2020-06584. Air Plan Approvals; GA and NC; Prevention of Significant Deterioration Infrastructure Requirements for the 2015 Ozone NAAQS

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is conditionally approving portions of the Georgia and North Carolina infrastructure State Implementation Plan (SIP) submissions for the 2015 8-hour ozone National Ambient Air Quality Standards (NAAQS) provided to EPA on September 24, 2018, and September 27, 2018, respectively. Whenever EPA promulgates a new or revised NAAQS, the Clean Air Act (CAA or Act) requires that each state adopt and submit a SIP submission to establish that the state's SIP meets infrastructure requirements for the implementation, maintenance, and enforcement of each such NAAQS. Specifically, EPA is taking final action to conditionally approve the portions of the Georgia and North Carolina infrastructure SIP submissions related to the prevention of significant deterioration (PSD) infrastructure elements for the 2015 8-hour ozone NAAQS.

DATES:

This rule will be effective May 15, 2020.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2019-0503. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Nacosta C. Ward of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Ward can be reached by telephone at [phone] or via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background and Overview

On October 1, 2015, EPA promulgated revised primary and secondary NAAQS for ozone, revising the 8-hour ozone standards from 0.075 parts per million (ppm) to a new more protective level of 0.070 ppm. See 80 FR 65292 (October 26, 2015). Pursuant to section 110(a)(1) of the CAA, states are required to submit SIP revisions meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the NAAQS. This particular type of SIP is commonly referred to as an “infrastructure SIP.” States were required to submit such SIP revisions for the 2015 8-hour ozone NAAQS to EPA no later than October 1, 2018.^[1]

As explained in a notice of proposed rulemaking (NPRM) published on February 11, 2020 (85 FR 7695), Georgia and North Carolina cite to several regulations ^[2 3] to demonstrate that their respective SIPs meet the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3),^[4] and 110(a)(2)(J). Each of these requirements are met if the state's implementation plan includes a PSD program that meets current Federal requirements, however, Georgia's and North Carolina's SIP-approved PSD programs do not contain or reference the most recent version of 40 CFR part 51, appendix W, Guideline on Air Quality Models.^[5] Therefore, on November 14, 2019, and December 16, 2019, GA EPD and NC DEQ, respectively, submitted commitment letters to EPA requesting conditional approval of the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) of the aforementioned infrastructure SIP revisions. In these letters, Georgia and North Carolina commit to satisfying the PSD program requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) for the 2015 8-hour ozone NAAQS by revising their PSD regulations to reflect the most recent version of appendix W and submitting SIP revisions containing these revised rules within one year of final conditional approval.

If Georgia and North Carolina meet their respective commitments within one year of the final conditional approval, the PSD-related program requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) of the conditionally approved infrastructure SIP submissions will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision(s). However, if Georgia or North Carolina fails to submit these revisions within the one-year timeframe, the conditional approval will automatically become a disapproval one year from EPA's final conditional approval and EPA will provide notification of the disapproval of these requirements. If the conditional approval is converted to a disapproval, the final disapproval triggers the FIP requirement under CAA section 110(c).

In the NPRM published on February 11, 2020, EPA proposed to conditionally approve Georgia and North Carolina's SIP submissions provided on September 24, 2018, and September 27, 2018, for the applicable infrastructure SIP requirements of the 2015 8-hour ozone NAAQS. The NPRM provides additional detail regarding the background and rationale for EPA's action. Comments on the NPRM were due on or before March 12, 2020. EPA received one comment in support of this action and did not receive any adverse comments.

II. Final Action

EPA is taking final action to conditionally approve the portions of Georgia's and North Carolina's September 24, 2018, and September 27, 2018, 2015 8-hour ozone infrastructure SIP submission, respectively, that address the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J). All other outstanding applicable infrastructure requirements for this SIP submission have been or will be addressed in separate rulemakings.

III. Statutory and Executive Order Reviews

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

• Are not significant regulatory actions subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Are not Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory actions because SIP approvals are exempted under Executive Order 12866;
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Are 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.);
• Do not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);
• Do not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are 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
• Do not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIPs subject to these actions are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 June 15, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

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

Dated: March 17, 2020.

Mary S. Walker,

Regional Administrator, Region 4.

Title 40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart L—Georgia

2. Add § 52.569 to read as follows:

§ 52.569

Conditional approval.

Georgia submitted a letter to EPA on November 14, 2019, with a commitment to address the State Implementation Plan deficiencies regarding the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) for the 2015 8-hour ozone NAAQS. EPA conditionally approved these portions of Georgia's September 24, 2018 infrastructure SIP submission in an action published in the Federal Register on April 15, 2020. If Georgia fails to meet its commitment by April 15, 2021, the conditional approval will become a disapproval on that date and EPA will issue a notification to that effect.

Subpart II— North Carolina

3. Add § 52.1769 to read as follows:

§ 52.1769

Conditional approval.

North Carolina submitted a letter to EPA on December 16, 2019, with a commitment to address the State Implementation Plan deficiencies regarding the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3), and 110(a)(2)(J) for the 2015 8-hour ozone NAAQS. EPA conditionally approved these portions of North Carolina's September 27, 2018 infrastructure SIP submission in an action published in the Federal Register on April 15, 2020. If North Carolina fails to meet its commitment by April 15, 2021, the conditional approval will become a disapproval on that date and EPA will issue a notification to that effect.

Footnotes

1.  In infrastructure SIP submissions, states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2).

2.  Georgia's September 24, 2018, infrastructure SIP submission cites the following rules to meet the PSD program requirements of 110(a)(2)(C): Georgia Rules for Air Quality Control 391-3-1-.02—“Provisions. Amended,” including PSD requirements under Rule 391-3-1-.02(7)—“Prevention of Significant Deterioration,” 391-3-1-.03—“Permits. Amended,” including 391-3-1-.03(1)—“Construction (SIP) Permit,” and 391-3-1-.03—“Permits. Amended,” including 391-3-1-.03(2)—“Operating (SIP) Permit.” For the PSD program requirements of 110(a)(2)(D)(i)(II)—prong 3 and 110(a)(2)(J), Georgia cites Rule 391-3-1-.02(7)—“Prevention of Significant Deterioration.”

3.  North Carolina's September 27, 2018, infrastructure SIP submission cites the following rules to meet the PSD program requirements of 110(a)(2)(C): 15A North Carolina Administrative Code (NCAC) 2D .0500—“Emission Control Standards” and 15A NCAC 2D .0530—“Prevention of Significant Deterioration.” For the PSD program requirements of 110(a)(2)(D)(i)(II)—prong 3 and 110(a)(2)(J), North Carolina cites 15A NCAC 2D .0530—“Prevention of Significant Deterioration.”

4.  Section 110(a)(2)(D)(i)(II) contains a provision that prohibits emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state, which is commonly referred to as “prong 3.”

5.  EPA approved the most recent version of appendix W on January 17, 2017, at 82 FR 5182.