[Federal Register Volume 85, Number 82 (Tuesday, April 28, 2020)]
[Rules and Regulations]
[Pages 23700-23730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07512]
[[Page 23699]]
Vol. 85
Tuesday,
No. 82
April 28, 2020
Part IV
Environmental Protection Agency
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40 CFR Part 52
SIP Call Withdrawal and Air Plan Approval; NC: Large Internal
Combustion Engines NOX Rule Change; Final Rule
Federal Register / Vol. 85 , No. 82 / Tuesday, April 28, 2020 / Rules
and Regulations
[[Page 23700]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0303; FRL-10007-76-Region 4]
SIP Call Withdrawal and Air Plan Approval; NC: Large Internal
Combustion Engines NOX Rule Changes
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA), Region 4 is
approving a portion of a State Implementation Plan (SIP) revision
submitted by the State of North Carolina, through the North Carolina
Division of Air Quality (NC DAQ), in a letter dated June 5, 2017, which
changes North Carolina's SIP-approved rule regarding nitrogen oxides
(NOX) emissions from large internal combustion engine
sources. In so doing, Region 4 is first adopting an alternative policy
regarding startup, shutdown, and malfunction (SSM) exemption provisions
in the North Carolina SIP that departs from the national policy on this
subject, as described in EPA's June 12, 2015 action (2015 SSM SIP Call
Action). Accordingly, Region 4 is also withdrawing the SIP Call issued
to North Carolina for exemptions contained in the State's existing SIP-
approved provisions for SSM events. This action is limited to the SIP
Call issued to North Carolina and the associated evaluation of the
North Carolina SIP and does not otherwise change or alter EPA's 2015
SSM SIP Call Action.
DATES: This rule is effective on May 28, 2020.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R04-OAR-2019-0303. All documents in the docket are listed on
the www.regulations.gov website. Although listed in the index, some
information is not 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 www.regulations.gov 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: Joel Huey, 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. Huey can be reached by phone at (404) 562-9104 or via
electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
The following topics are discussed in this preamble:
I. Background for This Action
II. EPA's SSM SIP Policy and SIP Call Issued to North Carolina
III. Region 4's Alternative Policy on Automatic and Director's
Discretion Exemption Provisions in the North Carolina SIP and
Withdrawal of the North Carolina SIP Call
IV. Region 4's Action on North Carolina's June 5, 2017, SIP Revision
V. Responses to Comments
VI. Incorporation by Reference
VII. Final Action
VIII. Statutory and Executive Order Reviews
I. Background for This Action
On June 5, 2019, EPA Region 4 announced that it was considering
adopting an alternative policy regarding startup, shutdown and
malfunction (SSM) exemptions in state implementation plans (SIPs), and,
if adopted, also proposed to withdraw the SIP Call issued to North
Carolina in 2015 and to approve a SIP revision submitted by NC DAQ in
2017.\1\ The 60-day comment period closed on August 5, 2019. Region 4
received public comments, all of which are included in the public
docket for this action at www.regulations.gov. This document includes
summaries of the adverse comments received and responses to those
comments. After reviewing and carefully considering the comments
received, as described more fully in this document, Region 4 is (1)
adopting an alternative policy applicable to North Carolina for SSM
exemption provisions in the North Carolina SIP and withdrawing the SIP
Call issued to North Carolina, and (2) approving the SIP revision
submitted by NC DAQ, through a letter dated June 5, 2017, which seeks
to change North Carolina's SIP-approved rule regarding NOX
emissions from large internal combustion engine sources at 15A N.C.
Admin. Code (NCAC) 2D .1423.
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\1\ SIP Call Withdrawal and Air Plan Approval; NC: Large
Internal Combustion Engines NOX Rule Changes, Proposed
Rule, 84 FR 26031 (June 5, 2019). Hereafter, the June 5, 2019,
notice of proposed rulemaking will be referred to as the June 5,
2019, NPRM.
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Relevant to this action, in the 2015 SSM SIP Call Action (80 FR
33840 (June 12, 2015)) EPA restated its national policy prohibiting the
inclusion of provisions in SIPs that exempt excess emissions during
periods of SSM. In that action, EPA also issued findings that certain
SIP provisions in 36 states (applicable in 45 statewide and local
jurisdictions) were substantially inadequate to meet the Clean Air Act
(CAA or Act) requirements and thus issued ``SIP Calls'' pursuant to CAA
section 110(k)(5) for all of those states and local jurisdictions.\2\
That action includes a SIP Call for North Carolina to address two
specific provisions in the State's implementation plan that provide
discretion to the State agency to exempt emissions from being
considered a violation of an otherwise applicable State rule, in
certain circumstances.\3\ Also relevant, the June 5, 2017, SIP
submission Region 4 is approving in this action revises a different
provision in the North Carolina code that was not included in the 2015
SSM SIP Call Action, but which includes a sub-provision that
automatically exempts periods of SSM, not to exceed 36 consecutive
hours, and scheduled maintenance activities from regulation.\4\
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\2\ See 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; Final Rule, 80 FR 33839 (June 12, 2015).
\3\ Id. at 33964. EPA issued a SIP Call to North Carolina
regarding provisions 15A NCAC 2D .0535(c) and 15A NCAC 2D .0535(g).
\4\ 15A NCAC 02D .1423 was not included in the 2015 SSM SIP Call
Action because, in that action, EPA elected to first focus its
review on the specific provisions that had already been identified
by Sierra Club in its petition regarding the SSM SIP Call. See 80 FR
at 33880.
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The rationale for the alternative policy on SSM exemptions that
Region 4 is applying to the North Carolina SIP is articulated in
Section III of this document and in Sections III and IV of the June 5,
2019, NPRM.\5\ Region 4's decision to withdraw the SIP Call previously
issued to North Carolina is substantiated by the adoption of the
alternative policy. Region 4's approval of the revision to North
Carolina's SIP-approved rule regarding NOX emissions from
large internal combustion engine sources at 15A NCAC 2D .1423 is
described in Section IV of this
[[Page 23701]]
document and Section V of the June 5, 2019, NPRM.\6\
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\5\ See 84 FR at 26033-39.
\6\ Id. at 26039-040.
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II. EPA's SSM SIP Policy and SIP Call Issued To North Carolina
In the final 2015 SSM SIP Call Action, EPA updated and restated its
national policy regarding provisions in SIPs that exempt periods of SSM
events from otherwise applicable emission limitations. Referencing
previously issued guidance documents and regulatory actions, the Agency
expressed its interpretation of the CAA that SIP provisions cannot
include exemptions from emission limitations for emissions during SSM
events.\7\ EPA's position in the 2015 SSM SIP Call Action, based in
part on D.C. Circuit precedent, was that the general definitions
provision of the CAA providing that an emission limitation must apply
to a source ``continuously'' means that an approved SIP cannot include
periods during which emissions from sources are legally or functionally
exempt from regulation.
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\7\ See 80 FR at 33976.
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Also in the 2015 SSM SIP Call Action, the Agency defined the term
``automatic exemption'' as a generally applicable SIP provision that
does not consider periods of excess emissions as violations of an
applicable emission limitation if certain conditions existed during the
exceedance period.\8\ The Agency defined a ``director's discretion
provision'' as a regulatory provision that authorizes a state
regulatory official to grant exemptions or variances from otherwise
applicable emission limitations or to otherwise excuse noncompliance
with applicable emission limitations, where the regulatory official's
determination would be binding on EPA and the public.\9\ The Agency
defined ``emission limitation'' in the SIP context, relying on the
general definition set forth in CAA section 302 (``Definitions''), as a
legally binding restriction on emissions from a source or source
category, such as a numerical emission limitation, a numerical emission
limitation with higher or lower levels applicable during specific modes
of source operation, a specific technological control measure
requirement, a work practice standard, or a combination of these things
as components of a comprehensive and continuous emission
limitation.\10\ As stated in the 2015 SSM SIP Call Action, the Agency
took the position that an emission limitation ``must be applicable to
the source continuously, i.e., cannot include periods during which
emissions from the source are legally or functionally exempt from
regulation.'' \11\
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\8\ Id. at 33977.
\9\ Id.
\10\ Id.
\11\ Id.
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Relying substantially on its interpretation of the general
definition of ``emission limitation'' in CAA section 302(k)--
specifically, that that definition provides for the limitation of
emissions of air pollutants ``on a continuous basis''--the Agency
explained its position that exemptions from emission limitations in
SIPs, whether automatic or discretionary, are not permissible in
SIPs.\12\ EPA explained that even a brief exemption from an otherwise
applicable limit would render the emission limitation non-continuous
and therefore not consistent with the CAA section 302(k) definition of
``emission limitation.'' \13\
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\12\ Id.
\13\ Id.
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With respect to discretionary exemptions, the Agency took the
position that a regulatory official's grant of an exemption pursuant to
a ``director's discretion'' exemption could result in air agency
personnel modifying a SIP requirement without going through the CAA
statutory process for SIP revisions.\14\ In the 2015 SSM SIP Call
Action, the Agency did allow that some director's discretion exemptions
could be included in SIPs, if those exemptions were structured such
that variances or deviations from the otherwise applicable emission
limitation or SIP requirement were not valid as a matter of Federal law
unless and until EPA approved the exercise of the director's discretion
as a SIP revision.\15\
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\14\ Id. at 33918 (referencing CAA sections 110(k)(3), which
establishes the framework for EPA to fully or partially approve SIP
submittals, and 110(l) and 193, which specify that revisions to SIPs
must be submitted to EPA and can be approved only if the
Administrator determines that the revisions meet specific
requirements, including non-interference with attainment and
reasonable further progress and equivalent or greater emission
reductions in nonattainment areas). See also id. at 33977-78.
\15\ Id. at 33978.
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As further support for the Agency's position on excluding SSM
exemption provisions in SIPs, the 2015 SSM SIP Call Action relied on
Sierra Club v. Johnson.\16\ In that 2008 case, the D.C. Circuit
evaluated the validity of an SSM exemption in the General Provisions
\17\ of EPA rules issued under CAA section 112 (``Hazardous Air
Pollutants''). Reading CAA sections 112 and 302(k) together, the D.C.
Circuit found that ``the SSM exemption violates the CAA's requirement
that some section 112 standard apply continuously.'' \18\ In the 2015
SSM SIP Call Action, EPA interpreted the Sierra Club decision regarding
CAA section 112 requirements and applied the reasoning of that decision
to the requirements of EPA's rules issued under CAA section 110
(``Implementation Plans''), specifically CAA section 110(a)(2)(A),
which provides that SIPs shall include ``enforceable emission
limitations and other control measures, means, or techniques . . . as
may be necessary or appropriate to meet the applicable requirements of
this chapter.'' \19\ EPA's application of the Sierra Club decision to
CAA section 110 SIP requirements was based on an understanding that the
D.C. Circuit was interpreting the definition of ``emission limitation''
in CAA section 302(k) that applies generally to the Act. Following this
reasoning, EPA determined that Sierra Club was consistent with the
Agency's position, as expressed in previously issued guidance documents
and regulatory actions that prohibited exemption provisions for
otherwise applicable emission limits in SIPs (such as automatic
exemptions granted for SSM events).\20\
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\16\ 551 F.3d 1019 (D.C. Cir. 2008).
\17\ Subpart A of 40 CFR part 63 (``National Emission Standards
for Hazardous Air Pollutants for Source Categories'').
\18\ Sierra Club, 551 F.3d at 1027-28.
\19\ See 42 U.S.C. 7410(a)(2)(A) (emphasis added).
\20\ See, e.g., 80 FR at 33852, 33874, 33892-94.
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As part of the 2015 SSM SIP Call Action, EPA found that 15A NCAC 2D
.0535(c) and 15A NCAC 2D .0535(g) were substantially inadequate to meet
CAA requirements because they allow exemptions from otherwise
applicable emission limitations for excess emissions \21\ that may
occur during malfunctions and during periods of startup and shutdown,
respectively, at the discretion of the state agency.\22\ On that basis,
EPA issued a SIP Call pursuant to CAA section 110(k)(5) to North
Carolina with respect to these provisions.
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\21\ The North Carolina SIP defines excess emissions as ``an
emission rate that exceeds any applicable emission limitation or
standard allowed by any regulation in Sections .0500 or .0900 of
this Subchapter or by a permit condition.'' In this final action, we
clarify that exemptions allowed under rules 2D .0535(c) and 2D
.0535(g) apply only to numerical emission limits of the North
Carolina SIP and do apply to any of the SIP's requirements to
utilize emission control devices or to employ work practice
standards that reduce emissions.
\22\ See 80 FR at 33964.
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[[Page 23702]]
III. Region 4's Alternative Policy on Automatic and Director's
Discretion Exemption Provisions in the North Carolina SIP and
Withdrawal of the North Carolina SIP Call
A. Automatic Exemption Provisions
As discussed in the June 5, 2019, NPRM, in reviewing the North
Carolina SIP revision at issue, as well as the North Carolina SIP in
its entirety, Region 4 has considered the national policy regarding SSM
exemptions \23\ in SIPs included in the 2015 SSM SIP Call Action,
described above, and has determined that there is a reasonable
alternative way for Region 4 to consider SSM provisions in the North
Carolina SIP: after evaluating the SIP comprehensively and determining
that the SIP, as a whole, is protective of the national ambient air
quality standards (NAAQS or standards), Region 4 concludes that
automatic SSM exemptions are allowable in that SIP.\24\ Further, the
alternative policy's interpretation of the relevant CAA provisions,
together with the specific automatic SSM provisions in the North
Carolina SIP, make it reasonable for Region 4 to find that the SIP
meets the applicable requirements of the CAA and therefore do not
mandate a finding that the SIP is substantially inadequate.
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\23\ Throughout this document, we use the term ``exemption'' to
refer to automatic exemptions for SSM events in general; specific
references to director's discretion provisions are referred to as
``director's discretion exemptions.''
\24\ The 2015 SSM SIP Call Action explained that while a SIP may
contain provisions that apply during periods of SSM, the
applicability of those provisions was not plain on the face of the
SIP provision. See generally 80 FR at 33943. As explained in this
document, EPA Region 4 has determined that, for the North Carolina
SIP, it is reasonable to take a broader perspective of evaluation of
the SIP and its provisions that ensure attainment and maintenance of
the NAAQS.
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The compilation of state and Federal requirements in the North
Carolina SIP result from the Federal-state partnership that is the
foundation of the CAA, as well as the various requirements of the Act.
Although the North Carolina SIP contains SSM exemptions for limited
periods applicable to discrete standards, the SIP is composed of
numerous planning requirements that are collectively NAAQS-protective.
The North Carolina SIP's overlapping requirements, described more fully
later in this section, provide additional protection of the standards
such that Region 4 concludes that the SIP adequately provides for
attainment and maintenance of the NAAQS, even if the SIP allows
exemptions to specific emission limits for discrete periods, such as
SSM events. This redundancy helps to ensure attainment and maintenance
of the NAAQS, one of the goals of Congress when it created the SIP
adoption and approval process in the CAA.\25\ The fact that North
Carolina does not currently have any nonattainment areas for any NAAQS,
even though the exemption provisions have been included in the State's
implementation plan, supports the conclusion that the SSM exemptions do
not interfere with attainment and maintenance of the NAAQS.\26\ Region
4 appropriately considered all of these factors when evaluating the
North Carolina SIP.
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\25\ See, e.g., H.R. Rep. No. 91-1783 at 193-95 (1970).
\26\ As of the effective date of this document, no areas of
North Carolina are designated nonattainment for any NAAQS. See
https://www3.epa.gov/airquality/greenbook/ancl3.html.
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At the outset, Region 4 notes that it maintains discretion and
authority to change its CAA interpretation from a prior position. In
FCC v. Fox Television Stations, Inc., the U.S. Supreme Court plainly
stated an agency's obligation with respect to changing a prior policy:
We find no basis in the Administrative Procedure Act or in our
opinions for a requirement that all agency change be subjected to
more searching review. The Act mentions no such heightened standard.
And our opinion in State Farm neither held nor implied that every
agency action representing a policy change must be justified by
reasons more substantial than those required to adopt a policy in
the first instance.\27\
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\27\ See 556 U.S. 502, 514 (2009) (referencing Motor Vehicle
Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29 (1983)).
In cases where an agency is changing its position, the Court stated
that a reasoned explanation for the new policy would ordinarily
``display awareness that it is changing position'' and ``show that
there are good reasons for the new policy.'' \28\ In so doing, the
Court emphasized that the agency ``need not demonstrate . . . that the
reasons for the new policy are better than the reasons for the old one;
it suffices that the new policy is permissible under the statute, that
there are good reasons for it, and that the agency believes it to be
better.'' \29\ In cases where a new policy ``rests upon factual
findings that contradict those which underlay its prior policy; or when
its prior policy has engendered serious reliance interests that must be
taken into account,'' the Court found that a more detailed
justification might be warranted than what would suffice for a new
policy.\30\
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\28\ Id. at 515.
\29\ Id.
\30\ Id. at 515-16.
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As discussed above, the 2015 SSM SIP Call Action updated and
restated EPA's SSM policy that SIPs containing any type of SSM
exemptions were not approvable because exemptions from emission
limitations created the possibility that a state could not ensure
attainment or maintenance of the NAAQS for one or more criteria
pollutants. This policy is predicated on the idea that a requirement
limiting emissions would not apply ``on a continuous basis''-- and thus
would not itself constitute an ``emission limitation''--if the SIP
permitted exemptions for any period of time from that requirement.\31\
Under this policy, the lack of a continuous standard was viewed as
creating a substantial risk that exemptions could permit excess
emissions that could ultimately result in a NAAQS violation. Region 4
acknowledges the policy position updated and restated in the 2015 SSM
SIP Call Action, and the associated rationale. However, as will be
discussed further in this section, Region 4 has determined that the
general requirements in CAA section 110 to attain and maintain the
NAAQS and the latitude provided to states through the SIP development
process create a framework in which a state may be able to ensure
attainment and maintenance of the NAAQS notwithstanding the presence of
SSM exemptions in the SIP. Further, for the reasons articulated in this
document, Region 4 has concluded that the automatic SSM exemptions in
the North Carolina SIP do not mandate a finding of substantial
inadequacy pursuant to CAA section 110(k)(5) or preclude a finding
under CAA section 110(k)(3) that the SIP meets all of the applicable
requirements of the CAA. Additionally, as discussed in Section IV, and
consistent with the policy rationale explained in this document, Region
4 has determined that the SIP revision will not interfere with
attainment, reasonable further progress, or any other applicable
requirement of the CAA.
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\31\ See 42 U.S.C. 7602(k) (providing the general definition of
``emission limitation'' and ``emission standard'').
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Consistent with the interpretation provided in the June 5, 2019,
NPRM, this alternative policy is reasonable because the D.C. Circuit's
decision in Sierra Club does not, on its face, apply to SIPs and
actions taken under CAA section 110. In the 2015 SSM SIP Call Action at
80 FR 33839, EPA extended the legal reasoning of the D.C. Circuit's
Sierra Club decision regarding SSM exemptions from CAA section 112
rules to CAA section 110 SIP approved rules; that extension of the
Sierra Club decision supported the Agency's
[[Page 23703]]
existing position that SSM exemptions were inconsistent with CAA SIP
requirements. At the time, the Agency interpreted CAA section 302(k) as
applying uniformly and requiring that the ``emission limitations''
required under the CAA, whether under section 110 or section 112, be
continuous as a general matter.\32\ Further consideration of the issue
has shown that an alternative reading of the application of the Sierra
Club decision to CAA section 110 is reasonable, and consideration of
the facts surrounding the SIP revision submitted by the State of North
Carolina, and an evaluation of the North Carolina SIP as a whole, show
that such an interpretation is appropriate in this instance. Simply
stated, while the Sierra Club decision did not allow sources to be
exempt from complying with CAA section 112 emission limitations during
periods of SSM, that finding is not necessarily binding on CAA section
110 and EPA's consideration of SIPs under that section.
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\32\ See 80 FR at 33874.
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The interpretation offered in this document is informed by and
consistent with the distinct structures and purposes of CAA sections
110 and 112. As explained in the June 5, 2019, NPRM, the D.C. Circuit
in Sierra Club specifically referred to CAA section 112 when it framed
Petitioners' argument and found that the Agency ``constructively
reopened consideration of the exemption from section 112 emission
standards during SSM events.'' \33\ The court's analysis reads the
definition of emission limitation and standard at CAA section 302(k) in
the context of CAA section 112: ``When sections 112 and 302(k) are read
together then, Congress has required that there must be continuous
section 112-compliant standards.'' \34\ Further, specific to CAA
section 112 rules, the court explained, ``[i]n requiring that sources
regulated under section 112 meet the strictest standards, Congress gave
no indication that it intended the application of [maximum achievable
control technology] standards to vary based on different time
periods.'' \35\ In Sierra Club, the court found that when EPA
promulgates standards pursuant to CAA section 112, CAA section 112-
compliant standards must apply continuously. The stringency of CAA
section 112 was thus an important element of the court's decision,\36\
and the court did not make any statement explicitly applying its CAA
section 112-dependent holding beyond the emissions standards
promulgated under CAA section 112.
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\33\ Sierra Club, 551 F.3d at 1026.
\34\ Id. at 1027.
\35\ Id. at 1028.
\36\ See id. at 1027 (``Section 112(d) provides that
`[e]missions standards' promulgated thereunder must require MACT
standards.''); id. at 1028 (explaining that Congress intended that
``sources regulated under section 112 meet the strictest
standards.'').
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While EPA chose to rely on the Sierra Club decision in the 2015 SSM
SIP Call Action, such reliance was not required--the court's decision
does not speak to whether the rationale articulated with respect to SSM
exemptions in CAA section 112 standards necessarily applies to SIPs
submitted and reviewed under CAA section 110. As discussed below, the
Sierra Club decision, on its face, does not interpret section 110, and
there are valid reasons for not extending the reasoning to the North
Carolina SIP provisions at issue. CAA section 112 sets forth a
prescriptive standard-setting framework; CAA section 110 does not. CAA
sections 112 and 110 have different goals and establish different EPA
roles in implementation. Given the Sierra Club decision's singular
focus on CAA section 112 standards, and the vastly different purposes
and implementation approaches between CAA sections 110 and 112, there
is a reasonable basis for interpreting the Sierra Club decision as only
applying to CAA section 112.
The purpose of CAA section 112 is fundamentally different than the
purpose of CAA section 110. Importantly, the court in Sierra Club
recognized that Congress intended ``that sources regulated under
section 112 meet the strictest standards.'' \37\ As described in the
June 5, 2019, NPRM, under CAA section 112, once a source category is
listed for regulation pursuant to CAA section 112(c), the statute
directs EPA to use a specific and exacting process to establish
nationally applicable, category-wide, technology-based emissions
standards under CAA section 112(d).\38\ Under CAA section 112(d), EPA
must establish emission standards for major sources that ``require the
maximum degree of reduction in emissions of the hazardous air
pollutants subject to this section'' that EPA determines is achievable
taking into account certain statutory factors.\39\ EPA refers to these
rules as ``maximum achievable control technology'' or ``MACT''
standards. The MACT standards for existing sources must be at least as
stringent as the average emission limitation achieved by the best
performing 12 percent of existing sources in the category (for which
the Administrator has emissions information) or the best performing
five sources for source categories with less than 30 sources.\40\ This
level of minimum stringency is referred to as the MACT floor. For new
sources, MACT standards must be at least as stringent as the control
level achieved in practice by the best controlled existing similar
source.\41\ EPA also must analyze more stringent ``beyond-the-floor''
control options, for which consideration is given not only to the
maximum degree of reduction in emissions of a hazardous air pollutant,
but also to the costs, energy, and non-air quality health and
environmental impacts.\42\
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\37\ Id. at 1028.
\38\ EPA can also set work practices under CAA section 112(h).
\39\ See 42 U.S.C. 7412(d)(2) (emphasis added).
\40\ See 42 U.S.C. 7412(d)(3)(A), (B).
\41\ See 42 U.S.C. 7412(d)(3).
\42\ See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 857-
58 (D.C. Cir. 2001).
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In contrast, the CAA sets out a fundamentally different regime with
respect to CAA section 110 SIPs, reflecting the principle that SIP
development and implementation is customizable for each state's
circumstances and relies on the Federal-state partnership.\43\ CAA
section 110(a)(2)(A) requires states to adopt, and include in their SIP
submissions, ``enforceable emission limitations and other control
measures, means, or techniques (including incentives such as fees,
marketable permits, and auctions of emissions rights) . . . as may be
necessary or appropriate to meet the applicable requirements of this
Act.'' \44\ The CAA sets forth the minimum requirements to attain,
maintain, and enforce air quality standards, while allowing each state
to identify and effectuate an approach that is appropriate for the
sources and air quality challenges specific to each state.\45\ CAA
section 109(a) directs the EPA Administrator to promulgate primary and
secondary NAAQS for pollutants for which air quality criteria have been
issued. For each criteria pollutant, CAA section 109(b)(1) directs the
Administrator to establish a primary NAAQS based on the attainment and
maintenance of which there is an adequate margin of safety as required
to
[[Page 23704]]
protect public health. Similarly, CAA section 109(b)(2) directs the
Administrator to establish secondary standards based on the attainment
and maintenance of which there is an adequate margin of safety as
required to protect the public welfare from known or anticipated
adverse effects associated with the presence of such pollutants in
ambient air. Based on the scientific and technical information
available at the time of issuing a standard, EPA identifies the level
of the NAAQS for each criteria pollutant as a means of setting a target
for state and regional air quality planning. The standard-setting
process related to the regulation of pollutants in ambient air, as
directed by section 109 and as implemented by section 110 of the CAA,
is therefore fundamentally different in nature than the process for
setting stringent source-specific standards that EPA is required to
issue under CAA section 112. The D.C. Circuit's concern that CAA
section 112-compliant standards must apply ``continuously'' to regulate
emissions from a particular source does not translate directly to the
context of CAA section 110, where a state's plan may contain a broad
range of measures, including limits on multiple sources' and source
categories' emissions of multiple pollutants--all working together to
ensure attainment and maintenance of an ambient standard that is not
itself an applicable requirement for individual sources. Importantly,
regardless of the measures a state seeks to include in its SIP, those
measures must collectively work toward compliance with the nationally
uniform NAAQS.
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\43\ See, e.g., Virginia v. EPA, 108 F.3d 1397, 1408 (D.C. Cir.
1997) (``EPA `identifies the end to be achieved, while the states
choose the particular means for realizing that end.' '') (quoting
Air Pollution Control Dist. v. EPA, 739 F.2d 1071, 1074 (D.C. Cir.
1984)). See also, e.g., H.R. Rep. No. 95-294, 95th Cong. 1st Sess.
at 213 (explaining that for nonattainment areas, Congress intended
to ``give the States more flexibility in determining how to protect
public health while still permitting reasonable new growth'') (May
12, 1977).
\44\ See 42 U.S.C. 7410(a)(2)(A) (emphasis added).
\45\ See Virginia v. EPA, 108 F.3d at 1408.
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The Fourth Circuit has acknowledged that ``[s]tates are accorded
flexibility in determining how their SIPs are structured'' to ensure
that the state meets the NAAQS.\46\ Further, the U.S. Supreme Court has
recognized that the CAA gives a state ``wide discretion'' to formulate
its plan pursuant to CAA section 110 and went so far as to say that
``the State has virtually absolute power in allocating emission
limitations so long as the national standards are met.'' \47\ The U.S.
Supreme Court has also explained, ``so long as the ultimate effect of a
State's choice of emission limitations is compliance with the national
standards for ambient air, the State is at liberty to adopt whatever
mix of emission limitations it deems best suited to its particular
situation.'' \48\ State and Federal Government divide this
responsibility, which results in a balance of state and Federal rights
and responsibilities. States typically have primary responsibility for
determining how and to what extent to regulate sources within the state
to comply with NAAQS.\49\ In fact, EPA has implemented guidance
addressing a number of requirements in CAA section 110 and explained
that SIPs could satisfy the requirements of CAA section 110(a)(2)(A) by
simply ``identify[ing] existing EPA-approved SIP provisions or new SIP
provisions . . . that limit emissions of pollutants relevant to the
subject NAAQS.'' \50\ Given their understanding of emission sources and
air quality within their jurisdictions, states are uniquely suited and
well-equipped to determine how best to implement the NAAQS in light of
their particular local needs. Comments from NC DAQ emphasize that the
State ``has a long and successful history of implementing [the NAAQS
attainment and maintenance] framework in North Carolina'' and notes
that ``all NAAQS are being met in the state.'' \51\ NC DAQ lauds
Federal, state and local partnerships for the successful
implementation.\52\
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\46\ North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 299
(4th Cir. 2010).
\47\ See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 250 & 267
(1976). See also id. at 269 (``Congress plainly left with the
States, so long as the national standards were met, the power to
determine which sources would be burdened by regulation and to what
extent.''). Commenters challenged the proposal's reliance on the
Union Electric and Train decisions, but do not disagree with Region
4's basis for relying on the decisions, specifically that they
establish that states are afforded discretion regarding how to
develop SIPs. The alternative policy's explanation, detailed below,
that North Carolina may provide exemptions from numerical emission
limits because its SIP contains a set of emission limitations,
control means, or other means or techniques, which, taken as a
whole, meet the requirements of attaining and maintaining the NAAQS
negates commenters' assertion that the Agency is authorizing North
Carolina to adopt emission limitations or standards that violate the
CAA.
\48\ Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79
(1975).
\49\ See, e.g., Mirant Potomac River, LLC v. EPA, 577 F.3d 223,
227 (4th Cir. 2009) (``Under Title I, states have the primary
responsibility for assuring that air quality within their borders
meets the NAAQS. Title I requires each state to create a State
Implementation Plan . . . to meet the NAAQS.'').
\50\ See September 13, 2013, Memorandum from Stephen D. Page,
``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' at
page 18.
\51\ Comment Letter submitted by NC DAQ, EPA-R04-OAR-2019-0303-
0020.
\52\ Id.
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Region 4 received comments challenging the reliance on Train and
the associated line of cases because in the 2015 SSM SIP Call Action
the Agency viewed Train as not authorizing exemptions in SIPs. However,
acknowledging the prior interpretation, in this action, Region 4 has
evaluated the North Carolina SIP and is adopting an alternative
approach, consistent with the Region's interpretation of the
flexibility afforded pursuant to CAA section 110(a)(2)(A) and the Train
decision. Incorporating the explanation provided in the NPRM, Region 4
maintains that because the North Carolina SIP includes numerous
protective provisions and evidence shows that the SIP is ensuring
attainment and maintenance of the NAAQS, it is appropriate to rely on
the flexibility afforded to states by Train in this circumstance.
The statutory text of CAA section 110(a)(2)(A) reflects this EPA-
state cooperative relationship, providing state flexibility that simply
does not exist in the text of CAA section 112, as outlined earlier in
this section. CAA section 110(a)(2)(A) generally requires that each SIP
shall include ``enforceable emission limitations and other control
measures, means, or techniques (including economic incentives such as
fees, marketable permits, and auctions of emissions rights), as well as
schedules and timetables for compliance, as may be necessary or
appropriate to meet the applicable requirements of this chapter.'' \53\
EPA has never interpreted this provision to require the type of
exacting analysis set forth in CAA section 112, and the flexibility
Congress gave states in section 110 warrants a differing
interpretation. The presumption of consistent usage--that a word or
phrase is presumed to bear the same meaning throughout a text--only
``makes sense when applied . . . pragmatically.'' \54\ It is
appropriate, and pragmatic, for Region 4 to consider the distinct
frameworks and purposes of CAA sections 110 and 112 when implementing
the term ``emission limitation'' in evaluating the North Carolina SIP.
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\53\ See 42 U.S.C. 7410(a)(2)(A).
\54\ Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 171 (Thompson/West) (2012).
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The U.S. Supreme Court has recognized that principles of statutory
construction are not so rigid as to necessarily require that the same
terminology has the exact same meaning in different parts of the same
statute.\55\ Terms can have ``different shades of meaning,'' reflecting
``different implementation strategies'' even when used in the same
statute.\56\ Emphasizing that ``[c]ontext counts,'' the Court explained
that ``[t]here is . . . no effectively irrebuttable presumption that
the same defined term in different provisions of the same statute must
be
[[Page 23705]]
interpreted identically.'' \57\ Contrary to assertions by commenters,
the distinct purposes of CAA sections 110 and 112 provide the relevant
context that justifies Region 4's decision to interpret the definition
of emission limitation or standard differently in the two provisions.
As opposed to assertions from commenters who disagreed with the June 5,
2019, NPRM's discussion of the Duke Energy decision, the interpretation
of CAA sections 302(k) and 110(a)(2)(A) advanced in this document does
not disregard the concept of continuity from CAA section 302(k), nor
does it nullify the provision's meaning. Rather, the concept of
continuity is acknowledged and afforded significance through the fact
that the North Carolina SIP in which such emission limitations exist,
as a whole, applies continuously. The concept of continuous ``emission
limitations'' in a SIP need not be focused on continuous implementation
of each individual limit, but rather on the approved SIP as a whole and
whether the SIP operates continuously to ensure attainment and
maintenance of the NAAQS.
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\55\ See Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2007).
\56\ Id. at 574 (citations omitted).
\57\ Id. at 575-76.
---------------------------------------------------------------------------
Region 4's interpretation is consistent with the concept that the
CAA requires that some section 110 standard apply continuously.
Specifically, CAA 110(a)(2)(A) requires the SIP to include
``enforceable emission limitations and other control measures, means,
or techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements of this Act.'' The phrase ``as may be
necessary or appropriate to meet the applicable requirements of [the]
Act'' explicitly allows the State some flexibility to develop SIP
provisions that are best suited for their purposes. In this context,
Region 4 finds that a reasonable interpretation of the section 302(k)
definition of the terms ``emission limitation'' and ``emission
standard'' does not preclude North Carolina from adopting provisions
that apply continuously while also allowing that unavoidable excess
emissions that occur during certain discrete, time-limited periods of
operation may not be considered a violation of the rule. This is
consistent with Region 4's determination that the North Carolina SIP,
considered as a whole, meets the requirements of the Act. But even if
commenters are correct that ``enforceable emission limitations'' must
be interpreted as a single limit that applies continuously and without
exempt periods, Region 4 finds that North Carolina's SIP provisions
that include periods of exemptions are not inconsistent with the CAA
under the latter part of provision 110(a)(2)(A) as ``other control
measures, means or techniques . . . as may be necessary or appropriate
to meet the applicable requirements of [the] Act'' \58\ (emphasis
added).
---------------------------------------------------------------------------
\58\ Region 4 also notes that this interpretation is consistent
with language in the CAA definition of ``Federal Implementation
Plan'' (FIP) (i.e., a plan, or portion thereof, promulgated by the
Administrator to fill all or a portion of a gap or otherwise correct
all or a portion of an inadequacy in a SIP). The definition, at
section 302(y), states that a FIP ``includes enforceable emission
limitations or other control measures, means or techniques
(including economic incentives, such as marketable permits or
auctions of emissions allowances), and provides for attainment of
the relevant national ambient air quality standard'' (emphasis
added). This language clarifies that ``other control measures, means
or techniques'' is an approach that is separate from ``enforceable
emission limitations'' and thus does not invoke the 302(k)
definition of ``emission limitation.''
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Region 4 interprets CAA section 110(a)(2)(A) to mean a state may
provide exemptions from numerical emission limits so long as the SIP
contains a set of emission limitations, control means, or other means
or techniques, which, taken as a whole, meet the requirements of
attaining and maintaining the NAAQS under subpart A. As supported by NC
DAQ's comment letter \59\ on the NPRM and as this section further
elaborates, our evaluation of the North Carolina SIP shows this to be
the case. The State has a combination of emission limits that apply
``as may be necessary or appropriate'' during normal operations but
with exemptions during SSM periods and ``other control measures, means,
or techniques'' that remain applicable during periods of SSM in which
the exemptions apply--such as general duty provisions in the SIP, work
practice standards, best management practices, or alternative emission
limits--and are protective of the NAAQS. Additionally, SIPs are
required to include entirely separate provisions, such as minor source
review and major source new source review provisions regulating
construction or modification of stationary sources, that also
effectively limit emissions of NAAQS pollutants within the state. North
Carolina regulates the construction and modification of sources to
prevent significant deterioration of air quality in areas already
attaining the NAAQS, or to allow improvement of air quality while still
providing for growth in areas not meeting the NAAQS, through 15A NCAC
2D .0530 and 2D .0531. Thus, as the U.S. Supreme Court explained in
Duke Energy that a term may be interpreted differently when justified
by different contexts (in this case different parts of the same
statute), the CAA definition of an emission limitation in section
302(k), when read in the context of section 110, could mean states may,
at their discretion, provide exemptions from specific numerical
emission limits during periods when it is not practicable or necessary
for such limits to apply, so long as the SIP contains other provisions
that remain in effect and ensure the NAAQS are protected. Region 4
evaluated the North Carolina SIP and determined it is not inconsistent
with CAA requirements for the SIP to contain such exemption provisions
because the State's overlapping protective requirements sufficiently
ensure overall attainment and maintenance of the NAAQS.
---------------------------------------------------------------------------
\59\ Letter from Michael A. Abraczinskas, Director, NC DAQ, to
EPA, August 5, 2019, Docket ID No. EPA-R04-OAR-2019-0303-0001 for
this rulemaking.
---------------------------------------------------------------------------
Consistent with this interpretation, Region 4 has evaluated the
North Carolina SIP as a whole and has determined that the SIP contains
numerous provisions intended to assure that air quality standards will
be achieved, as explained below. Any provisions allowing exemptions for
periods of SSM do not alter the applicability of these general SIP
requirements. In analyzing the air quality protections provided by the
entirety of the North Carolina SIP, Region 4 concludes that the SIP
contains overlapping planning requirements that are protective of each
individual criteria pollutant NAAQS. In fact, both provisions that were
included in the 2015 SSM SIP Call Action for North Carolina include
substantial protection of air quality standards within the SIP-called
provision itself.
First, as Region 4 outlined in the June 5, 2019, NPRM, the
exemption provided at NCAC 2D .0535(g) requires that owners or
operators use best available control practices when operating equipment
to minimize emissions during startup and shutdown periods.
Specifically, it states:
Start-up and shut-down. Excess emissions during start-up and
shut-down shall be considered a violation of the appropriate rule if
the owner or operator cannot demonstrate that the excess emissions
are unavoidable when requested to do so by the Director. The
Director may specify for a particular source the amount, time, and
duration of emissions that are allowed during start-up or shut-down.
The owner or operator shall, to the extent practicable, operate the
source and any associated air pollution control
[[Page 23706]]
equipment or monitoring equipment in a manner consistent with best
practicable air pollution control practices to minimize emissions
during start-up and shut-down. (Emphasis added.)
Even though this provision includes an exemption, it also provides
a backstop that requires sources to use the best practicable air
pollution control practices to minimize emissions during startup or
shutdown periods.
Second, the exemption provided at NCAC 2D .0535(c) outlines seven
criteria that the director will consider when evaluating whether the
source qualifies for an emissions limit exemption during a malfunction.
Specifically, it states:
Any excess emissions that do not occur during start-up or shut
down shall be considered a violation of the appropriate rule unless
the owner or operator of the source of the excess emissions
demonstrates to the director, that the excess emissions are the
result of a malfunction. To determine if the excess emissions are
the result of a malfunction, the director shall consider, along with
any other pertinent information, the following:
(1) The air cleaning device, process equipment, or process has
been maintained and operated, to the maximum extent practicable, in
a manner consistent with good practice for minimizing emissions;
(2) Repairs have been made in an expeditious manner when the
emission limits have been exceeded;
(3) The amount and duration of the excess emissions, including
any bypass have been minimized to the maximum extent practicable;
(4) All practical steps have been taken to minimize the impact
of the excess emissions on ambient air quality;
(5) The excess emissions are not part of a recurring pattern
indicative of inadequate design, operation, or maintenance;
(6) The requirements of Paragraph (f) of the Regulation have
been met; and
(7) If the source is required to have a malfunction abatement
plan, it has followed that plan.
All malfunctions shall be repaired as expeditiously as
practicable. However, the director shall not excuse excess emissions
caused by malfunctions from a source for more than 15 percent of the
operating time during each calendar year.
The existence of these specific criteria themselves provide
additional protections of the NAAQS because factors considered by the
director include whether sources minimize emissions and limit the
extent of emissions which could occur to the greatest extent
practicable. Additionally, the provision itself establishes bounds on a
source's ability to employ this exemption by prohibiting the Director
from excusing excess emissions from a source due to malfunctions for
more than 15 percent of the operating time. This limitation reasonably
minimizes the risk that excess emissions from malfunctions would
contribute to a NAAQS exceedance or violation.
Apart from the SIP-called provisions discussed above, as discussed
in the June 5, 2019, NPRM, the North Carolina SIP also contains
numerous overlapping requirements providing for protection of air
quality and the NAAQS, requirements that generally control emissions of
NAAQS pollutants. Each of these provisions ensures that emissions are
minimized to protect air quality, independent of an SSM exemption that
may also apply. Described as follows, these generally applicable
requirements collectively support Region 4's alternative policy for the
North Carolina SIP.
First, 15A NCAC 2D .0502, which is included in the North Carolina
SIP and addresses emission control standards generally, provides: ``The
purpose of the emission control standards set out in this Section is to
establish maximum limits on the rate of emission air contaminants into
the atmosphere. All sources shall be provided with the maximum feasible
control.'' \60\ The requirement for ``maximum feasible control'' on all
sources applies at all times, including periods of startup and
shutdown. Thus, by requiring sources to be subject to emission control
standards established at the maximum feasible level of control, the SIP
ensures that air quality in the State will be protected to the highest
degree possible. This guiding purpose broadly applies to the emission
control standards in Section .0500 of the North Carolina SIP. North
Carolina confirmed as much in their comment letter on EPA's 2015 SSM
policy, explaining that the State's requirement that sources implement
``maximum feasible control'' is one of the provisions of the SIP that
``provide assurances that air quality and emission standards will be
achieved.'' \61\ In light of the flexibility in CAA section
110(a)(2)(A) and SIP development generally, North Carolina has
developed a reasonable overall emissions control approach that requires
all sources to implement maximum feasible emission control efforts at
all times, even though the State may exempt sources from numerical
emission limits during some SSM periods.
---------------------------------------------------------------------------
\60\ See 40 CFR 52.1770(c)(1).
\61\ Letter from Sheila C. Holman, Director, NC DAQ, to EPA, May
13, 2013, page 2, Docket ID No. EPA-HQ-OAR-2012-0322-0619, available
at www.regulations.gov.
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Second, the North Carolina SIP includes general provisions that
require sources not to operate in such a way as to cause NAAQS
violations. 15A NCAC 2D .0501(e) directs all sources to operate in a
manner that does not cause any ambient air quality standard to be
exceeded at any point beyond the premises on which the source is
located, despite the SIP containing SSM exemptions for emission
limitations. 15A NCAC 2D .0501(e) states:
In addition to any control or manner of operation necessary to
meet emission standards in this Section, any source of air pollution
shall be operated with such control or in such manner that the
source shall not cause the ambient air quality standards of Section
.0400 of this Subchapter to be exceeded at any point beyond the
premises on which the source is located. When controls more
stringent than named in the applicable emission standards in this
Section are required to prevent violation of the ambient air quality
standards or are required to create an offset, the permit shall
contain a condition requiring these controls.
Accordingly, even if the SIP contains exemptions from numerical
emission limits during SSM events, this provision ensures that the
source at issue must ensure that none of its emissions cause a NAAQS
exceedance or violation, consistent with the primary purpose of CAA
section 110.
Third, the North Carolina SIP provides additional assurances that
sources will prevent and correct equipment failures that could result
in excess emissions by requiring utility boilers (and any source with a
history of excess emissions, as determined by the Director) to have a
malfunction abatement plan approved by the Director. Utility boilers in
North Carolina contribute a significant portion of the point source
pollutant emissions in the State.\62\ 15A NCAC 2D .0535(d) states:
---------------------------------------------------------------------------
\62\ For example, utility boilers in North Carolina contribute
approximately 24 percent of PM10 emissions, 66 percent of
SO2 emissions, and 47 percent of NOX emissions
from total point sources in the State. See spreadsheet titled ``NC
2014 NEI Summary'' in the docket for this action.
All electric utility boiler units subject to a rule in this
section shall have a malfunction abatement plan approved by the
director. In addition, the director may require any source that he
has determined to have a history of excess emissions to have a
malfunction abatement plan approved by the director. The malfunction
plans of electric utility boiler units and of other sources required
to have them shall be implemented when a malfunction or other
breakdown occurs. The purpose of the malfunction abatement plan is
to prevent, detect, and correct malfunctions or equipment failures
---------------------------------------------------------------------------
that could result in excess emissions. . . .
This provision goes on to describe the minimum requirements for a
malfunction abatement plan, including:
[[Page 23707]]
(1) A complete preventive maintenance program (including identification
of the individual responsible for inspecting, maintaining and repairing
air cleaning devices; description of the items or conditions that will
be inspected and maintained; the frequency of the inspection,
maintenance services, and repairs; and identification and quantities of
the replacement parts that shall be maintained in inventory for quick
replacement); (2) the procedures for detecting a malfunction or failure
(including identification of the source and air cleaning operating
variables and outlet variables; the normal operating range of those
variables; and a description of the monitoring method or surveillance
procedures and of the system for alerting operating personnel of any
malfunctions); and (3) a description of the corrective procedures that
will be taken to achieve compliance with the applicable rule as
expeditiously as practicable in case of a malfunction or failure.\63\
Although specific to electric utility boilers (and other sources as
required by the Director), this SIP provision ensures that subject
units are taking steps to prevent, detect, and correct malfunctions,
even if an SSM exemption applies. This provision serves to limit any
excess emissions that could result from such events, thus reducing the
possibility that any excess emissions would result in a NAAQS
exceedance or violation.
---------------------------------------------------------------------------
\63\ See 15A NCAC 2D .0535(d)(1)-(3).
---------------------------------------------------------------------------
Fourth, the North Carolina SIP provides general provisions to
reduce airborne pollutants and to prevent NAAQS exceedances beyond
facility property lines, despite the SIP containing SSM exemptions for
numerical emission limits, for particulates from sand, gravel, or
crushed stone operations and from lightweight aggregate operations (at
15A NCAC 2D .0510(a) and 0511(a), respectively):
The owner or operator of a [. . .] operation shall not cause,
allow, or permit any material to be produced, handled, transported
or stockpiled without taking measures to reduce to a minimum any
particulate matter from becoming airborne to prevent exceeding the
ambient air quality standards beyond the property line for
particulate matter, both PM10 and total suspended
particulates.
And in a similar manner, the North Carolina SIP includes general
provisions to reduce airborne pollutants and to prevent NAAQS
exceedances beyond facility property lines for particulates from wood
products finishing plants (at 15A NCAC 2D .0512):
A person shall not cause, allow, or permit particulate matter
caused by the working, sanding, or finishing of wood to be
discharged from any stack, vent, or building into the atmosphere
without providing, as a minimum for its collection, adequate duct
work and properly designed collectors, or such other devices as
approved by the commission, and in no case shall the ambient air
quality standards be exceeded beyond the property line.
Accordingly, even if the SIP contains exemptions from numerical
emission limits during SSM events, these provisions ensure that the
source at issue must ensure that none of its emissions cause a NAAQS
exceedance or violation.
Fifth, the North Carolina SIP provides a general requirement at 15A
NCAC 2D .0521(g) for sources that operate continuous opacity monitoring
systems (COMS) that ``[i]n no instance shall excess [opacity] emissions
exempted under this Paragraph cause or contribute to a violation of any
emission standard in this Subchapter or 40 CFR part 60, 61, or 63 or
any ambient air quality standard in Section 15A NCAC 2D .0400 or 40 CFR
part 50.'' As recognized by this provision, Federal standards in 40 CFR
parts 60, 61, and 63, as applicable to a source, regulate source
emissions and operation, regardless of any SSM exemption in the SIP.
Finally, Region 4 notes that the SIP includes an overall strategy
for bringing all areas into compliance with the NAAQS for all
pollutants regulated by the CAA. On September 26, 2011, Region 4
approved into the SIP significant NOX and sulfur dioxide
(SO2) emission limitations from the North Carolina Clean
Smokestacks Act (NCCSA).\64\ This State law became effective in 2007
and set caps on NOX and SO2 emissions from public
utilities operating coal-fired power plants in the State that cannot be
met by purchasing emissions credits.\65\ The NCCSA resulted in
permanent emission reductions that helped nonattainment areas in the
State achieve attainment of the 1997 Annual PM2.5 NAAQS.\66\
Thus, even if a source could avail itself of an SSM exemption for
certain excess emissions, its total emissions must fit within the
utility-wide cap for the State provided under a law adopted as part of
a comprehensive plan for improving air quality in North Carolina.
---------------------------------------------------------------------------
\64\ See 76 FR 59250 (September 26, 2011).
\65\ See 40 CFR 52.1781(h).
\66\ See Approval and Promulgation of Implementation Plans and
Designation of Areas for Air Quality Planning Purposes; North
Carolina: Redesignation of the Hickory-Morganton-Lenoir 1997 Annual
Fine Particulate Matter Nonattainment Area to Attainment; Proposed
Rule, 76 FR 58210, 58217 (Sept. 20, 2011), and Approval and
Promulgation of Implementation Plans and Designation of Areas for
Air Quality Planning Purposes; North Carolina: Redesignation of the
Greensboro-Winston Salem-High Point 1997 Annual Fine Particulate
Matter Nonattainment Area to Attainment; Proposed Rule, 76 FR 59345,
59352 (Sept. 26, 2011).
---------------------------------------------------------------------------
Region 4 also notes that the exemption provisions in the North
Carolina SIP are limited in scope and do not apply to sources to which
Rules .0524, .1110 or .1111 of subchapter 2D apply. See 15A NCAC 2D
.0535(b). These SIP provisions require that sources that are subject to
EPA's New Source Performance Standards (NSPS) at 40 CFR part 60 or
National Emission Standards for Hazardous Air Pollutants (NESHAP) at 40
CFR part 61 or 63 must comply with those Federal standards rather than
with any otherwise-applicable rule of the SIP (except where the SIP
rule is more stringent than the Federal standards).
Region 4 received comments challenging the June 5, 2019, NPRM's
reliance on the generally applicable provisions, which commenters
characterized as ``general duty'' provisions. Commenters raised
concerns about Region 4 relying on these provisions, asserting they
``fail to meet the level of control required by the applicable
stringency requirements'' and that these provisions are not legally or
practically enforceable. As discussed in Section V of this document,
Region 4 disagrees with commenters' concerns regarding generally
applicable provisions. Region 4 has not asserted that the numerous
protective provisions serve to replace the applicable stringency
requirements. Instead, these provisions provide additional assurances
that the applicable stringency requirements will effectively ensure
attainment and maintenance of the NAAQS, despite the fact that there
are provisions allowing for narrow exemptions during certain periods of
SSM. In terms of enforcing the protective provisions, many of the
provisions identified in this document are, in fact, mandatory. For
example, 15A NCAC 2D .0502 states: ``All sources shall be provided with
the maximum feasible control'' (emphasis added). And 15A NCAC Code 2D
.0501(e) instructs: ``. . . any source of air pollution shall be
operated with such control or in such manner that the source shall not
cause the ambient air quality standards of Section .0400 of this
Subchapter to be exceeded at any point beyond the premises on which the
source is located'' (emphasis added). Further, when warranted by a
situation, EPA can bring an action to enforce these types of
provisions.
EPA has a statutory duty pursuant to CAA section 110(k)(3) to
approve SIP submissions that meet all applicable
[[Page 23708]]
CAA requirements. For North Carolina, Region 4 has concluded that the
SIP's approach to exemptions is consistent with the CAA requirement to
protect attainment and maintenance of the NAAQS. Region 4 recognizes
that the exemptions from emission limitations in the North Carolina SIP
provide the State with flexibility as it develops robust approaches to
air quality protection through a set of planning requirements. The
numerous protective provisions are a significant justification for
Region 4 adopting an alternative policy for the North Carolina SIP.
Further, these provisions reflect North Carolina's reasoned judgment
for how to best assure attainment and maintenance of the NAAQS in the
State.
B. Director's Discretion Exemption Provisions
In addition to the general SSM exemption issues discussed above, in
the 2015 SSM SIP Call Action EPA also raised concerns that North
Carolina's 15A NCAC 2D .0535(c) and 15A NCAC 2D .0535(g) are examples
of what EPA referred to as ``director's discretion'' exemptions. Rule
15A NCAC 2D .0535(c) lists seven criteria that the Director of NC DAQ
will evaluate to determine whether excess emissions resulting from a
malfunction are a violation of the given standard. In addition, rule
15A NCAC 2D .0535(g) directs facilities, during startup and shutdown,
to operate all equipment in a manner consistent with best practicable
air pollution control practices to minimize emissions and to
demonstrate that excess emissions were unavoidable when requested to do
so by the Director. In the 2015 SSM SIP Call Action, EPA took the
position that these director's discretion provisions were also
problematic because they allow air agency personnel to modify existing
SIP requirements under certain conditions, which essentially
constituted a variance from an otherwise applicable emission
limitation. EPA considered director's discretion provisions to
effectively provide for impermissible SIP revisions by allowing air
agency personnel to make unilateral decisions on an ad hoc basis
regarding excess emissions during SSM events and, thus, as not in
compliance with the necessary process required for SIP revisions.\67\
---------------------------------------------------------------------------
\67\ See 80 FR at 33977-78.
---------------------------------------------------------------------------
While acknowledging those concerns, consistent with the June 5,
2019, NPRM, Region 4 is finalizing a finding that SSM exemptions may
not necessarily make a SIP substantially inadequate to meet CAA
requirements \68\ and is making a finding that the director's
discretion SSM exemptions in the North Carolina SIP are not
inconsistent with CAA requirements. In this action, Region 4 is
adopting an alternative policy for North Carolina that automatic
exemptions during periods of SSM are not inherently inconsistent with
CAA section 110(a)(2)(A). The rationale provided above for finding that
automatic exemptions in the North Carolina SIP do not preclude the SIP
from meeting the CAA requirements of attainment and maintenance of the
NAAQS under subpart A as long as the SIP, when evaluated
comprehensively, contains a set of emission limitations, control means,
or other means or techniques, also applies to Region 4's evaluation of
director's discretion exemptions in the North Carolina SIP. As
explained below, because automatic SSM exemptions are broader than
director's discretion provisions but do not render the North Carolina
SIP inadequate, Region 4 also finds that director's discretion
exemptions do not render the SIP inadequate.
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\68\ See Texas v. EPA, 690 F.3d 670 (5th Cir. 2012); Luminant
Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) (vacating and
remanding EPA's disapproval of discretionary SIP provisions).
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Further, consistent with the perspective that the North Carolina
SIP, considered as a whole, generally protects against NAAQS violations
and that SIP provisions containing SSM exemptions may not be
inconsistent with CAA requirements, Region 4 has determined that use of
the director's discretion provisions in the North Carolina SIP also
does not constitute an improper SIP revision. Given the specific
criteria contained within them, North Carolina's director's discretion
provisions excuse excess emissions in more limited circumstances than
provided for by automatic exemptions. Accordingly, the same reasoning
that supports our position that automatic exemptions in the North
Carolina SIP may not be inconsistent with the CAA also informs our
position that the narrower director's discretion exemption provisions
in the North Carolina SIP that were SIP-called in the 2015 SSM SIP Call
Action are not inconsistent with the CAA. This finding is predicated on
a holistic view that includes consideration of all provisions in the
North Carolina SIP. Relevant to this evaluation, as discussed above,
the North Carolina SIP includes provisions that provide for sources to
be operated in a manner that does not cause an exceedance or violation
of the NAAQS, and that requirement is not displaced by the director's
discretion exemptions. The North Carolina director's discretion
provisions outline the specific conditions under which air agency
personnel can make a factual decision that SSM emissions do not
constitute a violation of the NAAQS, and that limitation is part of
Region 4's holistic consideration of the SIP. The SIP, as federally
approved, provides air agency personnel with the framework and
authority to exempt certain excess emission events from being a
violation. Because that allowance is provided for in the approved SIP,
and the SIP provisions went through a public comment period prior to
Region 4's final action in this document to approve them, an action
made in accordance with these approved provisions would not constitute
an unlawful SIP revision.
CAA section 113 authorizes the United States to enforce, among
other things, the requirements or prohibitions of an applicable
implementation plan or permit. CAA section 304 authorizes citizens to
enforce, among other things, any emission standard or limitation under
the CAA, including applicable state implementation plan and permit
requirements. The framework and authority contained in 15A NCAC 2D
.0535 requires sources to make specific demonstrations and the Director
to make specific determinations before exempting sources from
compliance with an otherwise applicable emission limitation.
Accordingly, and consistent with statements made by EPA when the Agency
approved 15 NCAC 2D .0535(c) into the North Carolina SIP in 1986,\69\
the exercise of authority under the director's discretion provisions of
15A NCAC 2D .0535 shall not be construed to bar, preclude, or otherwise
impair the right of action by the United States or citizens to enforce
a violation of an emission limitation or emission standard in the SIP
or a permit where the demonstration by a source or a determination by
the Director does not comply with the framework and authority under 15
NCAC 2D .0535. Failure to comply with such framework and authority
would invalidate the Director's determination.
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\69\ See 51 FR 32073, 32074 (September 9, 1986) (EPA stated:
``it should be noted that EPA is not approving in advance any
determination made by the State under paragraph (c) of the rule,
that a source's excess emissions during a malfunction were avoidable
and excusable, but rather s approving the procedures and criteria
set out in paragraph (c). Thus, EPA retains its authority to
independently determine whether an enforcement action is appropriate
in any particular case.'').
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[[Page 23709]]
C. Withdrawal of the SIP Call for North Carolina
As part of the 2015 SSM SIP Call Action, EPA issued CAA section
110(k)(5) SIP calls to a number of states, including North Carolina
regarding provisions 15A NCAC 2D .0535(c) and 15A NCAC 2D .0535(g).\70\
In the 2015 SSM SIP Call Action, the Agency explained that it would
evaluate any pending SIP submission or previously approved submission
through notice-and-comment rulemaking and, as part of that action,
determine whether a given SIP provision is consistent with CAA
requirements and applicable regulations.\71\ In this context, Region 4
re-evaluated the two subject provisions in the June 5, 2019, proposed
notice-and-comment action that Region 4 is finalizing in this document.
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\70\ See 80 FR at 33964.
\71\ Id. at 33976.
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As discussed above, the North Carolina SIP contains numerous
provisions that work in concert and provide redundancy to protect
against a NAAQS exceedance or violation, even if an SSM exemption
provision also applies. Therefore, based on an analysis of the multiple
provisions contained in the North Carolina SIP that are designed to be
protective of the NAAQS, Region 4 concludes that it is reasonable for
the NC DAQ Director to be able to exclude qualifying periods of excess
emissions during periods of SSM while ensuring attainment or
maintenance of the NAAQS. A holistic review of the North Carolina SIP
shows that there are protective provisions that ensure attainment and
maintenance of the NAAQS even though a SIP includes SSM exemptions, and
Region 4 believes that this result is not precluded by the D.C. Circuit
decision in Sierra Club v. Johnson. Consistent with the alternative
policy being adopted, as set forth above, Region 4 has reviewed the
applicability of the SIP Call previously issued to North Carolina,
including Region 4's specific evaluation of the State's subject SIP,
and finds that the subject SIP provisions are not inconsistent with CAA
requirements. Accordingly, Region 4 is changing the finding from the
2015 SSM SIP Call Action at 80 FR 33840 that certain SIP provisions
included in the North Carolina SIP are substantially inadequate to meet
CAA requirements and withdraws the SIP Call that was issued in the 2015
SSM SIP action with respect to 15A NCAC 2D .0535(c) and 15A NCAC 2D
.0535(g).
The alternative SSM policy is a policy statement and, thus,
constitutes guidance within Region 4 with respect to the North Carolina
SIP. As guidance, this does not bind states, EPA, or other parties, but
it reflects Region 4's interpretation of the CAA requirements with
respect to the North Carolina SIP. The evaluation of any other state's
implementation plan provision, and that SIP provision's interaction
with the SIP as a whole, must be done through notice-and-comment
rulemaking.
EPA's regulations allow EPA Regions to take actions that interpret
the CAA in a manner inconsistent with national policy when a Region
seeks and obtains concurrence from the relevant EPA Headquarters
office. Pursuant to EPA's regional consistency regulations at 40 CFR
56.5(b), the Region 4 Administrator sought and obtained concurrence
from EPA's Office of Air and Radiation to propose an action that
outlines an alternative policy that is inconsistent with the national
EPA policy, most recently articulated in the 2015 SSM SIP Call Action,
on provisions exempting emissions exceeding otherwise applicable SIP
limitations during periods of unit startup, shutdown and malfunction at
the discretion of the state agency and to propose action consistent
with that alternative policy. Likewise, the Region 4 Administrator
sought and obtained concurrence to finalize the alternative policy in
this action. The concurrence request memorandum, signed March 19, 2020,
is included in the public docket for this action.
IV. Region 4's Action on North Carolina's June 5, 2017, SIP Revision
As discussed in the June 5, 2019, NPRM, on September 18, 2001,
North Carolina submitted a new rule section regarding the control of
NOX emissions from large stationary combustion sources to
Region 4 for approval into its SIP.\72\ The rule section--15A NCAC 2D
.1400 (``Nitrogen Oxides Emissions'')--contains 15A NCAC 2D .1423
(``Large Internal Combustion Engines'') as well as other rules not
related to this final action. On August 14, 2002, North Carolina
submitted to Region 4 a SIP revision with changes to its Section .1400
NOX rules, including several changes to 15A NCAC 2D .1423.
Region 4 did not act on the August 14, 2002, submittal. However, on
December 27, 2002, Region 4 approved the portion of North Carolina's
September 18, 2001, SIP revision incorporating 15A NCAC 2D .1423.\73\
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\72\ See Rule .1402--``Applicability'' and the definition of
``source'' in Rule .1401 for the scope of this rule section.
\73\ See 67 FR 78987 (December 27, 2002).
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On June 5, 2017, North Carolina withdrew its August 14, 2002, SIP
revision and resubmitted identical changes to 15A NCAC 2D .1423 as a
SIP revision as well as the changes to the other rules contained in the
original 2002 SIP revision.74 75 The State provided this
resubmission in response to a Region 4 request for a version of the
rule that highlights, using redline-strikethrough text, the State's
proposed revisions to the federally approved rule. The June 5, 2017,
SIP revision relies on the hearing record associated with the August
14, 2002, SIP revision \76\ because the revised rule text is the same.
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\74\ Region 4 acted on the other rule changes through a separate
rulemaking (83 FR 66133, December 26, 2018).
\75\ On June 28, 2018, North Carolina supplemented its June 5,
2017, submittal to acknowledge that Rules .1413 and .1414 are not in
the SIP. This supplement is not relevant to this action.
\76\ North Carolina held public hearings on May 21, 2001, and
June 5, 2001, to accept comments on the rule changes contained in
the August 14, 2002, SIP revision.
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Region 4 is approving the changes to subparagraphs (a)-(f) of 15A
NCAC 2D .1423 provided in North Carolina's June 5, 2017, SIP revision
for the reasons explained in the notice of proposed rulemaking.
Regarding 15A NCAC 2D .1423(d)(1), as noted in the June 5, 2019, NPRM,
the rule revision inserted the phrase ``and .1404 of this Section'' at
the end so that it now provides that the owner or operator of a subject
internal combustion engine shall determine compliance using ``a
continuous emissions monitoring systems (CEMS) which meets the
applicable requirements of Appendices B and F of 40 CFR part 60,
excluding data obtained during periods specified in Paragraph (g) of
this Rule and .1404 of this Section.'' This change ensures that the
CEMS used to obtain compliance data must meet the applicable
requirements specified in 15A NCAC 2D .1404 (in particular, Paragraphs
(d)(2) and (f)(2) of 15A NCAC 2D .1404) as well as the applicable part
60 requirements since those provisions specify additional Federal
requirements for obtaining CEMS data. In addition, although the
reference to ``Paragraph (g) in this Rule'' is existing federally
approved language, Region 4 has considered its approvability in light
of the 2015 SSM policy because paragraph (g) provides that the emission
standards of 15A NCAC 2D .1423 (regulating large internal combustion
engines) do not apply during periods of ``(1) start-up and shut-down
periods and periods of malfunction, not to exceed 36 consecutive hours;
(2) regularly scheduled maintenance activities.'' As discussed in
Section III above, Region 4 has determined that the provisions of
[[Page 23710]]
15A NCAC 2D .1423(g), when considered in conjunction with other
elements in the North Carolina SIP, are sufficient to provide adequate
protection of the NAAQS. North Carolina has bounded the time during
which a source can employ this exemption, minimizing the potential that
any excess emissions during these periods would cause or contribute to
a NAAQS exceedance or violation. Therefore, the exemption, which allows
for emission standards of the rule to not apply during periods of
startup, shutdown, and malfunction of up to 36 consecutive hours, or
maintenance, is not inconsistent with the requirements of CAA section
110, including CAA section 110(l). Consequently, Region 4 has
determined, consistent with the policy outlined supra in Section III,
that these changes to the North Carolina SIP are consistent with CAA
requirements.
V. Responses to Comments
Region 4 received ten supporting comments and three adverse
comments on the proposed action. In this section, Region 4 describes in
detail the adverse comments received and provides responses to them.
1. Comments That the Action Constitutes a Nationally-Applicable
Rulemaking and Should be Reviewed in the D.C. Circuit
Comment 1: Commenters state that EPA Headquarters was the driving
force behind the preparation of the June 5, 2019, NPRM and that the
NPRM is an attempt to revise EPA's 2015 national policy on SSM in SIPs
in a fashion that is not reviewable by the D.C. Circuit. Other
commenters state that the June 5, 2019, NPRM does not adequately
justify the exception to the national policy on SSM, asserting that the
June 5, 2019, NPRM is a ``backdoor attempt to change national policy
through a Regional action'' with the aim of review in an individual
Circuit Court rather than the D.C. Circuit. Commenters also assert that
the proposed withdrawal of the North Carolina SIP Call departs from
EPA's 2015 action and that ``this reversal effectively amends EPA's
national SSM policy.''
Commenters argue that if EPA were to withdraw its SSM SIP Call for
North Carolina, review of its action should occur in the D.C. Circuit
because such action would reverse a nationally applicable policy.
Commenters add that any EPA refusal to find that the D.C. Circuit is
the appropriate venue for review of EPA's SSM SIP Call is likely to
result in different standards and methodologies applying in different
areas of the country, thereby unlawfully and arbitrarily defeating the
CAA's goal of ensuring uniformity of national issues, which is
Congress's clear intent. Other commenters state that EPA recognized in
the 2015 SSM SIP Call Action that the Agency's ``legal interpretation
of the [CAA] concerning permissible SIP provisions to address emissions
during SSM events'' was a ``nationally applicable'' rule and, thus, any
petitions for review challenging aspects of EPA's nationally applicable
SSM SIP Call or its SSM policy were required to be filed in the D.C.
Circuit, which is where those petitions are still pending.
Commenters also state that the June 5, 2019, NPRM is based on
several determinations of nationwide scope or effect, and therefore EPA
must find that any challenge to the rule is appropriate only in the
D.C. Circuit. Commenters add that because the ``scope or effect'' of
the Region 4 June 5, 2019, NPRM for North Carolina and the Region 6
NPRM for Texas (84 FR 17986 (April 29, 2019)) extends across six
judicial circuits (covering Regions 4 and 6), the NPRMs must be
reviewed only in the D.C. Circuit. Commenters also state that EPA's
treatment of its June 5, 2019, NPRM as Region-specific rather than of
nationwide scope or effect is arbitrary and capricious and reviewable
because it departs from how EPA has treated other, similar past
actions. Commenters also state that precedent supports the conclusion
that EPA's proposed amendment to the SSM SIP Call is ``nationally
applicable.''
Commenters state that although EPA is now proposing to exempt North
Carolina from the nationally applicable SIP Call (and exempt states in
Region 4 from the SSM SIP policy established in the final SIP Call
rule) in a separate Federal Register document, the Agency must
acknowledge that the SSM SIP Call and the June 5, 2019, NPRM at issue
are part of the same overarching and ``nationally applicable
regulation'' under 42 U.S.C. 7607(b)(1). Commenters state that the
proposed withdrawal of North Carolina from the national SSM SIP Call
explicitly ``departs from EPA's 2015 national policy'' and announces a
substantive change to determining whether exemptions for SSM events in
SIPs are approvable. Commenters also state that although the June 5,
2019, NPRM ostensibly applies to the states in Region 4, EPA is using
it to announce a substantial change to the CAA's SIP requirements.
Response 1: Comments received regarding Region 6's April 29, 2019,
notice of proposed rulemaking concerning affirmative defense provisions
in the Texas SIP are not within the scope of this rulemaking, and
Region 4 is not providing a response to comments regarding that action.
Comments regarding any subsequent and separate actions by Region 4 are
also speculative and not within the scope of this rulemaking.
This is a regional action to approve a SIP submission from a single
state in Region 4 and to withdraw the SSM SIP Call that was issued for
North Carolina based on an alternative SSM policy that is being adopted
and applied by Region 4 only with regard to the North Carolina SIP; the
commenter provides no factual basis for the claim that Region 4 is
speaking on behalf of EPA Headquarters in this action. EPA Headquarters
and Regional Offices routinely collaborate on rulemaking activities,
and the nature of the collaborative relationship varies depending on
the circumstances of the specific action involved. EPA Headquarters
staff may be involved in drafting complex regional actions, including
proposed and final rulemakings where EPA acts on SIP submissions under
CAA section 110(k), as appropriate. However, as explained below in this
response, the level of involvement by different EPA offices is not an
appropriate inquiry for determining which court would review a final
action. As described in Section III, the alternative policy on SSM
adopted in this action applies only to Region 4's evaluation of the
North Carolina SIP and does not change or alter EPA's national policy
on SSM from the June 12, 2015, action at 80 FR 33840.
Recognizing that Congress intended the Federal-state partnership to
serve as a cornerstone of the SIP development process under the CAA,
the latitude typically afforded to state air agencies as they develop
SIPs to address air pollution prevention in their states is one of the
bases for this action. Section III of both the proposed action and this
final action provides a comprehensive explanation for Region's 4 bases
for adopting the alternative policy for North Carolina. Section III of
this final action then applies that alternative policy to the specific
facts of the North Carolina SIP.
The comments stating that this action is a ``backdoor attempt to
change national policy through Regional action'' or that this action
establishes a new de facto national policy overstate and misunderstand
the scope of the present action. Region 4 is not establishing a new
national policy; rather Region 4 is taking action on a specific
provision submitted to EPA as a revision of the North Carolina SIP and
evaluating the adequacy of specific
[[Page 23711]]
North Carolina SIP provisions to meet CAA requirements.
Region 4 does not agree with commenters' assertion that this action
is a reversal of EPA's national SSM policy because the alternative
policy adopted by Region 4 on SSM exemptions is specific to Region 4's
evaluation of the North Carolina SIP--the policy is not adopted or
applied to any other SIP in Region 4 and does not change or alter the
national policy on SSM established in the 2015 SSM SIP Action. This
action is limited to the North Carolina SIP. Region 4 is simply
reexamining the 2015 SSM SIP Action as it applies to the North Carolina
SIP, including the North Carolina SIP provisions that were the subject
of EPA's finding of substantial inadequacy in that prior action. Region
4 is also reevaluating the interpretation of the Sierra Club decision
and determining that it is not necessary to extend the reach of the
Sierra Club decision to the particular North Carolina SIP provisions at
issue in this action.
As the D.C. Circuit has recently explained, ``[t]he court need look
only to the face of the agency action, not its practical effects, to
determine whether an action is nationally applicable.'' \77\ On its
face, this action is locally applicable because it applies to only a
single state, North Carolina (withdrawing the SIP Call issued to North
Carolina in 2015 and approving the specific North Carolina SIP
provisions in the revision submitted by the State on June 5, 2017).
This action has immediate or legal effect only for and within North
Carolina. If EPA were to rely on the statutory interpretation set forth
in this action in another potential future final Agency action, the
statutory interpretation would be subject to judicial review upon
challenge of that later action.
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\77\ Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. 2019)
(citing Dalton Trucking, 808 F.3d 875, 881 (D.C. Cir. 2015) and Am.
Road & Transp. Builders Ass'n v. EPA, 705 F.3d 453, 456 (D.C. Cir.
2013)).
---------------------------------------------------------------------------
Moreover, EPA's regulations at 40 CFR part 56 contemplate and
establish a process for regional deviation from national policy. Region
4 followed that process and received concurrence from the appropriate
EPA headquarters office for both the proposed action and this final
action. The memoranda documenting this process are available in the
docket for this action. We disagree with commenters' contention that
this action undermines a goal of ensuring uniformity of national issues
of the CAA. We assume that the commenter is referencing section
301(a)(2), which requires EPA to promulgate regulations establishing
general applicable procedures and policies for regions that are
designed, among other things, to ``assure fairness and uniformity in
the criteria, procedures, and policies applied.'' Region 4 followed the
process to deviate from national policy set forth in 40 CFR part 56,
the regulations that EPA promulgated in accordance with CAA section
301(a)(2). Commenters' concern regarding the Agency's general process
for regional deviation from national policy is beyond the scope of this
action.
Under the venue provision of the CAA, an EPA action ``which is
locally or regionally applicable'' may be filed ``only in the United
States Court of Appeals'' covering that area.\78\ The only exception to
this mandate is where the Administrator expressly finds that the
locally or regionally applicable action is based on a determination of
nationwide scope or effect and publishes such a finding. The
requirement that the Administrator find and publish that an otherwise
locally or regionally applicable action is based on a determination of
nationwide scope or effect is an express statutory requirement for
application of this venue exception; this exception has not been and is
not being invoked by EPA in this action. Absent an express statement--
and publication--that such a finding has been made, thus invoking the
venue exception, there can be no application of that exception.\79\ CAA
section 307 expressly provides the Agency full discretion to make its
own determination of whether to exercise an exception to a
Congressionally-dictated venue rule.\80\ Even assuming that a court
could review the lack of such a finding, and lack of publication of
such a finding, in this final action under the Administrative Procedure
Act's arbitrary and capricious standard, the absence of invocation of
the exception is not unreasonable in this case. Commenters assert that
numerous aspects of Region 4's action, including its decision to seek
concurrence to propose an action inconsistent with national policy,
somehow constitutes an admission that such action is based on a
determination of nationwide scope or effect. Commenters are not clear
on how or why taking the step necessary to deviate from nationwide
policy somehow transforms that deviation into nationwide policy. Region
4 lacks the authority to issue a policy beyond the states included in
the Region. In any case, Region 4 states throughout this document that
this action, and the CAA interpretation it is based upon, only applies
in North Carolina and does not alter EPA's national policy.\81\
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\78\ See 42 U.S.C. 7607(b)(1) (emphasis added).
\79\ See, e.g., Lion Oil v. EPA, 792 F.3d 978, 984 n.1 (8th Cir.
2015) (even where EPA, unlike here, made the necessary finding, the
court found no need to decide application of the venue exception
absent publication of that finding); Texas v. EPA, 829 F.3d 405, 419
(5th Cir. 2016) (``This finding is an independent, post hoc,
conclusion by the agency about the nature of the determinations; the
finding is not, itself, the determination.''); Dalton Trucking v.
EPA, 808 F.3d 875 (D.C. Cir. 2015).
\80\ See Texas v. EPA, 829 F.3d at 419-20 (the venue exception
``gives the Administrator the discretion to move venue to the D.C.
Circuit by publishing a finding declaring the Administrator's belief
that the action is based on a determination of nationwide scope or
effect.'') (emphasis added).
\81\ See Am. Road & Transp. Builders Ass'n v. EPA, 705 F.3d 453,
456 (D.C. Cir. 2013) (holding that venue for review of EPA's
approval of revisions to California's SIP lay in the Ninth Circuit
because the approval only applied to projects within California,
even if the SIP could set a precedent for future proceedings).
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The commenters argue that it is appropriate for EPA to find and
publish a finding that an action is based on a determination of
nationwide scope or effect where a regionally applicable action
encompasses multiple judicial circuits. Region 4 does not take a
position on this question here, nor does it need to do so, because as
explained earlier in this document, this final action is limited to
North Carolina, and thus only a single judicial circuit. Although at
proposal Region 4 was contemplating a regionwide policy on SSM
exemption provisions in SIPs, the Region has decided to limit the
deviation from national policy to North Carolina. The final action
being taken herein is limited in scope to approval of a North Carolina
SIP revision and withdrawal of the SIP Call issued to North Carolina.
Region 4 does not agree with commenters' assertion that EPA has
previously directed review of SIP Calls to the D.C. Circuit. We note
that EPA consolidated a single announcement of national policy and
issued 36 individual SIP Calls through a single document in the 2015
SSM SIP Action. However, at other times, individual regions have issued
SIP Calls, which were subsequently reviewed in regional circuits. In
2011, for example, EPA Region 8 made a finding that the Utah SIP was
substantially inadequate to meet CAA requirements. On that basis, EPA
Region 8 issued a SIP Call for Utah, requiring the state to revise its
SIP to change an unavoidable breakdown rule, which exempted emissions
during unavoidable breakdowns from compliance with emission
limitations.\82\ This SIP Call was subsequently reviewed in and upheld
by the U.S.
[[Page 23712]]
Court of Appeals for the Tenth Circuit.\83\ Similarly, EPA Region 8
made a finding that the Montana SIP was substantially inadequate to
attain and maintain the SO2 NAAQS and issued a call for
Montana to submit a SIP revision.\84\ That SIP Call and related actions
were subsequently reviewed in and upheld by the U.S. Court of Appeals
for the Ninth Circuit.\85\
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\82\ See 76 FR 21639 (April 18, 2011).
\83\ US Magnesium v. EPA, 690 F.3d 1157 (10th Cir. 2012).
\84\ See 58 FR 41430 (Aug. 4, 1993).
\85\ Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174 (9th Cir.
2012).
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2. Comments That EPA Lacks the Statutory Authority To Undertake the
Action
Comment 2: Commenters state that, faced with plain statutory
language in section 302(k) and a statutory structure and cross-
references in section 110, EPA may not invent statutory authority where
none exists, nor adopt regulations lacking statutory authority, merely
because EPA believes its approach to be better policy. Commenters state
that agencies need especially clear congressional delegations of
authority to create regulatory exemptions and that the Region 4 (and
Region 6) ``alternative interpretations'' amount to contradictory,
unlawful statutory readings that advance policy preferences. Commenters
add that those policy preferences furnish EPA with no statutory
authority to withdraw the 2015 SSM SIP Call or to approve SIPs or
submissions inconsistent with the SIP Call, plain statutory language,
and the Sierra Club SSM decision.
Commenters state that EPA must reject at least a portion of this
submittal as substantially inadequate because it includes a prohibited
automatic exemption for SSM events at 15A NCAC 2D .1423(g) (``The
emission standards of this Rule shall not apply to . . . start-up and
shut-down periods and periods of malfunction . . . .'').
Commenters state that by proposing to find North Carolina
provisions 15A NCAC 2D .0535(c) and .0535(g) are not substantially
inadequate to meet CAA requirements, EPA proposes an unlawful act that
is beyond the scope of the SIP revision submitted to Region 4.
Commenters allege that because North Carolina's June 5, 2017,
submission to Region 4 makes no revision to its SSM exemptions or any
mention of 15A NCAC 2D .0535, this action would amount to an EPA-
initiated revision of the SIP, which, in addition to EPA's self-
initiated change in regional policy, is not among the actions EPA may
take when presented with a SIP revision. Commenters add that even if
EPA could initiate such an action, EPA would still proceed unlawfully
by purporting to act on a submittal that does meet applicable
completeness requirements because the Agency has received no submittal
or requested revision on to act on 15A NCAC 2D .0535(c) and .0535(g)
and that the submission received does not include 15A NCAC 2D .1423(g)
among the revised subsections of 15A NCAC 2D .1423 submitted for
review. Commenters also contend that part 51 requires that the record
for a SIP revision submittal contain a letter ``from the Governor or
his designee, requesting EPA approval of the plan or revision'' \86\
but that North Carolina's submission is not signed by the governor, and
its signatory, Michael Abraczinskas, gives no indication of acting at
the Governor's request.
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\86\ See 40 CFR part 51, appendix V, 2.1(a).
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Response 2: Rather than inventing statutory authority as
contemplated by the comment, after conducting a searching and thorough
evaluation of the North Carolina SIP and relevant statutory and
regulatory framework, Region 4 is offering an alternative
interpretation to the national policy on SSM outlined in the 2015
action. The U.S. Supreme Court has expressly provided that
administrative agencies may change an interpretation.\87\ Consistent
with the U.S. Supreme Court's decision, in its June 5, 2019, NPRM
Region 4 acknowledged the Agency's prior position, provided statutory
authority for the new interpretation, explained its rationale for the
change and explained why the action taken in this document is the
better policy in this circumstance.\88\ Commenters' disagreement with
the interpretation does not preclude Region 4 from having authority to
change its policy when it has met the required conditions.
---------------------------------------------------------------------------
\87\ See FCC v. Fox Television Stations, Inc., 556 U.S. 502
(2009).
\88\ Id. at 515.
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Region 4 disagrees with commenters' contention that the plain
statutory language of CAA section 302(k) and a statutory structure and
cross-references in section 110 preclude the alternative policy
adopted. Acknowledging that the Agency took a different approach in the
2015 SSM SIP Call Action, for the reasons articulated in Section III of
this final action Region 4 has adopted an alternative policy for the
North Carolina SIP. It is reasonable to interpret the 302(k) definition
of ``emission limitation'' and ``emission standard'' as meaning ``a
requirement . . . which limits the quantity, rate, or concentration of
emissions of air pollutants on a continuous basis'' and account for the
fact that there are numerous source types for which a single limitation
cannot apply at all times for technical reasons. In Sierra Club, the
Court agreed that the Act does not require a single limitation apply at
all times but that some section 112-compliant standard must be
applicable at all times.\89\ In response to the Sierra Club decision's
directive that a single standard need not apply continuously, for many
of the NESHAP, EPA has established numerical emission limits that apply
during full operation but that would be either impractical or
impossible to meet during periods of startup and shutdown and therefore
also established other emission limitations, such as work practice
standards, to apply during periods of startup and shutdown.
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\89\ See 551 F.3d at 1021.
---------------------------------------------------------------------------
Under CAA section 110(a)(2)(A), states are tasked with adopting
``emission limitations and other control measures, means, or techniques
. . . as may be necessary or appropriate to meet the applicable
requirements of this Act'' (emphasis added). States have generally
adopted numerical emission limits that apply to sources during full
operational mode. However, since some source types may not be capable
of complying with such limits during periods of startup and shutdown,
North Carolina has provided for exclusions from the numerical limits
during those events and adopted other mechanisms for minimizing source
emissions instead. As discussed in Section III of this final action,
the North Carolina SIP contains myriad provisions that generally
provide for attainment and maintenance of the NAAQS. Region 4's
evaluation of the North Carolina SIP contributed to determining that it
is appropriate to adopt an alternative policy for North Carolina for
SSM exemption provisions in SIPs. As stated in the June 5, 2019, NPRM
and in this final action, these other mechanisms may include a
combination of general duty provisions, work practice standards, best
management practices, or alternative emission limits, as well as
entirely separate provisions, such as minor source and major source new
source review provisions regulating construction or modification of
stationary sources, that also effectively limit emissions of NAAQS
pollutants at all times, including during any SSM events. For the
reasons articulated in Section III of this document, Region 4 disagrees
that the automatic exemption for SSM events at 15A NCAC 2D
[[Page 23713]]
.1423(g) impacts approvability of the SIP revisions in light of the
protections afforded by the North Carolina SIP as a whole.
The withdrawal of the SIP Call cannot be an unlawful revision to
the North Carolina SIP because this withdrawal does not revise the SIP.
In this action, Region 4 is not taking action to approve 15A NCAC 2D
.0535(c) and .0535(g) into the North Carolina SIP. These provisions
were previously approved by EPA into the North Carolina SIP \90\ and
have not been removed from the North Carolina SIP. In this action,
Region 4 is making a finding that these two provisions are not
substantially inadequate to meet CAA requirements and thus withdrawing
the SIP Call previously issued to North Carolina that directed the
state to provide a SIP revision to address the substantial inadequacy
caused by these provisions. We acknowledge that Region 4's finding with
respect to the adequacy of 15A NCAC 2D .0535(c) and .0535(g) has
changed, but this change, in and of itself, does not constitute a
revision of the SIP. On the basis of this change in interpretation for
the North Carolina SIP, Region 4 is approving a revision to 15A NCAC 2D
.1423 submitted by the state of North Carolina on June 5, 2017, under
CAA 110(k)(3). The SIP revision was initiated by the North Carolina
Division of Air Quality, and therefore this action cannot be construed
as an ``EPA-initiated revision of the SIP.''
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\90\ See 51 FR 32073 (September 9, 1986) and 62 FR 41277 (August
1, 1997), respectively.
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As stated in NC DAQ's June 5, 2017, letter, the State provided
redline/strikeout versions of six rules for the purpose of
administrative review at EPA's request. The letter stated that it had
enclosed ``the revised text for rules .1401, .1403, .1406, .1413,
.1414, and .1423 that we are requesting your review and approval.''
Region 4 agrees with the commenter that, while the submittal includes
the entire text of 15A NCAC 2D .1423, paragraph (g) is not among the
revised subsections of 15A NCAC 2D .1423. However, as indicated in the
NPRM, 15A NCAC 2D .1423(d), which is being revised, includes a
meaningful reference to .1423(g).\91\ Therefore, because paragraph (d)
is, in part, dependent on paragraph (g), it was appropriate for Region
4 to assess the adequacy of paragraph (g) in order to assess whether
the revisions to paragraph (d) were approvable under the CAA. Region
4's resultant review of North Carolina's SIP, including the SIP-called
provisions, 2D .0535(c) and .0535(g), led to the proposal of an SSM
policy for North Carolina that is an alternative to the national SSM
policy but that is still consistent with the requirements of the CAA.
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\91\ See 84 FR at 26040 (``Rule .1423(d)(1) of the State's
current federally approved SIP provides that the owner or operator
of a subject internal combustion engine shall determine compliance
using `a [CEMS] which meets the applicable requirements of
Appendices B and F of 40 CFR part 60, excluding data obtained during
periods specified in Paragraph (g) of this Rule.' . . . Paragraph
(g) of Rule .1423 provides that the emission standards therein do
not apply during periods of `(1) start-up and shut-down periods and
periods of malfunction, not to exceed 36 consecutive hours; (2)
regularly scheduled maintenance activities.' '') (emphasis added).
---------------------------------------------------------------------------
In addition, Region 4 disagrees with the comment that NC DAQ's June
5, 2017, submittal fails to meet the applicable completeness
requirements prescribed under appendix V. Paragraph 1.2 of appendix V
to part 51 provides that if a completeness determination is not made by
six months from receipt of a submittal (which EPA did not for NC DAQ's
June 5, 2017, submittal), the submittal shall be deemed complete by
operation of law on the date six months from receipt. Thus, NC DAQ's
June 5, 2017, has been deemed complete, and EPA must act upon it in
accordance with CAA section 110(k)(2).
Commenters also misinterpret part 51, appendix V, 2.1(a) to require
the signatory on the submittal to be acting at the Governor's request.
This provision requires that a SIP revision submittal include a letter
``from the Governor or his designee, requesting EPA approval of the
plan or revision thereof . . . .'' Thus, the cover letter on a SIP
revision request submitted to EPA must be signed by either the Governor
or the Governor's designee, and a designee is not required to be acting
at the Governor's request on a particular submittal. In this case, the
Director of NC DAQ has been delegated authority to administer the
regulatory provisions of state law relating to air pollution
control.\92\
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\92\ See letter from the Secretary of the North Carolina
Department of Environment and Natural Resources to the Director, NC
DAQ, June 28, 2010, included in the docket for this rulemaking.
---------------------------------------------------------------------------
3. Comments That EPA Has Not Sufficiently Explained Why the
Interpretation of ``emission limitation'' Under Section 110 Might Be
Different From the Interpretation Under Section 112
Comment 3: Commenters assert that EPA should articulate what
meaning it gives ``emission limitation'' under CAA section 110 versus
CAA section 112 and why that alternative interpretation is reasonable.
Commenters suggest that EPA could explain relevant terminology such as
``other control measures, means, or techniques'' in lieu of referring
to the rules at issue as ``emission limitations,'' and point out that
the CAA does not require those other measures to apply continuously as
it does emission limitations.
Commenters state that EPA does not explain how continuous emission
limits are not applicable to CAA section 110 or, therefore, why the
decision related to CAA section 112 in Sierra Club is not applicable to
SIPs. The commenters add that EPA's analysis regarding CAA section 110
versus CAA section 112 and the Sierra Club decision in the June 5,
2019, NPRM restates arguments that were discussed and rejected in the
2015 SSM SIP Call Action.
Other commenters state that EPA is wrong to propose that it may be
reasonable to interpret the concept of continuous ``emission
limitations'' in a SIP to not be focused on implementation of each,
individual limit, but rather whether the approved SIP, as a whole,
operates continuously to ensure attainment and maintenance of the
NAAQS. Commenters argue that the CAA section 302(k)'s definition of
``emission limitation'' and ``emission standard'' applies to those
terms in section 110 SIPs and that the definitions in 42 U.S.C. 7602
are preceded by statutory language noting that the ensuing definitions
apply ``[w]hen used in this chapter,'' that is, across the CAA.
Commenters add that EPA may not construe a statute in a way that
completely nullifies textually applicable provisions meant to limit its
discretion and that the June 5, 2019, NPRM completely ignores statutory
language and the limit on EPA's discretion. Commenters also state that
while EPA correctly notes that ``the court did not make any statement
explicitly applying its holding beyond CAA section 112,'' it did not
need to because, as relevant here, Sierra Club focused on section
302(k), not section 112.
Response 3: Region 4 acknowledges that commenters disagree with the
interpretation offered in the June 5, 2019, NPRM and finalized in the
current action, but the proposed action and this final action contain
extensive explanation supporting the alternative interpretation
regarding the interplay of CAA section 302(k) and CAA section 110 and
why this alternative interpretation is reasonable for the North
Carolina SIP. Region 4 directs commenters to Section III of the June 5,
2019, NPRM and this final action for a thorough explanation of its
interpretation of CAA section 302(k) in the contexts of CAA section 110
compared to CAA section 112.
[[Page 23714]]
As discussed in Section III of the proposed action and of this
final action, Region 4 focused on the flexibility given under section
110, i.e., 110(a)(2)(A), in contrast to section 112. Region 4 noted
that the definition of ``emission limitation'' at CAA section 302(k),
when read in the 110 context, could provide flexibility to states for
providing exemptions at times ``when it is not practicable or necessary
for such limits to apply, so long as the SIP contains other provisions
that remain in effect and ensure the NAAQS are protected.'' \93\ In the
context of CAA section 110, it is reasonable to interpret the term
``emission limitation'' differently from how that term is interpreted
in CAA section 112 because of the distinct purposes and requirements of
the two provisions. CAA section 110 focuses on the attainment and the
maintenance of the NAAQS, which is achieved through numerous
provisions, adopted by the state and applied to sources throughout the
state (or relevant jurisdiction), working together to meet the
statutory requirements. CAA section 112, however, requires an exacting
analysis to establish requirements for the regulation of hazardous air
pollutants (HAP) from specific source categories. CAA section 112
standards only address the regulation of HAP emissions from each
respective source category; they do not address attainment or
maintenance of the NAAQS, nor do they have the benefit of backstops and
overlapping, generally applicable provisions. Further, Region 4
evaluates the SIP comprehensively to determine whether the SIP as a
whole meets the requirement of attaining or maintaining the NAAQS under
subpart A.\94\
---------------------------------------------------------------------------
\93\ See 84 FR at 26035.
\94\ See 84 FR at 26035.
---------------------------------------------------------------------------
The North Carolina SIP includes general SIP provisions and
overlapping planning requirements. In Section IV of the June 5, 2019,
NPRM, as reiterated in Section III of this final action, Region 4 has
identified generally protective provisions (at 15A NCAC 2D .0501(e), 2D
.0510(a), 2D .0511(a), and 2D .0512) as well as specific emission
limitations of the North Carolina SIP where appropriate.
Commenters incorrectly assert that the June 5, 2019, NPRM fails to
explain why continuous emission limitations are not applicable to CAA
section 110 and the rationale for distinguishing the Sierra Club
decision. A thorough explanation of Region 4's interpretation of CAA
section 302(k) in the context of evaluating the North Carolina SIP
pursuant to CAA section 110(a)(2)(A), including a discussion of why the
Sierra Club decision is not applicable in the Section 110 context, is
provided in the June 5, 2019, NPRM at 84 FR at 26034-36, and Region 4
refers the commenter to that explanation, together with the discussion
of this issue included in Section III of this final action.
Regarding commenters' statement that the arguments made in support
of the alternative policy were explicitly discussed and rejected in the
final 2015 SSM SIP Call Action, Region 4 is unable to respond because
commenters did not specifically identify which arguments they are
referencing. In the 2015 SSM SIP Call Action, EPA stated that Sierra
Club supported the policy position outlined in that document, but EPA
did not say that the Sierra Club decision compelled that policy
position. In fact, the 2015 SSM SIP Call Action acknowledged that the
``decision turned, in part, on the specific provisions of section
112.'' \95\ As explained above in the response to Comment 2, the U.S.
Supreme Court has expressly provided that administrative agencies may
change an interpretation.\96\ Consistent with the U.S. Supreme Court's
decision, in its June 5, 2019, NPRM Region 4 acknowledged the Agency's
prior position, provided statutory authority for the new
interpretation, explained its rationale for the change, and explained
why it believes the new interpretation is the better policy in this
circumstance.\97\ Commenters' disagreement with the interpretation does
not preclude Region 4 from having authority to change its policy when
it has met the required conditions.
---------------------------------------------------------------------------
\95\ See 80 FR at 33893.
\96\ See Fox, 556 U.S. 502.
\97\ Id. at 515.
---------------------------------------------------------------------------
Region 4 acknowledges that CAA section 110(a)(2)(A) uses the term
``emission limitation,'' however given how EPA and state agencies have
worked cooperatively to implement CAA section 110, Region 4 does not
concede that the term must be interpreted exactly the same in the
context of CAA section 110 as it was interpreted by the D.C. Circuit in
the context of CAA section 112. A thorough rationale for the
alternative interpretation is included in Section III of the proposed
action and this final action.
Although CAA section 302(k) instructs that an emission limitation
limits the quantity, rate, or concentration of emissions of air
pollutants on a continuous basis, emission limitations are merely one
of numerous measures that can be used by a state to limit emissions
pursuant to CAA section 110(a)(2)(A). While a director may exempt
excess emissions which occurred during a period of startup, shutdown
and malfunction, assuming an appropriate showing has been made by the
source, other ``control measures, means and techniques,'' and
potentially other emission limitations, will continue to apply to the
source.
Region 4 acknowledges the comment that the presumption of
consistent usage dictates that a word or phrase is presumed to bear the
same meaning throughout a text; a material variation in terms suggests
a variation in meaning. Importantly, however, the presumption should be
applied pragmatically, and relevant texts indicate that ``this canon is
particularly defeasible by context.'' \98\ It is appropriate to rely on
the Duke Energy decision for the proposition that the rule of statutory
interpretation calling for words to be defined consistently can be
overcome, depending on context.\99\ Here, that context is particularly
relevant given the different structure and purpose between CAA sections
110 and 112, as described in more detail in Section III of the proposed
action and of this final action.
---------------------------------------------------------------------------
\98\ Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 171 (Thompson/West) (2012).
\99\ See Valerie C. Brannon, Cong. Research Serv., R45153,
Statutory Interpretation: Theories, Tools, and Trends 23 (April 5,
2018) (quoting Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 574
(2007)) (``A given term in the same statute may take on distinct
characters from association with distinct statutory objects calling
for different implementation strategies'').
---------------------------------------------------------------------------
Contrary to commenters' assertion, neither CAA section 110(a)(2)(A)
or 302(k) is ``nullif[ied]'' by Region 4's interpretation in the
context of this SIP action. Rather, Region 4 offers an alternative
interpretation of both provisions, which focuses on the purpose of
SIPs, consistent with CAA section 110, and the concept proffered by CAA
section 302(k), as interpreted by the D.C. Circuit that some standard,
but not necessarily the same standard, apply at all times.\100\
---------------------------------------------------------------------------
\100\ See Sierra Club, 551 F.3d at 1021.
---------------------------------------------------------------------------
Commenters acknowledge that in the Sierra Club decision, ``the
court did not make any statement explicitly applying its holding beyond
CAA section 112.'' However, Region 4 disagrees with the commenters'
characterization that Sierra Club must apply beyond CAA section 112,
since the court consistently referred to ``112-compliant standards''
\101\ and the requirements that ``sources regulated under section 112
meet the strictest standards.'' \102\ It is fair
[[Page 23715]]
for Region 4 to give weight to the language used by the court and to
not expand the decision in this context.
---------------------------------------------------------------------------
\101\ Id. at 1027.
\102\ Id. at 1028.
---------------------------------------------------------------------------
4. Comments That the 302(k) Definition of ``Emission Limits'' and
``Emission Standards'' Requires Continuous Emission Limits and That the
North Carolina SIP Does not Provide Protections That are Equally
Stringent to Continuously Applicable Emission Limits
Comment 4: Commenters generally argue that EPA's June 5, 2019, NPRM
contradicts CAA section 302(k) by allowing ``emission limitations'' to
include automatic and discretionary exemptions for SSM events,
violating the Act's requirement that emission limitations be
``continuous.'' Commenters note that EPA has read CAA section 302(k) to
exclude SSM exemptions from SIPs ``since at least 1982.'' \103\
Commenters, citing Sierra Club, also state that the D.C. Circuit has
held, in a case interpreting the section 302(k) definition of
``emission limitations'' as it appears in the Act's section 112 MACT
standards, that an emission limitation does not apply on a ``continuous
basis'' when it includes SSM exemptions.
---------------------------------------------------------------------------
\103\ See 80 FR 33941/1.
---------------------------------------------------------------------------
Commenters claim that by using a singular, indefinite article--``a
requirement''--Congress also makes clear that ``emissions limitation''
must be a discrete, ongoing requirement, not a ``broad range of
measures . . . targeted toward attainment and maintenance'' of NAAQS
and that CAA 302(k)'s terms apply just as much to emission standards or
limitations a state establishes as part of its SIP as to those EPA
establishes.
Commenters state that automatic and discretionary exemptions
violate the bedrock principles of the Act that SIPs must contain
``enforceable emission limitations'' (CAA section 110(a)(2)(A)), which
must apply on a ``continuous basis'' (CAA section 302(k)). Commenters
add that Congress gave states no authority to relax emission standards
on a temporal basis. Commenters also quote the Court in U.S. Sugar
Corp. v. EPA as stating, ``exempt[ing] periods of malfunction entirely
from the application of the emissions standards . . . is [not]
consistent with the Agency's enabling statutes,'' \104\ and ``EPA had
no option to exclude these unpredictable periods.'' \105\
---------------------------------------------------------------------------
\104\ No. 11-1108, 2016 WL 4056404, at *14 (D.C. Cir. July 29,
2016).
\105\ Id. at *15.
---------------------------------------------------------------------------
Commenters state that even if there are instances where automatic
exemptions from emission limits for SSM events in a SIP do not preclude
attainment and maintenance of the NAAQS, EPA must issue a SIP call if a
state's SIP is substantially inadequate to maintain the NAAQS or
otherwise comply with CAA requirements. Commenters also state that
EPA's broader point about states' discretion is also flawed because the
cases it selectively relies upon hold that SIPs must not only provide
for timely attainment and maintenance of NAAQS but also satisfy CAA
section 110's other general requirements.
Commenters state that in the final SIP call, EPA noted several
cases, including Mich. Dep't of Envtl. Quality v. Browner, 230 F.3d 181
(6th Cir. 2000), and US Magnesium, LLC v. EPA, 690 F.3d 1157 (10th Cir.
2012), where courts upheld EPA action finding that SSM exemptions in
SIPs are inappropriate and point to EPA's prior statement
characterizing these decisions as confirming the requirement for
continuous compliance and prohibiting exemptions for excess emissions
during SSM events.
Commenters state that none of the June 5, 2019, NPRM's policy or
structural arguments about a ``fundamentally different regime'' in
section 110 SIPs grapples with the plain language of CAA section
302(k). Commenters believe Congress expressly requires both emission
standards and emission limitations to apply ``on a continuous basis,''
citing the definition at CAA 302(k), and that EPA is not entitled to
substitute its judgment for the plain intent of Congress. Commenters
state that EPA itself understands that the section 302(k) definition of
``emission limitation'' extends to section 110 SIPs and cite to an
action \106\ in which EPA references that definition to support the
position that an emission limitation is not required to be in numerical
form to qualify as a reasonably available control technology (RACT)
requirement in the Pennsylvania SIP. Commenters add that the relevant
statutory definition is not ``general enough'' to allow EPA to depart
from what Congress has specifically stated that the terms ``emission
limitation'' and ``emission standard'' mean and that the interpretation
EPA proposes has not been made available by the statute. Commenters
also state the requirement for ``continuous'' emission limitations
means that ``temporary, periodic, or limited systems of control'' do
not comply with the Act, citing Sierra Club, 551 F.3d at 1027 (quoting
H.R. Rep. No. 95-294, at 92 (1977), as reprinted in 1977 U.S.C.C.A.N.
1077, 1170).
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\106\ See 84 FR 20274, 20280 (May 9, 2019).
---------------------------------------------------------------------------
Response 4: Commenters cite both to Mich. Dep't of Envtl. Quality
v. Browner \107\ and US Magnesium, LLC v. EPA \108\ and question why
the June 5, 2019, NPRM does not discuss the cases. At the outset,
Region 4 acknowledges the prior policy position cited by the
commenters, and for the reasons discussed thoroughly in the June 5,
2019, NPRM and this final action, Region 4 is adopting an alternative
interpretation with respect to the North Carolina SIP.
---------------------------------------------------------------------------
\107\ See 230 F.3d 181 (6th Cir. 2000).
\108\ See 690 F.3d 1157 (10th Cir. 2012).
---------------------------------------------------------------------------
In MDEQ v. Browner, the Sixth Circuit Court of Appeals deferred to
EPA and found EPA Region 5's disapproval of certain Michigan SIP
provisions which exempted excess SSM emissions in specified
circumstances for the otherwise applicable regulations to be
reasonable.\109\ While the court did find that EPA's action was
reasonable in light of the Agency's existing SSM guidance, the decision
did not squarely speak to the legality of SSM exemptions in SIPs as a
general matter. The court was merely reviewing a challenge to a locally
applicable SIP action undertaken by one EPA regional office and found
that the regional office acted reasonably in disapproving certain
provisions.
---------------------------------------------------------------------------
\109\ See 230 F.3d at 185.
---------------------------------------------------------------------------
In US Magnesium, the petitioner challenged a SIP call issued to
Utah by EPA Region 8 due to an unavoidable breakdown rule included in
the Utah SIP. In its analysis, the Tenth Circuit Court of Appeals
determined that CAA 110(k)(5) is ambiguous, and then evaluated whether
the Region's disapproval action was reasonable.\110\ The court found it
allowable for an EPA regional office to make a determination regarding
the SIP's adequacy based on the Agency's ``understanding of the CAA.''
\111\ Similarly, this action is consistent with the understanding of
the CAA set forth herein. Further, the Tenth Circuit did not fault the
Agency for relying on a policy that had not gone through notice and
comment.\112\ In fact, the alternative policy being adopted by Region 4
and announced in this action went through a public comment process and
the Agency carefully considered all comments received. The Tenth
Circuit deferred to EPA's SIP call as being reasonable because it was
consistent with the Agency's interpretation of the
[[Page 23716]]
CAA at that time, as articulated in the document that accompanied that
action.\113\ While the court acknowledged that EPA's interpretation of
the CAA and application of that interpretation to the Utah SIP were
reasonable, like the Sixth Circuit, the Tenth Circuit did not squarely
rule on the legality of exemption provisions in SIPs. The commenter
also cites to the D.C. Circuit's 2008 Sierra Club decision, however
Region 4 has provided a thorough discussion of that decision in Section
III of the proposed action and this final action.
---------------------------------------------------------------------------
\110\ See 690 F.3d at 1167.
\111\ Id.
\112\ Id.
\113\ Id. at 1170.
---------------------------------------------------------------------------
As discussed in Section III of the June 5, 2019, NPRM and of this
final action, Region 4 is adopting an alternative interpretation of the
interplay between CAA sections 302(k) and 110 which is supported by our
consideration of the generally protective terms and provisions of the
North Carolina SIP. As explained above in the response to Comment 2,
the U.S. Supreme Court has expressly provided that administrative
agencies may change an interpretation.\114\ Commenters' disagreement
with the interpretation does not preclude Region 4 from having
authority to change its policy if it is reasonable to do so.
---------------------------------------------------------------------------
\114\ See Fox, 556 U.S. 502.
---------------------------------------------------------------------------
As discussed in Section III of the June 5, 2019, NPRM and of this
final action, Region 4 disagrees with commenters' interpretation of the
scope of the Sierra Club decision and its application to SIP
provisions. The commenters read CAA section 302(k) too narrowly.
Further, the decision did not speak to the need for a SIP emission
limitation to apply on a ``continuous basis.'' Rather, the Court spoke
only regarding CAA section 112-compliant standards: ``When sections 112
and 302(k) are read together, then, Congress has required that there
must be continuous section 112-compliant standards. The general duty is
not a section 112-compliant standard. . . . Because the general duty is
the only standard that applies during SSM events--and accordingly no
section 112 standard governs these events--the SSM exemption violates
the CAA's requirement that some section 112 standard apply
continuously.'' \115\ Additionally, in Sierra Club, the D.C. Circuit
acknowledged that 302(k) did not necessarily require applying a single
standard continuously.\116\ Commenters' assertion that CAA 302(k)
mandates that SIP must contain emission limits composed of a single
standard that applies continuously is misplaced, impractically narrow,
and inconsistent with the plain words of the Sierra Club decision.
---------------------------------------------------------------------------
\115\ See 551 F.3d at 1027-28 (emphasis added).
\116\ See id. (interpreting CAA sections 302(k) and 112 together
to mean ``that some section 112 standard apply continuously'')
(emphasis added).
---------------------------------------------------------------------------
Contrary to the commenter's allegation, Region 4 is not
``invent[ing]'' statutory authority. Rather, guided by the intent of
the provisions at issue, Region 4 has re-examined existing statutory
authority and considered the merits of an alternative interpretation.
As discussed in Section III of the June 5, 2019, NPRM and this final
rule preamble, the U.S. Supreme Court has instructed that states have
flexibility to ``adopt whatever mix of emission limitations it deems
best suited to its particular situation,'' and the alternative
interpretation adopted in this action reflects that flexibility.\117\
---------------------------------------------------------------------------
\117\ Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79
(1975).
---------------------------------------------------------------------------
Legislative history cited by the commenters (and cited by the D.C.
Circuit) specifically says that provisions of section 106 of the
committee bill are intended ``to overcome the basic objections to
intermittent controls and other dispersion techniques which were
discussed in the background section.'' \118\ The comment
mischaracterizes relevant legislative history. Rather than indicating
that a single emission limitation must apply to a source continuously,
the legislative history indicates that the definition of emission
limitation be implemented through having some constant or continuous
emission reduction measures, but notably does not indicate an intent
for a single discrete measure.\119\
---------------------------------------------------------------------------
\118\ H.R. Rep. No. 95-294, at 94 (1977).
\119\ Id. at 92.
---------------------------------------------------------------------------
Comments regarding the decision in U.S. Sugar Corp. v. EPA are
inapposite because the case was interpreting the Sierra Club decision
and both decisions deal with standards set pursuant to CAA section
112's strict requirements (and U.S. Sugar Corp. also addressed a CAA
section 129 rule which has a standard setting structure more similar to
CAA section 112 than section 110). As discussed in depth in section III
of the June 5, 2019, NPRM and of this final action, in this instance,
it is appropriate to distinguish those decisions from application to
SIPs under CAA section 110.
Further, Region 4 disagrees that the definition in CAA section
302(k) is not general enough to have different meanings in different
contexts, as is explained in the discussion of the Duke Energy decision
in Section III of the June 5, 2019, NPRM and this final action.
As explained in Section III.A., the automatic exemption provisions
in the North Carolina SIP do not relax an existing emission standard
during specified time periods. Rather, Region 4 interprets CAA section
110(a)(2)(A) to mean that a state may provide exemptions from emission
limits, during which times a source may be exempt from the emission
limit, because the SIP contains a set of emission limitations, control
means, or other means or techniques, which apply continuously and,
taken as a whole, meet the requirements of attaining and maintaining
the NAAQS.
Region 4 disagrees that the alternative policy articulated in
Section III of the proposed action and this final action does not
engage with the terms in the definition of emission limitations in CAA
section 302(k). Rather, as explained in the NPRM and this document, the
alternative policy focuses on the purpose and context on the statutory
terms and provisions. Region 4 disagrees with commenters' contention
that the alternative interpretation adopted is contrary to the plain
language of CAA section 302(k). Depending upon context, the concept of
continuity may be applied differently in different situations. For
example, CAA section 402(7) defines the term ``continuous emission
monitoring system'' (CEMS) to mean equipment that provides a permanent
record of emissions and flow ``on a continuous basis.'' Yet CEMS
methods are required to provide such data at periodic intervals, not
for every moment of a unit's operation.\120\
---------------------------------------------------------------------------
\120\ See 40 CFR 60.13(e)(1)-(2), 63.8(c)(4)(i)-(ii) (requiring
the minimum data collection frequency under the NSPS and NESHAP to
be once every 10 seconds for systems measuring opacity and once
every 15 minutes for systems measuring other types of emissions).
---------------------------------------------------------------------------
Regarding rules 15A NCAC 2D .0535(c) and .0535(g), Region 4
disagrees with the commenters' assertion that a potential exemption for
SSM events means the emission limitations themselves are not
continuous. In fact, except for the exemption provided at 15A NCAC 2D
.1423(g) (as discussed elsewhere in this document), the SIP emission
limitations do apply at all times. Although the SIP provides, under 15A
NCAC 2D .0535(c) and .0535(g), that the Director may determine that a
particular instance of excess emissions is not a violation because it
was unavoidable, as demonstrated by the source, this does not mean that
the emission limit in question ceased to apply during the event.
Furthermore,
[[Page 23717]]
the fact that the NC DAQ Director might determine, after an instance of
excess emissions has occurred, that the event was unavoidable and thus
not a violation of a rule is unlikely to lessen a source's efforts to
comply with the standard in the first place. This argument is supported
by the facts that (1) 15A NCAC 2D .0502 requires all sources to be
provided with the ``maximum feasible control,'' which applies at all
times, including periods of startup and shutdown; (2) excess emissions
are generally emission limit violations, and facilities do not know in
advance whether any particular instance will be deemed by the State not
to be a violation, so the prudent course of action would be for sources
to try to avoid or limit any excess emission events; (3) 15A NCAC 2D
.0535(c) requires the Director, in making a malfunction determination,
to consider, among other things, whether all equipment has been
maintained and operated, to the maximum extent practicable, in a manner
consistent with good practice for minimizing emissions; and (4) 15A
NCAC .0535(g) directs facilities, during startup and shutdown, to
operate all equipment in a manner consistent with best practicable air
pollution control practices to minimize emissions and to demonstrate
that excess emissions were unavoidable when requested to do so by the
Director.
Region 4 also disagrees with commenters that the interpretation
Region 4 proposed is not available under the statute. The House Report
language referenced by commenters comes from a section headed as ``2B.
Committee Proposal-Intermittent Controls and Tall Stacks.'' \121\ The
need for ``continuous controls'' is discussed in several places in the
report, but always in the context of intermittent controls, tall
stacks, and other dispersion enhancement techniques.\122\ Thus, it is
reasonable to interpret the phrase ``on a continuous basis'' in 302(k)
as intending to prevent intermittent controls,\123\ tall stacks, and
other dispersion techniques from being used as a means of emissions
control because those techniques do not actually reduce pollutant
emissions. As discussed above, the SSM exemption provisions in the
North Carolina SIP do not actually prevent the applicable limits from
applying continuously, and Region 4's interpretation is consistent with
the intent and language of CAA section 302(k).
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\121\ H.R. Rep. No. 95-294, at 91 (1977) (emphasis added).
\122\ See, e.g., H.R. Rep. No. 95-294, at 6 (1977) (``Continuous
Controls.--The amendments would also affirm the decisions of four
U.S. court of appeals cases that the act requires continuous
emission reduction measures to be applied. Thus, intermittent
control measures (to be applied only in case of adverse weather
conditions), increasing stack heights, or other pollution dispersion
techniques would not be permitted as final compliance strategies.'')
and 190 (``Continuous Reduction--To make clear the committee's
intent that intermittent or supplemental control measures are not
appropriate technological systems for new sources . . ., the
committee adopted language clearly stating that continuous emission
reduction technology would be required to meet the requirements of
this section.'').
\123\ ``Intermittent control'' is a concept in which emissions
are tailored to avoid violating ambient air quality standards under
meteorological conditions that inhibit pollutant dispersion but
without significantly reducing total pollutant emissions. Power
plants could accomplish this, at least in theory, by practices such
as shifting the electrical load to another power plant or using a
temporary supply of low sulfur fuel. See, e.g., EPA, National
Strategy for Control of Sulfur Oxides from Electric Power Plants at
11, (July 10, 1974), included in the docket for this rulemaking.
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The comment regarding the Pennsylvania RACT SIP is beyond the scope
of this action. Region 4's announcement of its alternative policy with
respect to SSM provisions in the North Carolina SIP is limited in scope
to North Carolina and does not impact or govern Region 3's evaluation
of SIPs within that Region's jurisdiction.
5. Comments That the Action is not an Appropriate Use of EPA's Regional
Consistency Process
Comment 5: Commenters state that Region 4's process for the June 5,
2019, NPRM, including the memo for regional consistency and EPA's
accompanying FAQ document, do not support the ability to apply the
alternative policy to the North Carolina SIP or other Region 4 SIPs and
that EPA's action sets a dangerous precedent for approving exceptions
to national consistency. Commenters point out that EPA's national
action disapproved the same SIP provision that Region 4 proposed to
approve using regional guidance. Commenters state that the Region 4
memo request for concurrence and other materials in the rulemaking
docket do not contain any explanation for the basis for the alternative
interpretation and how such an alternative policy could apply in Region
4 while a contrary interpretation would apply to the rest of the
country. Commenters assert that EPA obviously wants to revise its
national policy, and should have to do so at the national level and
address the detailed explanations for the existing policy in so doing.
Commenters also assert that the Regional SIP action implicitly
establishes a new national policy on SSM in SIPs and, ``on the heels''
of the April 29, 2019, Region 6 proposed action in Texas, shows a clear
strategy by EPA to reverse a national policy by using Regional
decisions. Commenters state that it would be nearly impossible to
justify the Regional action overruling the national 2015 SSM SIP call
with respect to regional consistency and that Region 4's alternative
interpretation, combined with the alternative interpretation used in
the Region 6 NPRM, effectively deteriorates national consistency.
Commenters state that the June 5, 2019, NPRM fails to meet the high
bar to justify alternative treatment from other Regions with respect to
SSM. One commenter asks how many states have made changes to SIPs in
response to the SSM SIP call, how many of those revised SIPs EPA has
approved, and what communications EPA has had with states about its
intent to act on pending SIP revisions or entertain further changes
from those states.
Commenters state that Congress has granted EPA no authority to
authorize inconsistent interpretations of the Clean Air Act among
regions based on a signed concurrence memo from Headquarters.
Commenters state that the June 5, 2019, NPRM, and EPA Region 4's
pretense to be acting pursuant to EPA's ``consistency'' regulations, in
fact contradict 40 CFR 56.5(a) by proposing actions that are flatly
inconsistent with the Act and Agency policy. Commenters conclude that
Region 4 cannot use regulations addressing inconsistency with
``national policy'' to license violating the CAA. Commenters state that
the action would open the door to virtually any exception from national
policy on SSM and could therefore lead to increased emissions as well
as unnecessary legal proceedings when exceptions are challenged.
Commenters state that EPA's proposed use of its regional
consistency regulations is both inconsistent with the plain meaning of
those regulations and not entitled to judicial deference under the
Auer-Kisor line of cases and that no deference would prevent a court
from applying the plain meaning of EPA regulations to overturn the
Agency's contrary interpretation. Commenters state that EPA
misinterprets Sec. 56.5(b) as allowing EPA Regions to take actions
that interpret the CAA in a manner inconsistent with national policy
when the Region seeks and obtains concurrence from the relevant EPA
Headquarters office. Commenters state that Region 4 cannot use
regulations addressing inconsistency with ``national policy'' to
license violating the Clean Air Act, contradicting and reversing a
national EPA rulemaking, and contravening the controlling D.C. Circuit
court decision. Commenters
[[Page 23718]]
state that Sec. 56.5(b) is not ambiguous for the purposes of this
action and does not permit EPA to concur with interpretations that
explicitly diverge from the Clean Air Act, a national EPA rulemaking,
and controlling court decision. Commenters state that Sec. 56.5(b)
does not allow regional offices to create inconsistency of their own
accord by approving a SIP that otherwise violates EPA's 2015 SSM SIP
Call. Commenters state that EPA may not simply issue a Sec. 56.5(b)
concurrence for any region that requests it--to contradict plain
statutory language, a national EPA rule, and controlling D.C. Circuit
court decision--as Regions 4 and 6 both have proposed. Commenters also
reference Sec. 56.3(b) as obligating EPA to ``correct[ ]
inconsistencies by standardizing'' the nationally-applicable policies
that must be employed by the EPA regional offices implementing and
enforcing the Act. Commenters conclude that EPA proposes a contrived
application of the regional consistency regulations it hopes will allow
it to undo the 2015 SSM SIP Call and circumvent both national
rulemaking to reverse the SIP Call and national review of this unlawful
action in the D.C. Circuit.
Commenters add that, assuming for the sake of argument that the
June 5, 2019, NPRM could be approved under EPA's consistency
regulations, it would have to proceed under an additional provision, 40
CFR 56.5(c), which EPA has neither invoked nor fulfilled. Commenters
state that ``where proposed regulatory actions involve inconsistent
application of the requirements of the act, the Regional Offices shall
classify such actions as special actions,'' and ``shall follow'' the
Agency's guidelines for processing state implementation plans,
including EPA's guidance document ``State Implementation Plans--
Procedures for Approval/Disapproval Actions,'' OAQPS No. 1.2-005A or
revisions.\124\ Commenters add that compliance with EPA's consistency
regulations and guidance is required to give meaning and effect to
Congress's ``mandate to assure greater consistency among the Regional
Offices in implementing the Act.'' \125\
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\124\ See 40 CFR 56.5(c) (emphasis added).
\125\ See 44 FR 13043, 13045 (March 9, 1979).
---------------------------------------------------------------------------
Commenters also state that, despite an April 29, 2019, letter
captioned ``Regional Consistency Concurrence Request'' and a
``concurrence'' signed by the Director of Air Quality Planning and
Standards, there is no record evidence that EPA has, in fact, complied
with its consistency regulations and mandatory guidance documents in
proposing to exempt North Carolina and the rest of Region 4 from the
national SSM policy and, therefore, EPA cannot lawfully withdraw its
SSM SIP Call for North Carolina or approve the State's previously
submitted plan.
Response 5: Comments challenging EPA's general authority to
authorize inconsistent interpretations of the Clean Air Act among
regions are outside the scope of this action. To the extent commenters
are raising concerns with the action taken by EPA Region 6 concerning
SSM SIP provisions in Texas, that is outside the scope of this action
and Region 4 provides no response.
With respect to the concerns raised regarding this Region 4 action,
which is limited in scope to North Carolina, Region 4 did follow the
procedures outlined in the regional consistency regulations at 40 CFR
56.5(b), both at proposal as explained in the June 5, 2019, NPRM and
acknowledged by commenters, and at final. Specifically, before
proposing this action, the Region 4 Acting Regional Administrator at
the time, Mary S. Walker, sought and received EPA headquarters
concurrence to deviate from the national policy announced in the 2015
SSM SIP Call Action.\126\ Also, before finalizing of this action, the
Region 4 Regional Administrator sought and received EPA headquarters
concurrence to deviate from national policy in this final action.\127\
The commenters allege that Region 4 failed to follow the document
titled ``Revisions to State Implementation Plans--Procedures for
Approval/Disapproval Actions,'' OAQPS No. 1.2-005A, referenced in 40
CFR 56.5(c). That regulation requires the region to follow ``OAQPS No.
1.2-005A, or revision thereof.'' OAQPS No. 1.2-005A is a guideline from
1975; EPA has updated its procedures for approving and disapproving
SIPs many times since then. Region 4 did follow the most recent
iteration of EPA's internal SIP review process for ensuring national
consistency, which is EPA's 2018 SIP Consistency Issues Guide (included
in the docket for this rulemaking).
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\126\ See Document ID No. EPA-R04-OAR-2019-0303-0011, available
at www.regulations.gov.
\127\ The concurrence request memorandum, signed March 19, 2020,
is included in the public docket for this action.
---------------------------------------------------------------------------
The commenters also argue that Region 4 failed to provide
justification for deviating from the national policy outlined in the
2015 SSM SIP Action. Nothing in EPA's regional consistency regulations
or CAA section 301(a)(2) require a justification to underpin regional
deviation from national policy. All that is required by the applicable
regulations is that the region seek EPA headquarters concurrence for
the action it intends to take, when such action deviates from national
policy, and that has been done here. However, EPA's Office of Air and
Radiation did review a draft of this final action and determined that
the circumstances and rationale set forth in this action provide a
reasonable basis to concur on Region 4's deviation from the national
policy outlined in the 2015 SSM SIP Call Action.
Region 4 disagrees with commenters' position that this action is
inconsistent with the regional consistency regulations at 40 CFR 56.5
and with the implication that the Agency has run afoul of 40 CFR 56.3.
The regulations in 40 CFR part 56 promote consistency but also clearly
contemplate that a regional office may seek to deviate from Agency
policy and provides a process and framework for doing so, which Region
4 has followed.\128\ Commenters assertion that Region 4's
interpretation of these regulations is not entitled to deference under
Auer or Kisor is similarly misplaced since Region 4 followed the
process set forth in the regulations. Commenters are reiterating their
concerns regarding the substance of Region 4's alternative policy for
the North Carolina SIP and couching it in a challenge to Region 4's
application of the regulatory provisions at 40 CFR 56.5.
---------------------------------------------------------------------------
\128\ See, e.g., 80 FR 56418, 56420 n.4 (September 18, 2015), 82
FR 3234, 3239 n.10 (January 11, 2017), and 82 FR 24621, 24624 n.7
(May 30, 2017) (citing 40 CFR 56.5(b) consistency requirements in
proposing actions inconsistent with Agency interpretation).
---------------------------------------------------------------------------
Region 4 acknowledges that the 2015 SSM SIP Call Action articulated
a different interpretation of the relevant statutory provisions.
However, as explained in Sections III and IV of the June 5, 2019, NPRM
and Section III of this final action, Region 4 has determined that an
alternative interpretation is warranted for the North Carolina SIP.
This action only outlines an alternative policy that applies to North
Carolina, based on the Agency's evaluation of air quality in North
Carolina and the North Carolina SIP. Region 4 is not, in this action,
establishing an alternative policy for any other states within its
jurisdiction. Application of an alternative policy in any other state
other than North Carolina would require a separate rulemaking action
subject to APA public comment requirements. To the extent the comments
discuss potential Agency actions beyond this action relating to the
North Carolina SIP, or precedent for
[[Page 23719]]
future Agency approaches to actions, such comments are out of scope for
this rulemaking.
The comments that this action reverses a national policy or
establishes a new national policy overstates the scope of this action,
which only announces an alternative policy for analysis of the North
Carolina SIP and does not revise or otherwise alter the national policy
on SSM. Region 4 lacks authority to issue a policy beyond the states
included in the Region. Both the June 5, 2019, NPRM and this action
provide a detailed explanation for the basis for the alternative policy
and this action.
In response to comments that refer to a controlling D.C. Circuit
court decision, Region 4 notes that there is no controlling D.C.
Circuit decision because, as discussed in the June 5, 2019, NPRM and in
Section III of this final action, Sierra Club does not, on its face,
apply to SIPs and actions taken under CAA section 110. Region 4
acknowledges that, if there were a directly controlling decision of the
U.S. Court of Appeals for the D.C. Circuit, Region 4 would be bound by
such a decision pursuant to 40 CFR 56.3(d).
In response to the numerous questions posed by the commenters
regarding actions taken by other states with respect to SSM provisions
and actions taken by EPA with respect to any such state actions, the
present action is a state-specific action and any actions EPA has or
has not taken with respect to SIP submittals from other states in other
regions are not relevant to this action, and Region 4 provides no
response.
6. Comments That EPA Has Not Sufficiently Explained the Rationale
Behind the Action
Comment 6: Commenters generally assert that EPA's explanation for
the proposed action is inadequate and conclusory and fails to meet
Agency standards for decision-making. The commenters claim that EPA has
not explained why the alternative interpretation of SSM policy is
warranted and that EPA's analysis regarding other provisions in the
North Carolina SIP, such as control requirements, maintenance,
limitations on the duration of SSM emissions, and general obligations
to comply with the NAAQS, only restates arguments that were discussed
and dismissed in the 2015 SSM SIP Call. Commenters state that EPA has
not supplied a reasoned analysis of why this change in course is
necessary, why it is especially necessary in Region 4 (and Region 6)
but nowhere else, or even why it might be good policy and that EPA is
therefore acting well outside the zone of deference State Farm and
later cases afford to agencies reversing course in this manner.
Commenters state that EPA has not attempted to show that its prior
conclusions were flawed and that it is arbitrary and capricious for the
Agency to now rely on legal arguments it had exposed as faulty without
explaining why it was wrong to reject those arguments in the first
place. Commenters claim that EPA does not now disavow the policy
arguments it advanced in support of its plain-text reading of the CAA
in the 2015 SSM SIP Call and that EPA has advanced no policy rationale
beyond passing mentions of ``flexibility'' to address why allowing SIPs
to exempt SSM pollution would advance the goals of the CAA, much less
do so better than the status quo. Commenters state that ``[t]he Act's
purpose and policy is to protect air quality and the public welfare,
not to give states or polluters `flexibility' embodied, as here, by
exemptions that do not hold polluters directly accountable for excess
emissions.'' Commenters state that EPA's SSM SIP Call disapproval of
automatic exemptions rested, in part, on the correct conclusion that
even a single emission event could cause a NAAQS violation and that
EPA's reversal of that position is not accompanied by a reasoned
explanation for it.
Commenters add that EPA's new vision of how the Act operates
ignores the history of failures that led to multiple amendments and the
plain statutory requirements of the Act as presently constructed,
stating that Congress's unwillingness to rely on the ``old ends-driven
approach that had proven unsuccessful'' is reflected in the specific
minimum requirements added throughout the 1990 CAA Amendments.
Commenters add that, while EPA is not precluded from adopting a
different approach to venue under the CAA, the Agency must at least
``display awareness that it is changing position'' and ``show that
there are good reasons for the new policy.'' \129\
---------------------------------------------------------------------------
\129\ Fox, 556 U.S. at 515.
---------------------------------------------------------------------------
Response 6: Region 4 disagrees that it has not adequately explained
its rationale for this action. Section III of the proposed action and
this final action, as well as Section IV of the June 5, 2019, NPRM
extensively explain the rationale for this action and why Region 4
believes it is warranted and is the appropriate approach in this
circumstance. Specifically, Section III of the June 5, 2019, NPRM and
this final rule preamble explain that the U.S. Supreme Court has
instructed that states have flexibility to ``adopt whatever mix of
emission limitations it deems best suited to its particular situation''
\130\ and the alternative interpretation adopted in this action
reflects that flexibility. Region 4 does not disagree with the
Commenters' assertion that the purpose of the CAA is to protect air
quality and public welfare.\131\ However, this action does not run
afoul of this purpose for numerous reasons, including that the North
Carolina SIP contains overlapping protective provisions and, as
discussed further in response to Comment 8, the fact that air quality
in North Carolina has continued to improve over the years even though
exemption provisions have been included in the SIP. No areas of North
Carolina are currently designated nonattainment for any NAAQS.\132\
---------------------------------------------------------------------------
\130\ Train, 421 U.S. at 79.
\131\ See 42 U.S.C. 7401(b)(1).
\132\ See https://www3.epa.gov/airquality/greenbook/ancl3.html.
---------------------------------------------------------------------------
EPA has a statutory obligation to approve SIPs that meet all
applicable CAA requirements. Region 4 has evaluated the North Carolina
SIP in light of the alternative SSM policy interpretation set forth in
the proposed and final actions--a policy which as explained above is
consistent with the CAA--and has determined that the submitted SIP
revision meets all applicable CAA requirements. Due, in part, to Region
4's adoption of an alternative policy for the North Carolina SIP,
Region 4 has approved the June 5, 2017, SIP revision before EPA.
Commenters challenge Region 4's deviation from the national policy
without explaining why that national policy is wrong, but commenters
fail to recognize that no such explanation is required. The appropriate
standard for evaluating an agency change in position was set forth in
Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut.
Auto. Ins. Co.\133\ and clarified in FCC v. Fox Television Stations,
Inc.\134\ The Fox Court explained that a change in position does not
require a heightened showing and that an agency ``need not demonstrate
to a court's satisfaction that the reasons for the new policy are
better than the reasons for the old one.'' \135\ Rather, ``it suffices
that the new policy is permissible under the statute, that there are
good reasons for it, and that the agency believes it to be better,
which the conscious change of course adequately indicates.'' \136\
---------------------------------------------------------------------------
\133\ See 463 U.S. 29 (1983).
\134\ See 556 U.S. 502 (2009).
\135\ Id. at 515 (emphasis original).
\136\ Id. (emphasis original).
---------------------------------------------------------------------------
[[Page 23720]]
Region 4's June 5, 2019, NPRM acknowledged this change in position
by explaining the Agency's historical approach with respect to SSM
exemption provisions in SIPs. As articulated in the June 5, 2019, NPRM
and reiterated and expanded on in this final action, Region 4 explains
how this alternative interpretation is consistent with the statutory
text. North Carolina's exemption provisions are reasonably bounded and
provide backstop protections of instructing sources to limit excess
emissions and maintain pollution control equipment in good working
order, among other things. For example, as discussed in more detail in
the June 5, 2019, NPRM, the exemption at 15A NCAC 2D .0535(g) requires
that owners or operators use best available control practices when
operating equipment to minimize emissions during startup and shutdown
periods, and the exemption provided at 15A NCAC 2D .0535(c) outlines
seven criteria that provide additional protections of the NAAQS during
a malfunction by requiring consideration of, among other things,
whether sources have minimized emissions and have limited the extent of
emissions which could occur to the greatest extent practicable and by
prohibiting the Director from excusing excess emissions from a source
due to malfunctions for more than 15 percent of a source's operating
time.
Moreover, North Carolina's SIP includes numerous additional
provisions protecting against NAAQS exceedances or otherwise causing
excess emissions. As discussed in more detail in the proposal, 15A NCAC
2D .0502 requires ``maximum feasible control'' on all sources at all
times, including periods of startup and shutdown; 15A NCAC 2D .0501(e)
directs all sources to operate in a manner that does not cause any
ambient air quality standard to be exceeded at any point beyond the
premises on which the source is located; 15A NCAC 2D .0535(d) requires
utility boilers (and any source with a history of excess emissions, as
determined by the Director) to have a malfunction abatement plan
approved by the Director and identifies the minimum requirements for
such a plan; 15A NCAC 2D .0510(a), 15A NCAC 2D .0511(a), and 15A NCAC
2D .0512 prohibit emissions from sand, gravel, or crushed stone
operations, lightweight aggregate operations and wood products
finishing plants from causing exceedance of ambient air quality
standards beyond facility property lines; 15A NCAC 2D .0521(g), for
sources that operate COMS, prohibits any exempted excess opacity
emissions from causing or contributing to a violation of any emission
state or Federal standard; and the North Carolina Clean Smokestacks Act
(NCCSA), codified at 40 CFR 52.1781(h), limits NOX and
SO2 emissions from coal-fired power plants to utility-wide
caps designed as part of North Carolina's comprehensive plan for
improving air quality in the State. Region 4 also notes that 15A NCAC
2D .0535 (Excess Emissions Reporting and Malfunctions), including the
exemption provisions at 2D .0535(c) and .0535(g), does not apply where
sources are subject to Federal standards.\137\
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\137\ See 15A NCAC 2D .0535(b), which provides that 15A NCAC 2D
.0535 does not apply to sources subject to North Carolina
regulations adopting EPA's NSPS or NESHAP at 40 CFR parts 60, 61 and
63, except where such sources are subject to a SIP provision that is
more stringent than Federal requirements.
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Finally, as previously mentioned, North Carolina currently does not
have any areas designated non-attainment under any NAAQS. Together with
the goal of providing states with adequate flexibility to address air
quality issues, Region 4 has good reason to change the policy position
for North Carolina. Region 4 believes this is the better course of
action in this case and is thus pursuing this change in policy for
North Carolina.
7. Comments That the Notice of Proposed Rulemaking Fails to Demonstrate
Compliance With CAA Section 110(l)
Comment 7: Commenters state that, in the event of a SIP element's
substantial inadequacy, CAA section 110(l) provides that EPA must not
approve a SIP containing that element. Commenters state that EPA has
failed to show compliance with CAA 110(l) and that the June 5, 2019,
NPRM failed to address or even mention it. Commenters also state that
EPA is wrong to point to ``redundancies'' in the North Carolina SIP to
justify its proposed approach because overlapping protections are
deliberately implemented to ensure air quality and public welfare are
robustly protected, not to provide wiggle room for later deregulatory
actions.
Commenters also state that demonstrating compliance with the
national standards is not the sole measure for approval of a SIP
revision. SIPs in nonattainment areas must also ``meet the applicable
requirements of part D.'' In addition, commenters note that CAA
section[thinsp]107(d)(3)(E) provides that EPA cannot redesignate a
nonattainment area as an attainment area unless it finds not only that
the area has attained the NAAQS, but also that ``the State containing
such area has met all [the] requirements applicable to the area under
section 7410 of this title and part D of this subchapter.''
Response 7: Region 4 disagrees that it failed to address or to show
compliance with CAA section 110(l), which provides that ``[t]he
Administrator shall not approve a revision of a plan if the revision
would interfere with an applicable requirement concerning attainment
and reasonable further progress . . . or any other applicable
requirement of this chapter.'' \138\ The decision to withdraw the SIP
Call for the exemption provisions at 15A NCAC 2D .0535(c) and 15A NCAC
2D .0535(g) does not implicate CAA section 110(l) because it does not
constitute a revision to an implementation plan; the provisions were
approved into the North Carolina SIP in 1986 \139\ and 1997,\140\ and
have been in the North Carolina SIP ever since. Additionally, although
Region 4 did not directly cite CAA section 110(l) in the June 5, 2019,
NPRM, we proposed to find that the exemption included in the revised
SIP provision, ``when considered in conjunction with other elements in
the North Carolina SIP, [is] sufficient to provide adequate protection
of the NAAQS'' and to determine that the SIP changes ``are consistent
with CAA requirements.'' \141\ As explained in Section IV of the June
5, 2019, NPRM, that proposed determination was explicitly conditioned
upon adoption of, as well as based upon, the alternative policy
outlined in Section III of the proposed action. The alternative policy
was supported by a number of considerations explained in the proposal,
including that the North Carolina SIP, as a whole, is protective of the
NAAQS. Furthermore, the exemption included in the revised SIP provision
is already in the current North Carolina SIP, and no changes are being
made to that exemption through this action.
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\138\ See 42 U.S.C. 7410(l).
\139\ EPA approved 15A NCAC 2D .0535(c) into the North Carolina
SIP on September 9, 1986 (51 FR 32073).
\140\ EPA approved 15A NCAC 2D .0535(g) into the North Carolina
SIP on August 1, 1997 (62 FR 41277).
\141\ See 84 FR at 26040.
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The comment that EPA cannot redesignate a nonattainment area under
CAA section 107(d)(3)(E) is not within scope for this rulemaking
because EPA is not redesignating any areas previously classified as
nonattainment areas in this action; in addition, we note that North
Carolina does not currently
[[Page 23721]]
have any nonattainment areas for any NAAQS.
8. Comments That Region 4 has not Shown That the North Carolina SIP is
Protective of the NAAQS
Comment 8: Commenters state that if EPA believes each SIP should be
evaluated to determine whether automatic or discretionary SSM
exemptions are compatible with the NAAQS, the risk analysis must be
more direct. EPA must acknowledge the uncertainty around NAAQS
protection given how discretion with subjective terms might be applied.
Commenters claim that EPA should have done an analysis of the sources
in North Carolina and how these exemptions would not impact the State's
ability to attain and maintain the NAAQS and that EPA in fact tried to
obscure an accurate characterization of the risk in the June 5, 2019,
NPRM. Commenters assert that EPA did not provide adequate legal or
technical justification that the SIP is adequate to protect public
health or that it is consistent with the CAA as interpreted in EPA's
national rulemakings (such as the 2015 SSM SIP Call). Commenters state
that the June 5, 2019, NPRM and accompanying supporting documents fail
to provide sufficient analysis on how the North Carolina SIP, even with
the SSM exemptions, ensures protection of the NAAQS or increment or any
other substantive requirement. Commenters also state that EPA's
proposal is not clear on whether there is little risk or no risk that
the NAAQS and Prevention of Significant Deterioration (PSD) increments
will be exceeded in North Carolina as a result of the SIP approval and
withdrawal of the SSM SIP Call.
Commenters also disagree that limiting malfunctions to 15 percent
of a source's operating time, as required by 15A NCAC 2D .0535(f), will
reasonably minimize the risk that excess emissions during these periods
will contribute to NAAQS exceedances or violations. In addition,
regarding an example SIP provision highlighted in the June 5, 2019,
NPRM, commenters assert that annual emissions budgets for electricity
generating units (EGUs) in North Carolina are insufficient constraints
for short-term periods of exempted excess emissions, which could cause
NAAQS exceedances and contribute to violations.
Response 8: The commenters' statements imply that the discretionary
criteria of the North Carolina SSM provisions do not meet the
requirements of the CAA or protect against violations of the NAAQS. To
the extent that commenters may be suggesting that this action must be
supported by a risk analysis, Region 4 notes that risk analysis is a
requirement of CAA section 112, not CAA section 110. For example, CAA
section 112(o) requires the EPA Administrator to conduct a review of
risk assessment methodology used to determine the carcinogenic risk
associated with exposure to hazardous air pollutants. CAA section
112(f) requires EPA to investigate and report on the risks to public
health from sources of hazardous air pollutants that remain, or are
likely to remain, after application of the emission standards
promulgated by EPA under CAA section 112(d). CAA section 110 requires
states to adopt, and EPA to approve, plans for achieving and
maintaining compliance with the NAAQS, but ``risk analysis'' is not a
required element for SIP submissions (under section 110(A)(2) or any
other SIP-related sections). This highlights another difference in
purpose and approach between CAA section 110 and CAA section 112.
Regarding the Commenter's concern about uncertainty around NAAQS
protection given how discretion with subjective terms might be applied,
Region 4 notes that a SIP does not provide complete certainty around
NAAQS protection, regardless of whether it contains SSM exemptions. For
this reason, the Act requires that remedial measures be taken in any
area designated as nonattainment with respect to a NAAQS (CAA section
172(b)) and, if such area fails to make reasonable further progress or
to attain the NAAQS by the date required, the Act requires that
specific contingency measures will take effect automatically (CAA
section 172(c)(9)). Further, given the limitations on the NC DAQ
Director's discretion, as discussed in Section III of this final
action, and the State's responsibility to implement a program that
achieves and maintains compliance with the NAAQS, Region 4 believes the
Director would exercise that discretion in a manner that supports
protection of air quality.
Region 4 assumes the commenter's reference to North Carolina SIP
``provisions that apply to EGUs that are more protective than the
provisions applying to other types of sources'' is to the NCCSA, a
State law which, as noted above and in the proposal, imposes limits on
NOX and SO2 emissions from public utilities
operating coal-fired power plants that may not be met by purchasing
emissions credits.\142\ Those NOX and SO2 limits
were incorporated into the North Carolina SIP \143\ and resulted in
permanent emission reductions that helped nonattainment areas in the
State achieve attainment of the 1997 Annual PM2.5
NAAQS.\144\ Region 4 did not suggest in the June 5, 2019, NPRM that the
NCCSA limits are, per se, totally protective of the short-term NAAQS,
but rather that they serve as some of the several overlapping
requirements that, together, are sufficient to ensure attainment and
maintenance of the NAAQS.\145\
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\142\ See 84 FR at 26038.
\143\ See 76 FR 59250 (September 26, 2011).
\144\ See 76 FR 58210, 58217 (September 20, 2011); 76 FR 59345,
59352 (September 26, 2011).
\145\ See 84 FR at 26037-38.
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As Region 4 has thoroughly explained above in section 6 of the
response to comments, the alternative policy being adopted for North
Carolina conforms with FCC v. Fox Television Stations, Inc., as the
policy ``is permissible under the statute, . . . there are good reasons
for it, and . . . the agency believes it to be better, which the
conscious change of course adequately indicates.'' \146\ Based on
Region 4's analysis of the North Carolina SIP, and for the reasons
articulated in the June 5, 2019, NPRM and this final action, Region 4
is deviating from the policy outlined in the 2015 SSM SIP Action in
this action limited to North Carolina.
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\146\ See 556 U.S. 502, 515 (2009) (emphasis original).
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Region 4 believes that the withdrawal of the SSM SIP call will not
affect North Carolina's ability to attain or maintain the NAAQS, nor
will it affect North Carolina's PSD increments. This is because the SSM
exemption provisions of the SIP, 15A NCAC 2D .0535(c) and 15A NCAC 2D
.0535(g), have been in the approved SIP for many years and are not
being revised by this action and because, as discussed in response to
Comment 10 below, any excess emissions from large internal combustion
engines exempted by 15A NCAC 2D .1423(g) are expected to be a small
fraction of those units' overall emissions. In fact, even with the SSM
exemptions included in the North Carolina SIP, the State currently has
no areas designated nonattainment for any NAAQS.\147\ Moreover,
historic ambient air quality monitoring data collected in the State
show decreasing overall trends in NAAQS pollutant concentrations over
time, as demonstrated in the graphics included in the docket for this
rulemaking.\148\
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\147\ See https://www3.epa.gov/airquality/greenbook/ancl3.html.
\148\ See document titled ``NC NAAQS Trends Figures'' prepared
by Region 4 and included in the docket for this rulemaking.
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[[Page 23722]]
Likewise, Region 4 does not have evidence indicating PSD increments
\149\ will be exceeded in North Carolina as a result of the withdrawal
of the SIP Call. PSD increments are protected in the State in the same
way that the NAAQS are. Further, Region 4 notes that in 2002 EPA
revised the PSD program and clarified that for purposes of determining
emissions from an emissions unit, ``a unit is considered operational
not only during periods of normal operation, but also during periods of
startup, shutdown, maintenance, and malfunction, even if compliance
with a non-PAL emission limitation is excused during these latter
periods.'' \150\ The rulemaking added new provisions that specifically
require consideration of emissions during SSM events in PSD
construction projects.\151\
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\149\ PSD is the federally required pre-construction permitting
program that applies to new major sources or major modifications at
existing sources for pollutants in areas that are not designated as
nonattainment with the NAAQS. The PSD increment is the amount that
the ambient pollutant concentration is allowed to increase in an
area to allow for economic growth but also prevent the air quality
from deteriorating to the level set by the NAAQS.
\150\ See 67 FR 80186, 80213 (December 31, 2002).
\151\ For example, the definitions of ``baseline actual
emissions'' (the average annual rate that a unit actually emitted a
relevant pollutant in recent years) and ``projected actual
emissions'' (the maximum annual rate at which an existing emission
unit is projected to emit the relevant pollutant after modification)
require the inclusion of ``emissions associated with startups,
shutdowns, and malfunctions.'' See 40 CFR 51.166(b)(40)(ii)(b),
(b)(47)(i)(a), and (b)(47)(ii)(a).
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Region 4 disagrees with the commenter's criticism of the Agency's
recognition of the restriction on the amount of time a source may be
deemed to have experienced a malfunction and believes that limiting
malfunctions to 15 percent of a source's operating time per year
establishes a reasonable constraint on the Director's exercise of
discretion pursuant to 15A NCAC 2D .0535. Further, evidence that North
Carolina is not currently designated nonattainment for any NAAQS
indicates that the SIP, as a whole, is ensuring attainment and
maintenance of the NAAQS and that the SSM exemption provisions are
appropriately bounded and are not a source of nonattainment issues in
the State.
9. Comments That the Provisions Relied Upon are not Practicably or
Legally Enforceable
Comment 9: Commenters state that in the pending D.C. Circuit
litigation in Walter Coke Inc. v. EPA, No. 15-1166, Petitioners have
argued that exempting SSM events from numerical limits is appropriate
and lawful because ``general duty'' SIP provisions provide continuous
control during all modes of source operation. Commenters argue that not
only do such generic provisions fail to meet the level of control
required by the applicable stringency requirements, such as reasonably
available control technology in nonattainment areas, best available
control technology for certain sources in attainment areas, and best
available retrofit technology for sources impacting regional haze, but
also that general duty provisions are not legally or practically
enforceable, as required by the Act. Commenters state that EPA is also
wrong to claim that SIP provisions are approvable so long as they do
not preclude attainment of the NAAQS and a ``general duty'' provision
remains in effect.
Commenters state that, as part of the enforcement scheme, the CAA
provides for citizens to have easy access to courts to improve the
efficacy of the protections established under it, but that Congress
carefully cabined citizen suits to violations of clear standards,
requiring plaintiffs to allege a violation of ``a specific strategy or
commitment in the SIP.'' Commenters argue that since general duty
provisions are not quantifiable or objective, they run afoul of these
limitations and thus conflict with congressional intent that citizens
be able to enforce emission limitations contained in SIPs. Commenters
state that because courts refuse to enforce unquantifiable CAA
standards, attempts to enforce general duty and other work practice
provisions in SIPs have been unsuccessful, thus concluding that vague
and unenforceable general duty provisions are no substitute for
continuous emission limitations that apply during all phases of
operation.
Commenters state that Sierra Club broadly rejects EPA's proposal
that SSM exemptions are allowable because a continuous ``general duty''
would satisfy section 302(k)'s continuity requirement that some section
112 standard apply continuously. Commenters also state that Sierra
Club's holding relied on a determination that the general duty
provision (or other general guarantees) may not satisfy 302(k)'s
continuity requirement, which is the argument EPA made in proposal.
Response 9: Commenters' references to the Sierra Club court's
interpretation of general duty provisions is inapposite. As discussed
in Section III of both the proposal and this final action, the court in
Sierra Club was explicitly evaluating whether a general duty provision
met the strict framework of CAA section 112. As quoted by the
commenters, the court specifically stated that ``[t]he general duty is
not a section 112-compliant standard.'' \152\ As discussed in the
proposal and above, on its face, the Sierra Club decision is limited to
CAA section 112 and does not extend to CAA section 110. Therefore,
commenters' citation to the Sierra Club decision with respect to
general duty provisions does not govern this action taken pursuant to
CAA section 110.
---------------------------------------------------------------------------
\152\ Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. Cir. 2008).
---------------------------------------------------------------------------
Region 4 disagrees with commenters' contention that general duty
provisions are, writ large, not legally or practicably enforceable.
Region 4 acknowledges that in some instances general duty provisions
may present unique enforcement challenges; that alone does not mandate
a conclusion that such provisions are wholesale unenforceable. The
interpretation advanced in this document does not preclude citizens or
the United States from enforcing SIP provisions, as appropriate. Region
4 disagrees with commenters' narrow characterization of its position
being that a SIP provision is approvable provided a general duty
provision serves as a backstop. This interpretation oversimplifies the
alternative policy. As articulated in Sections III and IV of the
proposal and Section III of this final action, the alternative policy
is predicated on a holistic evaluation of the North Carolina SIP. While
the NPRM identifies numerous general duty provisions that serve as
backstops ensuring NAAQS attainment and maintenance, those are not
necessarily the only considerations contributing to our determination
that it is appropriate to withdraw the SIP call previously issued to
North Carolina.
Contrary to commenters' assertion, Region 4 does not advocate
general duty provisions ``substituting'' for continuous emission
limitations. Rather, the alternative policy provides that the North
Carolina SIP may contain SSM exemption provisions because the SIP, as a
whole, is protective of the NAAQS. One component of protection is that
the SIP includes general duty provisions. However, as discussed in the
proposal and above, the analysis does not end there. North Carolina's
SIP includes numerous additional provisions protecting against NAAQS
exceedances or otherwise causing excess emissions.
10. Comments on Environmental and Health Impacts
Comment 10: Commenters state that reinstating North Carolina's
automatic exemptions for SSM emission events would be a ``free pass to
pollute with impunity.'' Commenters state that so long as excess
emissions from SSM
[[Page 23723]]
events escape regulation, polluters have little incentive to invest in
fixing known plant issues or improving the equipment necessary to avoid
breakdowns and reduce the need for ``unscheduled maintenance'' because
they know they will not face consequences for illegal pollution
released during these events, which is a problem because emission
events and pollution released during ``unauthorized maintenance'' is a
major threat to public health and the environment. Commenters also
state that allowing excess emissions from SSM events to escape
regulation would undermine North Carolina's obligations to protect and
maintain safe air quality, both within the state and for downwind
neighbors.
Commenters state that approval of the North Carolina SIP revision
would ``sanction emissions of potentially substantial amounts of
unhealthy air pollution'' which would be emitted during periods of SSM
in amounts that cannot be determined in advance and therefore cannot
assure protection of the NAAQS. Commenters claim that SSM events
release ``huge amounts'' of pollution that can cause exceedances and
violations of the NAAQS and cite to an example in which ``one known
event released 165,000 pounds of sulfur dioxide.''
Commenters claim that reviving SSM exemptions in North Carolina and
in Region 4 would frustrate the attainment efforts of nearby states and
regions along the east coast, particularly in the ozone and
SO2 nonattainment zones around Washington, DC, and Baltimore
and surrounding counties in Virginia and Maryland. Commenters also
state that Sullivan County, Tennessee, near the North Carolina border,
is currently also a nonattainment area for SO2 and that
North Carolina itself has consistently faced pollution from neighboring
states, and that Mecklenburg County, North Carolina, is close to
violation of the 2015 ozone standard.
Commenters state that EPA's approval of attainment and maintenance
plans for certain NAAQS did not consider excess emissions that may
occur and that, for some pollutants, approval of the plan relied on a
monitoring network that did not cover the land area of the state.
Commenters also state that, because of the limited air quality
monitoring network, violations of the NAAQS may escape official notice,
but the harmful effects of SSM events nonetheless burden the
neighboring communities.
Commenters note that a study, provided as an attachment to the
comments,\153\ provides information about the frequency and magnitude
of excess emissions in the State of Texas and claim that SSM emissions
can undermine CAA protections if state rules exclude them from
regulation. Commenters state that neither EPA nor North Carolina has
done any analysis to evaluate the extent of excess emissions that could
be authorized by the SIP revision. Commenters state that exempting SSM
events from regulation threatens not only maintenance of those
standards (as discussed above) but also human lives by allowing high
concentrations of deadly fine particulate matter to form. Commenters
also state that the Act's requirement for continuously enforceable
emission limitations is vitally important for protecting public health.
In support of this statement commenters quote a 2016 EPA brief in
litigation regarding the 2015 SSM SIP Call,\154\ which quotes the 2015
action,\155\ which quotes the House Report on the 1977 CAA Amendments
as stating, ``Without an enforceable emission limitation which will be
complied with at all times, there can be no assurance that ambient
standards will be attained and maintained.'' \156\
---------------------------------------------------------------------------
\153\ The study, titled ``The health consequences of weak
regulation: Evidence from excess emissions in Texas,'' appears to be
an unpublished document downloaded from the internet at https://www.ssrn.com/index.cfm/en/.
\154\ Walter Coke Inc. v. EPA, No. 15-1166 (and consolidated
cases) (D.C. Cir.).
\155\ See 80 FR at 33901.
\156\ H.R. Rep. No. 95-294, at 92 (1977).
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Commenters also note that in EPA's 2015 action, it acknowledged it
was particularly concerned about the potential for serious adverse
consequences for public health in the interim period during which
states, EPA and sources were to make adjustments to rectify deficient
SIP provisions and take steps to improve source compliance. Commenters
state that EPA has not explained in this rulemaking why those concerns
are no longer justified or relevant to this action and that EPA has not
addressed or even mentioned the health effects of the action in
qualitative or quantitative terms.
Response 10: Region 4 clarifies that no provisions are being
reinstated into the North Carolina SIP. In this action, Region 4 is
approving changes to existing rule 15A NCAC 2D .1423, as requested by
North Carolina. The State's provisions that were subject to the SSM SIP
Call, 15A NCAC 2D .0535(c) and .0535(g), were approved by EPA on
September 9, 1986,\157\ and on August 1, 1997,\158\ respectively, and
have never been removed from the SIP. Withdrawal of the SSM SIP Call
for North Carolina only means that the State is not required to provide
a SIP revision responsive to the SIP Call for 15A NCAC 2D .0535(c) and
.0535(g).
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\157\ See 51 FR 32073.
\158\ See 62 FR 41277.
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Region 4 disagrees with the comment that these rules provide
sources throughout Region 4 a ``free pass to pollute with impunity.''
As an initial matter, this action is limited in scope to the North
Carolina SIP and does not cover sources throughout Region 4.
Additionally, as discussed in the June 5, 2019, NPRM, 15A NCAC 2D
.0535(c) and .0535(g) themselves (and other provisions of the SIP)
direct sources, to the extent practicable, to minimize emissions at all
times, including periods of SSM. These rules also provide that only
excess emissions that were unavoidable by the source may be considered
not to be violations of applicable rules. Under 15A NCAC 2D .0535(c),
excess emissions that occur at any time other than a period of startup
or shutdown are violations of the applicable SIP limit unless the owner
or operator demonstrates, to the degree required by the Director's
judgment, that the emissions are the result of a malfunction (i.e.,
unavoidable failure of air pollution control equipment, process
equipment, or process, as defined at 15A NCAC 2D .0535(a)(2)). To
determine whether excess emissions are the result of a malfunction, the
Director shall consider, among other factors listed in the rule,
whether the air cleaning device, process equipment, or process have
been maintained and operated, to the maximum extent practicable, in a
manner consistent with good practice for minimizing emissions. Thus, a
determination by the Director that these criteria have not been met
would mean that excess emissions are not the result of a malfunction
and, therefore, are a violation of the appropriate rule.
Likewise, 15A NCAC 2D .0535(g) requires that excess emissions that
occur during periods of startup and shutdown are violations of the
appropriate rule if the owner or operator cannot demonstrate that the
emissions were unavoidable, when requested by the Director to do so.
Any determination by the Director that the owner or operator has not,
to the extent practicable, operated the source and any associated air
pollution control equipment or monitoring equipment in a manner
consistent with best practicable air pollution control practices to
minimize emissions during
[[Page 23724]]
startup or shutdown would mean that any excess emissions are a
violation of the appropriate rule.
Commenters' statements are unclear as to what is meant by the terms
``unscheduled maintenance'' and ``unauthorized maintenance.''
``Maintenance'' may be defined as the work of keeping something in a
suitable condition \159\ and therefore consists of normal, periodic
equipment upkeep activities that help to prevent equipment failures.
Region 4 understands the commenters' intent to be that if SSM events
are unregulated, sources lack incentive to maintain their equipment or
improve emission controls. The comment seems to presume, without
evidence, that source owners and operators conduct their processes and
operate their facilities with reckless disregard for the environment
and without regard for other SIP provisions requiring control of
emissions and protection of the NAAQS, as discussed above. Region 4 is
not aware of reasons to suspect this to be the case. Region 4 disagrees
with the commenters' conclusion that sources will not face consequences
for illegal pollution released during SSM events. As described above,
SSM events that result from a failure to address known plant issues or
conduct routine maintenance would likely not meet the criteria outlined
for the Director's consideration regarding when excess emissions are
not considered a violation.
---------------------------------------------------------------------------
\159\ See Webster's II New Riverside University Dictionary 717
(Anne H. Soukhanov, Senior Editor, The Riverside Publishing Company,
1984) (defining ``maintenance'').
---------------------------------------------------------------------------
Region 4 also notes that the action approving 15A NCAC 2D .0535(c)
into the North Carolina SIP specifically stated that EPA retains
authority to pursue enforcement of any particular case: ``it should be
noted that EPA is not approving in advance any determination made by
the State under paragraph (c) of the rule, that a source's excess
emissions during a malfunction were avoidable and excusable, but rather
is approving the procedures and criteria set out in paragraph (c).
Thus, EPA retains its authority to independently determine whether an
enforcement action is appropriate in any particular case.'' \160\
Moreover, North Carolina has already stated its position that
``[n]othing in the existing SIP provisions prohibits or restricts in
any way the ability of the EPA and/or a citizen to file an action in
federal court seeking enforcement of the SIP provisions.'' \161\
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\160\ See 51 FR 32073, 32074 (September 9, 1986.)
\161\ Letter from Sheila C. Holman, Director, NC DAQ, to EPA,
May 13, 2013, page 3, Docket ID No. EPA-HQ-OAR-2012-0322-0619,
available at www.regulations.gov.
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As described in the preceding paragraphs, Region 4 disagrees that
15A NCAC 2D .0535(c) and .0535(g) allow pollutant emissions to escape
regulation and that the State's implementation plan lacks regulatory
incentive for sources to maintain their equipment and upgrade emission
controls when possible. Further, regular source maintenance activities
are essential to avoiding excess emision events and are incentivized by
the regulatory requirements to submit excess emission reports under 15A
NCAC 2D .0535(f), which provides that all instances of excess emissions
which last for more than four hours, regardless of whether due to
malfunction or any other abnormal condition, must be communicated to
the Director or designee within 24 hours of the occurrence. The SIP
does not automatically require such reports for excess emission events
lasting less than four hours; however, 15A NCAC 2D .0605 requires that
all monitoring records be retained by the owner or operator and made
available for inspection for a period of two years. In addition, all
sources subject to the title V permitting program, including all major
sources of pollutants subject to regulation, must submit to the State
semiannual monitoring reports and annual compliance certifications that
clearly identify all instances of deviations from permit
requirements.\162\
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\162\ See 15A NCAC 2Q .0508(f), .0508(n); 40 CFR
70.6(a)(3)(iii), (c)(5)(iii)(C).
---------------------------------------------------------------------------
The SIP revision being approved through this action is limited to
15A NCAC 2D .1423, the State's rule regulating emissions of
NOX from ``large internal combustion engines.'' North
Carolina's June 5, 2017, SIP revision includes several changes to this
rule. Among the provisions being revised is 15A NCAC.1423(d)(1),
``Compliance determination and monitoring.'' North Carolina modified
15A NCAC.1423(d)(1) to ensure that CEMS data used for determination of
compliance with this rule meet applicable SIP requirements as well as
Federal requirements. Section 2D .1423(d)(1) of the State's current
federally-approved SIP provides that the owner or operator of a subject
internal combustion engine shall determine compliance using ``a [CEMS]
which meets the applicable requirements of Appendices B and F of 40 CFR
part 60, excluding data obtained during periods specified in Paragraph
(g) of this Rule.'' \163\ Paragraph (g) of Section 2D .1423, which is
already included in the current federally approved SIP, provides that
the emission standards therein do not apply during periods of ``(1)
start-up and shut-down periods and periods of malfunction, not to
exceed 36 consecutive hours; (2) regularly scheduled maintenance
activities.'' As proposed in Section IV of the NPRM, Region 4 finds
that the provisions of 15A NCAC 2D .1423(g), when considered in
conjunction with other elements in the North Carolina SIP, are
sufficient to provide adequate protection of the NAAQS \164\ and that
the exclusion of emission standards during periods of SSM and regularly
scheduled maintenance activities will not have any adverse impact on
air quality. Indeed, 15A NCAC 2D .1423, including paragraph (g)
thereof, has been in the federally-approved North Carolina SIP for
seventeen years,\165\ and there is no evidence that it has caused or
contributed to any interference with attainment or maintenance of the
NAAQS. Certainly, North Carolina's adoption of 15A NCAC 2D .1423, which
required significant reductions in NOX emissions from large
internal combustion engines, was a SIP strengthening measure even
though the State chose not to apply its limits during SSM events and
scheduled maintenance activities. In fact, Region 4 notes that much of
the text of 15A NCAC 2D .1423, including paragraph (g), is the same as
the text of part of a FIP that EPA proposed but did not need to
finalize in order to meet NOX SIP call emission
budgets.\166\ In other words, EPA itself proposed the same SSM and
maintenance exemptions for NOX emissions from stationary
reciprocating internal combustion engines in 1998 that North Carolina
adopted in 2002.
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\163\ The rule revision inserts ``and .1404 of this Section''
following the word ``Rule'' in this text to ensure that the CEMS
used to obtain compliance data must meet the applicable requirements
specified in Rule .1404 (in particular, Paragraphs (d)(2) and (f)(2)
of Rule .1404) as well as the applicable part 60 requirements since
those provisions specify additional Federal requirements for
obtaining CEMS data.
\164\ North Carolina has bounded the time during which a source
can employ this exemption, minimizing the potential that any excess
emissions during these periods would cause or contribute to a NAAQS
exceedance or violation. Therefore, the exemption, which allows for
emission standards of the rule to not apply during periods of
startup, shutdown, and malfunction of up to 36 consecutive hours, or
maintenance, is not inconsistent with the requirements of the CAA
section 110.
\165\ See 67 FR 78987 (December 27, 2002).
\166\ See 63 FR 56394, 56427 (October 21, 1998).
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Furthermore, Region 4 observes that numerical emission limits
generally cannot be enforced during internal combustion engine startup
because measurement of emissions from this type of unit during startup
is technically infeasible using currently available field
[[Page 23725]]
testing procedures.\167\ In addition, internal combustion engines start
up rapidly, typically requiring about 15 minutes to 30 minutes of
operation for the emission control systems to reach an effective
operating temperature.\168\ Likewise, because internal combustion
engines are typically shut down in a matter of minutes,\169\ emissions
during shutdown are also a minor contribution to overall emissions.
Regarding malfunctions, Region 4's understanding is that any
malfunctions by internal combustion engines generally will not cause
violations of applicable emission standards because in most cases these
units shut down immediately or with very little delay.\170\ Maintenance
activities are required to ensure units operate at peak efficiency
during normal operation and that the potential for equipment failure is
minimized. Region 4 is aware of no reason to expect that regular
maintenance activities might cause increased pollutant emission rates.
In conclusion, far from sanctioning unhealthy air emissions as claimed
by commenters, North Carolina's exclusion of periods of SSM and
regularly scheduled maintenance from the emissions standards of 15A
NCAC 2D .1423 is appropriate because internal combustion engine
emissions cannot be accurately measured during such events and because
such events comprise a small fraction of overall unit operating time.
The existing rule, as revised, illustrates a practice on the part of
North Carolina of making informed, reasonable choices, based on
knowledge of the sources they regulate, when developing SIP
requirements and is consistent with the State's overall plan for
improving air quality. Consistent with the U.S. Supreme Court's
direction in Train, Region 4 finds that North Carolina can determine
whatever mix of emission limitations it deems best suited for a
situation, and Region 4 is approving the SIP revision after finding it
complies with the CAA.\171\
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\167\ See, e.g., 75 FR 9648, 9665-66 (March 3, 2010) and 75 FR
51570, 51576-77 (August 20, 2010).
\168\ See, e.g., 74 FR 9698, 9710 (March 5, 2009).
\169\ Id.
\170\ Id.
\171\ Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79
(1975).
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Region 4 also disagrees with the comment that SSM exemptions in the
North Carolina SIP would frustrate the ozone and SO2
attainment efforts of nearby states. First, as discussed in the
proposal and elsewhere in this final action, the North Carolina SIP
contains numerous provisions that work in concert and provide
redundancy to protect against a NAAQS exceedance or violation, even if
an SSM exemption provision also applies. Therefore, Region 4 has
concluded that it is reasonable for the NC DAQ Director to be able to
exclude qualifying periods of excess emissions during periods of SSM
without posing a significant risk to attainment or maintenance of the
NAAQS. Based on the same rationale, these same provisions of the
State's implementation plan help protect against contribution to air
quality issues outside the State as well. Second, as discussed below,
commenters provide no support for their assertions regarding the
significance of pollutant emissions during any SSM events in North
Carolina and the contribution of those emissions to downwind air
quality issues.
Regarding the specific concerns raised by the commenter regarding
ozone nonattainment in neighboring states, EPA's recent transport
analyses have demonstrated that emissions from North Carolina do not
significantly contribute to nonattainment or interfere with maintenance
of the ozone NAAQS in downwind states. In the 2011 Cross-State Air
Pollution Rule (CSAPR), EPA determined that emissions from North
Carolina were not linked, and therefore did not contribute, to any
downwind nonattainment receptors (i.e., ambient air quality monitoring
sites) and were linked to two downwind maintenance receptors for the
1997 8-hour ozone NAAQS in its 2012 analytic year.\172\ However, EPA's
analysis in a subsequent action on remand from the D.C. Circuit
demonstrated that those air quality problems would be resolved in 2017
and thus that North Carolina would no longer interfere with maintenance
of the 1997 ozone NAAQS at these receptors.\173\ Moreover, in the 2016
CSAPR Update, EPA determined that North Carolina does not contribute
significantly to nonattainment in, or interfere with maintenance by,
any other state with respect to the 2008 ozone NAAQS because the
State's impact on downwind receptors was well below the threshold used
to identify contributing states.\174\
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\172\ See 76 FR 48208, Tables V.D-8 and V.D-9 (August 8, 2011).
\173\ See 81 FR 74504, 74523-524 (October 26, 2016).
\174\ See 81 FR 74504, 74506, 74537, Table V.E-1 (October 26,
2016).
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Regarding the concerns raised by the commenter regarding
SO2 nonattainment in neighboring states, North Carolina does
not currently have any nonattainment areas, as noted earlier in this
document, and commenters provide no specific support for their
assertion that SO2 emissions from North Carolina have an
impact on SO2 attainment issues in downwind states that
would be impacted by the provisions being approved into the SIP.
Because emissions of this pollutant are transformed in the atmosphere
into fine particles (i.e., PM2.5) relatively quickly,\175\
violations of the SO2 NAAQS are generally found in areas
having sources that emit SO2 in quantities large enough,
prior to transformation into fine particles, to cause issues in the
local area.
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\175\ For example, in SO2 transport analyses, EPA
focuses on a 50 km-wide zone because the physical properties of
SO2 result in relatively localized pollutant impacts near
an emissions source that drop off with distance. See, e.g., 84 FR
72278, 72280 (December 31, 2019).
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Regarding commenters' statement that Sullivan County, Tennessee,
near the North Carolina border, is a nonattainment area for
SO2, the commenters have not explained how this action may
lead to relevant emissions increases in North Carolina likely to affect
this area. The primary SO2-emitting point source located
within the Sullivan County SO2 nonattainment area (Sullivan
County Area) is the Eastman Chemical Company.\176\ The Sullivan County
Area consists of that portion of Sullivan County encompassing a circle
having its center at this facility's B-253 power house and having a 3-
kilometer radius.\177\ North Carolina, on the other hand, has no large
sources of SO2 emissions within 50 km of the Sullivan County
Area. Accordingly, the commenters have not identified any sources of
emissions in North Carolina likely to increase as a result of this
action which would impact the Sullivan County Area.
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\176\ See Technical Support Document (TSD), Tennessee Area
Designations For the 2010 SO2 Primary National Ambient
Air Quality Standard, at 8-10, available at https://www.epa.gov/sites/production/files/2016-03/documents/tn-tsd.pdf and in EPA's
docket for the Round 1 Air Quality Designations for the 2010 Sulfur
Dioxide (SO2) Primary National Ambient Air Quality
Standard, 78 FR 47191 (August 5, 2013).
\177\ See 40 CFR 81.343.
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In response to commenters' concern that Mecklenburg County, North
Carolina, is close to violation of the 2015 ozone NAAQS, Region 4 notes
that Mecklenburg County has not violated the 2015 ozone NAAQS. For
North Carolina, in 2012 only the Charlotte-Rock Hill Area (which
includes Mecklenburg County) was designated nonattainment for the 2008
ozone standard of 75 parts per billion (ppb). In 2015, this Area was
redesignated to attainment for that standard. In 2017, the entire State
was designated attainment/unclassifiable for the more protective 2015
ozone standard of 70
[[Page 23726]]
ppb.\178\ Region 4 has recently reviewed preliminary data which
indicates the Charlotte-Rock Hill Area will likely still be attaining
the 2015 ozone NAAQS when the 2019 data are certified. While commenters
are correct that ozone concentrations in the Area are near the 2015
ozone standard, this is expected to be due primarily to meteorological
conditions (hotter summers) over the past two years and other factors,
such as increasing mobile emissions. Any increases in ozone design
values in North Carolina cannot reasonably be attributed to SSM
exemptions in 15A NCAC 2D .0535(c) and .0535(g) because those
provisions have been in the SIP for many years and thus have not been a
source of change since that time.
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\178\ In 2015 EPA revised the primary and secondary levels of
the ozone standard to 0.070 parts per million to provide increased
public health and welfare protection for the reasons described in
the final published action. See 80 FR 65292 (October 26, 2015).
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In response to comments that EPA's approval of attainment and
maintenance plans for certain NAAQS did not consider excess emissions
that may occur, Region 4 agrees that it had no reason to suspect that
excess emissions exempted under Rules 2D .0535(c), 2D .0535(g) and 2D
.1423(g) would be frequent enough or of great enough magnitude to
prevent approval of those plans, and commenters have provided no such
evidence either in this action or in our prior actions approving those
attainment and maintenance plans. North Carolina has an ambient
monitoring network plan that meets or exceeds the requirements of 40
CFR part 58 and is subject to public comment, with the objective of
long-term assessment of air quality. To operate monitors that measure
air pollutant concentrations over the entire State would not be
feasible.
The State evaluates whether excess emissions qualify for the
exemptions outlined in 15A NCAC 2D .0535(c). For example, over the 5-
year period 2015-2019, Region 4 has received information from North
Carolina indicating 26 malfunction determinations were made by the
State.\179\ Six of those determinations were made on demonstrations
that facilities were required to submit, in accordance with 15A NCAC 2D
.0535(f), because malfunction events resulted in excess emission that
lasted for more than four hours. While North Carolina evaluated all of
the malfunction determinations submitted, NC DAQ determined that twenty
of those submissions were not required to be submitted either because
the excess emission event lasted less than four hours or because no
applicable emission rate limit was exceeded. Also relevant, the State
issued an average of about 300 notices of violation per year for
various operating permit deviations during the same time period.\180\
In addition, as discussed above, the SIP requires that all monitoring
records be retained by the owner or operator and made available for
inspection for a period of two years but does not require automatic
reports to the State for excess emission events that last less than
four hours. In accordance with 15A NCAC 2D .0535(c), no exemption from
violation status is provided for any excess emission event unless the
owner or operator of the source demonstrates to the Director's
satisfaction that the excess emissions are the result of a malfunction.
Such determinations appear to be an infrequent occurrence, having been
made an average of only about five times per year over the past five
years in the State, which has about 300 sources holding title V
operating permits \181\ and over 1,600 sources holding non-title V
operating permits.\182\
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\179\ See email and attached spreadsheet from Steve Hall, NC
DAQ, to Joel Huey, EPA, January 9, 2020, included in the docket for
this rulemaking.
\180\ Obtained from ``NC Air Quality Update,'' Mike
Abraczinskas, Director, NC DAQ, April 11, 2019, slides 25 and 27,
included in the docket for this rulemaking.
\181\ Id., slide 22.
\182\ Id.
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Region 4 acknowledges the study cited by commenters regarding
excess emissions in Texas. However, the study is specific to emissions
in Texas and does not speak to this action, which is focused on and
limited to an evaluation of the North Carolina SIP, and, as a
corollary, emissions in North Carolina. Region 4 points out that the
referenced study is not from a peer-reviewed journal article and does
not attempt to show a relationship between the occurrence of excess
emissions in Texas and that State's treatment of SSM events. Region 4
also observes that a cursory review of the air emission event reports
\183\ which the study is based upon shows that most of the excess
emissions resulted from industrial flaring events at crude oil and
natural gas production facilities.\184\ This is a circumstance of
particular significance to Texas, which leads the nation in the
production and refining of crude oil and the production and processing
of natural gas.\185\ North Carolina, however, has none of these types
of operations,\186\ and therefore the study is of little relevance the
State's air quality control program. Commenters have provided no
information suggesting that excess emission events exempted under the
North Carolina SIP have been associated with significant adverse
impacts on air quality or human health, and Region 4 is aware of none.
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\183\ According to the researchers, only Texas, Oklahoma, and
Louisiana maintain systematic data on excess emissions events that
is usable for research, and Texas publicly posts details regarding
emissions events on its website at https://www2.tceq.texas.gov/oce/eer/.
\184\ For example, a search on emissions events in all areas
during the period January 1, 2020-January 10, 2020, results in 48
reports filed, at least 75 percent of which were flaring events at
facilities in the crude refining and gas production industries.
\185\ U.S. Energy Information Administration (EIA), Texas
Profile Data, Reserves, and Supply & Distribution, https://www.eia.gov/state/analysis.php?sid=TX (accessed January 14, 2020).
\186\ U.S. EIA, North Carolina Profile Data, Reserves, and
Supply & Distribution, https://www.eia.gov/state/analysis.php?sid=NC
(accessed January 14, 2020).
---------------------------------------------------------------------------
Commenters state that neither EPA nor North Carolina has done any
analysis to evaluate the extent of excess emissions that could be
authorized by the SIP revision, but the SIP revision at issue does not
add or otherwise alter the SSM exemption provisions which are already
in the North Carolina SIP. Further, excess emission events are
difficult to quantify, but Region 4 has evaluated the air quality in
North Carolina and the actual occurrence of such excess emission
events, as explained above. Even though the North Carolina SIP contains
the SSM exemption provisions discussed in this action, air quality in
the State has steadily improved over the years, as discussed in
response to Comment 8, and North Carolina does not currently have any
non-attainment areas.
Commenter's quote from page 92 of H.R. Rep. No. 95-294 excludes the
context that adds clarity to the intended meaning of the passage. The
statement ``Without an enforceable emission limitation which will be
complied with at all times, there can be no assurance that ambient
standards will be attained and maintained'' is immediately followed by
four more sentences explaining that any emission limitation under the
Act ``must be met on a constant basis, not an `averaging' basis such
as, for example, would be the case if averaging sulfur content of coal
was allowed'' \187\ (as might happen when coals of low-sulfur and high-
sulfur content are combusted at different times). The paragraph
explains that the ``averaging'' method is not allowable because it
cannot provide assurances that an emission limitation will be met at
all times (since inherent to the averaging method is the fact that the
emission limitation would sometimes be
[[Page 23727]]
exceeded). In other words, Congress was explaining that an effective
emission limitation is one that reduces emissions continually and is
not one that simply calculates a long-term average of emissions. The
SSM exemptions of the North Carolina SIP provide sources no relief from
their obligation to utilize emission control devices and work practices
to the extent practicable, and they are not an emission averaging
scheme.
---------------------------------------------------------------------------
\187\ H.R. Rep. No. 95-294, at 92 (1977).
---------------------------------------------------------------------------
Regarding the commenters' statement that ``one known event released
165,000 pounds of sulfur dioxide,'' Region 4 observes that the
referenced event occurred in Louisiana in October 2011.\188\ A report
about this specific event, completed by the Louisiana Department of
Environmental Quality Inspection Division, states the incident was
preventable and ``will be referred as an AOC on LAC 33:111.905.A''
(i.e., an Administrative Order on Consent for violating Louisiana
Administrative Code 33:111.905.A, which requires proper use of emission
controls). Thus, the referenced event, which occurred almost nine years
ago in a state other than North Carolina, was not exempted by that
state but instead was identified as requiring an administrative order
to correct the problem that caused the exceedance. While Region 4
acknowledges that air pollutant emissions can be higher than normal
during SSM events, commenters have provided no viable evidence
supporting their contention that excess emissions which are exempted
from violation status release ``huge amounts'' of pollution or that
they have a significant impact on attainment and maintenance of the
NAAQS, particularly not from the State of North Carolina, and Region 4
is aware of none.
---------------------------------------------------------------------------
\188\ See ``Louisiana Department of Environmental Quality Intra-
Agency Routing Form'' (December 8, 2011) included in the docket for
this rulemaking.
---------------------------------------------------------------------------
Region 4 also disagrees that this action exempts excess emission
events from regulation. The SIP-called provisions do not automatically
exempt emissions during SSM; they provide for use of Director's
discretion, which Region 4 expects would exempt fewer excess emission
events than an automatic exemption. This action will not cause an
increase in emissions because the SIP-called provisions were approved
by EPA in 1986 and 1997 and have been in effect, without interruption,
since those approvals. Similarly, as referenced above, the automatic
exemption in 15A NCAC 2D .1423 has been in the North Carolina SIP since
2002, and that approval is also not impacted by this action. Therefore,
this action is not expected to have any adverse impact on air quality.
While EPA stated in the 2015 SSM SIP Action that the Agency was
concerned about the potential for serious adverse consequences for
public health during the interim period in which states, EPA and
sources took measures necessary to respond to the SSM SIP call, the
Agency made no finding of actual harm, in qualitative or quantitative
terms, from the provisions called for revision. Rather, EPA discussed
at length the assertion that ``EPA does not interpret section 110(k)(5)
to require proof that a given SIP provision caused a specific
environmental harm or undermined a specific enforcement action in order
to find the provision substantially inadequate.'' \189\ EPA did not
make a specific factual finding regarding actual harm in North Carolina
when it issued the SIP call in 2015, and no factual finding is required
for Region 4 to adopt an alternative interpretation of the statutory
provisions at issue. The proposal and this final action provide a
comprehensive rationale for Region 4's alternative policy and its
change in interpretation.
---------------------------------------------------------------------------
\189\ See 80 FR at 33932-34.
---------------------------------------------------------------------------
As explained in the June 5, 2019, NPRM, the NAAQS have been set to
provide requisite protection, including an adequate margin of safety,
for human health.\190\ The purpose of the SIP is to ensure compliance
with the NAAQS, e.g., attainment and maintenance. EPA has an obligation
to approve SIP revisions if the Agency does not determine it will
negatively impact a state's ability to attain or maintain the NAAQS.
Region 4 views the various overlapping planning requirements of the
North Carolina SIP as sufficient to meet the requirements of CAA
section 110. Commenters have not provided sufficient evidence to
suggest that the SIP revisions approved in this action would prevent
North Carolina from attaining or maintaining the NAAQS.
---------------------------------------------------------------------------
\190\ See 84 FR at 26034.
---------------------------------------------------------------------------
11. Comments on Director's Discretion Provisions
Comment 11: Commenters state that EPA cannot reasonably conclude
the NAAQS will be protected if NC DAQ's Director can exempt SSM
emissions from being violations. Commenters argue that SIP-called
provisions list seven criteria for the Director to consider, but does
not limit consideration to those criteria and notes that the terms are
open to subjective interpretation and that the Director may abuse
discretionary authority, which can lead to NAAQS violations. Commenters
claim that even if all of the conditions required to qualify as a
malfunction under the North Carolina SIP have occurred, the criteria
rely on subjective terms. The one mandatory provision, commenters
state, relies on the subjective term ``as practicable.'' Commenters
also state that even if applied stringently, start up and shut down
emissions could be ``minimized'' but still be high enough to cause a
NAAQS exceedance and that such events could occur often enough to cause
a violation of the NAAQS.
Response 11: Based on review of the information Region 4 has
regarding malfunction determinations made by the Director of the NC DAQ
from 2015 through 2019, as discussed above in Response 10, we believe
that the Director has employed the discretionary authority provided by
North Carolina's 15A NCAC 2D .0535(c) in circumstances that are
narrower than an exemption that would apply automatically during such
events. Also, Region 4 anticipates that, going forward, emissions
exempted by the Director pursuant to 15A NCAC 2D .0535(c) will continue
to apply to a narrower scope of emissions than would be exempt through
an automatic exemption. Additionally, as discussed above, 15A NCAC 2D
.0535(g) directs facilities, during startup and shutdown, to operate
all equipment in a manner consistent with best practicable air
pollution control practices to minimize emissions and to demonstrate
that excess emissions were unavoidable when requested to do so by the
Director. Therefore, based on the evaluation of the North Carolina SIP
in Section III of this final action and Sections III and IV of the
proposal, Region 4 reasonably concludes that the Director's discretion
provisions in the North Carolina SIP are not inconsistent with CAA
requirements because the North Carolina SIP, when evaluated as a whole,
provides for attainment and maintenance of the NAAQS.
Further, the federally-approved North Carolina SIP has contained a
provision providing Director's discretion for malfunction exemptions
for over 30 years; \191\ the commenter has not provided any evidence to
demonstrate that the existence of such provisions interfered with North
Carolina's attainment or maintenance of any NAAQS. In fact, as
discussed in response to Comment 8, air quality in North Carolina has
continued to improve over time and there are not
[[Page 23728]]
currently any nonattainment areas in the state. Commenters have not
pointed to evidence of abuse of Director's discretion in North
Carolina. Region 4 cannot respond to unsubstantiated claims regarding
abuses of discretionary authority by the Director of the State air
agency. Region 4 is not aware of any evidence of such abuses since the
introduction of the Director's discretion provision into the North
Carolina SIP.
---------------------------------------------------------------------------
\191\ 15A NCAC 2D .0535(c) was approved on September 9, 1986 (51
FR 32073), and 15A NCAC 2D .0535(g) was approved on August 1, 1997
(62 FR 41277).
---------------------------------------------------------------------------
Region 4 acknowledges that a Director's determination of whether
emissions are excusable pursuant to 15A NCAC 2D .0535(c) or .0535(g)
may be somewhat subjective \192\ but maintains that the Director will
be acting in accordance with approved SIP provisions. Further, as
discussed in Section III of this final action, the provisions do not
prevent the United States or citizens from enforcing the underlying
provisions. The exercise of authority under the Director's discretion
provisions of 15A NCAC 2D .0535 shall not be construed to bar,
preclude, or otherwise impair the right of action by the United States
or citizens to enforce a violation of an emission limitation or
emission standard in the SIP or a permit where the demonstration by a
source or a determination by the Director does not comply with the
framework and authority under 15A NCAC 2D .0535. Failure to comply with
such framework and authority would invalidate the Director's
determination. EPA and citizens' ability to enforce the underlying
provisions is another element contributing to Region 4's conclusion
that the SSM exemption provisions do not interfere with NAAQS
attainment and that the SIP is consistent with the CAA.
---------------------------------------------------------------------------
\192\ Pursuant to various other North Carolina SIP provisions,
the Director has authority to exercise his or her judgment with
respect to several other types of determinations. See, e.g., 15A
NCAC 2D .0501(f)(2) (requiring demonstration ``to the satisfaction
of the Director''); 15A NCAC 2D .0530(t)(3) and .0531(m)(4)
(requiring demonstrations ``to the Director's satisfaction''); 15A
NCAC 2D .0540(h) (requiring correction of facility's fugitive dust
control plan where ``the Director finds that the plan inadequately
controls fugitive dust emissions''); 15A NCAC 2D .2602(i)
(authorizing Director to allow deviations from testing procedures
required under the SIP).
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12. Comments on Enforcement
Comment 12: Commenters state that the North Carolina SIP provisions
relied upon in the proposal are mere platitudes and have very little
probability of being effective in practice. Commenters state that the
cited SIP provisions that prohibit violations of the NAAQS are not
practicably enforceable. Commenters identify gaps in information for
malfunction events and whether a NAAQS violation occurs, including a
general statement that NAAQS monitoring stations are not generally
located around most sources. Commenters further assert that EPA must
assume that absence of a documented NAAQS violation will be treated as
sufficient proof that a violation did not occur. Commenters conclude
that consequently, few exemptions are expected to be denied even if the
excess emissions, in reality, caused a violation.
Commenters assert that North Carolina's procedures for obtaining an
exemption are generally appropriate for an approach based on
enforcement discretion, but point out that EPA and citizen enforcement
would be limited. Commenters state that EPA can be assumed to exercise
appropriate enforcement discretion and that citizen enforcement does
not generally result in unfair outcomes for sources. Commenters
conclude that EPA could revisit its national policy and revert to one
that applied for decades in which SSM exemptions are not allowed except
via enforcement discretion, and all SIP emission limits apply
continuously. Commenters state that alternative emission limits could
be developed for periods of SSM as well.
Commenters state that Congress required continuously applicable
emission limitations to ensure citizens would have meaningful access to
the remedy provided by the Act's citizen-suit provision to assure
compliance with emission limitations and other requirements of the Act
but that exemptions remove citizens' ability to enforce emission
limitations and thus contravene the Act.
Response 12: Commenters provide no concrete evidence that the
provisions relied upon in the North Carolina SIP have a low probability
of being effective in practice. Generally speaking, as discussed in
response to Comment 8, North Carolina's air quality has continued to
improve in recent years, and no areas of North Carolina are currently
designated nonattainment for any NAAQS. Commenters have not provided
information indicating that the existence of the SSM exemption
provisions in the SIP have precluded enforcement or that the Director
in North Carolina has abused his or her discretion. Commenters provide
no basis for speculating that they expect the North Carolina Director
to deny few exemption demonstrations, even if a violation occurred.
Detailed information about historical usage of director's discretion
provisions in the North Carolina SIP is included in our response to
Comment 10 above.
Region 4 disagrees with the comment that allowing Director's
discretion SSM exemption provisions to remain in the North Carolina SIP
will hamper citizen enforcement, in contravention of the CAA
requirements. As discussed in Section III of this final action, the
exercise of authority under the Director's discretion provisions of 15A
NCAC 2D .0535 shall not be construed to bar, preclude, or otherwise
impair the right of action by the United States or citizens to enforce
a violation of an emission limitation or emission standard in the SIP
or a permit where the demonstration by a source or a determination by
the Director does not comply with the framework and authority under 15
NCAC 2D .0535. Failure to comply with such framework and authority
would invalidate the Director's determination. North Carolina's comment
letter on the proposed SSM SIP Call \193\ similarly indicates that the
Director's discretion exemption provisions are not intended to prevent
enforcement: ``[n]othing in the existing SIP provisions prohibits or
restricts in any way the ability of EPA and/or a citizen to file an
action in federal court seeking enforcement of the SIP provisions.''
\194\
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\193\ See 78 FR 12460 (February 22, 2013).
\194\ Letter from Sheila C. Holman, Director, NC DAQ, to EPA,
May 13, 2013, page 3, Docket ID: EPA-HQ-OAR-2012-0322-0619,
available at www.regulations.gov.
---------------------------------------------------------------------------
Emissions information for sources in North Carolina is available
and obtainable, and commenters have not presented information
indicating otherwise. As discussed above, the SIP requires that excess
emissions lasting more than four hours be reported to the State at 15A
NCAC 2D .0535. Additionally, title V permits require semiannual reports
to include deviations from applicable requirements as well as annual
compliance certifications at 15A NCAC 2Q .0508. This information
assists the Director in determining whether a NAAQS violation likely
occurred. North Carolina also makes public the inspection reports,
compliance reports, and other materials related to emissions compliance
at facilities. Further, NC DAQ maintains records of determinations of
malfunctions available for public inspection in its compliance database
(accessible at https://deq.nc.gov/about/divisions/air-quality/air-quality-compliance). This information is available for title V sources,
small permitted sources, and small exempt (non-permitted) sources.
In response to the comment regarding the monitoring network, Region
4 notes
[[Page 23729]]
that the EPA works collaboratively with states and tribes to monitor
air quality for each criteria pollutant, as well as air toxics, through
ambient air monitoring networks. North Carolina has an ambient
monitoring network plan that meets or exceeds the requirements of 40
CFR part 58 and is subject to public comment, with the objective of
long-term assessment of air quality. The data collected serve as one of
the factors for determining whether an area is attaining the NAAQS,
based on the form of the standard and design value calculation for each
standard.
Region 4 notes that North Carolina has an approved monitoring
network plan, pursuant to 40 CFR part 58.\195\ In accordance with EPA
regulatory requirements, NC DAQ maintains a network of 40 monitoring
stations across the state and measures the concentration of pollutants
subject to the NAAQS. Several monitors operated by the State are indeed
source-oriented where required by EPA or deemed appropriate by the
state due to local impacts of certain types of pollutants. For example,
in accordance with EPA's Data Requirements Rule for the 2010 1-Hour
SO2 Primary NAAQS (80 FR 51052, August 21, 2015), the State
operates several SO2 monitors near large sources of
SO2 emissions.\196\
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\195\ North Carolina's 2019-2020 monitoring network plan was
approved by EPA on February 7, 2020.
\196\ See North Carolina Div. of Air Quality, 2019-2020 Annual
Monitoring Network Plan for the North Carolina Division of Air
Quality (October 15, 2019), available at https://files.nc.gov/ncdeq/Air%20Quality/monitor/monitoring_plan/NC-Network-Plan.pdf.
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Region 4 acknowledges that alternative emission limits may also be
included in the North Carolina SIP. The State has flexibility to adopt
``whatever mix of emission limitations it deems best suited to its
particular situation.'' \197\ This could include alternative emission
limitations, but, as Region 4 has concluded in this document, in the
context of North Carolina's entire SIP, North Carolina's exemption
provisions are also acceptable.
---------------------------------------------------------------------------
\197\ Train, 421 U.S. at 79.
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13. Comments That SIP Submissions Must be Evaluated Independently, not
in Context of SIP Overall
Comment 13: Commenters state that section 110 of the Act makes
clear that EPA actions on SIPs must also depend on whether a SIP or
submittals meet all of the applicable requirements of the Act.
Commenters conclude that EPA may not accept a SIP, approve a
submission, or withdraw a SIP Call by asserting that the approved SIP,
as a whole, operates continuously to ensure attainment and maintenance
of the NAAQS if such SIP, submission or withdrawal means the SIP would
not meet all of the applicable requirements of the CAA. Commenters
conclude that the proposal contradicts the plain language and plain
meaning of the CAA by dispensing with the independent legal requirement
that SIPs, submissions or withdrawals of a SIP Call ensure compliance
with all applicable requirements of the Act.
Response 13: As described in Section III of this final action,
Region 4's policy interpretation is not inconsistent with any
applicable requirements of the CAA. Section III of this document fully
explains Region 4's interpretation of the interplay between sections
110 and 302(k), which provides a reasonable and permissible
interpretation of these provisions, even though it differs from prior
interpretations. Not only did Region 4 determine to take this action
and approve this SIP revision based on an understanding that the SIP
will continue to be protective of the NAAQS, this action and SIP
approval are consistent with the statutory interpretations offered in
this document. Region 4 has a reasonable basis to conclude, upon
evaluation and consideration of the protective requirements contained
in the SIP as a whole, that the provisions which create exemptions for
excess emissions that may occur during periods of SSM events do not
preclude approvability of the North Carolina SIP.
The alternative policy announced in this action, which provides an
interpretation of CAA sections 110 and 302 that supports Region 4's
decision to withdraw the SIP Call, is not inconsistent with the
applicable requirements of the CAA, including the provisions cited by
the commenters at CAA 110(k)(3), (k)(5), and (l). In Section III of
this final action, Region 4 withdraws the SIP Call that was issued in
the 2015 SSM SIP action with respect to 15A NCAC 2D .0535(c) and 15A
NCAC 2D .0535(g), and makes a finding that these SIP provisions are not
inconsistent with CAA requirements. Region 4 is approving the changes
to 15A NCAC 2D .1423 submitted by the State on June 5, 2017, because it
has determined that the change is in compliance with all applicable CAA
requirements.
14. Comments of a Miscellaneous or General Nature
Comment 14: Commenters state that, in retrospect, EPA in the 2015
SSM SIP Call should not have concluded that alternative emission
limitations during periods of SSM could be established, particularly in
the timeframe necessary for the corrective SIPs.
Response 14: This comment is not in scope for this rulemaking.
Region 4 cannot address comments received about the referenced June 12,
2015, action.
VI. Incorporation by Reference
In this document, Region 4 is finalizing regulatory text that
includes incorporation by reference. In accordance with requirements of
1 CFR 51.5, Region 4 is finalizing the incorporation by reference of
15A NCAC 2D .1423--``Large Internal Combustion Engines,'' state
effective July 15, 2002, which is modified to clarify applicability,
correct typos, standardize exclusions, clarify that alternative
compliance methods must show compliance status of the engine, clarify
by adding the word ``shall'' and revising language to better define
ozone season, and clarify that CEMS records must identify the reason
for, the action taken to correct, and the action taken to prevent
excess emissions. EPA has made, and will continue to make, these
materials generally available through www.regulations.gov 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 Region 4
for inclusion in the SIP, have been incorporated by reference by Region
4 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
Region 4's approval, and will be incorporated by reference in the next
update to the SIP compilation.\198\
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\198\ See 62 FR 27968 (May 22, 1997).
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VII. Final Action
Region 4 is withdrawing the SIP call issued to North Carolina for
15A NCAC 2D .0535(c) and 15A NCAC 2D .0535(g) pursuant to CAA section
110(k)(5), originally published on June 12, 2015. In connection with
this withdrawal, Region 4 finds that these State regulatory provisions
included in the North Carolina SIP are not substantially inadequate to
meet CAA requirements.
Pursuant to section 110 of the CAA, Region 4 is approving the
aforementioned changes to 15A NCAC 2D .1423 and incorporating these
changes into the North Carolina SIP. Region 4 has evaluated the changes
to 15A NCAC 2D .1423 as included in North Carolina's June 5, 2017, SIP
[[Page 23730]]
revision, and has determined that they meet the applicable requirements
of the CAA and its implementing regulations.
VIII. 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 approves state
law as meeting Federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
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.);
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);
Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
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
Results from on a new interpretation and 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.
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 29, 2020. 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, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Mary Walker,
Regional Administrator, Region 4.
40 CFR part 52 is amended 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. Amend Sec. 52.1770(c)(1), under ``Subchapter 2D Air Pollution
Control Requirements,'' by revising the entry for ``Section .1423'' 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
----------------------------------------------------------------------------------------------------------------
Subchapter 2D Air Pollution Control Requirements
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* * * * * * *
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Section .1400 Nitrogen Oxides
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section .1423..................... Large Internal 7/15/2002 4/28/2020, [Insert
Combustion Engines. citation of
publication].
* * * * * * *
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* * * * *
[FR Doc. 2020-07512 Filed 4-27-20; 8:45 am]
BILLING CODE 6560-50-P