Rule2024-21006
Air Plan Approval; North Carolina; Permitting Provisions Revisions
Primary source
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Published
September 19, 2024
Effective
October 21, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is correcting 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 182 (Thursday, September 19, 2024)</title>
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[Federal Register Volume 89, Number 182 (Thursday, September 19, 2024)]
[Rules and Regulations]
[Pages 76737-76739]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21006]
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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-11971-02-R4]
Air Plan Approval; North Carolina; Permitting Provisions
Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is correcting 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: This rule is effective October 21, 2024.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2017-0454. Additional supporting
materials associated with this final action are included in Docket Nos.
EPA-R04-OAR-2019-0638 and EPA-R04-OAR-2020-0186. All documents in the
docket are listed on the <a href="http://regulations.gov">regulations.gov</a> website. Although listed in
the index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through <a href="http://www.regulations.gov">www.regulations.gov</a> or in hard
copy at the 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. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Steve Scofield, Multi-Air Pollutant
Coordination Section, Air Planning and Implementation Branch, Air and
Radiation Division, Region 4, U.S. Environmental Protection Agency, 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#8cffefe3eae5e9e0e8a2fff8e9fae9cce9fceda2ebe3fa"><span class="__cf_email__" data-cfemail="ea9989858c838f868ec4999e8f9c8faa8f9a8bc48d859c">[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 included cross-references to North Carolina General Statutes
(G.S.) 143-215.108 and 143-215.108A; however, these cross-referenced
provisions were not incorporated into the SIP. EPA has determined these
prior approvals of the cross-referenced provisions were in error and is
finalizing removal of 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 could 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\
[[Page 76738]]
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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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 for it 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).
Through a notice of proposed rulemaking (NPRM) published on May 28,
2024 (89 FR 46049), EPA proposed to correct the erroneous incorporation
of certain cross-references into 15A NCAC 02Q Section .0101, Required
Air Quality Permits; .0103, Definitions; and .0301, Applicability of
the North Carolina SIP. EPA's rationale for removing the cross
references is described in the May 28, 2024, NPRM. Comments on the May
28, 2024, NPRM were due on or before June 27, 2024. One comment was
received on the NPRM and is addressed below.
II. Response to Comments
EPA received one comment from the North Carolina Department of
Environmental Quality (NCDEQ)'s Division of Air Quality (DAQ),
regarding the May 28, 2024, NPRM. The comment is provided in the docket
for this final action. EPA has summarized and responded to the comment
below.
Comment: North Carolina DAQ (NC DAQ) supports EPA's proposal and
``recommends that the EPA proceed with its error correction regarding
its prior approvals of the phrases referencing the North Carolina
General Statutes.'' The commenter further suggests that EPA also
correct the first line of 15A NCAC 02Q .0103 by removing references to
G.S. 143-212 and G.S. 143-213.
Response: EPA acknowledges NC DAQ's suggestion and will consider
future action(s) to address the first line of 15A NCAC 02Q .0103 and
other instances where there are cross references to statutory or
regulatory provisions that are outside the SIP.
III. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, and as discussed in section I of this preamble, EPA is finalizing
the incorporation by reference of 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 paragraph (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. 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). Therefore, these materials have been approved by EPA for
inclusion in the State implementation plan, have been incorporated by
reference by EPA into that plan, are fully federally enforceable under
sections 110 and 113 of the CAA as of the effective date of the final
rulemaking of EPA's approval, and will be incorporated by reference in
the next update to the SIP compilation.\4\
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\4\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action
Pursuant to the error correction provision of section 110(k)(6) of
the CAA, EPA is finalizing the removal of 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 discussed above
because the inclusion of these cross-references in the SIP is
inconsistent with the CAA.
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. 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
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 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
[[Page 76739]]
agencies to identify and address ``disproportionately high and adverse
human health or environmental effects'' of their actions on communities
with environmental justice (EJ) concerns to the greatest extent
practicable and permitted by law. EPA defines 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
action. Consideration of EJ is not required as part of this action, and
there is no information in the record inconsistent with the stated goal
of E.O. 12898 of achieving EJ for communities with EJ concerns.
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by November 18, 2024. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. See section 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements.
Dated: September 11, 2024.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart II--North Carolina
0
2. In Sec. 52.1770, amend table in paragraph (c)(1) by revising the
entries for ``Rule .0101'', ``Rule .0103'', and ``Rule .0301'' to read
as follows:
Sec. 52.1770 Identification of plan.
* * * * *
(c) * * *
(1) EPA-Approved North Carolina Regulations
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State
State citation Title/subject effective date EPA approval date Explanation
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Subchapter 02Q Air Quality Permits
Section .0100 General Provisions
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Rule .0101...................... Required Air 4/1/2018 9/19/2024, [Insert Except for the
Quality Permits. first page of phrase ``With the
Federal Register exception allowed
citation]. by G.S. 143-
215.108A'' in
paragraph (b).
* * * * * * *
Rule .0103...................... Definitions........ 4/1/2018 9/19/2024, [Insert Except for the
first page of phrase ``pursuant
Federal Register to G.S. 143-
citation]. 215.108'' in
subparagraph
(9)(d).
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Section .0300 Construction and Operating Permits
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Rule .0301...................... Applicability...... 4/1/2018 9/19/2024, [Insert Except for the
first page of phrase ``or as
Federal Register allowed pursuant to
citation]. G.S. 143-215.108A''
in paragraph (a).
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[FR Doc. 2024-21006 Filed 9-18-24; 8:45 am]
BILLING CODE 6560-50-P
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