23700 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

ENVIRONMENTAL PROTECTION Georgia 30303–8960. EPA requests that through a letter dated June 5, 2017, AGENCY if at all possible, you contact the person which seeks to change North Carolina’s listed in the FOR FURTHER INFORMATION SIP-approved rule regarding NOX 40 CFR Part 52 CONTACT section to schedule your emissions from large internal [EPA–R04–OAR–2019–0303; FRL–10007– inspection. The Regional Office’s combustion engine sources at 15A N.C. 76–Region 4] official hours of business are Monday Admin. Code (NCAC) 2D .1423. through Friday 8:30 a.m. to 4:30 p.m., Relevant to this action, in the 2015 SIP Call Withdrawal and Air Plan excluding Federal holidays. SSM SIP Call Action (80 FR 33840 (June Approval; NC: Large Internal FOR FURTHER INFORMATION CONTACT: Joel 12, 2015)) EPA restated its national Combustion Engines NOX Rule Huey, Air Planning and Implementation policy prohibiting the inclusion of Changes Branch, Air and Radiation Division, provisions in SIPs that exempt excess U.S. Environmental Protection Agency, emissions during periods of SSM. In AGENCY: Environmental Protection that action, EPA also issued findings Agency (EPA). Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. Mr. Huey can be that certain SIP provisions in 36 states ACTION: Final rule. reached by phone at (404) 562–9104 or (applicable in 45 statewide and local jurisdictions) were substantially SUMMARY: The Environmental Protection via electronic mail at [email protected]. inadequate to meet the Clean Air Act Agency (EPA), Region 4 is approving a SUPPLEMENTARY INFORMATION: portion of a State Implementation Plan (CAA or Act) requirements and thus Table of Contents (SIP) revision submitted by the State of issued ‘‘SIP Calls’’ pursuant to CAA section 110(k)(5) for all of those states North Carolina, through the North The following topics are discussed in this 2 Carolina Division of Air Quality (NC preamble: and local jurisdictions. That action DAQ), in a letter dated June 5, 2017, I. Background for This Action includes a SIP Call for North Carolina to which changes North Carolina’s SIP- II. EPA’s SSM SIP Policy and SIP Call Issued address two specific provisions in the approved rule regarding nitrogen oxides to North Carolina State’s implementation plan that (NO ) emissions from large internal III. Region 4’s Alternative Policy on provide discretion to the State agency to X Automatic and Director’s Discretion exempt emissions from being combustion engine sources. In so doing, Exemption Provisions in the North Region 4 is first adopting an alternative considered a violation of an otherwise Carolina SIP and Withdrawal of the applicable State rule, in certain policy regarding startup, shutdown, and North Carolina SIP Call 3 malfunction (SSM) exemption IV. Region 4’s Action on North Carolina’s circumstances. Also relevant, the June provisions in the North Carolina SIP June 5, 2017, SIP Revision 5, 2017, SIP submission Region 4 is that departs from the national policy on V. Responses to Comments approving in this action revises a this subject, as described in EPA’s June VI. Incorporation by Reference different provision in the North Carolina VII. Final Action code that was not included in the 2015 12, 2015 action (2015 SSM SIP Call VIII. Statutory and Executive Order Reviews Action). Accordingly, Region 4 is also SSM SIP Call Action, but which withdrawing the SIP Call issued to I. Background for This Action includes a sub-provision that automatically exempts periods of SSM, North Carolina for exemptions On June 5, 2019, EPA Region 4 contained in the State’s existing SIP- not to exceed 36 consecutive hours, and announced that it was considering scheduled maintenance activities from approved provisions for SSM events. adopting an alternative policy regarding 4 This action is limited to the SIP Call regulation. startup, shutdown and malfunction The rationale for the alternative issued to North Carolina and the (SSM) exemptions in state policy on SSM exemptions that Region associated evaluation of the North implementation plans (SIPs), and, if 4 is applying to the North Carolina SIP Carolina SIP and does not otherwise adopted, also proposed to withdraw the is articulated in Section III of this change or alter EPA’s 2015 SSM SIP Call SIP Call issued to North Carolina in document and in Sections III and IV of Action. 2015 and to approve a SIP revision the June 5, 2019, NPRM.5 Region 4’s DATES: This rule is effective on May 28, submitted by NC DAQ in 2017.1 The 60- decision to withdraw the SIP Call 2020. day comment period closed on August previously issued to North Carolina is ADDRESSES: EPA has established a 5, 2019. Region 4 received public substantiated by the adoption of the docket for this action under Docket ID comments, all of which are included in alternative policy. Region 4’s approval No. EPA–R04–OAR–2019–0303. All the public docket for this action at of the revision to North Carolina’s SIP- documents in the docket are listed on www.regulations.gov. This document approved rule regarding NOX emissions the www.regulations.gov website. includes summaries of the adverse from large internal combustion engine Although listed in the index, some comments received and responses to sources at 15A NCAC 2D .1423 is information is not publicly available, those comments. After reviewing and described in Section IV of this i.e., Confidential Business Information carefully considering the comments or other information whose disclosure is received, as described more fully in this 2 See State Implementation Plans: Response to restricted by statute. Certain other document, Region 4 is (1) adopting an Petition for Rulemaking; Restatement and Update of material, such as copyrighted material, EPA’s SSM Policy Applicable to SIPs; Findings of alternative policy applicable to North Substantial Inadequacy; and SIP Calls To Amend is not placed on the internet and will be Carolina for SSM exemption provisions Provisions Applying to Excess Emissions During publicly available only in hard copy in the North Carolina SIP and Periods of Startup, Shutdown and Malfunction; form. Publicly available docket withdrawing the SIP Call issued to Final Rule, 80 FR 33839 (June 12, 2015). materials are available either North Carolina, and (2) approving the 3 Id. at 33964. EPA issued a SIP Call to North Carolina regarding provisions 15A NCAC 2D electronically through SIP revision submitted by NC DAQ, .0535(c) and 15A NCAC 2D .0535(g). www.regulations.gov or in hard copy at 4 15A NCAC 02D .1423 was not included in the the Air Regulatory Management Section, 1 SIP Call Withdrawal and Air Plan Approval; NC: 2015 SSM SIP Call Action because, in that action, Air Planning and Implementation Large Internal Combustion Engines NOX Rule EPA elected to first focus its review on the specific Changes, Proposed Rule, 84 FR 26031 (June 5, provisions that had already been identified by Branch, Air and Radiation Division, 2019). Hereafter, the June 5, 2019, notice of Sierra Club in its petition regarding the SSM SIP U.S. Environmental Protection Agency, proposed rulemaking will be referred to as the June Call. See 80 FR at 33880. Region 4, 61 Forsyth Street SW, Atlanta, 5, 2019, NPRM. 5 See 84 FR at 26033–39.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23701

document and Section V of the June 5, to the source continuously, i.e., cannot ‘‘the SSM exemption violates the CAA’s 2019, NPRM.6 include periods during which emissions requirement that some section 112 from the source are legally or 18 II. EPA’s SSM SIP Policy and SIP Call standard apply continuously.’’ In the functionally exempt from regulation.’’ 11 Issued To North Carolina 2015 SSM SIP Call Action, EPA Relying substantially on its interpreted the Sierra Club decision In the final 2015 SSM SIP Call Action, interpretation of the general definition regarding CAA section 112 requirements EPA updated and restated its national of ‘‘emission limitation’’ in CAA section and applied the reasoning of that policy regarding provisions in SIPs that 302(k)—specifically, that that definition decision to the requirements of EPA’s exempt periods of SSM events from provides for the limitation of emissions rules issued under CAA section 110 otherwise applicable emission of air pollutants ‘‘on a continuous (‘‘Implementation Plans’’), specifically limitations. Referencing previously basis’’—the Agency explained its issued guidance documents and position that exemptions from emission CAA section 110(a)(2)(A), which regulatory actions, the Agency limitations in SIPs, whether automatic provides that SIPs shall include expressed its interpretation of the CAA or discretionary, are not permissible in ‘‘enforceable emission limitations and that SIP provisions cannot include SIPs.12 EPA explained that even a brief other control measures, means, or exemptions from emission limitations exemption from an otherwise applicable techniques . . . as may be necessary or for emissions during SSM events.7 limit would render the emission appropriate to meet the applicable EPA’s position in the 2015 SSM SIP Call limitation non-continuous and therefore requirements of this chapter.’’ 19 EPA’s Action, based in part on D.C. Circuit not consistent with the CAA section application of the Sierra Club decision precedent, was that the general 302(k) definition of ‘‘emission to CAA section 110 SIP requirements definitions provision of the CAA limitation.’’ 13 was based on an understanding that the providing that an emission limitation With respect to discretionary D.C. Circuit was interpreting the must apply to a source ‘‘continuously’’ exemptions, the Agency took the definition of ‘‘emission limitation’’ in means that an approved SIP cannot position that a regulatory official’s grant CAA section 302(k) that applies include periods during which emissions of an exemption pursuant to a generally to the Act. Following this from sources are legally or functionally ‘‘director’s discretion’’ exemption could reasoning, EPA determined that Sierra exempt from regulation. result in air agency personnel modifying Club was consistent with the Agency’s a SIP requirement without going Also in the 2015 SSM SIP Call Action, position, as expressed in previously through the CAA statutory process for the Agency defined the term ‘‘automatic issued guidance documents and exemption’’ as a generally applicable SIP revisions.14 In the 2015 SSM SIP regulatory actions that prohibited SIP provision that does not consider Call Action, the Agency did allow that exemption provisions for otherwise periods of excess emissions as some director’s discretion exemptions violations of an applicable emission could be included in SIPs, if those applicable emission limits in SIPs (such limitation if certain conditions existed exemptions were structured such that as automatic exemptions granted for 20 during the exceedance period.8 The variances or deviations from the SSM events). Agency defined a ‘‘director’s discretion otherwise applicable emission As part of the 2015 SSM SIP Call provision’’ as a regulatory provision that limitation or SIP requirement were not Action, EPA found that 15A NCAC 2D authorizes a state regulatory official to valid as a matter of Federal law unless .0535(c) and 15A NCAC 2D .0535(g) grant exemptions or variances from and until EPA approved the exercise of were substantially inadequate to meet otherwise applicable emission the director’s discretion as a SIP CAA requirements because they allow 15 limitations or to otherwise excuse revision. exemptions from otherwise applicable As further support for the Agency’s noncompliance with applicable emission limitations for excess position on excluding SSM exemption emission limitations, where the emissions 21 that may occur during provisions in SIPs, the 2015 SSM SIP regulatory official’s determination malfunctions and during periods of would be binding on EPA and the Call Action relied on Sierra Club v. 16 startup and shutdown, respectively, at 9 Johnson. In that 2008 case, the D.C. public. The Agency defined ‘‘emission the discretion of the state agency.22 On limitation’’ in the SIP context, relying Circuit evaluated the validity of an SSM exemption in the General Provisions 17 that basis, EPA issued a SIP Call on the general definition set forth in pursuant to CAA section 110(k)(5) to CAA section 302 (‘‘Definitions’’), as a of EPA rules issued under CAA section North Carolina with respect to these legally binding restriction on emissions 112 (‘‘Hazardous Air Pollutants’’). provisions. from a source or source category, such Reading CAA sections 112 and 302(k) as a numerical emission limitation, a together, the D.C. Circuit found that numerical emission limitation with 11 higher or lower levels applicable during Id. 12 Id. specific modes of source operation, a 13 Id. 18 Sierra Club, 551 F.3d at 1027–28. specific technological control measure 14 Id. at 33918 (referencing CAA sections 19 requirement, a work practice standard, 110(k)(3), which establishes the framework for EPA See 42 U.S.C. 7410(a)(2)(A) (emphasis added). or a combination of these things as to fully or partially approve SIP submittals, and 20 See, e.g., 80 FR at 33852, 33874, 33892–94. components of a comprehensive and 110(l) and 193, which specify that revisions to SIPs 21 The North Carolina SIP defines excess must be submitted to EPA and can be approved continuous emission limitation.10 As emissions as ‘‘an emission rate that exceeds any only if the Administrator determines that the applicable emission limitation or standard allowed revisions meet specific requirements, including stated in the 2015 SSM SIP Call Action, by any regulation in Sections .0500 or .0900 of this non-interference with attainment and reasonable the Agency took the position that an Subchapter or by a permit condition.’’ In this final emission limitation ‘‘must be applicable further progress and equivalent or greater emission reductions in nonattainment areas). See also id. at action, we clarify that exemptions allowed under 33977–78. rules 2D .0535(c) and 2D .0535(g) apply only to 6 Id. at 26039–040. 15 Id. at 33978. numerical emission limits of the North Carolina SIP 7 See 80 FR at 33976. 16 551 F.3d 1019 (D.C. Cir. 2008). and do apply to any of the SIP’s requirements to 8 Id. at 33977. 17 Subpart A of 40 CFR part 63 (‘‘National utilize emission control devices or to employ work 9 Id. Emission Standards for Hazardous Air Pollutants practice standards that reduce emissions. 10 Id. for Source Categories’’). 22 See 80 FR at 33964.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23702 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

III. Region 4’s Alternative Policy on maintenance of the NAAQS, one of the EPA’s SSM policy that SIPs containing Automatic and Director’s Discretion goals of Congress when it created the any type of SSM exemptions were not Exemption Provisions in the North SIP adoption and approval process in approvable because exemptions from Carolina SIP and Withdrawal of the the CAA.25 The fact that North Carolina emission limitations created the North Carolina SIP Call does not currently have any possibility that a state could not ensure nonattainment areas for any NAAQS, attainment or maintenance of the A. Automatic Exemption Provisions even though the exemption provisions NAAQS for one or more criteria As discussed in the June 5, 2019, have been included in the State’s pollutants. This policy is predicated on NPRM, in reviewing the North Carolina implementation plan, supports the the idea that a requirement limiting SIP revision at issue, as well as the conclusion that the SSM exemptions do emissions would not apply ‘‘on a North Carolina SIP in its entirety, not interfere with attainment and continuous basis’’— and thus would not Region 4 has considered the national maintenance of the NAAQS.26 Region 4 itself constitute an ‘‘emission policy regarding SSM exemptions 23 in appropriately considered all of these limitation’’—if the SIP permitted SIPs included in the 2015 SSM SIP Call factors when evaluating the North exemptions for any period of time from Action, described above, and has Carolina SIP. that requirement.31 Under this policy, determined that there is a reasonable At the outset, Region 4 notes that it the lack of a continuous standard was alternative way for Region 4 to consider maintains discretion and authority to viewed as creating a substantial risk that SSM provisions in the North Carolina change its CAA interpretation from a exemptions could permit excess SIP: after evaluating the SIP prior position. In FCC v. Fox Television emissions that could ultimately result in comprehensively and determining that Stations, Inc., the U.S. Supreme Court a NAAQS violation. Region 4 the SIP, as a whole, is protective of the plainly stated an agency’s obligation acknowledges the policy position national ambient air quality standards with respect to changing a prior policy: updated and restated in the 2015 SSM (NAAQS or standards), Region 4 We find no basis in the Administrative SIP Call Action, and the associated concludes that automatic SSM Procedure Act or in our opinions for a rationale. However, as will be discussed exemptions are allowable in that SIP.24 requirement that all agency change be further in this section, Region 4 has Further, the alternative policy’s subjected to more searching review. The Act determined that the general interpretation of the relevant CAA mentions no such heightened standard. And requirements in CAA section 110 to provisions, together with the specific our opinion in State Farm neither held nor attain and maintain the NAAQS and the automatic SSM provisions in the North implied that every agency action representing latitude provided to states through the Carolina SIP, make it reasonable for a policy change must be justified by reasons more substantial than those required to adopt SIP development process create a Region 4 to find that the SIP meets the a policy in the first instance.27 framework in which a state may be able applicable requirements of the CAA and to ensure attainment and maintenance In cases where an agency is changing therefore do not mandate a finding that of the NAAQS notwithstanding the its position, the Court stated that a the SIP is substantially inadequate. presence of SSM exemptions in the SIP. reasoned explanation for the new policy The compilation of state and Federal Further, for the reasons articulated in would ordinarily ‘‘display awareness requirements in the North Carolina SIP this document, Region 4 has concluded that it is changing position’’ and ‘‘show result from the Federal-state partnership that the automatic SSM exemptions in that there are good reasons for the new that is the foundation of the CAA, as the North Carolina SIP do not mandate policy.’’ 28 In so doing, the Court well as the various requirements of the a finding of substantial inadequacy Act. Although the North Carolina SIP emphasized that the agency ‘‘need not demonstrate . . . that the reasons for the pursuant to CAA section 110(k)(5) or contains SSM exemptions for limited preclude a finding under CAA section periods applicable to discrete standards, new policy are better than the reasons for the old one; it suffices that the new 110(k)(3) that the SIP meets all of the the SIP is composed of numerous applicable requirements of the CAA. planning requirements that are policy is permissible under the statute, that there are good reasons for it, and Additionally, as discussed in Section collectively NAAQS-protective. The IV, and consistent with the policy North Carolina SIP’s overlapping that the agency believes it to be better.’’ 29 In cases where a new policy rationale explained in this document, requirements, described more fully later Region 4 has determined that the SIP in this section, provide additional ‘‘rests upon factual findings that contradict those which underlay its revision will not interfere with protection of the standards such that attainment, reasonable further progress, Region 4 concludes that the SIP prior policy; or when its prior policy or any other applicable requirement of adequately provides for attainment and has engendered serious reliance the CAA. maintenance of the NAAQS, even if the interests that must be taken into account,’’ the Court found that a more Consistent with the interpretation SIP allows exemptions to specific provided in the June 5, 2019, NPRM, emission limits for discrete periods, detailed justification might be warranted than what would suffice for this alternative policy is reasonable such as SSM events. This redundancy because the D.C. Circuit’s decision in helps to ensure attainment and a new policy.30 As discussed above, the 2015 SSM Sierra Club does not, on its face, apply to SIPs and actions taken under CAA 23 Throughout this document, we use the term SIP Call Action updated and restated ‘‘exemption’’ to refer to automatic exemptions for section 110. In the 2015 SSM SIP Call SSM events in general; specific references to 25 See, e.g., H.R. Rep. No. 91–1783 at 193–95 Action at 80 FR 33839, EPA extended director’s discretion provisions are referred to as (1970). the legal reasoning of the D.C. Circuit’s ‘‘director’s discretion exemptions.’’ 26 As of the effective date of this document, no 24 Sierra Club decision regarding SSM The 2015 SSM SIP Call Action explained that areas of North Carolina are designated exemptions from CAA section 112 rules while a SIP may contain provisions that apply nonattainment for any NAAQS. See https:// during periods of SSM, the applicability of those www3.epa.gov/airquality/greenbook/ancl3.html. to CAA section 110 SIP approved rules; provisions was not plain on the face of the SIP 27 See 556 U.S. 502, 514 (2009) (referencing Motor that extension of the Sierra Club provision. See generally 80 FR at 33943. As Vehicle Mfrs. Ass’n of United States, Inc. v. State decision supported the Agency’s explained in this document, EPA Region 4 has determined that, for the North Carolina SIP, it is Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). reasonable to take a broader perspective of 28 Id. at 515. 31 See 42 U.S.C. 7602(k) (providing the general evaluation of the SIP and its provisions that ensure 29 Id. definition of ‘‘emission limitation’’ and ‘‘emission attainment and maintenance of the NAAQS. 30 Id. at 515–16. standard’’).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23703

existing position that SSM exemptions the court did not make any statement the best performing 12 percent of were inconsistent with CAA SIP explicitly applying its CAA section 112- existing sources in the category (for requirements. At the time, the Agency dependent holding beyond the which the Administrator has emissions interpreted CAA section 302(k) as emissions standards promulgated under information) or the best performing five applying uniformly and requiring that CAA section 112. sources for source categories with less the ‘‘emission limitations’’ required While EPA chose to rely on the Sierra than 30 sources.40 This level of under the CAA, whether under section Club decision in the 2015 SSM SIP Call minimum stringency is referred to as the 110 or section 112, be continuous as a Action, such reliance was not MACT floor. For new sources, MACT general matter.32 Further consideration required—the court’s decision does not standards must be at least as stringent of the issue has shown that an speak to whether the rationale as the control level achieved in practice alternative reading of the application of articulated with respect to SSM by the best controlled existing similar the Sierra Club decision to CAA section exemptions in CAA section 112 source.41 EPA also must analyze more 110 is reasonable, and consideration of standards necessarily applies to SIPs stringent ‘‘beyond-the-floor’’ control the facts surrounding the SIP revision submitted and reviewed under CAA options, for which consideration is submitted by the State of North section 110. As discussed below, the given not only to the maximum degree Carolina, and an evaluation of the North Sierra Club decision, on its face, does of reduction in emissions of a hazardous Carolina SIP as a whole, show that such not interpret section 110, and there are air pollutant, but also to the costs, an interpretation is appropriate in this valid reasons for not extending the energy, and non-air quality health and instance. Simply stated, while the Sierra reasoning to the North Carolina SIP environmental impacts.42 Club decision did not allow sources to provisions at issue. CAA section 112 In contrast, the CAA sets out a be exempt from complying with CAA sets forth a prescriptive standard-setting fundamentally different regime with section 112 emission limitations during framework; CAA section 110 does not. respect to CAA section 110 SIPs, periods of SSM, that finding is not CAA sections 112 and 110 have reflecting the principle that SIP necessarily binding on CAA section 110 different goals and establish different development and implementation is and EPA’s consideration of SIPs under EPA roles in implementation. Given the customizable for each state’s that section. Sierra Club decision’s singular focus on circumstances and relies on the Federal- The interpretation offered in this CAA section 112 standards, and the state partnership.43 CAA section document is informed by and consistent vastly different purposes and 110(a)(2)(A) requires states to adopt, and with the distinct structures and implementation approaches between include in their SIP submissions, purposes of CAA sections 110 and 112. CAA sections 110 and 112, there is a ‘‘enforceable emission limitations and As explained in the June 5, 2019, reasonable basis for interpreting the other control measures, means, or NPRM, the D.C. Circuit in Sierra Club Sierra Club decision as only applying to techniques (including incentives such specifically referred to CAA section 112 CAA section 112. as fees, marketable permits, and when it framed Petitioners’ argument The purpose of CAA section 112 is auctions of emissions rights) . . . as may and found that the Agency fundamentally different than the be necessary or appropriate to meet the ‘‘constructively reopened consideration purpose of CAA section 110. applicable requirements of this Act.’’ 44 of the exemption from section 112 Importantly, the court in Sierra Club The CAA sets forth the minimum emission standards during SSM 33 recognized that Congress intended ‘‘that requirements to attain, maintain, and events.’’ The court’s analysis reads the sources regulated under section 112 enforce air quality standards, while definition of emission limitation and meet the strictest standards.’’ 37 As allowing each state to identify and standard at CAA section 302(k) in the described in the June 5, 2019, NPRM, effectuate an approach that is context of CAA section 112: ‘‘When under CAA section 112, once a source appropriate for the sources and air sections 112 and 302(k) are read category is listed for regulation pursuant quality challenges specific to each together then, Congress has required to CAA section 112(c), the statute state.45 CAA section 109(a) directs the that there must be continuous section directs EPA to use a specific and EPA Administrator to promulgate 112-compliant standards.’’ 34 Further, exacting process to establish nationally primary and secondary NAAQS for specific to CAA section 112 rules, the applicable, category-wide, technology- pollutants for which air quality criteria court explained, ‘‘[i]n requiring that based emissions standards under CAA have been issued. For each criteria sources regulated under section 112 38 meet the strictest standards, Congress section 112(d). Under CAA section pollutant, CAA section 109(b)(1) directs gave no indication that it intended the 112(d), EPA must establish emission the Administrator to establish a primary application of [maximum achievable standards for major sources that NAAQS based on the attainment and control technology] standards to vary ‘‘require the maximum degree of maintenance of which there is an based on different time periods.’’ 35 In reduction in emissions of the hazardous adequate margin of safety as required to air pollutants subject to this section’’ Sierra Club, the court found that when 40 EPA promulgates standards pursuant to that EPA determines is achievable See 42 U.S.C. 7412(d)(3)(A), (B). 41 See 42 U.S.C. 7412(d)(3). CAA section 112, CAA section 112- taking into account certain statutory factors.39 EPA refers to these rules as 42 See Cement Kiln Recycling Coal. v. EPA, 255 compliant standards must apply F.3d 855, 857–58 (D.C. Cir. 2001). continuously. The stringency of CAA ‘‘maximum achievable control 43 See, e.g., Virginia v. EPA, 108 F.3d 1397, 1408 section 112 was thus an important technology’’ or ‘‘MACT’’ standards. The (D.C. Cir. 1997) (‘‘EPA ‘identifies the end to be element of the court’s decision,36 and MACT standards for existing sources achieved, while the states choose the particular must be at least as stringent as the means for realizing that end.’ ’’) (quoting Air Pollution Control Dist. v. EPA, 739 F.2d 1071, 1074 32 See 80 FR at 33874. average emission limitation achieved by (D.C. Cir. 1984)). See also, e.g., H.R. Rep. No. 95– 33 Sierra Club, 551 F.3d at 1026. 294, 95th Cong. 1st Sess. at 213 (explaining that for 34 Id. at 1027. regulated under section 112 meet the strictest nonattainment areas, Congress intended to ‘‘give the 35 Id. at 1028. standards.’’). States more flexibility in determining how to 37 36 See id. at 1027 (‘‘Section 112(d) provides that Id. at 1028. protect public health while still permitting ‘[e]missions standards’ promulgated thereunder 38 EPA can also set work practices under CAA reasonable new growth’’) (May 12, 1977). must require MACT standards.’’); id. at 1028 section 112(h). 44 See 42 U.S.C. 7410(a)(2)(A) (emphasis added). (explaining that Congress intended that ‘‘sources 39 See 42 U.S.C. 7412(d)(2) (emphasis added). 45 See Virginia v. EPA, 108 F.3d at 1408.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23704 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

protect public health. Similarly, CAA also explained, ‘‘so long as the ultimate an alternative approach, consistent with section 109(b)(2) directs the effect of a State’s choice of emission the Region’s interpretation of the Administrator to establish secondary limitations is compliance with the flexibility afforded pursuant to CAA standards based on the attainment and national standards for ambient air, the section 110(a)(2)(A) and the Train maintenance of which there is an State is at liberty to adopt whatever mix decision. Incorporating the explanation adequate margin of safety as required to of emission limitations it deems best provided in the NPRM, Region 4 protect the public welfare from known suited to its particular situation.’’ 48 maintains that because the North or anticipated adverse effects associated State and Federal Government divide Carolina SIP includes numerous with the presence of such pollutants in this responsibility, which results in a protective provisions and evidence ambient air. Based on the scientific and balance of state and Federal rights and shows that the SIP is ensuring technical information available at the responsibilities. States typically have attainment and maintenance of the time of issuing a standard, EPA primary responsibility for determining NAAQS, it is appropriate to rely on the identifies the level of the NAAQS for how and to what extent to regulate flexibility afforded to states by Train in each criteria pollutant as a means of sources within the state to comply with this circumstance. setting a target for state and regional air NAAQS.49 In fact, EPA has The statutory text of CAA section quality planning. The standard-setting implemented guidance addressing a 110(a)(2)(A) reflects this EPA-state process related to the regulation of number of requirements in CAA section cooperative relationship, providing state pollutants in ambient air, as directed by 110 and explained that SIPs could flexibility that simply does not exist in section 109 and as implemented by satisfy the requirements of CAA section the text of CAA section 112, as outlined section 110 of the CAA, is therefore 110(a)(2)(A) by simply ‘‘identify[ing] earlier in this section. CAA section fundamentally different in nature than existing EPA-approved SIP provisions 110(a)(2)(A) generally requires that each the process for setting stringent source- or new SIP provisions . . . that limit SIP shall include ‘‘enforceable emission specific standards that EPA is required emissions of pollutants relevant to the limitations and other control measures, to issue under CAA section 112. The subject NAAQS.’’ 50 Given their means, or techniques (including D.C. Circuit’s concern that CAA section understanding of emission sources and economic incentives such as fees, 112-compliant standards must apply air quality within their jurisdictions, marketable permits, and auctions of ‘‘continuously’’ to regulate emissions states are uniquely suited and well- emissions rights), as well as schedules from a particular source does not equipped to determine how best to and timetables for compliance, as may translate directly to the context of CAA implement the NAAQS in light of their be necessary or appropriate to meet the section 110, where a state’s plan may particular local needs. Comments from applicable requirements of this contain a broad range of measures, NC DAQ emphasize that the State ‘‘has chapter.’’ 53 EPA has never interpreted including limits on multiple sources’ a long and successful history of this provision to require the type of and source categories’ emissions of implementing [the NAAQS attainment exacting analysis set forth in CAA multiple pollutants—all working and maintenance] framework in North section 112, and the flexibility Congress together to ensure attainment and Carolina’’ and notes that ‘‘all NAAQS gave states in section 110 warrants a maintenance of an ambient standard are being met in the state.’’ 51 NC DAQ differing interpretation. The that is not itself an applicable lauds Federal, state and local presumption of consistent usage—that a requirement for individual sources. partnerships for the successful word or phrase is presumed to bear the Importantly, regardless of the measures implementation.52 same meaning throughout a text—only a state seeks to include in its SIP, those Region 4 received comments ‘‘makes sense when applied . . . 54 measures must collectively work toward challenging the reliance on Train and pragmatically.’’ It is appropriate, and compliance with the nationally uniform the associated line of cases because in pragmatic, for Region 4 to consider the NAAQS. the 2015 SSM SIP Call Action the distinct frameworks and purposes of The Fourth Circuit has acknowledged Agency viewed Train as not authorizing CAA sections 110 and 112 when that ‘‘[s]tates are accorded flexibility in exemptions in SIPs. However, implementing the term ‘‘emission determining how their SIPs are acknowledging the prior interpretation, limitation’’ in evaluating the North structured’’ to ensure that the state in this action, Region 4 has evaluated Carolina SIP. meets the NAAQS.46 Further, the U.S. the North Carolina SIP and is adopting The U.S. Supreme Court has Supreme Court has recognized that the recognized that principles of statutory Carolina may provide exemptions from numerical construction are not so rigid as to CAA gives a state ‘‘wide discretion’’ to emission limits because its SIP contains a set of formulate its plan pursuant to CAA necessarily require that the same emission limitations, control means, or other means terminology has the exact same meaning section 110 and went so far as to say or techniques, which, taken as a whole, meet the in different parts of the same statute.55 that ‘‘the State has virtually absolute requirements of attaining and maintaining the NAAQS negates commenters’ assertion that the Terms can have ‘‘different shades of power in allocating emission limitations Agency is authorizing North Carolina to adopt meaning,’’ reflecting ‘‘different so long as the national standards are emission limitations or standards that violate the implementation strategies’’ even when 47 CAA. met.’’ The U.S. Supreme Court has 56 48 Train v. Natural Res. Def. Council, Inc., 421 used in the same statute. Emphasizing that ‘‘[c]ontext counts,’’ the Court 46 North Carolina ex rel. Cooper v. TVA, 615 F.3d U.S. 60, 79 (1975). 291, 299 (4th Cir. 2010). 49 See, e.g., Mirant Potomac River, LLC v. EPA, explained that ‘‘[t]here is . . . no 47 See, e.g., Union Elec. Co. v. EPA, 427 U.S. 246, 577 F.3d 223, 227 (4th Cir. 2009) (‘‘Under Title I, effectively irrebuttable presumption that 250 & 267 (1976). See also id. at 269 (‘‘Congress states have the primary responsibility for assuring the same defined term in different that air quality within their borders meets the plainly left with the States, so long as the national provisions of the same statute must be standards were met, the power to determine which NAAQS. Title I requires each state to create a State sources would be burdened by regulation and to Implementation Plan . . . to meet the NAAQS.’’). what extent.’’). Commenters challenged the 50 See September 13, 2013, Memorandum from 53 See 42 U.S.C. 7410(a)(2)(A). proposal’s reliance on the Union Electric and Train Stephen D. Page, ‘‘Guidance on Infrastructure State 54 Antonin Scalia & Bryan A. Garner, Reading decisions, but do not disagree with Region 4’s basis Implementation Plan (SIP) Elements under Clean Law: The Interpretation of Legal Texts 171 for relying on the decisions, specifically that they Air Act Sections 110(a)(1) and 110(a)(2)’’ at page 18. (Thompson/West) (2012). establish that states are afforded discretion 51 Comment Letter submitted by NC DAQ, EPA– 55 See Envtl. Def. v. Duke Energy Corp., 549 U.S. regarding how to develop SIPs. The alternative R04–OAR–2019–0303–0020. 561, 574 (2007). policy’s explanation, detailed below, that North 52 Id. 56 Id. at 574 (citations omitted).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23705

interpreted identically.’’ 57 Contrary to be interpreted as a single limit that allow improvement of air quality while assertions by commenters, the distinct applies continuously and without still providing for growth in areas not purposes of CAA sections 110 and 112 exempt periods, Region 4 finds that meeting the NAAQS, through 15A provide the relevant context that North Carolina’s SIP provisions that NCAC 2D .0530 and 2D .0531. Thus, as justifies Region 4’s decision to interpret include periods of exemptions are not the U.S. Supreme Court explained in the definition of emission limitation or inconsistent with the CAA under the Duke Energy that a term may be standard differently in the two latter part of provision 110(a)(2)(A) as interpreted differently when justified by provisions. As opposed to assertions ‘‘other control measures, means or different contexts (in this case different from commenters who disagreed with techniques . . . as may be necessary or parts of the same statute), the CAA the June 5, 2019, NPRM’s discussion of appropriate to meet the applicable definition of an emission limitation in the Duke Energy decision, the requirements of [the] Act’’ 58 (emphasis section 302(k), when read in the context interpretation of CAA sections 302(k) added). of section 110, could mean states may, and 110(a)(2)(A) advanced in this Region 4 interprets CAA section at their discretion, provide exemptions document does not disregard the 110(a)(2)(A) to mean a state may provide from specific numerical emission limits concept of continuity from CAA section exemptions from numerical emission during periods when it is not 302(k), nor does it nullify the limits so long as the SIP contains a set practicable or necessary for such limits provision’s meaning. Rather, the of emission limitations, control means, to apply, so long as the SIP contains concept of continuity is acknowledged or other means or techniques, which, other provisions that remain in effect and afforded significance through the taken as a whole, meet the requirements and ensure the NAAQS are protected. fact that the North Carolina SIP in of attaining and maintaining the Region 4 evaluated the North Carolina which such emission limitations exist, NAAQS under subpart A. As supported SIP and determined it is not as a whole, applies continuously. The by NC DAQ’s comment letter 59 on the inconsistent with CAA requirements for concept of continuous ‘‘emission NPRM and as this section further the SIP to contain such exemption limitations’’ in a SIP need not be elaborates, our evaluation of the North provisions because the State’s focused on continuous implementation Carolina SIP shows this to be the case. overlapping protective requirements of each individual limit, but rather on The State has a combination of emission sufficiently ensure overall attainment the approved SIP as a whole and limits that apply ‘‘as may be necessary and maintenance of the NAAQS. whether the SIP operates continuously or appropriate’’ during normal Consistent with this interpretation, to ensure attainment and maintenance operations but with exemptions during Region 4 has evaluated the North of the NAAQS. SSM periods and ‘‘other control Carolina SIP as a whole and has Region 4’s interpretation is consistent measures, means, or techniques’’ that determined that the SIP contains with the concept that the CAA requires remain applicable during periods of numerous provisions intended to assure that some section 110 standard apply SSM in which the exemptions apply— that air quality standards will be continuously. Specifically, CAA such as general duty provisions in the achieved, as explained below. Any 110(a)(2)(A) requires the SIP to include SIP, work practice standards, best provisions allowing exemptions for ‘‘enforceable emission limitations and management practices, or alternative periods of SSM do not alter the other control measures, means, or emission limits—and are protective of applicability of these general SIP techniques (including economic the NAAQS. Additionally, SIPs are requirements. In analyzing the air incentives such as fees, marketable required to include entirely separate quality protections provided by the permits, and auctions of emissions provisions, such as minor source review entirety of the North Carolina SIP, rights), as well as schedules and and major source new source review Region 4 concludes that the SIP timetables for compliance, as may be provisions regulating construction or contains overlapping planning necessary or appropriate to meet the modification of stationary sources, that requirements that are protective of each applicable requirements of this Act.’’ also effectively limit emissions of individual criteria pollutant NAAQS. In The phrase ‘‘as may be necessary or NAAQS pollutants within the state. fact, both provisions that were included appropriate to meet the applicable North Carolina regulates the in the 2015 SSM SIP Call Action for requirements of [the] Act’’ explicitly construction and modification of North Carolina include substantial allows the State some flexibility to sources to prevent significant protection of air quality standards develop SIP provisions that are best deterioration of air quality in areas suited for their purposes. In this already attaining the NAAQS, or to within the SIP-called provision itself. context, Region 4 finds that a reasonable First, as Region 4 outlined in the June 5, 2019, NPRM, the exemption provided interpretation of the section 302(k) 58 Region 4 also notes that this interpretation is definition of the terms ‘‘emission consistent with language in the CAA definition of at NCAC 2D .0535(g) requires that limitation’’ and ‘‘emission standard’’ ‘‘Federal Implementation Plan’’ (FIP) (i.e., a plan, or owners or operators use best available portion thereof, promulgated by the Administrator control practices when operating does not preclude North Carolina from to fill all or a portion of a gap or otherwise correct adopting provisions that apply all or a portion of an inadequacy in a SIP). The equipment to minimize emissions continuously while also allowing that definition, at section 302(y), states that a FIP during startup and shutdown periods. ‘‘includes enforceable emission limitations or other Specifically, it states: unavoidable excess emissions that occur control measures, means or techniques (including during certain discrete, time-limited economic incentives, such as marketable permits or Start-up and shut-down. Excess emissions periods of operation may not be auctions of emissions allowances), and provides for during start-up and shut-down shall be considered a violation of the rule. This attainment of the relevant national ambient air considered a violation of the appropriate rule quality standard’’ (emphasis added). This language if the owner or operator cannot demonstrate is consistent with Region 4’s clarifies that ‘‘other control measures, means or determination that the North Carolina that the excess emissions are unavoidable techniques’’ is an approach that is separate from when requested to do so by the Director. The SIP, considered as a whole, meets the ‘‘enforceable emission limitations’’ and thus does Director may specify for a particular source not invoke the 302(k) definition of ‘‘emission requirements of the Act. But even if the amount, time, and duration of emissions commenters are correct that limitation.’’ 59 Letter from Michael A. Abraczinskas, Director, that are allowed during start-up or shut- ‘‘enforceable emission limitations’’ must NC DAQ, to EPA, August 5, 2019, Docket ID No. down. The owner or operator shall, to the EPA–R04–OAR–2019–0303–0001 for this extent practicable, operate the source and 57 Id. at 575–76. rulemaking. any associated air pollution control

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23706 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

equipment or monitoring equipment in a This limitation reasonably minimizes to cause NAAQS violations. 15A NCAC manner consistent with best practicable air the risk that excess emissions from 2D .0501(e) directs all sources to operate pollution control practices to minimize malfunctions would contribute to a in a manner that does not cause any emissions during start-up and shut-down. NAAQS exceedance or violation. ambient air quality standard to be (Emphasis added.) Apart from the SIP-called provisions exceeded at any point beyond the Even though this provision includes discussed above, as discussed in the premises on which the source is located, an exemption, it also provides a June 5, 2019, NPRM, the North Carolina despite the SIP containing SSM backstop that requires sources to use the SIP also contains numerous overlapping exemptions for emission limitations. best practicable air pollution control requirements providing for protection of 15A NCAC 2D .0501(e) states: practices to minimize emissions during air quality and the NAAQS, In addition to any control or manner of startup or shutdown periods. requirements that generally control operation necessary to meet emission Second, the exemption provided at emissions of NAAQS pollutants. Each of standards in this Section, any source of air NCAC 2D .0535(c) outlines seven these provisions ensures that emissions pollution shall be operated with such control criteria that the director will consider are minimized to protect air quality, or in such manner that the source shall not when evaluating whether the source independent of an SSM exemption that cause the ambient air quality standards of qualifies for an emissions limit may also apply. Described as follows, Section .0400 of this Subchapter to be exceeded at any point beyond the premises exemption during a malfunction. these generally applicable requirements Specifically, it states: on which the source is located. When collectively support Region 4’s controls more stringent than named in the Any excess emissions that do not occur alternative policy for the North Carolina applicable emission standards in this Section during start-up or shut down shall be SIP. are required to prevent violation of the considered a violation of the appropriate rule First, 15A NCAC 2D .0502, which is ambient air quality standards or are required unless the owner or operator of the source of included in the North Carolina SIP and to create an offset, the permit shall contain the excess emissions demonstrates to the addresses emission control standards a condition requiring these controls. director, that the excess emissions are the result of a malfunction. To determine if the generally, provides: ‘‘The purpose of the Accordingly, even if the SIP contains excess emissions are the result of a emission control standards set out in exemptions from numerical emission malfunction, the director shall consider, this Section is to establish maximum limits during SSM events, this provision along with any other pertinent information, limits on the rate of emission air ensures that the source at issue must the following: contaminants into the atmosphere. All ensure that none of its emissions cause (1) The air cleaning device, process sources shall be provided with the a NAAQS exceedance or violation, equipment, or process has been maintained maximum feasible control.’’ 60 The consistent with the primary purpose of and operated, to the maximum extent requirement for ‘‘maximum feasible practicable, in a manner consistent with good CAA section 110. practice for minimizing emissions; control’’ on all sources applies at all Third, the North Carolina SIP (2) Repairs have been made in an times, including periods of startup and provides additional assurances that expeditious manner when the emission shutdown. Thus, by requiring sources to sources will prevent and correct limits have been exceeded; be subject to emission control standards equipment failures that could result in (3) The amount and duration of the excess established at the maximum feasible excess emissions by requiring utility emissions, including any bypass have been level of control, the SIP ensures that air boilers (and any source with a history of minimized to the maximum extent quality in the State will be protected to excess emissions, as determined by the practicable; the highest degree possible. This Director) to have a malfunction (4) All practical steps have been taken to minimize the impact of the excess emissions guiding purpose broadly applies to the abatement plan approved by the on ambient air quality; emission control standards in Section Director. Utility boilers in North (5) The excess emissions are not part of a .0500 of the North Carolina SIP. North Carolina contribute a significant portion recurring pattern indicative of inadequate Carolina confirmed as much in their of the point source pollutant emissions design, operation, or maintenance; comment letter on EPA’s 2015 SSM in the State.62 15A NCAC 2D .0535(d) (6) The requirements of Paragraph (f) of the policy, explaining that the State’s states: Regulation have been met; and requirement that sources implement (7) If the source is required to have a All electric utility boiler units subject to a ‘‘maximum feasible control’’ is one of rule in this section shall have a malfunction malfunction abatement plan, it has followed the provisions of the SIP that ‘‘provide that plan. abatement plan approved by the director. In All malfunctions shall be repaired as assurances that air quality and emission addition, the director may require any source 61 expeditiously as practicable. However, the standards will be achieved.’’ In light that he has determined to have a history of director shall not excuse excess emissions of the flexibility in CAA section excess emissions to have a malfunction caused by malfunctions from a source for 110(a)(2)(A) and SIP development abatement plan approved by the director. The more than 15 percent of the operating time generally, North Carolina has developed malfunction plans of electric utility boiler during each calendar year. a reasonable overall emissions control units and of other sources required to have them shall be implemented when a The existence of these specific criteria approach that requires all sources to malfunction or other breakdown occurs. The themselves provide additional implement maximum feasible emission purpose of the malfunction abatement plan is protections of the NAAQS because control efforts at all times, even though to prevent, detect, and correct malfunctions factors considered by the director the State may exempt sources from or equipment failures that could result in include whether sources minimize numerical emission limits during some excess emissions.... emissions and limit the extent of SSM periods. This provision goes on to describe the emissions which could occur to the Second, the North Carolina SIP minimum requirements for a greatest extent practicable. Additionally, includes general provisions that require malfunction abatement plan, including: the provision itself establishes bounds sources not to operate in such a way as on a source’s ability to employ this 62 For example, utility boilers in North Carolina 60 exemption by prohibiting the Director See 40 CFR 52.1770(c)(1). contribute approximately 24 percent of PM10 61 from excusing excess emissions from a Letter from Sheila C. Holman, Director, NC emissions, 66 percent of SO2 emissions, and 47 DAQ, to EPA, May 13, 2013, page 2, Docket ID No. percent of NOX emissions from total point sources source due to malfunctions for more EPA–HQ–OAR–2012–0322–0619, available at in the State. See spreadsheet titled ‘‘NC 2014 NEI than 15 percent of the operating time. www.regulations.gov. Summary’’ in the docket for this action.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23707

(1) A complete preventive maintenance sanding, or finishing of wood to be within the utility-wide cap for the State program (including identification of the discharged from any stack, vent, or building provided under a law adopted as part of individual responsible for inspecting, into the atmosphere without providing, as a a comprehensive plan for improving air maintaining and repairing air cleaning minimum for its collection, adequate duct quality in North Carolina. work and properly designed collectors, or devices; description of the items or such other devices as approved by the Region 4 also notes that the conditions that will be inspected and commission, and in no case shall the ambient exemption provisions in the North maintained; the frequency of the air quality standards be exceeded beyond the Carolina SIP are limited in scope and do inspection, maintenance services, and property line. not apply to sources to which Rules repairs; and identification and Accordingly, even if the SIP contains .0524, .1110 or .1111 of subchapter 2D quantities of the replacement parts that exemptions from numerical emission apply. See 15A NCAC 2D .0535(b). shall be maintained in inventory for limits during SSM events, these These SIP provisions require that quick replacement); (2) the procedures provisions ensure that the source at sources that are subject to EPA’s New for detecting a malfunction or failure issue must ensure that none of its Source Performance Standards (NSPS) (including identification of the source emissions cause a NAAQS exceedance at 40 CFR part 60 or National Emission and air cleaning operating variables and or violation. Standards for Hazardous Air Pollutants outlet variables; the normal operating Fifth, the North Carolina SIP provides (NESHAP) at 40 CFR part 61 or 63 must range of those variables; and a a general requirement at 15A NCAC 2D comply with those Federal standards description of the monitoring method or .0521(g) for sources that operate rather than with any otherwise- surveillance procedures and of the continuous opacity monitoring systems applicable rule of the SIP (except where system for alerting operating personnel (COMS) that ‘‘[i]n no instance shall the SIP rule is more stringent than the of any malfunctions); and (3) a excess [opacity] emissions exempted Federal standards). Region 4 received comments description of the corrective procedures under this Paragraph cause or contribute challenging the June 5, 2019, NPRM’s that will be taken to achieve compliance to a violation of any emission standard reliance on the generally applicable with the applicable rule as in this Subchapter or 40 CFR part 60, provisions, which commenters expeditiously as practicable in case of a 61, or 63 or any ambient air quality 63 characterized as ‘‘general duty’’ malfunction or failure. Although standard in Section 15A NCAC 2D .0400 provisions. Commenters raised concerns specific to electric utility boilers (and or 40 CFR part 50.’’ As recognized by about Region 4 relying on these other sources as required by the this provision, Federal standards in 40 provisions, asserting they ‘‘fail to meet Director), this SIP provision ensures that CFR parts 60, 61, and 63, as applicable subject units are taking steps to prevent, the level of control required by the to a source, regulate source emissions applicable stringency requirements’’ detect, and correct malfunctions, even if and operation, regardless of any SSM an SSM exemption applies. This and that these provisions are not legally exemption in the SIP. or practically enforceable. As discussed provision serves to limit any excess Finally, Region 4 notes that the SIP in Section V of this document, Region emissions that could result from such includes an overall strategy for bringing 4 disagrees with commenters’ concerns events, thus reducing the possibility all areas into compliance with the regarding generally applicable that any excess emissions would result NAAQS for all pollutants regulated by provisions. Region 4 has not asserted in a NAAQS exceedance or violation. the CAA. On September 26, 2011, Fourth, the North Carolina SIP that the numerous protective provisions Region 4 approved into the SIP provides general provisions to reduce serve to replace the applicable significant NO and sulfur dioxide airborne pollutants and to prevent X stringency requirements. Instead, these (SO ) emission limitations from the NAAQS exceedances beyond facility 2 provisions provide additional North Carolina Clean Smokestacks Act property lines, despite the SIP assurances that the applicable (NCCSA).64 This State law became containing SSM exemptions for stringency requirements will effectively

numerical emission limits, for effective in 2007 and set caps on NOX ensure attainment and maintenance of particulates from sand, gravel, or and SO2 emissions from public utilities the NAAQS, despite the fact that there crushed stone operations and from operating coal-fired power plants in the are provisions allowing for narrow State that cannot be met by purchasing exemptions during certain periods of lightweight aggregate operations (at 15A 65 NCAC 2D .0510(a) and 0511(a), emissions credits. The NCCSA SSM. In terms of enforcing the respectively): resulted in permanent emission protective provisions, many of the reductions that helped nonattainment The owner or operator of a [. . .] operation provisions identified in this document areas in the State achieve attainment of are, in fact, mandatory. For example, shall not cause, allow, or permit any material the 1997 Annual PM NAAQS.66 Thus, to be produced, handled, transported or 2.5 15A NCAC 2D .0502 states: ‘‘All sources stockpiled without taking measures to reduce even if a source could avail itself of an shall be provided with the maximum to a minimum any particulate matter from SSM exemption for certain excess feasible control’’ (emphasis added). And becoming airborne to prevent exceeding the emissions, its total emissions must fit 15A NCAC Code 2D .0501(e) instructs: ambient air quality standards beyond the ‘‘. . . any source of air pollution shall property line for particulate matter, both 64 See 76 FR 59250 (September 26, 2011). be operated with such control or in such PM and total suspended particulates. 65 10 See 40 CFR 52.1781(h). manner that the source shall not cause And in a similar manner, the North 66 See Approval and Promulgation of Implementation Plans and Designation of Areas for the ambient air quality standards of Carolina SIP includes general provisions Air Quality Planning Purposes; North Carolina: Section .0400 of this Subchapter to be to reduce airborne pollutants and to Redesignation of the Hickory-Morganton-Lenoir exceeded at any point beyond the prevent NAAQS exceedances beyond 1997 Annual Fine Particulate Matter premises on which the source is facility property lines for particulates Nonattainment Area to Attainment; Proposed Rule, 76 FR 58210, 58217 (Sept. 20, 2011), and Approval located’’ (emphasis added). Further, from wood products finishing plants (at and Promulgation of Implementation Plans and when warranted by a situation, EPA can 15A NCAC 2D .0512): Designation of Areas for Air Quality Planning bring an action to enforce these types of A person shall not cause, allow, or permit Purposes; North Carolina: Redesignation of the provisions. Greensboro-Winston Salem-High Point 1997 Annual particulate matter caused by the working, Fine Particulate Matter Nonattainment Area to EPA has a statutory duty pursuant to Attainment; Proposed Rule, 76 FR 59345, 59352 CAA section 110(k)(3) to approve SIP 63 See 15A NCAC 2D .0535(d)(1)–(3). (Sept. 26, 2011). submissions that meet all applicable

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23708 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

CAA requirements. For North Carolina, CAA requirements 68 and is making a the director’s discretion exemptions. Region 4 has concluded that the SIP’s finding that the director’s discretion The North Carolina director’s discretion approach to exemptions is consistent SSM exemptions in the North Carolina provisions outline the specific with the CAA requirement to protect SIP are not inconsistent with CAA conditions under which air agency attainment and maintenance of the requirements. In this action, Region 4 is personnel can make a factual decision NAAQS. Region 4 recognizes that the adopting an alternative policy for North that SSM emissions do not constitute a exemptions from emission limitations in Carolina that automatic exemptions violation of the NAAQS, and that the North Carolina SIP provide the State during periods of SSM are not limitation is part of Region 4’s holistic with flexibility as it develops robust inherently inconsistent with CAA consideration of the SIP. The SIP, as approaches to air quality protection section 110(a)(2)(A). The rationale federally approved, provides air agency provided above for finding that through a set of planning requirements. personnel with the framework and automatic exemptions in the North The numerous protective provisions are authority to exempt certain excess Carolina SIP do not preclude the SIP a significant justification for Region 4 emission events from being a violation. adopting an alternative policy for the from meeting the CAA requirements of attainment and maintenance of the Because that allowance is provided for North Carolina SIP. Further, these in the approved SIP, and the SIP provisions reflect North Carolina’s NAAQS under subpart A as long as the provisions went through a public reasoned judgment for how to best SIP, when evaluated comprehensively, comment period prior to Region 4’s final assure attainment and maintenance of contains a set of emission limitations, action in this document to approve the NAAQS in the State. control means, or other means or techniques, also applies to Region 4’s them, an action made in accordance B. Director’s Discretion Exemption evaluation of director’s discretion with these approved provisions would Provisions exemptions in the North Carolina SIP. not constitute an unlawful SIP revision. As explained below, because automatic CAA section 113 authorizes the In addition to the general SSM SSM exemptions are broader than exemption issues discussed above, in United States to enforce, among other director’s discretion provisions but do things, the requirements or prohibitions the 2015 SSM SIP Call Action EPA also not render the North Carolina SIP raised concerns that North Carolina’s of an applicable implementation plan or inadequate, Region 4 also finds that permit. CAA section 304 authorizes 15A NCAC 2D .0535(c) and 15A NCAC director’s discretion exemptions do not 2D .0535(g) are examples of what EPA citizens to enforce, among other things, render the SIP inadequate. any emission standard or limitation referred to as ‘‘director’s discretion’’ Further, consistent with the exemptions. Rule 15A NCAC 2D perspective that the North Carolina SIP, under the CAA, including applicable .0535(c) lists seven criteria that the considered as a whole, generally state implementation plan and permit Director of NC DAQ will evaluate to protects against NAAQS violations and requirements. The framework and determine whether excess emissions that SIP provisions containing SSM authority contained in 15A NCAC 2D resulting from a malfunction are a exemptions may not be inconsistent .0535 requires sources to make specific violation of the given standard. In with CAA requirements, Region 4 has demonstrations and the Director to addition, rule 15A NCAC 2D .0535(g) determined that use of the director’s make specific determinations before directs facilities, during startup and discretion provisions in the North exempting sources from compliance shutdown, to operate all equipment in Carolina SIP also does not constitute an with an otherwise applicable emission a manner consistent with best improper SIP revision. Given the limitation. Accordingly, and consistent practicable air pollution control specific criteria contained within them, with statements made by EPA when the practices to minimize emissions and to North Carolina’s director’s discretion Agency approved 15 NCAC 2D .0535(c) demonstrate that excess emissions were provisions excuse excess emissions in into the North Carolina SIP in 1986,69 unavoidable when requested to do so by more limited circumstances than the exercise of authority under the the Director. In the 2015 SSM SIP Call provided for by automatic exemptions. director’s discretion provisions of 15A Action, EPA took the position that these Accordingly, the same reasoning that NCAC 2D .0535 shall not be construed director’s discretion provisions were supports our position that automatic to bar, preclude, or otherwise impair the also problematic because they allow air exemptions in the North Carolina SIP right of action by the United States or agency personnel to modify existing SIP may not be inconsistent with the CAA citizens to enforce a violation of an requirements under certain conditions, also informs our position that the emission limitation or emission which essentially constituted a variance narrower director’s discretion standard in the SIP or a permit where from an otherwise applicable emission exemption provisions in the North the demonstration by a source or a limitation. EPA considered director’s Carolina SIP that were SIP-called in the determination by the Director does not discretion provisions to effectively 2015 SSM SIP Call Action are not comply with the framework and provide for impermissible SIP revisions inconsistent with the CAA. This finding authority under 15 NCAC 2D .0535. by allowing air agency personnel to is predicated on a holistic view that make unilateral decisions on an ad hoc includes consideration of all provisions Failure to comply with such framework basis regarding excess emissions during in the North Carolina SIP. Relevant to and authority would invalidate the SSM events and, thus, as not in this evaluation, as discussed above, the Director’s determination. compliance with the necessary process North Carolina SIP includes provisions required for SIP revisions.67 that provide for sources to be operated 69 See 51 FR 32073, 32074 (September 9, 1986) in a manner that does not cause an (EPA stated: ‘‘it should be noted that EPA is not While acknowledging those concerns, approving in advance any determination made by consistent with the June 5, 2019, NPRM, exceedance or violation of the NAAQS, the State under paragraph (c) of the rule, that a Region 4 is finalizing a finding that SSM and that requirement is not displaced by source’s excess emissions during a malfunction exemptions may not necessarily make a were avoidable and excusable, but rather s SIP substantially inadequate to meet 68 See Texas v. EPA, 690 F.3d 670 (5th Cir. 2012); approving the procedures and criteria set out in Luminant Generation Co. v. EPA, 675 F.3d 917 (5th paragraph (c). Thus, EPA retains its authority to Cir. 2012) (vacating and remanding EPA’s independently determine whether an enforcement 67 See 80 FR at 33977–78. disapproval of discretionary SIP provisions). action is appropriate in any particular case.’’).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23709

C. Withdrawal of the SIP Call for North to the North Carolina SIP. As guidance, revision and resubmitted identical Carolina this does not bind states, EPA, or other changes to 15A NCAC 2D .1423 as a SIP As part of the 2015 SSM SIP Call parties, but it reflects Region 4’s revision as well as the changes to the interpretation of the CAA requirements other rules contained in the original Action, EPA issued CAA section 74 75 110(k)(5) SIP calls to a number of states, with respect to the North Carolina SIP. 2002 SIP revision. The State including North Carolina regarding The evaluation of any other state’s provided this resubmission in response to a Region 4 request for a version of the provisions 15A NCAC 2D .0535(c) and implementation plan provision, and that rule that highlights, using redline- 15A NCAC 2D .0535(g).70 In the 2015 SIP provision’s interaction with the SIP strikethrough text, the State’s proposed SSM SIP Call Action, the Agency as a whole, must be done through revisions to the federally approved rule. explained that it would evaluate any notice-and-comment rulemaking. EPA’s regulations allow EPA Regions The June 5, 2017, SIP revision relies on pending SIP submission or previously to take actions that interpret the CAA in the hearing record associated with the approved submission through notice- a manner inconsistent with national August 14, 2002, SIP revision 76 because and-comment rulemaking and, as part of policy when a Region seeks and obtains the revised rule text is the same. that action, determine whether a given concurrence from the relevant EPA Region 4 is approving the changes to SIP provision is consistent with CAA Headquarters office. Pursuant to EPA’s subparagraphs (a)–(f) of 15A NCAC 2D requirements and applicable regional consistency regulations at 40 .1423 provided in North Carolina’s June regulations.71 In this context, Region 4 CFR 56.5(b), the Region 4 Administrator 5, 2017, SIP revision for the reasons re-evaluated the two subject provisions sought and obtained concurrence from explained in the notice of proposed in the June 5, 2019, proposed notice- EPA’s Office of Air and Radiation to rulemaking. Regarding 15A NCAC 2D and-comment action that Region 4 is propose an action that outlines an .1423(d)(1), as noted in the June 5, 2019, finalizing in this document. alternative policy that is inconsistent NPRM, the rule revision inserted the As discussed above, the North with the national EPA policy, most phrase ‘‘and .1404 of this Section’’ at the Carolina SIP contains numerous recently articulated in the 2015 SSM SIP end so that it now provides that the provisions that work in concert and Call Action, on provisions exempting owner or operator of a subject internal provide redundancy to protect against a emissions exceeding otherwise combustion engine shall determine NAAQS exceedance or violation, even if applicable SIP limitations during compliance using ‘‘a continuous an SSM exemption provision also periods of unit startup, shutdown and emissions monitoring systems (CEMS) applies. Therefore, based on an analysis malfunction at the discretion of the state which meets the applicable of the multiple provisions contained in agency and to propose action consistent requirements of Appendices B and F of the North Carolina SIP that are designed with that alternative policy. Likewise, 40 CFR part 60, excluding data obtained to be protective of the NAAQS, Region the Region 4 Administrator sought and during periods specified in Paragraph 4 concludes that it is reasonable for the obtained concurrence to finalize the (g) of this Rule and .1404 of this NC DAQ Director to be able to exclude alternative policy in this action. The Section.’’ This change ensures that the qualifying periods of excess emissions concurrence request memorandum, CEMS used to obtain compliance data during periods of SSM while ensuring signed March 19, 2020, is included in must meet the applicable requirements attainment or maintenance of the the public docket for this action. specified in 15A NCAC 2D .1404 (in NAAQS. A holistic review of the North particular, Paragraphs (d)(2) and (f)(2) of Carolina SIP shows that there are IV. Region 4’s Action on North 15A NCAC 2D .1404) as well as the protective provisions that ensure Carolina’s June 5, 2017, SIP Revision applicable part 60 requirements since attainment and maintenance of the As discussed in the June 5, 2019, those provisions specify additional NAAQS even though a SIP includes NPRM, on September 18, 2001, North Federal requirements for obtaining SSM exemptions, and Region 4 believes Carolina submitted a new rule section CEMS data. In addition, although the that this result is not precluded by the reference to ‘‘Paragraph (g) in this Rule’’ regarding the control of NOX emissions D.C. Circuit decision in Sierra Club v. from large stationary combustion is existing federally approved language, Johnson. Consistent with the alternative sources to Region 4 for approval into its Region 4 has considered its policy being adopted, as set forth above, SIP.72 The rule section—15A NCAC 2D approvability in light of the 2015 SSM Region 4 has reviewed the applicability .1400 (‘‘Nitrogen Oxides Emissions’’)— policy because paragraph (g) provides of the SIP Call previously issued to contains 15A NCAC 2D .1423 (‘‘Large that the emission standards of 15A North Carolina, including Region 4’s Internal Combustion Engines’’) as well NCAC 2D .1423 (regulating large specific evaluation of the State’s subject as other rules not related to this final internal combustion engines) do not SIP, and finds that the subject SIP action. On August 14, 2002, North apply during periods of ‘‘(1) start-up provisions are not inconsistent with Carolina submitted to Region 4 a SIP and shut-down periods and periods of CAA requirements. Accordingly, Region revision with changes to its Section malfunction, not to exceed 36 4 is changing the finding from the 2015 consecutive hours; (2) regularly .1400 NOX rules, including several SSM SIP Call Action at 80 FR 33840 that changes to 15A NCAC 2D .1423. Region scheduled maintenance activities.’’ As certain SIP provisions included in the 4 did not act on the August 14, 2002, discussed in Section III above, Region 4 North Carolina SIP are substantially submittal. However, on December 27, has determined that the provisions of inadequate to meet CAA requirements 2002, Region 4 approved the portion of 74 and withdraws the SIP Call that was North Carolina’s September 18, 2001, Region 4 acted on the other rule changes issued in the 2015 SSM SIP action with through a separate rulemaking (83 FR 66133, SIP revision incorporating 15A NCAC December 26, 2018). respect to 15A NCAC 2D .0535(c) and 2D .1423.73 75 On June 28, 2018, North Carolina 15A NCAC 2D .0535(g). On June 5, 2017, North Carolina supplemented its June 5, 2017, submittal to The alternative SSM policy is a policy withdrew its August 14, 2002, SIP acknowledge that Rules .1413 and .1414 are not in statement and, thus, constitutes the SIP. This supplement is not relevant to this guidance within Region 4 with respect action. 72 See Rule .1402—‘‘Applicability’’ and the 76 North Carolina held public hearings on May 21, definition of ‘‘source’’ in Rule .1401 for the scope 2001, and June 5, 2001, to accept comments on the 70 See 80 FR at 33964. of this rule section. rule changes contained in the August 14, 2002, SIP 71 Id. at 33976. 73 See 67 FR 78987 (December 27, 2002). revision.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23710 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

15A NCAC 2D .1423(g), when and arbitrarily defeating the CAA’s goal within the scope of this rulemaking, and considered in conjunction with other of ensuring uniformity of national Region 4 is not providing a response to elements in the North Carolina SIP, are issues, which is Congress’s clear intent. comments regarding that action. sufficient to provide adequate Other commenters state that EPA Comments regarding any subsequent protection of the NAAQS. North recognized in the 2015 SSM SIP Call and separate actions by Region 4 are Carolina has bounded the time during Action that the Agency’s ‘‘legal also speculative and not within the which a source can employ this interpretation of the [CAA] concerning scope of this rulemaking. exemption, minimizing the potential permissible SIP provisions to address This is a regional action to approve a that any excess emissions during these emissions during SSM events’’ was a SIP submission from a single state in periods would cause or contribute to a ‘‘nationally applicable’’ rule and, thus, Region 4 and to withdraw the SSM SIP NAAQS exceedance or violation. any petitions for review challenging Call that was issued for North Carolina Therefore, the exemption, which allows aspects of EPA’s nationally applicable based on an alternative SSM policy that for emission standards of the rule to not SSM SIP Call or its SSM policy were is being adopted and applied by Region apply during periods of startup, required to be filed in the D.C. Circuit, 4 only with regard to the North Carolina shutdown, and malfunction of up to 36 which is where those petitions are still SIP; the commenter provides no factual consecutive hours, or maintenance, is pending. basis for the claim that Region 4 is not inconsistent with the requirements Commenters also state that the June 5, speaking on behalf of EPA Headquarters of CAA section 110, including CAA 2019, NPRM is based on several in this action. EPA Headquarters and section 110(l). Consequently, Region 4 determinations of nationwide scope or Regional Offices routinely collaborate has determined, consistent with the effect, and therefore EPA must find that on rulemaking activities, and the nature policy outlined supra in Section III, that any challenge to the rule is appropriate of the collaborative relationship varies these changes to the North Carolina SIP only in the D.C. Circuit. Commenters depending on the circumstances of the are consistent with CAA requirements. add that because the ‘‘scope or effect’’ specific action involved. EPA of the Region 4 June 5, 2019, NPRM for Headquarters staff may be involved in V. Responses to Comments North Carolina and the Region 6 NPRM drafting complex regional actions, Region 4 received ten supporting for Texas (84 FR 17986 (April 29, 2019)) including proposed and final comments and three adverse comments extends across six judicial circuits rulemakings where EPA acts on SIP on the proposed action. In this section, (covering Regions 4 and 6), the NPRMs submissions under CAA section 110(k), Region 4 describes in detail the adverse must be reviewed only in the D.C. as appropriate. However, as explained comments received and provides Circuit. Commenters also state that below in this response, the level of responses to them. EPA’s treatment of its June 5, 2019, involvement by different EPA offices is 1. Comments That the Action NPRM as Region-specific rather than of not an appropriate inquiry for Constitutes a Nationally-Applicable nationwide scope or effect is arbitrary determining which court would review Rulemaking and Should be Reviewed in and capricious and reviewable because a final action. As described in Section the D.C. Circuit it departs from how EPA has treated III, the alternative policy on SSM other, similar past actions. Commenters adopted in this action applies only to Comment 1: Commenters state that also state that precedent supports the Region 4’s evaluation of the North EPA Headquarters was the driving force conclusion that EPA’s proposed Carolina SIP and does not change or behind the preparation of the June 5, amendment to the SSM SIP Call is alter EPA’s national policy on SSM from 2019, NPRM and that the NPRM is an ‘‘nationally applicable.’’ the June 12, 2015, action at 80 FR attempt to revise EPA’s 2015 national Commenters state that although EPA 33840. policy on SSM in SIPs in a fashion that is now proposing to exempt North Recognizing that Congress intended is not reviewable by the D.C. Circuit. Carolina from the nationally applicable the Federal-state partnership to serve as Other commenters state that the June 5, SIP Call (and exempt states in Region 4 a cornerstone of the SIP development 2019, NPRM does not adequately justify from the SSM SIP policy established in process under the CAA, the latitude the exception to the national policy on the final SIP Call rule) in a separate typically afforded to state air agencies as SSM, asserting that the June 5, 2019, Federal Register document, the Agency they develop SIPs to address air NPRM is a ‘‘backdoor attempt to change must acknowledge that the SSM SIP pollution prevention in their states is national policy through a Regional Call and the June 5, 2019, NPRM at one of the bases for this action. Section action’’ with the aim of review in an issue are part of the same overarching III of both the proposed action and this individual Circuit Court rather than the and ‘‘nationally applicable regulation’’ final action provides a comprehensive D.C. Circuit. Commenters also assert under 42 U.S.C. 7607(b)(1). Commenters explanation for Region’s 4 bases for that the proposed withdrawal of the state that the proposed withdrawal of adopting the alternative policy for North North Carolina SIP Call departs from North Carolina from the national SSM Carolina. Section III of this final action EPA’s 2015 action and that ‘‘this SIP Call explicitly ‘‘departs from EPA’s then applies that alternative policy to reversal effectively amends EPA’s 2015 national policy’’ and announces a the specific facts of the North Carolina national SSM policy.’’ substantive change to determining SIP. Commenters argue that if EPA were to whether exemptions for SSM events in The comments stating that this action withdraw its SSM SIP Call for North SIPs are approvable. Commenters also is a ‘‘backdoor attempt to change Carolina, review of its action should state that although the June 5, 2019, national policy through Regional occur in the D.C. Circuit because such NPRM ostensibly applies to the states in action’’ or that this action establishes a action would reverse a nationally Region 4, EPA is using it to announce new de facto national policy overstate applicable policy. Commenters add that a substantial change to the CAA’s SIP and misunderstand the scope of the any EPA refusal to find that the D.C. requirements. present action. Region 4 is not Circuit is the appropriate venue for Response 1: Comments received establishing a new national policy; review of EPA’s SSM SIP Call is likely regarding Region 6’s April 29, 2019, rather Region 4 is taking action on a to result in different standards and notice of proposed rulemaking specific provision submitted to EPA as methodologies applying in different concerning affirmative defense a revision of the North Carolina SIP and areas of the country, thereby unlawfully provisions in the Texas SIP are not evaluating the adequacy of specific

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23711

North Carolina SIP provisions to meet general applicable procedures and national policy, somehow constitutes an CAA requirements. policies for regions that are designed, admission that such action is based on Region 4 does not agree with among other things, to ‘‘assure fairness a determination of nationwide scope or commenters’ assertion that this action is and uniformity in the criteria, effect. Commenters are not clear on how a reversal of EPA’s national SSM policy procedures, and policies applied.’’ or why taking the step necessary to because the alternative policy adopted Region 4 followed the process to deviate deviate from nationwide policy by Region 4 on SSM exemptions is from national policy set forth in 40 CFR somehow transforms that deviation into specific to Region 4’s evaluation of the part 56, the regulations that EPA nationwide policy. Region 4 lacks the North Carolina SIP—the policy is not promulgated in accordance with CAA authority to issue a policy beyond the adopted or applied to any other SIP in section 301(a)(2). Commenters’ concern states included in the Region. In any Region 4 and does not change or alter regarding the Agency’s general process case, Region 4 states throughout this the national policy on SSM established for regional deviation from national document that this action, and the CAA in the 2015 SSM SIP Action. This action policy is beyond the scope of this interpretation it is based upon, only is limited to the North Carolina SIP. action. applies in North Carolina and does not Region 4 is simply reexamining the Under the venue provision of the alter EPA’s national policy.81 2015 SSM SIP Action as it applies to the CAA, an EPA action ‘‘which is locally The commenters argue that it is North Carolina SIP, including the North or regionally applicable’’ may be filed appropriate for EPA to find and publish Carolina SIP provisions that were the ‘‘only in the United States Court of a finding that an action is based on a Appeals’’ covering that area.78 subject of EPA’s finding of substantial The only determination of nationwide scope or exception to this mandate is where the inadequacy in that prior action. Region effect where a regionally applicable Administrator expressly finds that the 4 is also reevaluating the interpretation action encompasses multiple judicial locally or regionally applicable action is of the Sierra Club decision and circuits. Region 4 does not take a based on a determination of nationwide determining that it is not necessary to position on this question here, nor does scope or effect and publishes such a extend the reach of the Sierra Club it need to do so, because as explained finding. The requirement that the decision to the particular North Carolina earlier in this document, this final Administrator find and publish that an SIP provisions at issue in this action. action is limited to North Carolina, and otherwise locally or regionally As the D.C. Circuit has recently thus only a single judicial circuit. applicable action is based on a explained, ‘‘[t]he court need look only Although at proposal Region 4 was to the face of the agency action, not its determination of nationwide scope or effect is an express statutory contemplating a regionwide policy on practical effects, to determine whether SSM exemption provisions in SIPs, the an action is nationally applicable.’’ 77 requirement for application of this venue exception; this exception has not Region has decided to limit the On its face, this action is locally deviation from national policy to North applicable because it applies to only a been and is not being invoked by EPA in this action. Absent an express Carolina. The final action being taken single state, North Carolina herein is limited in scope to approval of (withdrawing the SIP Call issued to statement—and publication—that such a finding has been made, thus invoking a North Carolina SIP revision and North Carolina in 2015 and approving withdrawal of the SIP Call issued to the specific North Carolina SIP the venue exception, there can be no 79 North Carolina. provisions in the revision submitted by application of that exception. CAA Region 4 does not agree with the State on June 5, 2017). This action section 307 expressly provides the commenters’ assertion that EPA has has immediate or legal effect only for Agency full discretion to make its own previously directed review of SIP Calls and within North Carolina. If EPA were determination of whether to exercise an to the D.C. Circuit. We note that EPA to rely on the statutory interpretation set exception to a Congressionally-dictated 80 consolidated a single announcement of forth in this action in another potential venue rule. Even assuming that a court national policy and issued 36 individual future final Agency action, the statutory could review the lack of such a finding, SIP Calls through a single document in interpretation would be subject to and lack of publication of such a the 2015 SSM SIP Action. However, at judicial review upon challenge of that finding, in this final action under the other times, individual regions have later action. Administrative Procedure Act’s issued SIP Calls, which were Moreover, EPA’s regulations at 40 arbitrary and capricious standard, the subsequently reviewed in regional CFR part 56 contemplate and establish absence of invocation of the exception circuits. In 2011, for example, EPA a process for regional deviation from is not unreasonable in this case. Region 8 made a finding that the Utah national policy. Region 4 followed that Commenters assert that numerous SIP was substantially inadequate to process and received concurrence from aspects of Region 4’s action, including meet CAA requirements. On that basis, the appropriate EPA headquarters office its decision to seek concurrence to EPA Region 8 issued a SIP Call for Utah, for both the proposed action and this propose an action inconsistent with requiring the state to revise its SIP to final action. The memoranda 78 See 42 U.S.C. 7607(b)(1) (emphasis added). change an unavoidable breakdown rule, documenting this process are available 79 See, e.g., Lion Oil v. EPA, 792 F.3d 978, 984 which exempted emissions during in the docket for this action. We n.1 (8th Cir. 2015) (even where EPA, unlike here, unavoidable breakdowns from disagree with commenters’ contention made the necessary finding, the court found no compliance with emission limitations.82 that this action undermines a goal of need to decide application of the venue exception ensuring uniformity of national issues of absent publication of that finding); Texas v. EPA, This SIP Call was subsequently 829 F.3d 405, 419 (5th Cir. 2016) (‘‘This finding is reviewed in and upheld by the U.S. the CAA. We assume that the an independent, post hoc, conclusion by the agency commenter is referencing section about the nature of the determinations; the finding 301(a)(2), which requires EPA to is not, itself, the determination.’’); Dalton Trucking 81 See Am. Road & Transp. Builders Ass’n v. EPA, v. EPA, 808 F.3d 875 (D.C. Cir. 2015). 705 F.3d 453, 456 (D.C. Cir. 2013) (holding that promulgate regulations establishing 80 See Texas v. EPA, 829 F.3d at 419–20 (the venue for review of EPA’s approval of revisions to venue exception ‘‘gives the Administrator the California’s SIP lay in the Ninth Circuit because the 77 Sierra Club v. EPA, 926 F.3d 844, 849 (D.C. Cir. discretion to move venue to the D.C. Circuit by approval only applied to projects within California, 2019) (citing Dalton Trucking, 808 F.3d 875, 881 publishing a finding declaring the Administrator’s even if the SIP could set a precedent for future (D.C. Cir. 2015) and Am. Road & Transp. Builders belief that the action is based on a determination proceedings). Ass’n v. EPA, 705 F.3d 453, 456 (D.C. Cir. 2013)). of nationwide scope or effect.’’) (emphasis added). 82 See 76 FR 21639 (April 18, 2011).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23712 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

Court of Appeals for the Tenth Circuit.83 Commenters add that even if EPA could concentration of emissions of air Similarly, EPA Region 8 made a finding initiate such an action, EPA would still pollutants on a continuous basis’’ and that the Montana SIP was substantially proceed unlawfully by purporting to act account for the fact that there are inadequate to attain and maintain the on a submittal that does meet applicable numerous source types for which a SO2 NAAQS and issued a call for completeness requirements because the single limitation cannot apply at all Montana to submit a SIP revision.84 Agency has received no submittal or times for technical reasons. In Sierra That SIP Call and related actions were requested revision on to act on 15A Club, the Court agreed that the Act does subsequently reviewed in and upheld NCAC 2D .0535(c) and .0535(g) and that not require a single limitation apply at by the U.S. Court of Appeals for the the submission received does not all times but that some section 112- Ninth Circuit.85 include 15A NCAC 2D .1423(g) among compliant standard must be applicable the revised subsections of 15A NCAC at all times.89 In response to the Sierra 2. Comments That EPA Lacks the 2D .1423 submitted for review. Club decision’s directive that a single Statutory Authority To Undertake the Commenters also contend that part 51 standard need not apply continuously, Action requires that the record for a SIP for many of the NESHAP, EPA has Comment 2: Commenters state that, revision submittal contain a letter ‘‘from established numerical emission limits faced with plain statutory language in the Governor or his designee, requesting that apply during full operation but that section 302(k) and a statutory structure EPA approval of the plan or revision’’ 86 would be either impractical or and cross-references in section 110, EPA but that North Carolina’s submission is impossible to meet during periods of may not invent statutory authority not signed by the governor, and its startup and shutdown and therefore also where none exists, nor adopt regulations signatory, Michael Abraczinskas, gives established other emission limitations, lacking statutory authority, merely no indication of acting at the Governor’s such as work practice standards, to because EPA believes its approach to be request. apply during periods of startup and better policy. Commenters state that Response 2: Rather than inventing shutdown. agencies need especially clear statutory authority as contemplated by Under CAA section 110(a)(2)(A), congressional delegations of authority to the comment, after conducting a states are tasked with adopting create regulatory exemptions and that searching and thorough evaluation of ‘‘emission limitations and other control the Region 4 (and Region 6) ‘‘alternative the North Carolina SIP and relevant measures, means, or techniques . . . as interpretations’’ amount to statutory and regulatory framework, may be necessary or appropriate to meet contradictory, unlawful statutory Region 4 is offering an alternative the applicable requirements of this Act’’ readings that advance policy interpretation to the national policy on (emphasis added). States have generally preferences. Commenters add that those SSM outlined in the 2015 action. The adopted numerical emission limits that policy preferences furnish EPA with no U.S. Supreme Court has expressly apply to sources during full operational statutory authority to withdraw the 2015 provided that administrative agencies mode. However, since some source SSM SIP Call or to approve SIPs or may change an interpretation.87 types may not be capable of complying submissions inconsistent with the SIP Consistent with the U.S. Supreme with such limits during periods of Call, plain statutory language, and the Court’s decision, in its June 5, 2019, startup and shutdown, North Carolina Sierra Club SSM decision. NPRM Region 4 acknowledged the has provided for exclusions from the Commenters state that EPA must Agency’s prior position, provided numerical limits during those events reject at least a portion of this submittal statutory authority for the new and adopted other mechanisms for as substantially inadequate because it interpretation, explained its rationale minimizing source emissions instead. includes a prohibited automatic for the change and explained why the As discussed in Section III of this final exemption for SSM events at 15A NCAC action taken in this document is the action, the North Carolina SIP contains 2D .1423(g) (‘‘The emission standards of better policy in this circumstance.88 myriad provisions that generally this Rule shall not apply to . . . start- Commenters’ disagreement with the provide for attainment and maintenance up and shut-down periods and periods interpretation does not preclude Region of the NAAQS. Region 4’s evaluation of of malfunction . . . .’’). 4 from having authority to change its the North Carolina SIP contributed to Commenters state that by proposing to policy when it has met the required determining that it is appropriate to find North Carolina provisions 15A conditions. adopt an alternative policy for North NCAC 2D .0535(c) and .0535(g) are not Region 4 disagrees with commenters’ Carolina for SSM exemption provisions in SIPs. As stated in the June 5, 2019, substantially inadequate to meet CAA contention that the plain statutory NPRM and in this final action, these requirements, EPA proposes an language of CAA section 302(k) and a other mechanisms may include a unlawful act that is beyond the scope of statutory structure and cross-references combination of general duty provisions, the SIP revision submitted to Region 4. in section 110 preclude the alternative work practice standards, best Commenters allege that because North policy adopted. Acknowledging that the management practices, or alternative Carolina’s June 5, 2017, submission to Agency took a different approach in the emission limits, as well as entirely Region 4 makes no revision to its SSM 2015 SSM SIP Call Action, for the separate provisions, such as minor exemptions or any mention of 15A reasons articulated in Section III of this source and major source new source NCAC 2D .0535, this action would final action Region 4 has adopted an review provisions regulating amount to an EPA-initiated revision of alternative policy for the North Carolina SIP. It is reasonable to interpret the construction or modification of the SIP, which, in addition to EPA’s stationary sources, that also effectively self-initiated change in regional policy, 302(k) definition of ‘‘emission limitation’’ and ‘‘emission standard’’ as limit emissions of NAAQS pollutants at is not among the actions EPA may take all times, including during any SSM when presented with a SIP revision. meaning ‘‘a requirement . . . which limits the quantity, rate, or events. For the reasons articulated in Section III of this document, Region 4 83 US Magnesium v. EPA, 690 F.3d 1157 (10th Cir. 2012). 86 See 40 CFR part 51, appendix V, 2.1(a). disagrees that the automatic exemption 84 See 58 FR 41430 (Aug. 4, 1993). 87 See FCC v. Fox Television Stations, Inc., 556 for SSM events at 15A NCAC 2D 85 Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d U.S. 502 (2009). 1174 (9th Cir. 2012). 88 Id. at 515. 89 See 551 F.3d at 1021.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23713

.1423(g) impacts approvability of the because paragraph (d) is, in part, or techniques’’ in lieu of referring to the SIP revisions in light of the protections dependent on paragraph (g), it was rules at issue as ‘‘emission limitations,’’ afforded by the North Carolina SIP as a appropriate for Region 4 to assess the and point out that the CAA does not whole. adequacy of paragraph (g) in order to require those other measures to apply The withdrawal of the SIP Call cannot assess whether the revisions to continuously as it does emission be an unlawful revision to the North paragraph (d) were approvable under limitations. Carolina SIP because this withdrawal the CAA. Region 4’s resultant review of Commenters state that EPA does not does not revise the SIP. In this action, North Carolina’s SIP, including the SIP- explain how continuous emission limits Region 4 is not taking action to approve called provisions, 2D .0535(c) and are not applicable to CAA section 110 15A NCAC 2D .0535(c) and .0535(g) into .0535(g), led to the proposal of an SSM or, therefore, why the decision related to the North Carolina SIP. These policy for North Carolina that is an CAA section 112 in Sierra Club is not provisions were previously approved by alternative to the national SSM policy applicable to SIPs. The commenters add EPA into the North Carolina SIP 90 and but that is still consistent with the that EPA’s analysis regarding CAA have not been removed from the North requirements of the CAA. section 110 versus CAA section 112 and Carolina SIP. In this action, Region 4 is In addition, Region 4 disagrees with the Sierra Club decision in the June 5, making a finding that these two the comment that NC DAQ’s June 5, 2019, NPRM restates arguments that provisions are not substantially 2017, submittal fails to meet the were discussed and rejected in the 2015 inadequate to meet CAA requirements applicable completeness requirements SSM SIP Call Action. and thus withdrawing the SIP Call prescribed under appendix V. Paragraph Other commenters state that EPA is previously issued to North Carolina that 1.2 of appendix V to part 51 provides wrong to propose that it may be directed the state to provide a SIP that if a completeness determination is reasonable to interpret the concept of revision to address the substantial not made by six months from receipt of continuous ‘‘emission limitations’’ in a inadequacy caused by these provisions. a submittal (which EPA did not for NC SIP to not be focused on We acknowledge that Region 4’s finding DAQ’s June 5, 2017, submittal), the implementation of each, individual with respect to the adequacy of 15A submittal shall be deemed complete by limit, but rather whether the approved NCAC 2D .0535(c) and .0535(g) has operation of law on the date six months SIP, as a whole, operates continuously changed, but this change, in and of from receipt. Thus, NC DAQ’s June 5, to ensure attainment and maintenance itself, does not constitute a revision of 2017, has been deemed complete, and of the NAAQS. Commenters argue that the SIP. On the basis of this change in EPA must act upon it in accordance the CAA section 302(k)’s definition of interpretation for the North Carolina with CAA section 110(k)(2). ‘‘emission limitation’’ and ‘‘emission SIP, Region 4 is approving a revision to Commenters also misinterpret part 51, standard’’ applies to those terms in 15A NCAC 2D .1423 submitted by the appendix V, 2.1(a) to require the section 110 SIPs and that the definitions state of North Carolina on June 5, 2017, signatory on the submittal to be acting in 42 U.S.C. 7602 are preceded by under CAA 110(k)(3). The SIP revision at the Governor’s request. This statutory language noting that the was initiated by the North Carolina provision requires that a SIP revision ensuing definitions apply ‘‘[w]hen used Division of Air Quality, and therefore submittal include a letter ‘‘from the this action cannot be construed as an in this chapter,’’ that is, across the CAA. Governor or his designee, requesting Commenters add that EPA may not ‘‘EPA-initiated revision of the SIP.’’ EPA approval of the plan or revision As stated in NC DAQ’s June 5, 2017, construe a statute in a way that thereof . . . .’’ Thus, the cover letter on letter, the State provided redline/ completely nullifies textually applicable a SIP revision request submitted to EPA strikeout versions of six rules for the provisions meant to limit its discretion must be signed by either the Governor purpose of administrative review at and that the June 5, 2019, NPRM EPA’s request. The letter stated that it or the Governor’s designee, and a completely ignores statutory language had enclosed ‘‘the revised text for rules designee is not required to be acting at and the limit on EPA’s discretion. .1401, .1403, .1406, .1413, .1414, and the Governor’s request on a particular Commenters also state that while EPA .1423 that we are requesting your review submittal. In this case, the Director of correctly notes that ‘‘the court did not and approval.’’ Region 4 agrees with the NC DAQ has been delegated authority to make any statement explicitly applying commenter that, while the submittal administer the regulatory provisions of its holding beyond CAA section 112,’’ it includes the entire text of 15A NCAC 2D state law relating to air pollution did not need to because, as relevant 92 .1423, paragraph (g) is not among the control. here, Sierra Club focused on section revised subsections of 15A NCAC 2D 3. Comments That EPA Has Not 302(k), not section 112. .1423. However, as indicated in the Sufficiently Explained Why the Response 3: Region 4 acknowledges NPRM, 15A NCAC 2D .1423(d), which Interpretation of ‘‘emission limitation’’ that commenters disagree with the is being revised, includes a meaningful Under Section 110 Might Be Different interpretation offered in the June 5, reference to .1423(g).91 Therefore, From the Interpretation Under Section 2019, NPRM and finalized in the current 112 action, but the proposed action and this 90 See 51 FR 32073 (September 9, 1986) and 62 final action contain extensive FR 41277 (August 1, 1997), respectively. Comment 3: Commenters assert that explanation supporting the alternative 91 See 84 FR at 26040 (‘‘Rule .1423(d)(1) of the EPA should articulate what meaning it interpretation regarding the interplay of State’s current federally approved SIP provides that gives ‘‘emission limitation’’ under CAA the owner or operator of a subject internal CAA section 302(k) and CAA section combustion engine shall determine compliance section 110 versus CAA section 112 and 110 and why this alternative using ‘a [CEMS] which meets the applicable why that alternative interpretation is interpretation is reasonable for the requirements of Appendices B and F of 40 CFR part reasonable. Commenters suggest that North Carolina SIP. Region 4 directs 60, excluding data obtained during periods EPA could explain relevant terminology specified in Paragraph (g) of this Rule.’ ... commenters to Section III of the June 5, Paragraph (g) of Rule .1423 provides that the such as ‘‘other control measures, means, 2019, NPRM and this final action for a emission standards therein do not apply during thorough explanation of its 92 periods of ‘(1) start-up and shut-down periods and See letter from the Secretary of the North interpretation of CAA section 302(k) in periods of malfunction, not to exceed 36 Carolina Department of Environment and Natural consecutive hours; (2) regularly scheduled Resources to the Director, NC DAQ, June 28, 2010, the contexts of CAA section 110 maintenance activities.’ ’’) (emphasis added). included in the docket for this rulemaking. compared to CAA section 112.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23714 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

As discussed in Section III of the including a discussion of why the Sierra a state to limit emissions pursuant to proposed action and of this final action, Club decision is not applicable in the CAA section 110(a)(2)(A). While a Region 4 focused on the flexibility given Section 110 context, is provided in the director may exempt excess emissions under section 110, i.e., 110(a)(2)(A), in June 5, 2019, NPRM at 84 FR at 26034– which occurred during a period of contrast to section 112. Region 4 noted 36, and Region 4 refers the commenter startup, shutdown and malfunction, that the definition of ‘‘emission to that explanation, together with the assuming an appropriate showing has limitation’’ at CAA section 302(k), when discussion of this issue included in been made by the source, other ‘‘control read in the 110 context, could provide Section III of this final action. measures, means and techniques,’’ and flexibility to states for providing Regarding commenters’ statement that potentially other emission limitations, exemptions at times ‘‘when it is not the arguments made in support of the will continue to apply to the source. practicable or necessary for such limits alternative policy were explicitly Region 4 acknowledges the comment to apply, so long as the SIP contains discussed and rejected in the final 2015 that the presumption of consistent usage other provisions that remain in effect SSM SIP Call Action, Region 4 is unable dictates that a word or phrase is and ensure the NAAQS are to respond because commenters did not presumed to bear the same meaning protected.’’ 93 In the context of CAA specifically identify which arguments throughout a text; a material variation in section 110, it is reasonable to interpret they are referencing. In the 2015 SSM terms suggests a variation in meaning. the term ‘‘emission limitation’’ SIP Call Action, EPA stated that Sierra Importantly, however, the presumption differently from how that term is Club supported the policy position should be applied pragmatically, and interpreted in CAA section 112 because outlined in that document, but EPA did relevant texts indicate that ‘‘this canon of the distinct purposes and not say that the Sierra Club decision is particularly defeasible by context.’’ 98 requirements of the two provisions. compelled that policy position. In fact, It is appropriate to rely on the Duke CAA section 110 focuses on the the 2015 SSM SIP Call Action Energy decision for the proposition that attainment and the maintenance of the acknowledged that the ‘‘decision the rule of statutory interpretation NAAQS, which is achieved through turned, in part, on the specific calling for words to be defined numerous provisions, adopted by the provisions of section 112.’’ 95 As consistently can be overcome, state and applied to sources throughout explained above in the response to depending on context.99 Here, that the state (or relevant jurisdiction), Comment 2, the U.S. Supreme Court has context is particularly relevant given the working together to meet the statutory expressly provided that administrative different structure and purpose between requirements. CAA section 112, agencies may change an CAA sections 110 and 112, as described however, requires an exacting analysis interpretation.96 Consistent with the in more detail in Section III of the to establish requirements for the U.S. Supreme Court’s decision, in its proposed action and of this final action. regulation of hazardous air pollutants June 5, 2019, NPRM Region 4 Contrary to commenters’ assertion, (HAP) from specific source categories. acknowledged the Agency’s prior neither CAA section 110(a)(2)(A) or CAA section 112 standards only address position, provided statutory authority 302(k) is ‘‘nullif[ied]’’ by Region 4’s the regulation of HAP emissions from for the new interpretation, explained its interpretation in the context of this SIP each respective source category; they do rationale for the change, and explained action. Rather, Region 4 offers an not address attainment or maintenance why it believes the new interpretation is alternative interpretation of both of the NAAQS, nor do they have the the better policy in this circumstance.97 provisions, which focuses on the benefit of backstops and overlapping, Commenters’ disagreement with the purpose of SIPs, consistent with CAA generally applicable provisions. Further, interpretation does not preclude Region section 110, and the concept proffered Region 4 evaluates the SIP 4 from having authority to change its by CAA section 302(k), as interpreted by comprehensively to determine whether policy when it has met the required the D.C. Circuit that some standard, but the SIP as a whole meets the conditions. not necessarily the same standard, apply requirement of attaining or maintaining Region 4 acknowledges that CAA at all times.100 the NAAQS under subpart A.94 section 110(a)(2)(A) uses the term Commenters acknowledge that in the The North Carolina SIP includes ‘‘emission limitation,’’ however given Sierra Club decision, ‘‘the court did not general SIP provisions and overlapping how EPA and state agencies have make any statement explicitly applying planning requirements. In Section IV of worked cooperatively to implement its holding beyond CAA section 112.’’ the June 5, 2019, NPRM, as reiterated in CAA section 110, Region 4 does not However, Region 4 disagrees with the Section III of this final action, Region 4 concede that the term must be commenters’ characterization that Sierra has identified generally protective interpreted exactly the same in the Club must apply beyond CAA section provisions (at 15A NCAC 2D .0501(e), context of CAA section 110 as it was 112, since the court consistently 2D .0510(a), 2D .0511(a), and 2D .0512) interpreted by the D.C. Circuit in the referred to ‘‘112-compliant as well as specific emission limitations context of CAA section 112. A thorough standards’’ 101 and the requirements that of the North Carolina SIP where rationale for the alternative ‘‘sources regulated under section 112 appropriate. interpretation is included in Section III meet the strictest standards.’’ 102 It is fair Commenters incorrectly assert that of the proposed action and this final the June 5, 2019, NPRM fails to explain action. 98 Antonin Scalia & Bryan A. Garner, READING why continuous emission limitations Although CAA section 302(k) LAW: THE INTERPRETATION OF LEGAL TEXTS 171 are not applicable to CAA section 110 instructs that an emission limitation (Thompson/West) (2012). 99 See Valerie C. Brannon, Cong. Research Serv., and the rationale for distinguishing the limits the quantity, rate, or R45153, Statutory Interpretation: Theories, Tools, Sierra Club decision. A thorough concentration of emissions of air and Trends 23 (April 5, 2018) (quoting Envtl. Def. explanation of Region 4’s interpretation pollutants on a continuous basis, v. Duke Energy Corp., 549 U.S. 561, 574 (2007)) (‘‘A of CAA section 302(k) in the context of emission limitations are merely one of given term in the same statute may take on distinct characters from association with distinct statutory evaluating the North Carolina SIP numerous measures that can be used by objects calling for different implementation pursuant to CAA section 110(a)(2)(A), strategies’’). 95 See 80 FR at 33893. 100 See Sierra Club, 551 F.3d at 1021. 93 See 84 FR at 26035. 96 See Fox, 556 U.S. 502. 101 Id. at 1027. 94 See 84 FR at 26035. 97 Id. at 515. 102 Id. at 1028.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23715

for Region 4 to give weight to the Commenters state that even if there comply with the Act, citing Sierra Club, language used by the court and to not are instances where automatic 551 F.3d at 1027 (quoting H.R. Rep. No. expand the decision in this context. exemptions from emission limits for 95–294, at 92 (1977), as reprinted in SSM events in a SIP do not preclude 1977 U.S.C.C.A.N. 1077, 1170). 4. Comments That the 302(k) Definition attainment and maintenance of the Response 4: Commenters cite both to of ‘‘Emission Limits’’ and ‘‘Emission NAAQS, EPA must issue a SIP call if a Mich. Dep’t of Envtl. Quality v. Standards’’ Requires Continuous state’s SIP is substantially inadequate to Browner 107 and US Magnesium, LLC v. Emission Limits and That the North maintain the NAAQS or otherwise EPA 108 and question why the June 5, Carolina SIP Does not Provide comply with CAA requirements. 2019, NPRM does not discuss the cases. Protections That are Equally Stringent Commenters also state that EPA’s At the outset, Region 4 acknowledges to Continuously Applicable Emission broader point about states’ discretion is the prior policy position cited by the Limits also flawed because the cases it commenters, and for the reasons Comment 4: Commenters generally selectively relies upon hold that SIPs discussed thoroughly in the June 5, argue that EPA’s June 5, 2019, NPRM must not only provide for timely 2019, NPRM and this final action, contradicts CAA section 302(k) by attainment and maintenance of NAAQS Region 4 is adopting an alternative allowing ‘‘emission limitations’’ to but also satisfy CAA section 110’s other interpretation with respect to the North include automatic and discretionary general requirements. Carolina SIP. exemptions for SSM events, violating Commenters state that in the final SIP In MDEQ v. Browner, the Sixth Circuit the Act’s requirement that emission call, EPA noted several cases, including Court of Appeals deferred to EPA and limitations be ‘‘continuous.’’ Mich. Dep’t of Envtl. Quality v. Browner, found EPA Region 5’s disapproval of Commenters note that EPA has read 230 F.3d 181 (6th Cir. 2000), and US certain Michigan SIP provisions which CAA section 302(k) to exclude SSM Magnesium, LLC v. EPA, 690 F.3d 1157 exempted excess SSM emissions in exemptions from SIPs ‘‘since at least (10th Cir. 2012), where courts upheld specified circumstances for the 1982.’’ 103 Commenters, citing Sierra EPA action finding that SSM otherwise applicable regulations to be Club, also state that the D.C. Circuit has exemptions in SIPs are inappropriate reasonable.109 While the court did find held, in a case interpreting the section and point to EPA’s prior statement that EPA’s action was reasonable in 302(k) definition of ‘‘emission characterizing these decisions as light of the Agency’s existing SSM limitations’’ as it appears in the Act’s confirming the requirement for guidance, the decision did not squarely section 112 MACT standards, that an continuous compliance and prohibiting speak to the legality of SSM exemptions exemptions for excess emissions during emission limitation does not apply on a in SIPs as a general matter. The court SSM events. ‘‘continuous basis’’ when it includes was merely reviewing a challenge to a Commenters state that none of the SSM exemptions. locally applicable SIP action undertaken June 5, 2019, NPRM’s policy or by one EPA regional office and found Commenters claim that by using a structural arguments about a that the regional office acted reasonably singular, indefinite article—‘‘a ‘‘fundamentally different regime’’ in in disapproving certain provisions. requirement’’—Congress also makes section 110 SIPs grapples with the plain In US Magnesium, the petitioner clear that ‘‘emissions limitation’’ must language of CAA section 302(k). challenged a SIP call issued to Utah by be a discrete, ongoing requirement, not Commenters believe Congress expressly EPA Region 8 due to an unavoidable a ‘‘broad range of measures . . . targeted requires both emission standards and breakdown rule included in the Utah toward attainment and maintenance’’ of emission limitations to apply ‘‘on a SIP. In its analysis, the Tenth Circuit NAAQS and that CAA 302(k)’s terms continuous basis,’’ citing the definition Court of Appeals determined that CAA apply just as much to emission at CAA 302(k), and that EPA is not 110(k)(5) is ambiguous, and then standards or limitations a state entitled to substitute its judgment for evaluated whether the Region’s establishes as part of its SIP as to those the plain intent of Congress. disapproval action was reasonable.110 EPA establishes. Commenters state that EPA itself The court found it allowable for an EPA Commenters state that automatic and understands that the section 302(k) regional office to make a determination discretionary exemptions violate the definition of ‘‘emission limitation’’ regarding the SIP’s adequacy based on bedrock principles of the Act that SIPs extends to section 110 SIPs and cite to the Agency’s ‘‘understanding of the 106 must contain ‘‘enforceable emission an action in which EPA references CAA.’’ 111 Similarly, this action is limitations’’ (CAA section 110(a)(2)(A)), that definition to support the position consistent with the understanding of the which must apply on a ‘‘continuous that an emission limitation is not CAA set forth herein. Further, the Tenth basis’’ (CAA section 302(k)). required to be in numerical form to Circuit did not fault the Agency for Commenters add that Congress gave qualify as a reasonably available control relying on a policy that had not gone states no authority to relax emission technology (RACT) requirement in the through notice and comment.112 In fact, standards on a temporal basis. Pennsylvania SIP. Commenters add that the alternative policy being adopted by Commenters also quote the Court in the relevant statutory definition is not Region 4 and announced in this action U.S. Sugar Corp. v. EPA as stating, ‘‘general enough’’ to allow EPA to went through a public comment process depart from what Congress has ‘‘exempt[ing] periods of malfunction and the Agency carefully considered all specifically stated that the terms entirely from the application of the comments received. The Tenth Circuit ‘‘emission limitation’’ and ‘‘emission emissions standards . . . is [not] deferred to EPA’s SIP call as being standard’’ mean and that the consistent with the Agency’s enabling reasonable because it was consistent 104 interpretation EPA proposes has not statutes,’’ and ‘‘EPA had no option to with the Agency’s interpretation of the exclude these unpredictable been made available by the statute. 105 Commenters also state the requirement periods.’’ 107 See 230 F.3d 181 (6th Cir. 2000). for ‘‘continuous’’ emission limitations 108 See 690 F.3d 1157 (10th Cir. 2012). 103 See 80 FR 33941/1. means that ‘‘temporary, periodic, or 109 See 230 F.3d at 185. 104 No. 11–1108, 2016 WL 4056404, at *14 (D.C. limited systems of control’’ do not 110 See 690 F.3d at 1167. Cir. July 29, 2016). 111 Id. 105 Id. at *15. 106 See 84 FR 20274, 20280 (May 9, 2019). 112 Id.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23716 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

CAA at that time, as articulated in the composed of a single standard that June 5, 2019, NPRM and this final document that accompanied that applies continuously is misplaced, action. action.113 While the court impractically narrow, and inconsistent As explained in Section III.A., the acknowledged that EPA’s interpretation with the plain words of the Sierra Club automatic exemption provisions in the of the CAA and application of that decision. North Carolina SIP do not relax an interpretation to the Utah SIP were Contrary to the commenter’s existing emission standard during reasonable, like the Sixth Circuit, the allegation, Region 4 is not ‘‘invent[ing]’’ specified time periods. Rather, Region 4 Tenth Circuit did not squarely rule on statutory authority. Rather, guided by interprets CAA section 110(a)(2)(A) to the legality of exemption provisions in the intent of the provisions at issue, mean that a state may provide SIPs. The commenter also cites to the Region 4 has re-examined existing exemptions from emission limits, D.C. Circuit’s 2008 Sierra Club decision, statutory authority and considered the during which times a source may be however Region 4 has provided a merits of an alternative interpretation. exempt from the emission limit, because thorough discussion of that decision in As discussed in Section III of the June the SIP contains a set of emission Section III of the proposed action and 5, 2019, NPRM and this final rule limitations, control means, or other this final action. preamble, the U.S. Supreme Court has means or techniques, which apply As discussed in Section III of the June instructed that states have flexibility to continuously and, taken as a whole, 5, 2019, NPRM and of this final action, ‘‘adopt whatever mix of emission meet the requirements of attaining and Region 4 is adopting an alternative limitations it deems best suited to its maintaining the NAAQS. Region 4 disagrees that the alternative interpretation of the interplay between particular situation,’’ and the alternative policy articulated in Section III of the CAA sections 302(k) and 110 which is interpretation adopted in this action proposed action and this final action supported by our consideration of the reflects that flexibility.117 does not engage with the terms in the generally protective terms and Legislative history cited by the provisions of the North Carolina SIP. As definition of emission limitations in commenters (and cited by the D.C. CAA section 302(k). Rather, as explained above in the response to Circuit) specifically says that provisions Comment 2, the U.S. Supreme Court has explained in the NPRM and this of section 106 of the committee bill are document, the alternative policy focuses expressly provided that administrative intended ‘‘to overcome the basic agencies may change an on the purpose and context on the objections to intermittent controls and statutory terms and provisions. Region 4 interpretation.114 Commenters’ other dispersion techniques which were disagreement with the interpretation disagrees with commenters’ contention discussed in the background that the alternative interpretation does not preclude Region 4 from having section.’’ 118 The comment authority to change its policy if it is adopted is contrary to the plain mischaracterizes relevant legislative language of CAA section 302(k). reasonable to do so. history. Rather than indicating that a Depending upon context, the concept of As discussed in Section III of the June single emission limitation must apply to continuity may be applied differently in 5, 2019, NPRM and of this final action, a source continuously, the legislative different situations. For example, CAA Region 4 disagrees with commenters’ history indicates that the definition of section 402(7) defines the term interpretation of the scope of the Sierra emission limitation be implemented ‘‘continuous emission monitoring Club decision and its application to SIP through having some constant or system’’ (CEMS) to mean equipment provisions. The commenters read CAA continuous emission reduction that provides a permanent record of section 302(k) too narrowly. Further, the measures, but notably does not indicate emissions and flow ‘‘on a continuous decision did not speak to the need for an intent for a single discrete basis.’’ Yet CEMS methods are required a SIP emission limitation to apply on a measure.119 to provide such data at periodic ‘‘continuous basis.’’ Rather, the Court Comments regarding the decision in intervals, not for every moment of a spoke only regarding CAA section 112- U.S. Sugar Corp. v. EPA are inapposite unit’s operation.120 compliant standards: ‘‘When sections because the case was interpreting the Regarding rules 15A NCAC 2D 112 and 302(k) are read together, then, Sierra Club decision and both decisions .0535(c) and .0535(g), Region 4 disagrees Congress has required that there must be deal with standards set pursuant to CAA with the commenters’ assertion that a continuous section 112-compliant section 112’s strict requirements (and potential exemption for SSM events standards. The general duty is not a U.S. Sugar Corp. also addressed a CAA means the emission limitations section 112-compliant standard. . . . section 129 rule which has a standard themselves are not continuous. In fact, Because the general duty is the only setting structure more similar to CAA except for the exemption provided at standard that applies during SSM section 112 than section 110). As 15A NCAC 2D .1423(g) (as discussed events—and accordingly no section 112 discussed in depth in section III of the elsewhere in this document), the SIP standard governs these events—the SSM June 5, 2019, NPRM and of this final emission limitations do apply at all exemption violates the CAA’s action, in this instance, it is appropriate times. Although the SIP provides, under requirement that some section 112 to distinguish those decisions from 15A NCAC 2D .0535(c) and .0535(g), 115 standard apply continuously.’’ application to SIPs under CAA section that the Director may determine that a Additionally, in Sierra Club, the D.C. 110. particular instance of excess emissions Circuit acknowledged that 302(k) did Further, Region 4 disagrees that the is not a violation because it was not necessarily require applying a single definition in CAA section 302(k) is not unavoidable, as demonstrated by the standard continuously.116 Commenters’ general enough to have different source, this does not mean that the assertion that CAA 302(k) mandates that meanings in different contexts, as is emission limit in question ceased to SIP must contain emission limits explained in the discussion of the Duke apply during the event. Furthermore,

113 Energy decision in Section III of the Id. at 1170. 120 See 40 CFR 60.13(e)(1)–(2), 63.8(c)(4)(i)–(ii) 114 See Fox, 556 U.S. 502. (requiring the minimum data collection frequency 115 See 551 F.3d at 1027–28 (emphasis added). 117 Train v. Natural Res. Def. Council, Inc., 421 under the NSPS and NESHAP to be once every 10 116 See id. (interpreting CAA sections 302(k) and U.S. 60, 79 (1975). seconds for systems measuring opacity and once 112 together to mean ‘‘that some section 112 118 H.R. Rep. No. 95–294, at 94 (1977). every 15 minutes for systems measuring other types standard apply continuously’’) (emphasis added). 119 Id. at 92. of emissions).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23717

the fact that the NC DAQ Director might intermittent controls,123 tall stacks, and strategy by EPA to reverse a national determine, after an instance of excess other dispersion techniques from being policy by using Regional decisions. emissions has occurred, that the event used as a means of emissions control Commenters state that it would be was unavoidable and thus not a because those techniques do not nearly impossible to justify the Regional violation of a rule is unlikely to lessen actually reduce pollutant emissions. As action overruling the national 2015 SSM a source’s efforts to comply with the discussed above, the SSM exemption SIP call with respect to regional standard in the first place. This provisions in the North Carolina SIP do consistency and that Region 4’s argument is supported by the facts that not actually prevent the applicable alternative interpretation, combined (1) 15A NCAC 2D .0502 requires all limits from applying continuously, and with the alternative interpretation used sources to be provided with the Region 4’s interpretation is consistent in the Region 6 NPRM, effectively ‘‘maximum feasible control,’’ which with the intent and language of CAA deteriorates national consistency. applies at all times, including periods of section 302(k). Commenters state that the June 5, startup and shutdown; (2) excess The comment regarding the 2019, NPRM fails to meet the high bar emissions are generally emission limit Pennsylvania RACT SIP is beyond the to justify alternative treatment from violations, and facilities do not know in scope of this action. Region 4’s other Regions with respect to SSM. One advance whether any particular instance announcement of its alternative policy commenter asks how many states have will be deemed by the State not to be with respect to SSM provisions in the made changes to SIPs in response to the a violation, so the prudent course of North Carolina SIP is limited in scope SSM SIP call, how many of those action would be for sources to try to to North Carolina and does not impact revised SIPs EPA has approved, and avoid or limit any excess emission or govern Region 3’s evaluation of SIPs what communications EPA has had events; (3) 15A NCAC 2D .0535(c) within that Region’s jurisdiction. with states about its intent to act on pending SIP revisions or entertain requires the Director, in making a 5. Comments That the Action is not an malfunction determination, to consider, further changes from those states. Appropriate Use of EPA’s Regional Commenters state that Congress has among other things, whether all Consistency Process equipment has been maintained and granted EPA no authority to authorize operated, to the maximum extent Comment 5: Commenters state that inconsistent interpretations of the Clean practicable, in a manner consistent with Region 4’s process for the June 5, 2019, Air Act among regions based on a good practice for minimizing emissions; NPRM, including the memo for regional signed concurrence memo from and (4) 15A NCAC .0535(g) directs consistency and EPA’s accompanying Headquarters. Commenters state that the facilities, during startup and shutdown, FAQ document, do not support the June 5, 2019, NPRM, and EPA Region to operate all equipment in a manner ability to apply the alternative policy to 4’s pretense to be acting pursuant to consistent with best practicable air the North Carolina SIP or other Region EPA’s ‘‘consistency’’ regulations, in fact pollution control practices to minimize 4 SIPs and that EPA’s action sets a contradict 40 CFR 56.5(a) by proposing emissions and to demonstrate that dangerous precedent for approving actions that are flatly inconsistent with excess emissions were unavoidable exceptions to national consistency. the Act and Agency policy. Commenters when requested to do so by the Director. Commenters point out that EPA’s conclude that Region 4 cannot use Region 4 also disagrees with national action disapproved the same regulations addressing inconsistency commenters that the interpretation SIP provision that Region 4 proposed to with ‘‘national policy’’ to license Region 4 proposed is not available approve using regional guidance. violating the CAA. Commenters state under the statute. The House Report Commenters state that the Region 4 that the action would open the door to language referenced by commenters memo request for concurrence and other virtually any exception from national comes from a section headed as ‘‘2B. materials in the rulemaking docket do policy on SSM and could therefore lead Committee Proposal-Intermittent not contain any explanation for the to increased emissions as well as Controls and Tall Stacks.’’ 121 The need basis for the alternative interpretation unnecessary legal proceedings when for ‘‘continuous controls’’ is discussed and how such an alternative policy exceptions are challenged. in several places in the report, but could apply in Region 4 while a Commenters state that EPA’s always in the context of intermittent contrary interpretation would apply to proposed use of its regional consistency controls, tall stacks, and other the rest of the country. Commenters regulations is both inconsistent with the dispersion enhancement techniques.122 assert that EPA obviously wants to plain meaning of those regulations and not entitled to judicial deference under Thus, it is reasonable to interpret the revise its national policy, and should the Auer-Kisor line of cases and that no phrase ‘‘on a continuous basis’’ in have to do so at the national level and deference would prevent a court from 302(k) as intending to prevent address the detailed explanations for the existing policy in so doing. Commenters applying the plain meaning of EPA regulations to overturn the Agency’s 121 H.R. Rep. No. 95–294, at 91 (1977) (emphasis also assert that the Regional SIP action added). implicitly establishes a new national contrary interpretation. Commenters 122 See, e.g., H.R. Rep. No. 95–294, at 6 (1977) policy on SSM in SIPs and, ‘‘on the state that EPA misinterprets § 56.5(b) as (‘‘Continuous Controls.—The amendments would heels’’ of the April 29, 2019, Region 6 allowing EPA Regions to take actions also affirm the decisions of four U.S. court of that interpret the CAA in a manner appeals cases that the act requires continuous proposed action in Texas, shows a clear emission reduction measures to be applied. Thus, inconsistent with national policy when intermittent control measures (to be applied only in 123 ‘‘Intermittent control’’ is a concept in which the Region seeks and obtains case of adverse weather conditions), increasing emissions are tailored to avoid violating ambient air concurrence from the relevant EPA stack heights, or other pollution dispersion quality standards under meteorological conditions Headquarters office. Commenters state techniques would not be permitted as final that inhibit pollutant dispersion but without compliance strategies.’’) and 190 (‘‘Continuous significantly reducing total pollutant emissions. that Region 4 cannot use regulations Reduction—To make clear the committee’s intent Power plants could accomplish this, at least in addressing inconsistency with ‘‘national that intermittent or supplemental control measures theory, by practices such as shifting the electrical policy’’ to license violating the Clean are not appropriate technological systems for new load to another power plant or using a temporary Air Act, contradicting and reversing a sources . . ., the committee adopted language supply of low sulfur fuel. See, e.g., EPA, National clearly stating that continuous emission reduction Strategy for Control of Sulfur Oxides from Electric national EPA rulemaking, and technology would be required to meet the Power Plants at 11, (July 10, 1974), included in the contravening the controlling D.C. requirements of this section.’’). docket for this rulemaking. Circuit court decision. Commenters

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23718 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

state that § 56.5(b) is not ambiguous for exempt North Carolina and the rest of All that is required by the applicable the purposes of this action and does not Region 4 from the national SSM policy regulations is that the region seek EPA permit EPA to concur with and, therefore, EPA cannot lawfully headquarters concurrence for the action interpretations that explicitly diverge withdraw its SSM SIP Call for North it intends to take, when such action from the Clean Air Act, a national EPA Carolina or approve the State’s deviates from national policy, and that rulemaking, and controlling court previously submitted plan. has been done here. However, EPA’s decision. Commenters state that Response 5: Comments challenging Office of Air and Radiation did review § 56.5(b) does not allow regional offices EPA’s general authority to authorize a draft of this final action and to create inconsistency of their own inconsistent interpretations of the Clean determined that the circumstances and accord by approving a SIP that Air Act among regions are outside the rationale set forth in this action provide otherwise violates EPA’s 2015 SSM SIP scope of this action. To the extent a reasonable basis to concur on Region Call. Commenters state that EPA may commenters are raising concerns with 4’s deviation from the national policy not simply issue a § 56.5(b) concurrence the action taken by EPA Region 6 outlined in the 2015 SSM SIP Call for any region that requests it—to concerning SSM SIP provisions in Action. contradict plain statutory language, a Texas, that is outside the scope of this Region 4 disagrees with commenters’ national EPA rule, and controlling D.C. action and Region 4 provides no position that this action is inconsistent Circuit court decision—as Regions 4 and response. with the regional consistency 6 both have proposed. Commenters also With respect to the concerns raised regulations at 40 CFR 56.5 and with the reference § 56.3(b) as obligating EPA to regarding this Region 4 action, which is implication that the Agency has run ‘‘correct[ ] inconsistencies by limited in scope to North Carolina, afoul of 40 CFR 56.3. The regulations in standardizing’’ the nationally-applicable Region 4 did follow the procedures 40 CFR part 56 promote consistency but policies that must be employed by the outlined in the regional consistency also clearly contemplate that a regional EPA regional offices implementing and regulations at 40 CFR 56.5(b), both at office may seek to deviate from Agency enforcing the Act. Commenters proposal as explained in the June 5, policy and provides a process and conclude that EPA proposes a contrived 2019, NPRM and acknowledged by framework for doing so, which Region 4 128 application of the regional consistency commenters, and at final. Specifically, has followed. Commenters assertion regulations it hopes will allow it to before proposing this action, the Region that Region 4’s interpretation of these undo the 2015 SSM SIP Call and 4 Acting Regional Administrator at the regulations is not entitled to deference circumvent both national rulemaking to time, Mary S. Walker, sought and under Auer or Kisor is similarly reverse the SIP Call and national review received EPA headquarters concurrence misplaced since Region 4 followed the of this unlawful action in the D.C. to deviate from the national policy process set forth in the regulations. Circuit. announced in the 2015 SSM SIP Call Commenters are reiterating their Commenters add that, assuming for Action.126 Also, before finalizing of this concerns regarding the substance of the sake of argument that the June 5, action, the Region 4 Regional Region 4’s alternative policy for the 2019, NPRM could be approved under Administrator sought and received EPA North Carolina SIP and couching it in a EPA’s consistency regulations, it would headquarters concurrence to deviate challenge to Region 4’s application of have to proceed under an additional from national policy in this final the regulatory provisions at 40 CFR provision, 40 CFR 56.5(c), which EPA action.127 The commenters allege that 56.5. has neither invoked nor fulfilled. Region 4 acknowledges that the 2015 Region 4 failed to follow the document Commenters state that ‘‘where proposed SSM SIP Call Action articulated a titled ‘‘Revisions to State regulatory actions involve inconsistent different interpretation of the relevant Implementation Plans—Procedures for application of the requirements of the statutory provisions. However, as Approval/Disapproval Actions,’’ act, the Regional Offices shall classify explained in Sections III and IV of the OAQPS No. 1.2–005A, referenced in 40 such actions as special actions,’’ and June 5, 2019, NPRM and Section III of CFR 56.5(c). That regulation requires the ‘‘shall follow’’ the Agency’s guidelines this final action, Region 4 has region to follow ‘‘OAQPS No. 1.2–005A, for processing state implementation determined that an alternative or revision thereof.’’ OAQPS No. 1.2– plans, including EPA’s guidance interpretation is warranted for the North 005A is a guideline from 1975; EPA has document ‘‘State Implementation Carolina SIP. This action only outlines updated its procedures for approving Plans—Procedures for Approval/ an alternative policy that applies to Disapproval Actions,’’ OAQPS No. 1.2– and disapproving SIPs many times since North Carolina, based on the Agency’s 005A or revisions.124 Commenters add then. Region 4 did follow the most evaluation of air quality in North that compliance with EPA’s consistency recent iteration of EPA’s internal SIP Carolina and the North Carolina SIP. regulations and guidance is required to review process for ensuring national Region 4 is not, in this action, give meaning and effect to Congress’s consistency, which is EPA’s 2018 SIP establishing an alternative policy for ‘‘mandate to assure greater consistency Consistency Issues Guide (included in any other states within its jurisdiction. among the Regional Offices in the docket for this rulemaking). Application of an alternative policy in implementing the Act.’’ 125 The commenters also argue that any other state other than North Commenters also state that, despite an Region 4 failed to provide justification Carolina would require a separate April 29, 2019, letter captioned for deviating from the national policy rulemaking action subject to APA public ‘‘Regional Consistency Concurrence outlined in the 2015 SSM SIP Action. comment requirements. To the extent Request’’ and a ‘‘concurrence’’ signed by Nothing in EPA’s regional consistency the comments discuss potential Agency the Director of Air Quality Planning and regulations or CAA section 301(a)(2) actions beyond this action relating to Standards, there is no record evidence require a justification to underpin the North Carolina SIP, or precedent for that EPA has, in fact, complied with its regional deviation from national policy. consistency regulations and mandatory 128 See, e.g., 80 FR 56418, 56420 n.4 (September 126 guidance documents in proposing to See Document ID No. EPA–R04–OAR–2019– 18, 2015), 82 FR 3234, 3239 n.10 (January 11, 2017), 0303–0011, available at www.regulations.gov. and 82 FR 24621, 24624 n.7 (May 30, 2017) (citing 127 The concurrence request memorandum, 40 CFR 56.5(b) consistency requirements in 124 See 40 CFR 56.5(c) (emphasis added). signed March 19, 2020, is included in the public proposing actions inconsistent with Agency 125 See 44 FR 13043, 13045 (March 9, 1979). docket for this action. interpretation).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23719

future Agency approaches to actions, policy and that EPA is therefore acting Supreme Court has instructed that states such comments are out of scope for this well outside the zone of deference State have flexibility to ‘‘adopt whatever mix rulemaking. Farm and later cases afford to agencies of emission limitations it deems best The comments that this action reversing course in this manner. suited to its particular situation’’ 130 and reverses a national policy or establishes Commenters state that EPA has not the alternative interpretation adopted in a new national policy overstates the attempted to show that its prior this action reflects that flexibility. scope of this action, which only conclusions were flawed and that it is Region 4 does not disagree with the announces an alternative policy for arbitrary and capricious for the Agency Commenters’ assertion that the purpose analysis of the North Carolina SIP and to now rely on legal arguments it had of the CAA is to protect air quality and does not revise or otherwise alter the exposed as faulty without explaining public welfare.131 However, this action national policy on SSM. Region 4 lacks why it was wrong to reject those does not run afoul of this purpose for authority to issue a policy beyond the arguments in the first place. numerous reasons, including that the states included in the Region. Both the Commenters claim that EPA does not North Carolina SIP contains overlapping June 5, 2019, NPRM and this action now disavow the policy arguments it protective provisions and, as discussed provide a detailed explanation for the advanced in support of its plain-text further in response to Comment 8, the basis for the alternative policy and this reading of the CAA in the 2015 SSM SIP fact that air quality in North Carolina action. Call and that EPA has advanced no has continued to improve over the years In response to comments that refer to policy rationale beyond passing even though exemption provisions have a controlling D.C. Circuit court decision, mentions of ‘‘flexibility’’ to address why been included in the SIP. No areas of Region 4 notes that there is no allowing SIPs to exempt SSM pollution North Carolina are currently designated controlling D.C. Circuit decision would advance the goals of the CAA, nonattainment for any NAAQS.132 because, as discussed in the June 5, much less do so better than the status EPA has a statutory obligation to 2019, NPRM and in Section III of this quo. Commenters state that ‘‘[t]he Act’s approve SIPs that meet all applicable final action, Sierra Club does not, on its purpose and policy is to protect air CAA requirements. Region 4 has face, apply to SIPs and actions taken quality and the public welfare, not to evaluated the North Carolina SIP in under CAA section 110. Region 4 give states or polluters ‘flexibility’ light of the alternative SSM policy acknowledges that, if there were a embodied, as here, by exemptions that interpretation set forth in the proposed directly controlling decision of the U.S. do not hold polluters directly and final actions—a policy which as Court of Appeals for the D.C. Circuit, accountable for excess emissions.’’ explained above is consistent with the Region 4 would be bound by such a Commenters state that EPA’s SSM SIP CAA—and has determined that the decision pursuant to 40 CFR 56.3(d). Call disapproval of automatic submitted SIP revision meets all In response to the numerous exemptions rested, in part, on the applicable CAA requirements. Due, in questions posed by the commenters correct conclusion that even a single part, to Region 4’s adoption of an regarding actions taken by other states emission event could cause a NAAQS alternative policy for the North Carolina with respect to SSM provisions and violation and that EPA’s reversal of that SIP, Region 4 has approved the June 5, actions taken by EPA with respect to position is not accompanied by a any such state actions, the present 2017, SIP revision before EPA. reasoned explanation for it. Commenters challenge Region 4’s action is a state-specific action and any Commenters add that EPA’s new deviation from the national policy actions EPA has or has not taken with vision of how the Act operates ignores without explaining why that national respect to SIP submittals from other the history of failures that led to policy is wrong, but commenters fail to states in other regions are not relevant multiple amendments and the plain to this action, and Region 4 provides no statutory requirements of the Act as recognize that no such explanation is response. presently constructed, stating that required. The appropriate standard for Congress’s unwillingness to rely on the evaluating an agency change in position 6. Comments That EPA Has Not ‘‘old ends-driven approach that had was set forth in Motor Vehicle Mfrs. Sufficiently Explained the Rationale proven unsuccessful’’ is reflected in the Ass’n of United States, Inc. v. State Behind the Action 133 specific minimum requirements added Farm Mut. Auto. Ins. Co. and Comment 6: Commenters generally throughout the 1990 CAA Amendments. clarified in FCC v. Fox Television 134 assert that EPA’s explanation for the Commenters add that, while EPA is not Stations, Inc. The Fox Court proposed action is inadequate and precluded from adopting a different explained that a change in position does conclusory and fails to meet Agency approach to venue under the CAA, the not require a heightened showing and standards for decision-making. The Agency must at least ‘‘display that an agency ‘‘need not demonstrate to commenters claim that EPA has not awareness that it is changing position’’ a court’s satisfaction that the reasons for explained why the alternative and ‘‘show that there are good reasons the new policy are better than the 135 interpretation of SSM policy is for the new policy.’’ 129 reasons for the old one.’’ Rather, ‘‘it warranted and that EPA’s analysis Response 6: Region 4 disagrees that it suffices that the new policy is regarding other provisions in the North has not adequately explained its permissible under the statute, that there Carolina SIP, such as control rationale for this action. Section III of are good reasons for it, and that the requirements, maintenance, limitations the proposed action and this final agency believes it to be better, which the on the duration of SSM emissions, and action, as well as Section IV of the June conscious change of course adequately general obligations to comply with the 5, 2019, NPRM extensively explain the indicates.’’ 136 NAAQS, only restates arguments that rationale for this action and why Region were discussed and dismissed in the 4 believes it is warranted and is the 130 Train, 421 U.S. at 79. 2015 SSM SIP Call. Commenters state appropriate approach in this 131 See 42 U.S.C. 7401(b)(1). 132 See https://www3.epa.gov/airquality/ that EPA has not supplied a reasoned circumstance. Specifically, Section III of greenbook/ancl3.html. analysis of why this change in course is the June 5, 2019, NPRM and this final 133 See 463 U.S. 29 (1983). necessary, why it is especially necessary rule preamble explain that the U.S. 134 See 556 U.S. 502 (2009). in Region 4 (and Region 6) but nowhere 135 Id. at 515 (emphasis original). else, or even why it might be good 129 Fox, 556 U.S. at 515. 136 Id. (emphasis original).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23720 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

Region 4’s June 5, 2019, NPRM operate COMS, prohibits any exempted area has attained the NAAQS, but also acknowledged this change in position excess opacity emissions from causing that ‘‘the State containing such area has by explaining the Agency’s historical or contributing to a violation of any met all [the] requirements applicable to approach with respect to SSM emission state or Federal standard; and the area under section 7410 of this title exemption provisions in SIPs. As the North Carolina Clean Smokestacks and part D of this subchapter.’’ articulated in the June 5, 2019, NPRM Act (NCCSA), codified at 40 CFR Response 7: Region 4 disagrees that it and reiterated and expanded on in this 52.1781(h), limits NOX and SO2 failed to address or to show compliance final action, Region 4 explains how this emissions from coal-fired power plants with CAA section 110(l), which alternative interpretation is consistent to utility-wide caps designed as part of provides that ‘‘[t]he Administrator shall with the statutory text. North Carolina’s North Carolina’s comprehensive plan not approve a revision of a plan if the exemption provisions are reasonably for improving air quality in the State. revision would interfere with an bounded and provide backstop Region 4 also notes that 15A NCAC 2D applicable requirement concerning protections of instructing sources to .0535 (Excess Emissions Reporting and attainment and reasonable further limit excess emissions and maintain Malfunctions), including the exemption progress . . . or any other applicable pollution control equipment in good provisions at 2D .0535(c) and .0535(g), requirement of this chapter.’’ 138 The working order, among other things. For does not apply where sources are decision to withdraw the SIP Call for example, as discussed in more detail in subject to Federal standards.137 the exemption provisions at 15A NCAC the June 5, 2019, NPRM, the exemption Finally, as previously mentioned, 2D .0535(c) and 15A NCAC 2D .0535(g) at 15A NCAC 2D .0535(g) requires that North Carolina currently does not have does not implicate CAA section 110(l) owners or operators use best available any areas designated non-attainment because it does not constitute a revision control practices when operating under any NAAQS. Together with the to an implementation plan; the equipment to minimize emissions goal of providing states with adequate provisions were approved into the during startup and shutdown periods, flexibility to address air quality issues, North Carolina SIP in 1986 139 and and the exemption provided at 15A Region 4 has good reason to change the 1997,140 and have been in the North NCAC 2D .0535(c) outlines seven policy position for North Carolina. Carolina SIP ever since. Additionally, criteria that provide additional Region 4 believes this is the better although Region 4 did not directly cite protections of the NAAQS during a course of action in this case and is thus CAA section 110(l) in the June 5, 2019, malfunction by requiring consideration pursuing this change in policy for North NPRM, we proposed to find that the of, among other things, whether sources Carolina. exemption included in the revised SIP have minimized emissions and have 7. Comments That the Notice of provision, ‘‘when considered in limited the extent of emissions which Proposed Rulemaking Fails to conjunction with other elements in the could occur to the greatest extent Demonstrate Compliance With CAA North Carolina SIP, [is] sufficient to practicable and by prohibiting the Section 110(l) provide adequate protection of the Director from excusing excess emissions Comment 7: Commenters state that, in NAAQS’’ and to determine that the SIP from a source due to malfunctions for the event of a SIP element’s substantial changes ‘‘are consistent with CAA more than 15 percent of a source’s 141 inadequacy, CAA section 110(l) requirements.’’ As explained in operating time. provides that EPA must not approve a Section IV of the June 5, 2019, NPRM, Moreover, North Carolina’s SIP SIP containing that element. that proposed determination was includes numerous additional Commenters state that EPA has failed to explicitly conditioned upon adoption provisions protecting against NAAQS show compliance with CAA 110(l) and of, as well as based upon, the alternative exceedances or otherwise causing that the June 5, 2019, NPRM failed to policy outlined in Section III of the excess emissions. As discussed in more address or even mention it. Commenters proposed action. The alternative policy detail in the proposal, 15A NCAC 2D also state that EPA is wrong to point to was supported by a number of .0502 requires ‘‘maximum feasible ‘‘redundancies’’ in the North Carolina considerations explained in the control’’ on all sources at all times, SIP to justify its proposed approach proposal, including that the North including periods of startup and because overlapping protections are Carolina SIP, as a whole, is protective of shutdown; 15A NCAC 2D .0501(e) deliberately implemented to ensure air the NAAQS. Furthermore, the directs all sources to operate in a quality and public welfare are robustly exemption included in the revised SIP manner that does not cause any ambient protected, not to provide wiggle room provision is already in the current North air quality standard to be exceeded at for later deregulatory actions. Carolina SIP, and no changes are being any point beyond the premises on Commenters also state that made to that exemption through this which the source is located; 15A NCAC demonstrating compliance with the action. 2D .0535(d) requires utility boilers (and national standards is not the sole The comment that EPA cannot any source with a history of excess measure for approval of a SIP revision. redesignate a nonattainment area under emissions, as determined by the SIPs in nonattainment areas must also CAA section 107(d)(3)(E) is not within Director) to have a malfunction ‘‘meet the applicable requirements of scope for this rulemaking because EPA abatement plan approved by the part D.’’ In addition, commenters note is not redesignating any areas Director and identifies the minimum that CAA section 107(d)(3)(E) provides previously classified as nonattainment requirements for such a plan; 15A that EPA cannot redesignate a areas in this action; in addition, we note NCAC 2D .0510(a), 15A NCAC 2D nonattainment area as an attainment that North Carolina does not currently .0511(a), and 15A NCAC 2D .0512 area unless it finds not only that the prohibit emissions from sand, gravel, or 138 See 42 U.S.C. 7410(l). crushed stone operations, lightweight 137 See 15A NCAC 2D .0535(b), which provides 139 EPA approved 15A NCAC 2D .0535(c) into the aggregate operations and wood products that 15A NCAC 2D .0535 does not apply to sources North Carolina SIP on September 9, 1986 (51 FR finishing plants from causing subject to North Carolina regulations adopting 32073). EPA’s NSPS or NESHAP at 40 CFR parts 60, 61 and 140 EPA approved 15A NCAC 2D .0535(g) into the exceedance of ambient air quality 63, except where such sources are subject to a SIP North Carolina SIP on August 1, 1997 (62 FR standards beyond facility property lines; provision that is more stringent than Federal 41277). 15A NCAC 2D .0521(g), for sources that requirements. 141 See 84 FR at 26040.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23721

have any nonattainment areas for any action must be supported by a risk resulted in permanent emission NAAQS. analysis, Region 4 notes that risk reductions that helped nonattainment analysis is a requirement of CAA section 8. Comments That Region 4 has not areas in the State achieve attainment of 112, not CAA section 110. For example, 144 Shown That the North Carolina SIP is the 1997 Annual PM2.5 NAAQS. CAA section 112(o) requires the EPA Protective of the NAAQS Region 4 did not suggest in the June 5, Administrator to conduct a review of 2019, NPRM that the NCCSA limits are, Comment 8: Commenters state that if risk assessment methodology used to per se, totally protective of the short- EPA believes each SIP should be determine the carcinogenic risk term NAAQS, but rather that they serve evaluated to determine whether associated with exposure to hazardous as some of the several overlapping automatic or discretionary SSM air pollutants. CAA section 112(f) requirements that, together, are exemptions are compatible with the requires EPA to investigate and report NAAQS, the risk analysis must be more sufficient to ensure attainment and on the risks to public health from 145 direct. EPA must acknowledge the sources of hazardous air pollutants that maintenance of the NAAQS. uncertainty around NAAQS protection remain, or are likely to remain, after As Region 4 has thoroughly explained given how discretion with subjective application of the emission standards above in section 6 of the response to terms might be applied. Commenters promulgated by EPA under CAA section comments, the alternative policy being claim that EPA should have done an 112(d). CAA section 110 requires states adopted for North Carolina conforms analysis of the sources in North Carolina to adopt, and EPA to approve, plans for with FCC v. Fox Television Stations, and how these exemptions would not achieving and maintaining compliance Inc., as the policy ‘‘is permissible under impact the State’s ability to attain and with the NAAQS, but ‘‘risk analysis’’ is the statute, . . . there are good reasons maintain the NAAQS and that EPA in not a required element for SIP for it, and . . . the agency believes it to fact tried to obscure an accurate submissions (under section 110(A)(2) or be better, which the conscious change of characterization of the risk in the June any other SIP-related sections). This course adequately indicates.’’ 146 Based 5, 2019, NPRM. Commenters assert that highlights another difference in purpose EPA did not provide adequate legal or on Region 4’s analysis of the North and approach between CAA section 110 Carolina SIP, and for the reasons technical justification that the SIP is and CAA section 112. adequate to protect public health or that Regarding the Commenter’s concern articulated in the June 5, 2019, NPRM it is consistent with the CAA as about uncertainty around NAAQS and this final action, Region 4 is interpreted in EPA’s national protection given how discretion with deviating from the policy outlined in rulemakings (such as the 2015 SSM SIP subjective terms might be applied, the 2015 SSM SIP Action in this action Call). Commenters state that the June 5, Region 4 notes that a SIP does not limited to North Carolina. 2019, NPRM and accompanying provide complete certainty around Region 4 believes that the withdrawal supporting documents fail to provide NAAQS protection, regardless of of the SSM SIP call will not affect North sufficient analysis on how the North whether it contains SSM exemptions. Carolina’s ability to attain or maintain Carolina SIP, even with the SSM For this reason, the Act requires that the NAAQS, nor will it affect North exemptions, ensures protection of the remedial measures be taken in any area Carolina’s PSD increments. This is NAAQS or increment or any other designated as nonattainment with because the SSM exemption provisions substantive requirement. Commenters respect to a NAAQS (CAA section of the SIP, 15A NCAC 2D .0535(c) and also state that EPA’s proposal is not 172(b)) and, if such area fails to make 15A NCAC 2D .0535(g), have been in the clear on whether there is little risk or no reasonable further progress or to attain approved SIP for many years and are not risk that the NAAQS and Prevention of the NAAQS by the date required, the being revised by this action and Significant Deterioration (PSD) Act requires that specific contingency because, as discussed in response to increments will be exceeded in North measures will take effect automatically Comment 10 below, any excess Carolina as a result of the SIP approval (CAA section 172(c)(9)). Further, given and withdrawal of the SSM SIP Call. the limitations on the NC DAQ emissions from large internal Commenters also disagree that Director’s discretion, as discussed in combustion engines exempted by 15A limiting malfunctions to 15 percent of a Section III of this final action, and the NCAC 2D .1423(g) are expected to be a source’s operating time, as required by State’s responsibility to implement a small fraction of those units’ overall 15A NCAC 2D .0535(f), will reasonably program that achieves and maintains emissions. In fact, even with the SSM minimize the risk that excess emissions compliance with the NAAQS, Region 4 exemptions included in the North during these periods will contribute to believes the Director would exercise Carolina SIP, the State currently has no NAAQS exceedances or violations. In that discretion in a manner that areas designated nonattainment for any addition, regarding an example SIP supports protection of air quality. NAAQS.147 Moreover, historic ambient provision highlighted in the June 5, Region 4 assumes the commenter’s air quality monitoring data collected in 2019, NPRM, commenters assert that reference to North Carolina SIP the State show decreasing overall trends annual emissions budgets for electricity ‘‘provisions that apply to EGUs that are in NAAQS pollutant concentrations generating units (EGUs) in North more protective than the provisions over time, as demonstrated in the Carolina are insufficient constraints for applying to other types of sources’’ is to graphics included in the docket for this short-term periods of exempted excess the NCCSA, a State law which, as noted rulemaking.148 emissions, which could cause NAAQS above and in the proposal, imposes exceedances and contribute to limits on NOX and SO2 emissions from 144 See 76 FR 58210, 58217 (September 20, 2011); violations. public utilities operating coal-fired 76 FR 59345, 59352 (September 26, 2011). Response 8: The commenters’ power plants that may not be met by 145 See 84 FR at 26037–38. statements imply that the discretionary purchasing emissions credits.142 Those 146 See 556 U.S. 502, 515 (2009) (emphasis original). criteria of the North Carolina SSM NOX and SO2 limits were incorporated 147 provisions do not meet the requirements 143 See https://www3.epa.gov/airquality/ into the North Carolina SIP and greenbook/ancl3.html. of the CAA or protect against violations 148 See document titled ‘‘NC NAAQS Trends of the NAAQS. To the extent that 142 See 84 FR at 26038. Figures’’ prepared by Region 4 and included in the commenters may be suggesting that this 143 See 76 FR 59250 (September 26, 2011). docket for this rulemaking.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23722 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

Likewise, Region 4 does not have continuous control during all modes of compliant standard.’’ 152 As discussed evidence indicating PSD increments 149 source operation. Commenters argue in the proposal and above, on its face, will be exceeded in North Carolina as a that not only do such generic provisions the Sierra Club decision is limited to result of the withdrawal of the SIP Call. fail to meet the level of control required CAA section 112 and does not extend to PSD increments are protected in the by the applicable stringency CAA section 110. Therefore, State in the same way that the NAAQS requirements, such as reasonably commenters’ citation to the Sierra Club are. Further, Region 4 notes that in 2002 available control technology in decision with respect to general duty EPA revised the PSD program and nonattainment areas, best available provisions does not govern this action clarified that for purposes of control technology for certain sources in taken pursuant to CAA section 110. determining emissions from an attainment areas, and best available Region 4 disagrees with commenters’ emissions unit, ‘‘a unit is considered retrofit technology for sources impacting contention that general duty provisions operational not only during periods of regional haze, but also that general duty are, writ large, not legally or practicably normal operation, but also during provisions are not legally or practically enforceable. Region 4 acknowledges that periods of startup, shutdown, enforceable, as required by the Act. in some instances general duty maintenance, and malfunction, even if Commenters state that EPA is also provisions may present unique compliance with a non-PAL emission wrong to claim that SIP provisions are enforcement challenges; that alone does limitation is excused during these latter approvable so long as they do not not mandate a conclusion that such periods.’’ 150 The rulemaking added new preclude attainment of the NAAQS and provisions are wholesale unenforceable. provisions that specifically require a ‘‘general duty’’ provision remains in The interpretation advanced in this consideration of emissions during SSM effect. document does not preclude citizens or events in PSD construction projects.151 Commenters state that, as part of the the United States from enforcing SIP Region 4 disagrees with the enforcement scheme, the CAA provides provisions, as appropriate. Region 4 commenter’s criticism of the Agency’s for citizens to have easy access to courts disagrees with commenters’ narrow recognition of the restriction on the to improve the efficacy of the characterization of its position being amount of time a source may be deemed protections established under it, but that that a SIP provision is approvable to have experienced a malfunction and Congress carefully cabined citizen suits provided a general duty provision believes that limiting malfunctions to 15 to violations of clear standards, serves as a backstop. This interpretation percent of a source’s operating time per requiring plaintiffs to allege a violation oversimplifies the alternative policy. As year establishes a reasonable constraint of ‘‘a specific strategy or commitment in articulated in Sections III and IV of the on the Director’s exercise of discretion the SIP.’’ Commenters argue that since proposal and Section III of this final pursuant to 15A NCAC 2D .0535. general duty provisions are not action, the alternative policy is Further, evidence that North Carolina is quantifiable or objective, they run afoul predicated on a holistic evaluation of not currently designated nonattainment of these limitations and thus conflict the North Carolina SIP. While the for any NAAQS indicates that the SIP, with congressional intent that citizens NPRM identifies numerous general duty as a whole, is ensuring attainment and be able to enforce emission limitations provisions that serve as backstops maintenance of the NAAQS and that the contained in SIPs. Commenters state ensuring NAAQS attainment and SSM exemption provisions are that because courts refuse to enforce maintenance, those are not necessarily appropriately bounded and are not a unquantifiable CAA standards, attempts the only considerations contributing to source of nonattainment issues in the to enforce general duty and other work our determination that it is appropriate State. practice provisions in SIPs have been to withdraw the SIP call previously unsuccessful, thus concluding that 9. Comments That the Provisions Relied issued to North Carolina. vague and unenforceable general duty Upon are not Practicably or Legally Contrary to commenters’ assertion, provisions are no substitute for Enforceable Region 4 does not advocate general duty continuous emission limitations that provisions ‘‘substituting’’ for continuous Comment 9: Commenters state that in apply during all phases of operation. emission limitations. Rather, the the pending D.C. Circuit litigation in Commenters state that Sierra Club alternative policy provides that the Walter Coke Inc. v. EPA, No. 15–1166, broadly rejects EPA’s proposal that SSM North Carolina SIP may contain SSM Petitioners have argued that exempting exemptions are allowable because a exemption provisions because the SIP, SSM events from numerical limits is continuous ‘‘general duty’’ would as a whole, is protective of the NAAQS. appropriate and lawful because ‘‘general satisfy section 302(k)’s continuity One component of protection is that the duty’’ SIP provisions provide requirement that some section 112 SIP includes general duty provisions. standard apply continuously. However, as discussed in the proposal 149 PSD is the federally required pre-construction Commenters also state that Sierra Club’s and above, the analysis does not end permitting program that applies to new major holding relied on a determination that sources or major modifications at existing sources there. North Carolina’s SIP includes for pollutants in areas that are not designated as the general duty provision (or other numerous additional provisions nonattainment with the NAAQS. The PSD general guarantees) may not satisfy protecting against NAAQS exceedances increment is the amount that the ambient pollutant 302(k)’s continuity requirement, which or otherwise causing excess emissions. concentration is allowed to increase in an area to is the argument EPA made in proposal. allow for economic growth but also prevent the air quality from deteriorating to the level set by the Response 9: Commenters’ references 10. Comments on Environmental and NAAQS. to the Sierra Club court’s interpretation Health Impacts 150 See 67 FR 80186, 80213 (December 31, 2002). of general duty provisions is inapposite. Comment 10: Commenters state that 151 For example, the definitions of ‘‘baseline As discussed in Section III of both the reinstating North Carolina’s automatic actual emissions’’ (the average annual rate that a proposal and this final action, the court unit actually emitted a relevant pollutant in recent exemptions for SSM emission events years) and ‘‘projected actual emissions’’ (the in Sierra Club was explicitly evaluating would be a ‘‘free pass to pollute with maximum annual rate at which an existing whether a general duty provision met impunity.’’ Commenters state that so emission unit is projected to emit the relevant the strict framework of CAA section long as excess emissions from SSM pollutant after modification) require the inclusion 112. As quoted by the commenters, the of ‘‘emissions associated with startups, shutdowns, and malfunctions.’’ See 40 CFR 51.166(b)(40)(ii)(b), court specifically stated that ‘‘[t]he 152 Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. (b)(47)(i)(a), and (b)(47)(ii)(a). general duty is not a section 112- Cir. 2008).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23723

events escape regulation, polluters have comments,153 provides information 1997,158 respectively, and have never little incentive to invest in fixing known about the frequency and magnitude of been removed from the SIP. Withdrawal plant issues or improving the equipment excess emissions in the State of Texas of the SSM SIP Call for North Carolina necessary to avoid breakdowns and and claim that SSM emissions can only means that the State is not required reduce the need for ‘‘unscheduled undermine CAA protections if state to provide a SIP revision responsive to maintenance’’ because they know they rules exclude them from regulation. the SIP Call for 15A NCAC 2D .0535(c) will not face consequences for illegal Commenters state that neither EPA nor and .0535(g). pollution released during these events, North Carolina has done any analysis to Region 4 disagrees with the comment which is a problem because emission evaluate the extent of excess emissions that these rules provide sources events and pollution released during that could be authorized by the SIP throughout Region 4 a ‘‘free pass to ‘‘unauthorized maintenance’’ is a major revision. Commenters state that pollute with impunity.’’ As an initial threat to public health and the exempting SSM events from regulation matter, this action is limited in scope to environment. Commenters also state threatens not only maintenance of those the North Carolina SIP and does not that allowing excess emissions from standards (as discussed above) but also cover sources throughout Region 4. Additionally, as discussed in the June 5, SSM events to escape regulation would human lives by allowing high 2019, NPRM, 15A NCAC 2D .0535(c) undermine North Carolina’s obligations concentrations of deadly fine particulate and .0535(g) themselves (and other to protect and maintain safe air quality, matter to form. Commenters also state provisions of the SIP) direct sources, to both within the state and for downwind that the Act’s requirement for the extent practicable, to minimize neighbors. continuously enforceable emission limitations is vitally important for emissions at all times, including periods Commenters state that approval of the protecting public health. In support of of SSM. These rules also provide that North Carolina SIP revision would this statement commenters quote a 2016 only excess emissions that were ‘‘sanction emissions of potentially EPA brief in litigation regarding the unavoidable by the source may be substantial amounts of unhealthy air 2015 SSM SIP Call,154 which quotes the considered not to be violations of pollution’’ which would be emitted 2015 action,155 which quotes the House applicable rules. Under 15A NCAC 2D during periods of SSM in amounts that Report on the 1977 CAA Amendments .0535(c), excess emissions that occur at cannot be determined in advance and as stating, ‘‘Without an enforceable any time other than a period of startup therefore cannot assure protection of the emission limitation which will be or shutdown are violations of the NAAQS. Commenters claim that SSM complied with at all times, there can be applicable SIP limit unless the owner or events release ‘‘huge amounts’’ of no assurance that ambient standards operator demonstrates, to the degree pollution that can cause exceedances will be attained and maintained.’’ 156 required by the Director’s judgment, that and violations of the NAAQS and cite the emissions are the result of a Commenters also note that in EPA’s to an example in which ‘‘one known malfunction (i.e., unavoidable failure of 2015 action, it acknowledged it was event released 165,000 pounds of sulfur air pollution control equipment, process particularly concerned about the dioxide.’’ equipment, or process, as defined at potential for serious adverse 15A NCAC 2D .0535(a)(2)). To Commenters claim that reviving SSM consequences for public health in the determine whether excess emissions are exemptions in North Carolina and in interim period during which states, EPA the result of a malfunction, the Director Region 4 would frustrate the attainment and sources were to make adjustments shall consider, among other factors efforts of nearby states and regions along to rectify deficient SIP provisions and listed in the rule, whether the air the east coast, particularly in the ozone take steps to improve source cleaning device, process equipment, or and SO2 nonattainment zones around compliance. Commenters state that EPA process have been maintained and Washington, DC, and Baltimore and has not explained in this rulemaking operated, to the maximum extent surrounding counties in Virginia and why those concerns are no longer practicable, in a manner consistent with Maryland. Commenters also state that justified or relevant to this action and good practice for minimizing emissions. Sullivan County, Tennessee, near the that EPA has not addressed or even Thus, a determination by the Director North Carolina border, is currently also mentioned the health effects of the that these criteria have not been met a nonattainment area for SO2 and that action in qualitative or quantitative would mean that excess emissions are North Carolina itself has consistently terms. not the result of a malfunction and, faced pollution from neighboring states, Response 10: Region 4 clarifies that therefore, are a violation of the and that Mecklenburg County, North no provisions are being reinstated into appropriate rule. Carolina, is close to violation of the the North Carolina SIP. In this action, Likewise, 15A NCAC 2D .0535(g) 2015 ozone standard. Region 4 is approving changes to requires that excess emissions that Commenters state that EPA’s approval existing rule 15A NCAC 2D .1423, as occur during periods of startup and of attainment and maintenance plans for requested by North Carolina. The State’s shutdown are violations of the certain NAAQS did not consider excess provisions that were subject to the SSM appropriate rule if the owner or operator emissions that may occur and that, for SIP Call, 15A NCAC 2D .0535(c) and cannot demonstrate that the emissions some pollutants, approval of the plan .0535(g), were approved by EPA on were unavoidable, when requested by relied on a monitoring network that did September 9, 1986,157 and on August 1, the Director to do so. Any determination not cover the land area of the state. by the Director that the owner or Commenters also state that, because of 153 The study, titled ‘‘The health consequences of operator has not, to the extent the limited air quality monitoring weak regulation: Evidence from excess emissions in practicable, operated the source and any Texas,’’ appears to be an unpublished document associated air pollution control network, violations of the NAAQS may downloaded from the internet at https:// escape official notice, but the harmful equipment or monitoring equipment in www.ssrn.com/index.cfm/en/. a manner consistent with best effects of SSM events nonetheless 154 Walter Coke Inc. v. EPA, No. 15–1166 (and burden the neighboring communities. consolidated cases) (D.C. Cir.). practicable air pollution control 155 See 80 FR at 33901. practices to minimize emissions during Commenters note that a study, 156 H.R. Rep. No. 95–294, at 92 (1977). provided as an attachment to the 157 See 51 FR 32073. 158 See 62 FR 41277.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23724 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

startup or shutdown would mean that As described in the preceding .1423, which is already included in the any excess emissions are a violation of paragraphs, Region 4 disagrees that 15A current federally approved SIP, provides the appropriate rule. NCAC 2D .0535(c) and .0535(g) allow that the emission standards therein do Commenters’ statements are unclear pollutant emissions to escape regulation not apply during periods of ‘‘(1) start-up as to what is meant by the terms and that the State’s implementation and shut-down periods and periods of ‘‘unscheduled maintenance’’ and plan lacks regulatory incentive for malfunction, not to exceed 36 ‘‘unauthorized maintenance.’’ sources to maintain their equipment and consecutive hours; (2) regularly ‘‘Maintenance’’ may be defined as the upgrade emission controls when scheduled maintenance activities.’’ As work of keeping something in a suitable possible. Further, regular source proposed in Section IV of the NPRM, condition 159 and therefore consists of maintenance activities are essential to Region 4 finds that the provisions of normal, periodic equipment upkeep avoiding excess emision events and are 15A NCAC 2D .1423(g), when activities that help to prevent incentivized by the regulatory considered in conjunction with other equipment failures. Region 4 requirements to submit excess emission elements in the North Carolina SIP, are understands the commenters’ intent to reports under 15A NCAC 2D .0535(f), sufficient to provide adequate be that if SSM events are unregulated, which provides that all instances of protection of the NAAQS 164 and that sources lack incentive to maintain their excess emissions which last for more the exclusion of emission standards equipment or improve emission than four hours, regardless of whether during periods of SSM and regularly controls. The comment seems to due to malfunction or any other scheduled maintenance activities will presume, without evidence, that source abnormal condition, must be not have any adverse impact on air owners and operators conduct their communicated to the Director or quality. Indeed, 15A NCAC 2D .1423, processes and operate their facilities designee within 24 hours of the including paragraph (g) thereof, has with reckless disregard for the occurrence. The SIP does not been in the federally-approved North environment and without regard for automatically require such reports for Carolina SIP for seventeen years,165 and other SIP provisions requiring control of excess emission events lasting less than there is no evidence that it has caused emissions and protection of the four hours; however, 15A NCAC 2D or contributed to any interference with NAAQS, as discussed above. Region 4 is .0605 requires that all monitoring attainment or maintenance of the not aware of reasons to suspect this to records be retained by the owner or NAAQS. Certainly, North Carolina’s be the case. Region 4 disagrees with the operator and made available for adoption of 15A NCAC 2D .1423, which commenters’ conclusion that sources inspection for a period of two years. In required significant reductions in NOX will not face consequences for illegal addition, all sources subject to the title emissions from large internal pollution released during SSM events. V permitting program, including all combustion engines, was a SIP As described above, SSM events that major sources of pollutants subject to strengthening measure even though the result from a failure to address known regulation, must submit to the State State chose not to apply its limits during plant issues or conduct routine semiannual monitoring reports and SSM events and scheduled maintenance maintenance would likely not meet the annual compliance certifications that activities. In fact, Region 4 notes that criteria outlined for the Director’s clearly identify all instances of much of the text of 15A NCAC 2D .1423, consideration regarding when excess deviations from permit requirements.162 including paragraph (g), is the same as emissions are not considered a The SIP revision being approved the text of part of a FIP that EPA violation. through this action is limited to 15A proposed but did not need to finalize in Region 4 also notes that the action NCAC 2D .1423, the State’s rule order to meet NOX SIP call emission approving 15A NCAC 2D .0535(c) into regulating emissions of NOX from ‘‘large budgets.166 In other words, EPA itself the North Carolina SIP specifically internal combustion engines.’’ North proposed the same SSM and stated that EPA retains authority to Carolina’s June 5, 2017, SIP revision maintenance exemptions for NOX pursue enforcement of any particular includes several changes to this rule. emissions from stationary reciprocating case: ‘‘it should be noted that EPA is not Among the provisions being revised is internal combustion engines in 1998 approving in advance any determination 15A NCAC.1423(d)(1), ‘‘Compliance that North Carolina adopted in 2002. made by the State under paragraph (c) determination and monitoring.’’ North Furthermore, Region 4 observes that of the rule, that a source’s excess Carolina modified 15A NCAC.1423(d)(1) numerical emission limits generally emissions during a malfunction were to ensure that CEMS data used for cannot be enforced during internal avoidable and excusable, but rather is determination of compliance with this combustion engine startup because approving the procedures and criteria rule meet applicable SIP requirements measurement of emissions from this set out in paragraph (c). Thus, EPA as well as Federal requirements. Section type of unit during startup is technically retains its authority to independently 2D .1423(d)(1) of the State’s current infeasible using currently available field determine whether an enforcement federally-approved SIP provides that the action is appropriate in any particular owner or operator of a subject internal data must meet the applicable requirements case.’’ 160 Moreover, North Carolina has combustion engine shall determine specified in Rule .1404 (in particular, Paragraphs already stated its position that (d)(2) and (f)(2) of Rule .1404) as well as the compliance using ‘‘a [CEMS] which applicable part 60 requirements since those ‘‘[n]othing in the existing SIP provisions meets the applicable requirements of provisions specify additional Federal requirements prohibits or restricts in any way the Appendices B and F of 40 CFR part 60, for obtaining CEMS data. ability of the EPA and/or a citizen to file excluding data obtained during periods 164 North Carolina has bounded the time during an action in federal court seeking specified in Paragraph (g) of this which a source can employ this exemption, 161 163 minimizing the potential that any excess emissions enforcement of the SIP provisions.’’ Rule.’’ Paragraph (g) of Section 2D during these periods would cause or contribute to a NAAQS exceedance or violation. Therefore, the 159 See Webster’s II New Riverside University EPA–HQ–OAR–2012–0322–0619, available at exemption, which allows for emission standards of Dictionary 717 (Anne H. Soukhanov, Senior Editor, www.regulations.gov. the rule to not apply during periods of startup, The Riverside Publishing Company, 1984) (defining 162 See 15A NCAC 2Q .0508(f), .0508(n); 40 CFR shutdown, and malfunction of up to 36 consecutive ‘‘maintenance’’). 70.6(a)(3)(iii), (c)(5)(iii)(C). hours, or maintenance, is not inconsistent with the 160 See 51 FR 32073, 32074 (September 9, 1986.) 163 The rule revision inserts ‘‘and .1404 of this requirements of the CAA section 110. 161 Letter from Sheila C. Holman, Director, NC Section’’ following the word ‘‘Rule’’ in this text to 165 See 67 FR 78987 (December 27, 2002). DAQ, to EPA, May 13, 2013, page 3, Docket ID No. ensure that the CEMS used to obtain compliance 166 See 63 FR 56394, 56427 (October 21, 1998).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23725

testing procedures.167 In addition, violation, even if an SSM exemption from North Carolina have an impact on internal combustion engines start up provision also applies. Therefore, SO2 attainment issues in downwind rapidly, typically requiring about 15 Region 4 has concluded that it is states that would be impacted by the minutes to 30 minutes of operation for reasonable for the NC DAQ Director to provisions being approved into the SIP. the emission control systems to reach an be able to exclude qualifying periods of Because emissions of this pollutant are effective operating temperature.168 excess emissions during periods of SSM transformed in the atmosphere into fine Likewise, because internal combustion without posing a significant risk to particles (i.e., PM2.5) relatively 175 engines are typically shut down in a attainment or maintenance of the quickly, violations of the SO2 matter of minutes,169 emissions during NAAQS. Based on the same rationale, NAAQS are generally found in areas shutdown are also a minor contribution these same provisions of the State’s having sources that emit SO2 in to overall emissions. Regarding implementation plan help protect quantities large enough, prior to malfunctions, Region 4’s understanding against contribution to air quality issues transformation into fine particles, to is that any malfunctions by internal outside the State as well. Second, as cause issues in the local area. combustion engines generally will not discussed below, commenters provide Regarding commenters’ statement that cause violations of applicable emission no support for their assertions regarding Sullivan County, Tennessee, near the standards because in most cases these the significance of pollutant emissions North Carolina border, is a units shut down immediately or with during any SSM events in North nonattainment area for SO2, the very little delay.170 Maintenance Carolina and the contribution of those commenters have not explained how activities are required to ensure units emissions to downwind air quality this action may lead to relevant operate at peak efficiency during normal issues. emissions increases in North Carolina operation and that the potential for Regarding the specific concerns raised likely to affect this area. The primary equipment failure is minimized. Region by the commenter regarding ozone SO2-emitting point source located 4 is aware of no reason to expect that nonattainment in neighboring states, within the Sullivan County SO2 regular maintenance activities might EPA’s recent transport analyses have nonattainment area (Sullivan County cause increased pollutant emission demonstrated that emissions from North Area) is the Eastman Chemical 176 rates. In conclusion, far from Carolina do not significantly contribute Company. The Sullivan County Area sanctioning unhealthy air emissions as to nonattainment or interfere with consists of that portion of Sullivan claimed by commenters, North maintenance of the ozone NAAQS in County encompassing a circle having its Carolina’s exclusion of periods of SSM downwind states. In the 2011 Cross- center at this facility’s B–253 power and regularly scheduled maintenance State Air Pollution Rule (CSAPR), EPA house and having a 3-kilometer 177 from the emissions standards of 15A determined that emissions from North radius. North Carolina, on the other NCAC 2D .1423 is appropriate because Carolina were not linked, and therefore hand, has no large sources of SO2 internal combustion engine emissions did not contribute, to any downwind emissions within 50 km of the Sullivan cannot be accurately measured during nonattainment receptors (i.e., ambient County Area. Accordingly, the such events and because such events air quality monitoring sites) and were commenters have not identified any comprise a small fraction of overall unit linked to two downwind maintenance sources of emissions in North Carolina receptors for the 1997 8-hour ozone likely to increase as a result of this operating time. The existing rule, as 172 revised, illustrates a practice on the part NAAQS in its 2012 analytic year. action which would impact the Sullivan of North Carolina of making informed, However, EPA’s analysis in a County Area. subsequent action on remand from the In response to commenters’ concern reasonable choices, based on knowledge D.C. Circuit demonstrated that those air that Mecklenburg County, North of the sources they regulate, when quality problems would be resolved in Carolina, is close to violation of the developing SIP requirements and is 2017 and thus that North Carolina 2015 ozone NAAQS, Region 4 notes that consistent with the State’s overall plan would no longer interfere with Mecklenburg County has not violated for improving air quality. Consistent maintenance of the 1997 ozone NAAQS the 2015 ozone NAAQS. For North with the U.S. Supreme Court’s direction at these receptors.173 Moreover, in the Carolina, in 2012 only the Charlotte- in Train, Region 4 finds that North 2016 CSAPR Update, EPA determined Rock Hill Area (which includes Carolina can determine whatever mix of that North Carolina does not contribute Mecklenburg County) was designated emission limitations it deems best significantly to nonattainment in, or nonattainment for the 2008 ozone suited for a situation, and Region 4 is interfere with maintenance by, any standard of 75 parts per billion (ppb). In approving the SIP revision after finding 2015, this Area was redesignated to 171 other state with respect to the 2008 it complies with the CAA. ozone NAAQS because the State’s attainment for that standard. In 2017, Region 4 also disagrees with the impact on downwind receptors was the entire State was designated comment that SSM exemptions in the well below the threshold used to attainment/unclassifiable for the more North Carolina SIP would frustrate the identify contributing states.174 protective 2015 ozone standard of 70 ozone and SO2 attainment efforts of Regarding the concerns raised by the nearby states. First, as discussed in the 175 commenter regarding SO2 For example, in SO2 transport analyses, EPA proposal and elsewhere in this final nonattainment in neighboring states, focuses on a 50 km-wide zone because the physical action, the North Carolina SIP contains properties of SO2 result in relatively localized North Carolina does not currently have pollutant impacts near an emissions source that numerous provisions that work in any nonattainment areas, as noted drop off with distance. See, e.g., 84 FR 72278, concert and provide redundancy to earlier in this document, and 72280 (December 31, 2019). protect against a NAAQS exceedance or commenters provide no specific support 176 See Technical Support Document (TSD), Tennessee Area Designations For the 2010 SO2 for their assertion that SO2 emissions Primary National Ambient Air Quality Standard, at 167 See, e.g., 75 FR 9648, 9665–66 (March 3, 2010) 8–10, available at https://www.epa.gov/sites/ and 75 FR 51570, 51576–77 (August 20, 2010). 172 See 76 FR 48208, Tables V.D–8 and V.D–9 production/files/2016-03/documents/tn-tsd.pdf and 168 See, e.g., 74 FR 9698, 9710 (March 5, 2009). (August 8, 2011). in EPA’s docket for the Round 1 Air Quality 169 Id. 173 See 81 FR 74504, 74523–524 (October 26, Designations for the 2010 Sulfur Dioxide (SO2) 170 Id. 2016). Primary National Ambient Air Quality Standard, 78 171 Train v. Natural Res. Def. Council, Inc., 421 174 See 81 FR 74504, 74506, 74537, Table V.E–1 FR 47191 (August 5, 2013). U.S. 60, 79 (1975). (October 26, 2016). 177 See 40 CFR 81.343.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23726 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

ppb.178 Region 4 has recently reviewed required to be submitted either because to Texas, which leads the nation in the preliminary data which indicates the the excess emission event lasted less production and refining of crude oil and Charlotte-Rock Hill Area will likely still than four hours or because no the production and processing of be attaining the 2015 ozone NAAQS applicable emission rate limit was natural gas.185 North Carolina, however, when the 2019 data are certified. While exceeded. Also relevant, the State has none of these types of operations,186 commenters are correct that ozone issued an average of about 300 notices and therefore the study is of little concentrations in the Area are near the of violation per year for various relevance the State’s air quality control 2015 ozone standard, this is expected to operating permit deviations during the program. Commenters have provided no be due primarily to meteorological same time period.180 In addition, as information suggesting that excess conditions (hotter summers) over the discussed above, the SIP requires that emission events exempted under the past two years and other factors, such as all monitoring records be retained by North Carolina SIP have been associated increasing mobile emissions. Any the owner or operator and made with significant adverse impacts on air increases in ozone design values in available for inspection for a period of quality or human health, and Region 4 North Carolina cannot reasonably be two years but does not require is aware of none. attributed to SSM exemptions in 15A automatic reports to the State for excess Commenters state that neither EPA NCAC 2D .0535(c) and .0535(g) because emission events that last less than four nor North Carolina has done any those provisions have been in the SIP hours. In accordance with 15A NCAC analysis to evaluate the extent of excess for many years and thus have not been 2D .0535(c), no exemption from emissions that could be authorized by a source of change since that time. violation status is provided for any the SIP revision, but the SIP revision at In response to comments that EPA’s excess emission event unless the owner issue does not add or otherwise alter the approval of attainment and maintenance or operator of the source demonstrates SSM exemption provisions which are plans for certain NAAQS did not to the Director’s satisfaction that the already in the North Carolina SIP. consider excess emissions that may excess emissions are the result of a Further, excess emission events are occur, Region 4 agrees that it had no malfunction. Such determinations difficult to quantify, but Region 4 has reason to suspect that excess emissions appear to be an infrequent occurrence, evaluated the air quality in North exempted under Rules 2D .0535(c), 2D having been made an average of only Carolina and the actual occurrence of .0535(g) and 2D .1423(g) would be about five times per year over the past such excess emission events, as frequent enough or of great enough five years in the State, which has about explained above. Even though the North magnitude to prevent approval of those 300 sources holding title V operating Carolina SIP contains the SSM plans, and commenters have provided permits 181 and over 1,600 sources exemption provisions discussed in this no such evidence either in this action or holding non-title V operating action, air quality in the State has in our prior actions approving those permits.182 steadily improved over the years, as attainment and maintenance plans. Region 4 acknowledges the study discussed in response to Comment 8, North Carolina has an ambient cited by commenters regarding excess and North Carolina does not currently monitoring network plan that meets or emissions in Texas. However, the study have any non-attainment areas. exceeds the requirements of 40 CFR part is specific to emissions in Texas and Commenter’s quote from page 92 of 58 and is subject to public comment, does not speak to this action, which is H.R. Rep. No. 95–294 excludes the with the objective of long-term focused on and limited to an evaluation context that adds clarity to the intended assessment of air quality. To operate of the North Carolina SIP, and, as a meaning of the passage. The statement monitors that measure air pollutant corollary, emissions in North Carolina. ‘‘Without an enforceable emission concentrations over the entire State Region 4 points out that the referenced limitation which will be complied with would not be feasible. study is not from a peer-reviewed at all times, there can be no assurance The State evaluates whether excess journal article and does not attempt to that ambient standards will be attained emissions qualify for the exemptions show a relationship between the and maintained’’ is immediately outlined in 15A NCAC 2D .0535(c). For occurrence of excess emissions in Texas followed by four more sentences example, over the 5-year period 2015– and that State’s treatment of SSM explaining that any emission limitation 2019, Region 4 has received information events. Region 4 also observes that a under the Act ‘‘must be met on a from North Carolina indicating 26 cursory review of the air emission event constant basis, not an ‘averaging’ basis 183 malfunction determinations were made reports which the study is based such as, for example, would be the case by the State.179 Six of those upon shows that most of the excess if averaging sulfur content of coal was determinations were made on emissions resulted from industrial allowed’’ 187 (as might happen when demonstrations that facilities were flaring events at crude oil and natural coals of low-sulfur and high-sulfur 184 required to submit, in accordance with gas production facilities. This is a content are combusted at different 15A NCAC 2D .0535(f), because circumstance of particular significance times). The paragraph explains that the malfunction events resulted in excess ‘‘averaging’’ method is not allowable 180 Obtained from ‘‘NC Air Quality Update,’’ Mike because it cannot provide assurances emission that lasted for more than four Abraczinskas, Director, NC DAQ, April 11, 2019, hours. While North Carolina evaluated slides 25 and 27, included in the docket for this that an emission limitation will be met all of the malfunction determinations rulemaking. at all times (since inherent to the submitted, NC DAQ determined that 181 Id., slide 22. averaging method is the fact that the twenty of those submissions were not 182 Id. emission limitation would sometimes be 183 According to the researchers, only Texas, Oklahoma, and Louisiana maintain systematic data 185 178 In 2015 EPA revised the primary and on excess emissions events that is usable for U.S. Energy Information Administration (EIA), secondary levels of the ozone standard to 0.070 research, and Texas publicly posts details regarding Texas Profile Data, Reserves, and Supply & parts per million to provide increased public health emissions events on its website at https:// Distribution, https://www.eia.gov/state/ and welfare protection for the reasons described in www2.tceq.texas.gov/oce/eer/. analysis.php?sid=TX (accessed January 14, 2020). the final published action. See 80 FR 65292 184 For example, a search on emissions events in 186 U.S. EIA, North Carolina Profile Data, (October 26, 2015). all areas during the period January 1, 2020–January Reserves, and Supply & Distribution, https:// 179 See email and attached spreadsheet from Steve 10, 2020, results in 48 reports filed, at least 75 www.eia.gov/state/analysis.php?sid=NC (accessed Hall, NC DAQ, to Joel Huey, EPA, January 9, 2020, percent of which were flaring events at facilities in January 14, 2020). included in the docket for this rulemaking. the crude refining and gas production industries. 187 H.R. Rep. No. 95–294, at 92 (1977).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23727

exceeded). In other words, Congress was action is not expected to have any Commenters claim that even if all of the explaining that an effective emission adverse impact on air quality. While conditions required to qualify as a limitation is one that reduces emissions EPA stated in the 2015 SSM SIP Action malfunction under the North Carolina continually and is not one that simply that the Agency was concerned about SIP have occurred, the criteria rely on calculates a long-term average of the potential for serious adverse subjective terms. The one mandatory emissions. The SSM exemptions of the consequences for public health during provision, commenters state, relies on North Carolina SIP provide sources no the interim period in which states, EPA the subjective term ‘‘as practicable.’’ relief from their obligation to utilize and sources took measures necessary to Commenters also state that even if emission control devices and work respond to the SSM SIP call, the Agency applied stringently, start up and shut practices to the extent practicable, and made no finding of actual harm, in down emissions could be ‘‘minimized’’ they are not an emission averaging qualitative or quantitative terms, from but still be high enough to cause a scheme. the provisions called for revision. NAAQS exceedance and that such Regarding the commenters’ statement Rather, EPA discussed at length the events could occur often enough to that ‘‘one known event released 165,000 assertion that ‘‘EPA does not interpret cause a violation of the NAAQS. pounds of sulfur dioxide,’’ Region 4 section 110(k)(5) to require proof that a Response 11: Based on review of the observes that the referenced event given SIP provision caused a specific information Region 4 has regarding occurred in Louisiana in October environmental harm or undermined a malfunction determinations made by 2011.188 A report about this specific specific enforcement action in order to the Director of the NC DAQ from 2015 event, completed by the Louisiana find the provision substantially through 2019, as discussed above in Department of Environmental Quality inadequate.’’ 189 EPA did not make a Response 10, we believe that the Inspection Division, states the incident specific factual finding regarding actual Director has employed the discretionary was preventable and ‘‘will be referred as harm in North Carolina when it issued authority provided by North Carolina’s an AOC on LAC 33:111.905.A’’ (i.e., an the SIP call in 2015, and no factual 15A NCAC 2D .0535(c) in circumstances Administrative Order on Consent for finding is required for Region 4 to adopt that are narrower than an exemption violating Louisiana Administrative Code an alternative interpretation of the that would apply automatically during 33:111.905.A, which requires proper use statutory provisions at issue. The such events. Also, Region 4 anticipates of emission controls). Thus, the proposal and this final action provide a that, going forward, emissions exempted referenced event, which occurred comprehensive rationale for Region 4’s by the Director pursuant to 15A NCAC almost nine years ago in a state other alternative policy and its change in 2D .0535(c) will continue to apply to a than North Carolina, was not exempted interpretation. narrower scope of emissions than would by that state but instead was identified As explained in the June 5, 2019, be exempt through an automatic as requiring an administrative order to NPRM, the NAAQS have been set to exemption. Additionally, as discussed correct the problem that caused the provide requisite protection, including above, 15A NCAC 2D .0535(g) directs exceedance. While Region 4 an adequate margin of safety, for human facilities, during startup and shutdown, 190 acknowledges that air pollutant health. The purpose of the SIP is to to operate all equipment in a manner emissions can be higher than normal ensure compliance with the NAAQS, consistent with best practicable air during SSM events, commenters have e.g., attainment and maintenance. EPA pollution control practices to minimize provided no viable evidence supporting has an obligation to approve SIP emissions and to demonstrate that their contention that excess emissions revisions if the Agency does not excess emissions were unavoidable which are exempted from violation determine it will negatively impact a when requested to do so by the Director. status release ‘‘huge amounts’’ of state’s ability to attain or maintain the Therefore, based on the evaluation of pollution or that they have a significant NAAQS. Region 4 views the various the North Carolina SIP in Section III of impact on attainment and maintenance overlapping planning requirements of this final action and Sections III and IV of the NAAQS, particularly not from the the North Carolina SIP as sufficient to of the proposal, Region 4 reasonably State of North Carolina, and Region 4 is meet the requirements of CAA section concludes that the Director’s discretion aware of none. 110. Commenters have not provided provisions in the North Carolina SIP are Region 4 also disagrees that this sufficient evidence to suggest that the not inconsistent with CAA requirements action exempts excess emission events SIP revisions approved in this action because the North Carolina SIP, when from regulation. The SIP-called would prevent North Carolina from evaluated as a whole, provides for provisions do not automatically exempt attaining or maintaining the NAAQS. attainment and maintenance of the emissions during SSM; they provide for 11. Comments on Director’s Discretion NAAQS. use of Director’s discretion, which Provisions Further, the federally-approved North Region 4 expects would exempt fewer Carolina SIP has contained a provision Comment 11: Commenters state that excess emission events than an providing Director’s discretion for EPA cannot reasonably conclude the automatic exemption. This action will malfunction exemptions for over 30 NAAQS will be protected if NC DAQ’s not cause an increase in emissions years; 191 the commenter has not Director can exempt SSM emissions because the SIP-called provisions were provided any evidence to demonstrate from being violations. Commenters approved by EPA in 1986 and 1997 and that the existence of such provisions argue that SIP-called provisions list have been in effect, without interfered with North Carolina’s seven criteria for the Director to interruption, since those approvals. attainment or maintenance of any consider, but does not limit Similarly, as referenced above, the NAAQS. In fact, as discussed in consideration to those criteria and notes automatic exemption in 15A NCAC 2D response to Comment 8, air quality in that the terms are open to subjective .1423 has been in the North Carolina SIP North Carolina has continued to interpretation and that the Director may since 2002, and that approval is also not improve over time and there are not impacted by this action. Therefore, this abuse discretionary authority, which can lead to NAAQS violations. 191 15A NCAC 2D .0535(c) was approved on 188 See ‘‘Louisiana Department of Environmental September 9, 1986 (51 FR 32073), and 15A NCAC Quality Intra-Agency Routing Form’’ (December 8, 189 See 80 FR at 33932–34. 2D .0535(g) was approved on August 1, 1997 (62 FR 2011) included in the docket for this rulemaking. 190 See 84 FR at 26034. 41277).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23728 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

currently any nonattainment areas in whether a NAAQS violation occurs, Region 4 disagrees with the comment the state. Commenters have not pointed including a general statement that that allowing Director’s discretion SSM to evidence of abuse of Director’s NAAQS monitoring stations are not exemption provisions to remain in the discretion in North Carolina. Region 4 generally located around most sources. North Carolina SIP will hamper citizen cannot respond to unsubstantiated Commenters further assert that EPA enforcement, in contravention of the claims regarding abuses of discretionary must assume that absence of a CAA requirements. As discussed in authority by the Director of the State air documented NAAQS violation will be Section III of this final action, the agency. Region 4 is not aware of any treated as sufficient proof that a exercise of authority under the evidence of such abuses since the violation did not occur. Commenters Director’s discretion provisions of 15A introduction of the Director’s discretion conclude that consequently, few NCAC 2D .0535 shall not be construed provision into the North Carolina SIP. exemptions are expected to be denied to bar, preclude, or otherwise impair the Region 4 acknowledges that a even if the excess emissions, in reality, right of action by the United States or Director’s determination of whether caused a violation. citizens to enforce a violation of an emissions are excusable pursuant to Commenters assert that North emission limitation or emission 15A NCAC 2D .0535(c) or .0535(g) may Carolina’s procedures for obtaining an standard in the SIP or a permit where be somewhat subjective 192 but exemption are generally appropriate for the demonstration by a source or a maintains that the Director will be an approach based on enforcement determination by the Director does not acting in accordance with approved SIP discretion, but point out that EPA and comply with the framework and provisions. Further, as discussed in citizen enforcement would be limited. authority under 15 NCAC 2D .0535. Section III of this final action, the Commenters state that EPA can be Failure to comply with such framework provisions do not prevent the United assumed to exercise appropriate and authority would invalidate the States or citizens from enforcing the enforcement discretion and that citizen Director’s determination. North underlying provisions. The exercise of enforcement does not generally result in Carolina’s comment letter on the authority under the Director’s discretion unfair outcomes for sources. proposed SSM SIP Call 193 similarly provisions of 15A NCAC 2D .0535 shall Commenters conclude that EPA could indicates that the Director’s discretion not be construed to bar, preclude, or revisit its national policy and revert to exemption provisions are not intended otherwise impair the right of action by one that applied for decades in which to prevent enforcement: ‘‘[n]othing in the United States or citizens to enforce SSM exemptions are not allowed except the existing SIP provisions prohibits or a violation of an emission limitation or via enforcement discretion, and all SIP restricts in any way the ability of EPA emission standard in the SIP or a permit emission limits apply continuously. and/or a citizen to file an action in where the demonstration by a source or Commenters state that alternative federal court seeking enforcement of the a determination by the Director does not emission limits could be developed for SIP provisions.’’ 194 comply with the framework and periods of SSM as well. Emissions information for sources in Commenters state that Congress authority under 15A NCAC 2D .0535. North Carolina is available and required continuously applicable Failure to comply with such framework obtainable, and commenters have not emission limitations to ensure citizens and authority would invalidate the presented information indicating would have meaningful access to the Director’s determination. EPA and otherwise. As discussed above, the SIP remedy provided by the Act’s citizen- citizens’ ability to enforce the requires that excess emissions lasting suit provision to assure compliance underlying provisions is another more than four hours be reported to the with emission limitations and other element contributing to Region 4’s State at 15A NCAC 2D .0535. requirements of the Act but that conclusion that the SSM exemption exemptions remove citizens’ ability to Additionally, title V permits require provisions do not interfere with NAAQS enforce emission limitations and thus semiannual reports to include attainment and that the SIP is consistent contravene the Act. deviations from applicable requirements with the CAA. Response 12: Commenters provide no as well as annual compliance certifications at 15A NCAC 2Q .0508. 12. Comments on Enforcement concrete evidence that the provisions relied upon in the North Carolina SIP This information assists the Director in Comment 12: Commenters state that have a low probability of being effective determining whether a NAAQS the North Carolina SIP provisions relied in practice. Generally speaking, as violation likely occurred. North upon in the proposal are mere discussed in response to Comment 8, Carolina also makes public the platitudes and have very little North Carolina’s air quality has inspection reports, compliance reports, probability of being effective in practice. continued to improve in recent years, and other materials related to emissions Commenters state that the cited SIP and no areas of North Carolina are compliance at facilities. Further, NC provisions that prohibit violations of the currently designated nonattainment for DAQ maintains records of NAAQS are not practicably enforceable. any NAAQS. Commenters have not determinations of malfunctions Commenters identify gaps in provided information indicating that the available for public inspection in its information for malfunction events and existence of the SSM exemption compliance database (accessible at provisions in the SIP have precluded https://deq.nc.gov/about/divisions/air- 192 Pursuant to various other North Carolina SIP quality/air-quality-compliance). This provisions, the Director has authority to exercise his enforcement or that the Director in or her judgment with respect to several other types North Carolina has abused his or her information is available for title V of determinations. See, e.g., 15A NCAC 2D discretion. Commenters provide no sources, small permitted sources, and .0501(f)(2) (requiring demonstration ‘‘to the basis for speculating that they expect small exempt (non-permitted) sources. satisfaction of the Director’’); 15A NCAC 2D In response to the comment regarding .0530(t)(3) and .0531(m)(4) (requiring the North Carolina Director to deny few demonstrations ‘‘to the Director’s satisfaction’’); exemption demonstrations, even if a the monitoring network, Region 4 notes 15A NCAC 2D .0540(h) (requiring correction of violation occurred. Detailed information facility’s fugitive dust control plan where ‘‘the about historical usage of director’s 193 See 78 FR 12460 (February 22, 2013). Director finds that the plan inadequately controls 194 Letter from Sheila C. Holman, Director, NC fugitive dust emissions’’); 15A NCAC 2D .2602(i) discretion provisions in the North DAQ, to EPA, May 13, 2013, page 3, Docket ID: (authorizing Director to allow deviations from Carolina SIP is included in our response EPA–HQ–OAR–2012–0322–0619, available at testing procedures required under the SIP). to Comment 10 above. www.regulations.gov.

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations 23729

that the EPA works collaboratively with asserting that the approved SIP, as a alternative emission limitations during states and tribes to monitor air quality whole, operates continuously to ensure periods of SSM could be established, for each criteria pollutant, as well as air attainment and maintenance of the particularly in the timeframe necessary toxics, through ambient air monitoring NAAQS if such SIP, submission or for the corrective SIPs. networks. North Carolina has an withdrawal means the SIP would not Response 14: This comment is not in ambient monitoring network plan that meet all of the applicable requirements scope for this rulemaking. Region 4 meets or exceeds the requirements of 40 of the CAA. Commenters conclude that cannot address comments received CFR part 58 and is subject to public the proposal contradicts the plain about the referenced June 12, 2015, comment, with the objective of long- language and plain meaning of the CAA action. term assessment of air quality. The data by dispensing with the independent VI. Incorporation by Reference collected serve as one of the factors for legal requirement that SIPs, submissions determining whether an area is attaining or withdrawals of a SIP Call ensure In this document, Region 4 is the NAAQS, based on the form of the compliance with all applicable finalizing regulatory text that includes standard and design value calculation requirements of the Act. incorporation by reference. In for each standard. Response 13: As described in Section accordance with requirements of 1 CFR Region 4 notes that North Carolina III of this final action, Region 4’s policy 51.5, Region 4 is finalizing the has an approved monitoring network interpretation is not inconsistent with incorporation by reference of 15A NCAC plan, pursuant to 40 CFR part 58.195 In any applicable requirements of the 2D .1423—‘‘Large Internal Combustion accordance with EPA regulatory CAA. Section III of this document fully Engines,’’ state effective July 15, 2002, requirements, NC DAQ maintains a explains Region 4’s interpretation of the which is modified to clarify network of 40 monitoring stations across interplay between sections 110 and applicability, correct typos, standardize exclusions, clarify that alternative the state and measures the 302(k), which provides a reasonable and compliance methods must show concentration of pollutants subject to permissible interpretation of these compliance status of the engine, clarify the NAAQS. Several monitors operated provisions, even though it differs from by adding the word ‘‘shall’’ and revising by the State are indeed source-oriented prior interpretations. Not only did language to better define ozone season, where required by EPA or deemed Region 4 determine to take this action and clarify that CEMS records must appropriate by the state due to local and approve this SIP revision based on identify the reason for, the action taken impacts of certain types of pollutants. an understanding that the SIP will to correct, and the action taken to For example, in accordance with EPA’s continue to be protective of the NAAQS, prevent excess emissions. EPA has Data Requirements Rule for the 2010 1- this action and SIP approval are made, and will continue to make, these Hour SO Primary NAAQS (80 FR consistent with the statutory 2 materials generally available through 51052, August 21, 2015), the State interpretations offered in this document. Region 4 has a reasonable basis to www.regulations.gov and at the EPA operates several SO2 monitors near large 196 conclude, upon evaluation and Region 4 Office (please contact the sources of SO2 emissions. person identified in the FOR FURTHER Region 4 acknowledges that consideration of the protective INFORMATION CONTACT section of this alternative emission limits may also be requirements contained in the SIP as a preamble for more information). included in the North Carolina SIP. The whole, that the provisions which create Therefore, these materials have been State has flexibility to adopt ‘‘whatever exemptions for excess emissions that may occur during periods of SSM events approved by Region 4 for inclusion in mix of emission limitations it deems do not preclude approvability of the the SIP, have been incorporated by best suited to its particular North Carolina SIP. reference by Region 4 into that plan, are situation.’’ 197 This could include The alternative policy announced in fully federally enforceable under alternative emission limitations, but, as this action, which provides an sections 110 and 113 of the CAA as of Region 4 has concluded in this interpretation of CAA sections 110 and the effective date of the final rulemaking document, in the context of North 302 that supports Region 4’s decision to of Region 4’s approval, and will be Carolina’s entire SIP, North Carolina’s withdraw the SIP Call, is not incorporated by reference in the next exemption provisions are also inconsistent with the applicable update to the SIP compilation.198 acceptable. requirements of the CAA, including the VII. Final Action 13. Comments That SIP Submissions provisions cited by the commenters at Must be Evaluated Independently, not CAA 110(k)(3), (k)(5), and (l). In Section Region 4 is withdrawing the SIP call in Context of SIP Overall III of this final action, Region 4 issued to North Carolina for 15A NCAC withdraws the SIP Call that was issued 2D .0535(c) and 15A NCAC 2D .0535(g) Comment 13: Commenters state that in the 2015 SSM SIP action with respect pursuant to CAA section 110(k)(5), section 110 of the Act makes clear that to 15A NCAC 2D .0535(c) and 15A originally published on June 12, 2015. EPA actions on SIPs must also depend NCAC 2D .0535(g), and makes a finding In connection with this withdrawal, on whether a SIP or submittals meet all that these SIP provisions are not Region 4 finds that these State of the applicable requirements of the inconsistent with CAA requirements. regulatory provisions included in the Act. Commenters conclude that EPA Region 4 is approving the changes to North Carolina SIP are not substantially may not accept a SIP, approve a 15A NCAC 2D .1423 submitted by the inadequate to meet CAA requirements. submission, or withdraw a SIP Call by State on June 5, 2017, because it has Pursuant to section 110 of the CAA, Region 4 is approving the 195 North Carolina’s 2019–2020 monitoring determined that the change is in network plan was approved by EPA on February 7, compliance with all applicable CAA aforementioned changes to 15A NCAC 2020. requirements. 2D .1423 and incorporating these 196 See North Carolina Div. of Air Quality, 2019– changes into the North Carolina SIP. 2020 Annual Monitoring Network Plan for the 14. Comments of a Miscellaneous or Region 4 has evaluated the changes to North Carolina Division of Air Quality (October 15, General Nature 15A NCAC 2D .1423 as included in 2019), available at https://files.nc.gov/ncdeq/ Air%20Quality/monitor/monitoring_plan/NC- Comment 14: Commenters state that, North Carolina’s June 5, 2017, SIP Network-Plan.pdf. in retrospect, EPA in the 2015 SSM SIP 197 Train, 421 U.S. at 79. Call should not have concluded that 198 See 62 FR 27968 (May 22, 1997).

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2 23730 Federal Register / Vol. 85, No. 82 / Tuesday, April 28, 2020 / Rules and Regulations

revision, and has determined that they • Does not have federalism Administrator of this final rule does not meet the applicable requirements of the implications as specified in Executive affect the finality of this action for the CAA and its implementing regulations. Order 13132 (64 FR 43255, August 10, purposes of judicial review nor does it 1999); extend the time within which a petition VIII. Statutory and Executive Order • Is not an economically significant for judicial review may be filed, and Reviews regulatory action based on health or shall not postpone the effectiveness of Under the CAA, the Administrator is safety risks subject to Executive Order such rule or action. This action may not required to approve a SIP submission 13045 (62 FR 19885, April 23, 1997); be challenged later in proceedings to that complies with the provisions of the • Is not a significant regulatory action enforce its requirements. (See section Act and applicable Federal regulations. subject to Executive Order 13211 (66 FR 307(b)(2).) See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 28355, May 22, 2001); Thus, in reviewing SIP submissions, • Is not subject to requirements of List of Subjects in 40 CFR Part 52 EPA’s role is to approve state choices, Section 12(d) of the National Environmental protection, Air provided they meet the criteria of the Technology Transfer and Advancement pollution control, Incorporation by CAA. This action approves state law as Act of 1995 (15 U.S.C. 272 note) because reference, Intergovernmental relations, meeting Federal requirements and does application of those requirements would Nitrogen dioxide, Ozone, Reporting and not impose additional requirements be inconsistent with the CAA; and • recordkeeping requirements, Volatile beyond those imposed by state law. For Results from on a new organic compounds. that reason, this action: interpretation and does not provide EPA • Is not a significant regulatory action with the discretionary authority to Authority: 42 U.S.C. 7401 et seq. subject to review by the Office of address, as appropriate, Mary Walker, Management and Budget under disproportionate human health or Regional Administrator, Region 4. Executive Orders 12866 (58 FR 51735, environmental effects, using practicable October 4, 1993) and 13563 (76 FR 3821, and legally permissible methods, under 40 CFR part 52 is amended as follows: January 21, 2011); Executive Order 12898 (59 FR 7629, • Is not an Executive Order 13771 (82 February 16, 1994). PART 52—APPROVAL AND FR 9339, February 2, 2017) regulatory The SIP is not approved to apply on PROMULGATION OF action because SIP approvals are any Indian reservation land or in any IMPLEMENTATION PLANS exempted under Executive Order 12866; other area where EPA or an Indian tribe • Does not impose an information has demonstrated that a tribe has ■ 1. The authority citation for part 52 collection burden under the provisions jurisdiction. In those areas of Indian continues to read as follows: of the Paperwork Reduction Act (44 country, the rule does not have tribal Authority: 42 U.S.C. 7401 et seq. U.S.C. 3501 et seq.); implications as specified by Executive • Is certified as not having a Order 13175 (65 FR 67249, November 9, Subpart II—North Carolina significant economic impact on a 2000), nor will it impose substantial substantial number of small entities direct costs on tribal governments or ■ 2. Amend § 52.1770(c)(1), under under the Regulatory Flexibility Act (5 preempt tribal law. ‘‘Subchapter 2D Air Pollution Control U.S.C. 601 et seq.); Under section 307(b)(1) of the CAA, Requirements,’’ by revising the entry for • Does not contain any unfunded petitions for judicial review of this ‘‘Section .1423’’ to read as follows: mandate or significantly or uniquely action must be filed in the United States affect small governments, as described Court of Appeals for the appropriate § 52.1770 Identification of plan. in the Unfunded Mandates Reform Act circuit by June 29, 2020. Filing a * * * * * of 1995 (Pub. L. 104–4); petition for reconsideration by the (c) * * *

(1) EPA APPROVED NORTH CAROLINA REGULATIONS

State effective State citation Title/subject date EPA approval date Explanation

Subchapter 2D Air Pollution Control Requirements

*******

Section .1400 Nitrogen Oxides

******* Section .1423 ...... Large Internal Combustion Engines ..... 7/15/2002 4/28/2020, [Insert citation of publica- tion].

*******

* * * * * [FR Doc. 2020–07512 Filed 4–27–20; 8:45 am] BILLING CODE 6560–50–P

VerDate Sep<11>2014 20:21 Apr 27, 2020 Jkt 250001 PO 00000 Frm 00032 Fmt 4701 Sfmt 9990 E:\FR\FM\28APR2.SGM 28APR2 jbell on DSKJLSW7X2PROD with RULES2