and local jurisdictions,
including Forsyth County, North Carolina, were substantially inadequate
to meet CAA requirements and issued a SIP call to those States to
submit SIP revisions to address the inadequacies. EPA established an
18-month deadline by which the affected States had to submit such SIP
revisions. States were required to submit corrective revisions to their
SIPs in response to the SIP calls by November 22, 2016.
In the 2015 SSM SIP Action, EPA determined that Forsyth County Air
Quality Control Ordinance and Technical Code Subchapter 3D, Section
.0500, Rule 3D .0535, Excess Emissions Reporting and Malfunctions,
paragraphs (c) and (g) (also referred to herein as ``Rule 3D .0535(c)
and (g)''), are substantially inadequate to meet CAA requirements on
the basis that they contain impermissible director's discretion
provisions. See 80 FR 33840, 33964 (June 12, 2015). In the Forsyth
County portion of the North Carolina SIP, Rule 3D .0535(c) and (g)
provide exemptions for emissions exceeding otherwise applicable SIP
emission limitations at the discretion of a local official during
malfunctions at paragraph (c) and startup and shutdown at paragraph
(g). The rationale underlying EPA's determination that these Forsyth
County provisions are substantially inadequate to meet CAA requirements
is detailed in the 2015 SSM SIP Action and the accompanying proposals.
B. 2022 Findings of Failure To Submit
On January 12, 2022, pursuant to CAA section 110(k)(1), EPA
finalized ``Findings of Failure To Submit State Implementation Plan
Revisions in Response to the 2015 Findings of Substantial Inadequacy
and SIP Calls To Amend Provisions Applying to Excess Emissions During
Periods of Startup, Shutdown, and Malfunction,'' hereinafter referred
to as the ``2022 Findings of Failure to Submit.'' See 87 FR 1680
(January 12, 2022). The 2022 Findings of Failure to Submit found that
twelve State and local agencies, including FCEAP, failed to submit
timely corrective SIP revisions required by the 2015 SSM SIP Action.
This action triggered certain CAA deadlines for EPA to impose sanctions
if an affected agency did not submit a complete SIP revision addressing
the outstanding deficiencies and to promulgate a Federal Implementation
Plan (FIP) if EPA did not approve a required SIP submittal by February
11, 2024.
On November 28, 2022, in response to the 2015 SSM SIP Action and
the 2022 Findings of Failure to Submit, NCDAQ submitted on behalf of
FCEAP a revision to the Forsyth County portion of the North Carolina
SIP. In its submittal, Forsyth County requests that EPA revise the
Forsyth County portion of the North Carolina SIP by removing the
substantive text of Rule 3D .0535(c) and (g) and adding language
clarifying that paragraphs (c) and (g) are not included in EPA's SIP-
approved version of Rule 3D .0535 in the Forsyth County portion of the
North Carolina SIP. Forsyth County also includes in the submittal minor
and non-substantive administrative amendments to the remaining Rule 3D
.0535 regulatory provisions, as revised since EPA's last approval on
February 17, 2000.\1\
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\1\ See 65 FR 8053.
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C. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)
On March 1, 2024, the U.S. Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued a decision in Environmental
Committee of the Florida Electric Power Coordinating Group, Inc., v.
EPA, 94 F.4th 77 (D.C. Cir. 2024). The case was a consolidated set of
petitions for review of the 2015 SSM SIP Action. The court granted the
petitions in part, vacating the SIP call with respect to SIP provisions
that EPA identified as automatic exemptions, director's discretion
provisions, and affirmative defenses that are functionally exemptions;
and denied the petitions as to other provisions that EPA identified as
overbroad enforcement discretion provisions or affirmative defense
provisions that would preclude or limit a court from imposing relief in
the case of violations. Although the court vacated the SIP call as to
director's discretion provisions such as Rule 3D .0535(c) and (g), EPA
is required, pursuant to CAA section 110(k)(3), to approve Forsyth
County's submittal requesting removal of the substantive text of these
provisions from the Forsyth County portion of the North Carolina SIP
because the submittal meets all of the applicable CAA requirements. See
42 U.S.C. 7410(k)(3). The D.C. Circuit's decision in Environmental
Committee does not preclude State and/or local air jurisdictions from
submitting SIP revisions requesting removal of certain provisions from
their SIP where that removal makes the SIP more protective of air
quality, as FCEAP did here.
II. Analysis of the November 28, 2022, Submittal
Forsyth County requests that EPA remove the substantive text of
Rule 3D .0535(c) and (g) from the Forsyth County portion of the North
Carolina SIP and add language clarifying that Rule 3D .0535(c) and (g)
are not included in the Forsyth County portion of the North Carolina
SIP. Removing the substantive text of Rule 3D .0535(c) and (g) from the
SIP would mean that emission limits incorporated into the Forsyth
County portion of the North Carolina SIP would apply at all times,
including periods of SSM. If removed from the Forsyth County portion of
the North Carolina SIP, the substantive text of Rule 3D .0535(c) and
(g) will apply to Forsyth County in its exercise of enforcement
authority for local-law purposes only. These provisions would remain
enforceable as local-only provisions, and language would be added to
clarify that Rule 3D .0535(c) and (g) are not included in the Forsyth
County portion of the North Carolina SIP. Because the substantive text
of Rule 3D .0535(c) and (g) would not be part of the Forsyth County
portion of the North Carolina SIP, citizens and EPA could seek
injunctive relief or civil penalties for
[[Page 74173]]
excess emissions. Based on Forsyth County's request to revise Rule 3D
.0535(c) and (g) in the Forsyth County portion of the North Carolina
SIP, EPA proposes to approve Forsyth County's November 28, 2022, SIP
revision because the requested revision is consistent with CAA
requirements.
Minor and non-substantive administrative amendments to Rule 3D
.0535 have been adopted by Forsyth County since EPA's last approval on
February 17, 2000,\2\ resulting in an inconsistency between the
federally approved SIP and local rules (i.e., a ``SIP gap''). Forsyth
County's November 28, 2022, SIP revision includes minor changes to Rule
3D .0535(e) and (f) that revise malfunction abatement plan deadlines
(at Rule 3D .0535(e)) and notification and source testing requirements
(at Rule 3D .0535(f)), as well as non-substantive administrative
changes to the remaining Rule 3D .0535 regulatory provisions that
update the formatting of rule references and make minor edits that are
generally clarifying in nature.\3\ Regarding the non-substantive SIP
revisions, EPA proposes to approve these administrative changes because
the November 28, 2022, SIP revision is consistent with CAA requirements
and does not alter the meaning of the regulations.
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\2\ See 65 FR 8053.
\3\ The November 28, 2022, SIP revision includes the following
typographical error: in Rule 3D .0535(b), as shown on page 10 of 75
in the SIP submittal, a cross-reference to ``Subchapter 3Q .0700''
is revised to ``Section 3D-0700.'' The amendments to the state-
effective version of Rule 3D .0535(b), which start at page 6 of 75
in the SIP submittal, show the revised cross-reference correctly as
``Section 3Q-0700'' at page 7 of 75 in the SIP submittal.
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Regarding Rule 3D .0535(e), Forsyth County revises malfunction
abatement plan requirements by removing an obsolete sentence that
reads, ``The owner or operator of any electric utility boiler unit
required to have a malfunction abatement plan shall submit a
malfunction abatement plan to the Director within 60 days of the
effective date of this Rule.'' The existing subsequent sentence
requires ``any other source'' required to have a malfunction abatement
plan to submit that plan within six months of the Director's
requirement to do so. Forsyth County revises Rule 3D .0535(e) such that
it now States that ``any source'' required to have a malfunction
abatement plan must submit that plan within six months of the
Director's requirement to do so. Because Rule 3D .0535(d) still
requires submission of malfunction abatement plans within 60 days for
sources other than electric utility boilers, only the submission
timeframe for electric utility boilers has increased, and EPA
anticipates no associated impact on air quality.
Forsyth County also revises the timeframe within which amendments
can be submitted to remedy malfunction abatement plan deficiencies. The
revised provision states that, if a malfunction abatement plan does not
carry out objectives described in Rule 3D .0535(d) and is therefore
disapproved, an amendment that corrects the deficiencies identified
must be submitted ``within 30 days of receipt of the Director's
notification of disapproval,'' whereas the existing provision requires
a satisfactory amendment to be submitted ``within a time prescribed by
the Director.'' EPA proposes to approve Forsyth County's changes to
Rule 3D .0535(e) concerning malfunction abatement plan requirements
because the November 28, 2022, SIP revision is consistent with CAA
requirements and removes a sentence requiring the submission of an
electric utility boiler unit malfunction abatement plan by an expired
deadline and replaces an undefined timeframe for correcting the
malfunction abatement plan to be prescribed by a local official with a
definite timeframe of thirty days. Regarding the revised timeframe
within which amendments can be submitted to remedy malfunction
abatement plan deficiencies, EPA finds the revised provision to be more
stringent.
Regarding Rule 3D .0535(f), Forsyth County updates a corrective
measures notification requirement. The revised provision states that,
``after'' measures correcting excess emissions lasting more than four
hours resulting from ``a malfunction, a breakdown of process or control
equipment or any other abnormal conditions'' have been accomplished,
the source owner or operator must notify a local official, whereas the
existing provision requires the owner or operator to notify a local
official ``immediately when . . . corrective measures have been
accomplished.'' Rule 3D .0535(f)'s initial notification requirements at
(f)(1) remain unchanged, as do its ultimate reporting requirements at
(f)(3).\4\ EPA proposes to approve Forsyth County's change to Rule 3D
.0535(f) concerning corrective measures notification requirements
because EPA anticipates no associated impact on air quality and the
revision is consistent with CAA requirements; the precise timing of the
notification of the accomplishment of a particular corrective measure
to a local official need not be exactly simultaneous with the
accomplishment of such measure. EPA is not proposing at this time to
act on a revised cross-reference to source testing requirements in the
last sentence of Rule 3D .0535(f). The cross-referenced section, as
revised, is not approved into the Forsyth County portion of the North
Carolina SIP.
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\4\ Rule 3D .0535(f)(1) contains initial excess emissions
occurrence notification requirements, and Rule 3D .0535(f)(3)
contains written reporting requirements for documenting excess
emissions as described in prefatory text at paragraph (f).
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III. Proposed Action
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). EPA is
proposing to approve Forsyth County's November 28, 2022, SIP submission
requesting changes to Forsyth County Air Quality Control Ordinance and
Technical Code Subchapter 3D, Section .0500, Rule 3D .0535, Excess
Emissions Reporting and Malfunctions, except for the change to the
cross-referenced rule in Rule 3D .0535(f), into the Forsyth County
portion of the North Carolina SIP. Specifically, EPA is proposing to
remove the substantive text of Rule 3D .0535(c) and (g) from the
Forsyth County portion of the North Carolina SIP, to add statements
clarifying that Rule 3D .0535(c) and (g) are not included in the
Forsyth County portion of the North Carolina SIP, and to otherwise
approve the revised version of Rule 3D .0535 into the Forsyth County
portion of the North Carolina SIP, except for the revised cross-
reference in the last sentence of Rule 3D .0535(f), which EPA is not
proposing to act on at this time. EPA is proposing approval of the SIP
revision because the Agency has determined that it is consistent with
the requirements for SIP provisions under the CAA. EPA is not reopening
the 2015 SSM SIP Action nor the 2022 Findings of Failure to Submit and
is taking comment only on whether the SIP revision is consistent with
CAA requirements.
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 through
III of this preamble, EPA is proposing to incorporate by reference
Forsyth County Air Quality Control Ordinance and Technical Code
Subchapter 3D, Section .0500, Rule 3D .0535, Excess Emissions Reporting
and Malfunctions, locally effective July 14, 2022, with the following
exceptions: EPA is not proposing to incorporate the last
[[Page 74174]]
sentence of Rule 3D .0535(f),\5\ and in Rule 3D .0535(c) and (g), is
proposing to incorporate only the statements that each paragraph ``is
not included in Forsyth County's portion of the State Implementation
Plan.'' \6\ 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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\5\ The July 14, 2022, local effective version of the last
sentence of Rule 3D .0535(f) contains a change that incorporates a
reference to regulations not approved into the SIP. If EPA takes
final action to approve the November 28, 2022, SIP revision, the
Agency will update the SIP table at 40 CFR 52.1770(c) to reflect the
retention of the September 14, 1998, version of the aforementioned
sentence.
\6\ If EPA takes final action to approve the November 28, 2022,
SIP revision, the SIP-approved version of Rule 3D .0535(c) will
read, ``(Paragraph (c) is not included in Forsyth County's portion
of the State Implementation Plan.),'' and the SIP-approved version
of .0535(g) will read, ``(Paragraph (g) is not included in Forsyth
County's portion of the State Implementation Plan.).'' The Agency
would update the SIP table at 40 CFR 52.1770(c) to reflect this
fact.
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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 CAA and applicable
Federal regulations. 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
action merely approves 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 rule 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.''
The FCEAP did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this proposed action. Due to the
nature of the proposed action being taken here, this proposed action is
expected to have a neutral to positive impact on the air quality of the
affected area. 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 environmental justice
for communities with EJ concerns.
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.
Dated: September 6, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
[FR Doc. 2024-20666 Filed 9-11-24; 8:45 am]
BILLING CODE 6560-50-P
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