2011-24513. Approval and Promulgation of Air Quality Implementation Plans; North Carolina: Clean Smokestacks Act

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving a State Implementation Plan (SIP) revision submitted by the State of North Carolina for the purpose of establishing system-wide emission limitations from the North Carolina Clean Smokestacks Act (CSA) into the North Carolina SIP. On August 21, 2009, the State of North Carolina, through the North Carolina Department of Environment and Natural Resources (NC DENR), Division of Air Quality (DAQ), submitted an attainment demonstration for the Hickory-Morganton-Lenoir and Greensboro-Winston Salem-High Point 1997 fine particulate matter (PM_2.5) nonattainment area. That submittal included a request that the system-wide emission limitations from the North Carolina CSA be incorporated into the State's federally approved SIP. EPA has determined that the CSA portion of this SIP revision is approvable pursuant to the Clean Air Act (CAA or Act).

DATES:

This rule will be effective October 26, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2011-0386. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Joel Huey or Nacosta C. Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Huey may be reached by phone at [phone]. Mr. Huey can also be reached via electronic mail at [e-mail]. Ms. Ward may be reached by phone at [phone] or via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background of North Carolina's CSA?

II. This Action

III. Final Action

IV. Statutory and Executive Order Reviews

V. Statutory and Executive Order Reviews

I. What is the background of North Carolina's CSA?

In June 2002, the General Assembly of North Carolina, Session 2001, passed Session Law 2002-4, also known as Senate Bill 1078. This legislation, entitled “An Act to Improve Air Quality in the State by Imposing Limits on the Emission of Certain Pollutants from Certain Facilities that Burn Coal to Generate Electricity and to Provide for Recovery by Electric Utilities of the Costs of Achieving Compliance with Those Limits,” requires significant actual emission reductions from coal-fired power plants in North Carolina. The State expected that emission reductions from the CSA would have significant health benefits for the citizens of North Carolina and other states.

North Carolina's CSA includes a schedule of system-wide limitations (or caps) on emissions of nitrogen oxides (NO_x) and sulfur dioxide (SO₂) from coal-fired power plants in the State, the first of which became effective in 2007. The State expects the resulting emission reductions will serve as a significant step towards meeting the 1997 PM_2.5 and 8-hour ozone national ambient air quality standards (NAAQS), among other NAAQS, improving visibility in the mountains and other scenic vistas, and reducing acid rain. EPA notes that all areas in the State that were designated nonattainment for the 1997 PM_2.5 and 8-hour ozone NAAQS are currently attaining the standards. Although the Hickory-Morganton-Lenoir and Greensboro-Winston Salem-High Point nonattainment areas for the 1997 PM_2.5 NAAQS have not yet been redesignated to attainment, EPA determined that these areas had attaining data based on the three-year period 2006-2008.^[1] Also, although the Charlotte 1997 8-hour ozone nonattainment area is still designated nonattainment, EPA has issued a proposed determination that the Area has attaining data based on the 2008-2010 design value period. See 76 FR 20293 (April 12, 2011). North Carolina has identified the CSA as part of its plan to attain and maintain the NAAQS. Because North Carolina is relying on emissions reductions from the CSA to demonstrate attainment and maintenance for certain areas in the State, North Carolina is now formally seeking that the CSA be included in the SIP so that the CSA's requirements may be considered “permanent and enforceable.”

III. This Action

EPA is approving a revision to the North Carolina SIP to incorporate the system-wide emission caps from the State's CSA. The specific provisions being incorporated into the SIP are paragraphs (a) through (e) of Section 1 of Session Law 2002-4, Senate Bill 1078 (hereafter “Senate Bill 1078”) enacted June 20, 2002. This approval does not include incorporation into the North Carolina SIP of paragraphs (f) through (j) of Section 1 of Senate Bill 1078 nor any of Section 2 of Senate Bill 1078. Please refer to the docket for this rulemaking for the complete text of these provisions.

On June 22, 2011, EPA published a proposed rulemaking to incorporate the CSA requirements into federally-approved North Carolina SIP. See 76 FR 36468. The comment period for this proposed rulemaking closed on July 22, 2011. EPA did not receive any comments, adverse or otherwise, during the public comment period.

IV. Final Action

Pursuant to section 110 of the CAA, EPA is approving the system-wide emission caps from the North Carolina State legislation entitled, “An Act to Improve Air Quality in the State by Imposing Limits on the Emission of Certain Pollutants from Certain Facilities that Burn Coal to Generate Electricity and to Provide for Recovery by Electric Utilities of the Costs of Achieving Compliance with Those Limits.” EPA has evaluated the State's submittal and has determined that it meets the applicable requirements of the CAA and EPA regulations. In reducing system-wide NO_x and SO₂ emissions allowed by coal-fired power plants in the State, the CSA is strengthening North Carolina's SIP and will not interfere with CAA requirements. The approval of the CSA ensures that the State may take credit for the associated NO_x and SO₂ emission reductions when pertinent to SIP submittals for other CAA requirements.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 25, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: September 13, 2011.

A. Stanley Meiburg

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42.U.S.C. 7401 et seq.

Subpart II—North Carolina

2. Section 52.1781 is amended by adding paragraph (h) to read as follows:

§ 52.1781

Control strategy: Sulfur oxides and particulate matter.

* * * * *

(h) North Carolina submitted a control strategy plan for particulate matter entitled, “An Act to Improve Air Quality in the State by Imposing Limits on the Emission of Certain Pollutants from Certain Facilities that Burn Coal to Generate Electricity and to Provide for Recovery by Electric Utilities of the Costs of Achieving Compliance with Those Limits.” The State expects the resulting emission reductions of nitrogen oxides and sulfur dioxide from this control plan will serve as a significant step towards meeting the 1997 PM_2.5 and 8-hour ozone national ambient air quality standards (NAAQS), among other NAAQS, improving visibility in the mountains and other scenic vistas, and reducing acid rain. The specific approved provisions, submitted on August 21, 2009, are paragraphs (a) through (e) of Section 1 of Session Law 2002-4, Senate Bill 1078 enacted and state effective on June 20, 2002. This approval does not include paragraphs (f) through (j) of Section 1 of Senate Bill 1078 nor any of Section 2 of Senate Bill 1078.

Footnotes

1.  EPA's determination that the Hickory-Morganton-Lenoir and Greensboro-Winston Salem-High Point PM_2.5 nonattainment areas have attained the 1997 PM_2.5 NAAQS is not equivalent to the redesignation of the areas to attainment. The designation status of the areas remains nonattainment for the 1997 PM_2.5 NAAQS until such time as EPA determines that the areas meet all of the CAA requirements for redesignation to attainment. See 75 FR 54 (January 4, 2010) and 75 FR 230 (January 5, 2010), respectively.