[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Proposed Rules]
[Pages 43196-43205]
[FR Doc No: 2012-18051]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1015; FRL- 9703-6]

Approval and Promulgation of Implementation Plans; North
Carolina; 110(a)(1) and (2) Infrastructure Requirements for the 1997
Annual and 2006 Fine Particulate Matter National Ambient Air Quality
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve in part, and conditionally approve
in part, the State Implementation Plan (SIP) revisions, submitted by
the State of North Carolina, through the Department of Environment and
Natural Resources (NC DENR), Division of Air Quality (DAQ), as
demonstrating that the State meets the requirements of sections
110(a)(1) and (2) of the Clean Air Act (CAA or the Act) for the 1997
annual and 2006 24-hour fine particulate matter (PM2.5)
national ambient air quality standards (NAAQS). Section 110(a) of the
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance, and enforcement of each NAAQS promulgated
by the EPA, which is commonly referred to as an ``infrastructure'' SIP.
DAQ certified that the North Carolina SIP contains provisions that
ensure the 1997 annual and 2006 24-hour PM2.5 NAAQS are
implemented, enforced, and maintained in North Carolina (hereafter
referred to as ``infrastructure submissions''). EPA is proposing to
determine that North Carolina's infrastructure submissions, provided to
EPA on April 1, 2008, and on September 21, 2009, addressed all the
required infrastructure elements for the 1997 annual and 2006 24-hour
PM2.5 NAAQS with the exception of sections 110(a)(2)(C),
110(a)(2)(E)(ii) and 110(a)(2)(J). With respect to sections
110(a)(2)(C) related to PSD requirements, 110(a)(2)(E)(ii) and
110(a)(2)(J) related to PSD requirements, EPA is proposing to
conditionally approve these requirements.

DATES: Written comments must be received on or before August 23, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-1015, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. Email<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: ``EPA-R04-OAR-2010-1015,'' 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.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, 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. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2010-1015. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you

submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI 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 in 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: Sean Lakeman, 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. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how North Carolina addressed the
elements of sections 110(a)(1) and (2) ``Infrastructure''
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 38652), EPA established an annual
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\)
based on a 3-year average of annual mean PM2.5
concentrations. At that time, EPA also established a 24-hour NAAQS of
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\
based on a 3-year average of annual mean PM2.5
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\
based on a 3-year average of the 98th percentile of 24-hour
concentrations. By statute, SIPs meeting the requirements of sections
110(a)(1) and (2) are to be submitted by states within three years
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and
(2) require states to address basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the NAAQS. States were required to submit such SIPs
to EPA no later than July 2000 for the 1997 annual PM2.5
NAAQS, no later than October 2009 for the 2006 24-hour PM2.5
NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue
related to EPA's failure to issue findings of failure to submit related
to the ``infrastructure'' requirements for the 1997 annual
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent
decree with Earthjustice which required EPA, among other things, to
complete a Federal Register notice announcing EPA's determinations
pursuant to section 110(k)(1)(B) as to whether each state had made
complete submissions to meet the requirements of section 110(a)(2) for
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with
the consent decree, EPA made completeness findings for each state based
upon what the Agency received from each state for the 1997
PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled
``Completeness Findings for Section 110(a) State Implementation Plans
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS,''
making a finding that each state had submitted or failed to submit a
complete SIP that provided the basic program elements of section
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (see
73 FR 62902). For those states that did receive findings, the findings
of failure to submit for all or a portion of a state's implementation
plan established a 24-month deadline for EPA to promulgate a Federal
Implementation Plan to address the outstanding SIP elements unless,
prior to that time, the affected states submitted, and EPA approved,
the required SIPs.
    The findings that all or portions of a state's submission are
complete established a 12-month deadline for EPA to take action upon
the complete SIP elements in accordance with section 110(k). North
Carolina's infrastructure submissions were received by EPA on April 1,
2008, for the 1997 annual PM2.5 NAAQS, and on September 21,
2009, for the 2006 24-hour PM2.5 NAAQS. The submissions were
determined to be complete on October 1, 2008, and March 21, 2010,
respectively. North Carolina was among other states that did not
receive findings of failure to submit because it had provided a
complete submission to EPA to address the infrastructure elements for
the 1997 PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an
amended complaint related to EPA's failure to take action on the SIP
submittal related to the ``infrastructure'' requirements for the 2006
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a
consent decree with WildEarth Guardians and Sierra Club which required
EPA, among other things, to complete a Federal Register notice of the
Agency's final action either approving, disapproving, or approving in
part and disapproving in part the North Carolina 2006 24-hour
PM2.5 NAAQS Infrastructure SIP submittal addressing the
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except
for section 110(a)(2)(C) the nonattainment area requirements and
section 110(a)(2)(D)(i)(II) visibility requirements, by September 30,
2012. On July 20, 2011, EPA published a final rulemaking disapproving
the interstate transport requirements for section 110(a)(2)(D)(i) for
the 2006 24-hour PM2.5 NAAQS for North Carolina. See 76 FR
43167.
    Today's action is proposing to approve in part, and to
conditionally approve in part North Carolina's infrastructure
submissions for both the 1997 annual and 2006 24-hour PM2.5
NAAQS for sections 110(a)(2)(A)-(H), (M), with the exception of
sections 110(a)(2)(C) related to PSD requirements, section
110(a)(2)(D)(i) interstate transport requirements, 110(a)(2)(E)(ii) and
110(a)(2)(J) related to PSD requirements. With respect to sections
110(a)(2)(E)(ii), and sections 110(a)(2)(C) and 110(a)(2)(J) as they
relate to PSD requirements, EPA is proposing to conditionally approve
North Carolina's infrastructure SIP as it relates to these
requirements. Today's

action is not approving any specific rule, but rather proposing that
North Carolina's already approved SIP meets--or in the case of the
elements proposed for conditional approval will meet--, with changes,
certain CAA requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 1997 annual and 2006 24-hour
PM2.5 NAAQS, some states may need to adopt language specific
to the PM2.5 NAAQS to ensure that they have adequate SIP
provisions to implement the PM2.5 NAAQS.
    Section 110(a)(1) provides the procedural and timing requirements
for SIPs. Section 110(a)(2) lists specific elements that states must
meet for ``infrastructure'' SIP requirements related to a newly
established or revised NAAQS. As mentioned above, these requirements
include SIP infrastructure elements such as modeling, monitoring, and
emissions inventories that are designed to assure attainment and
maintenance of the NAAQS. The requirements that are the subject of this
proposed rulemaking are listed below \1\ and in EPA's October 2, 2007,
memorandum entitled ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards'' and September 25, 2009,
memorandum entitled ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards.''
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA, and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) but does provide detail on how North Carolina's
SIP addresses 110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element
110(a)(2)(D)(i) (Interstate Transport) for the 1997 and 2006
PM2.5 NAAQS. Interstate transport requirements were
formerly addressed by North Carolina consistent with the Clean Air
Interstate Rule (CAIR). On December 23, 2008, CAIR was remanded by
the D.C. Circuit Court of Appeals, without vacatur, back to EPA. See
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this
remand, EPA took final action to approve North Carolina SIP
revision, which was submitted to comply with CAIR. See 72 FR 56914
(October 5, 2007). In so doing, North Carolina CAIR SIP revision
addressed the interstate transport provisions in section
110(a)(2)(D)(i) for the 1997 PM2.5 NAAQS. In response to
the remand of CAIR, EPA has recently finalized a new rule to address
the interstate transport of nitrogen oxides and sulfur oxides in the
eastern United States. See 76 FR 48208 (August 8, 2011) (Transport
Rule). That rule was recently stayed by the D.C. Circuit Court of
Appeals. EPA's action on element 110(a)(2)(D)(i) will be addressed
in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' and
the September 25, 2009, memorandum entitled ``Guidance on SIP
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine
Particle (PM2.5) National Ambient Air Quality
Standards,'' but as mentioned above is not relevant to today's
proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on those infrastructure SIP
submissions.\5\ Those Commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements in other
proposals that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) Existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction (SSM) at sources, that may be contrary to the
CAA and EPA's policies addressing such excess emissions; and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (director's
discretion). EPA notes that there are two other substantive issues for
which EPA likewise stated in other proposals that it would address
separately: (i) Existing provisions for minor source new source review
(NSR) programs that may be inconsistent with the requirements of the
CAA and EPA's regulations that pertain to such programs (minor source
NSR); and (ii) existing provisions for Prevention of Significant
Deterioration (PSD) programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform). In light of the comments, EPA believes that its statements in
various proposed actions on infrastructure SIPs with respect to these
four individual issues should be explained in greater depth. It is
important to emphasize that EPA is taking the same position with
respect to these four substantive issues in this action on the
infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS from
North Carolina.
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    \5\ See Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these
four issues merely to be informational and to provide general notice of
the potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did

not want states, regulated entities, or members of the public to be
under the misconception that the Agency's approval of the
infrastructure SIP submission of a given state should be interpreted as
a re-approval of certain types of provisions that might exist buried in
the larger existing SIP for such state. Thus, for example, EPA
explicitly noted that the Agency believes that some states may have
existing SIP approved SSM provisions that are contrary to the CAA and
EPA policy, but that ``in this rulemaking, EPA is not proposing to
approve or disapprove any existing state provisions with regard to
excess emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
re-approval of any existing provisions that relate to these four
substantive issues. EPA is reiterating that position in this action on
the infrastructure SIP for North Carolina.
    Unfortunately, the Commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issues in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements in those other proposals, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, NSR permitting program
submissions required to address the requirements of part D, and a host
of other specific types of SIP submissions that address other specific
matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\6\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's implementation plan contains adequate provisions
to prevent significant contribution to nonattainment of the NAAQS in
other states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See ``Rule To
Reduce Interstate Transport of Fine Particulate Matter and Ozone
(Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25162 (May 12,
2005) (defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\8\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\9\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's
implementation

plans. Finally, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS and the attendant infrastructure SIP
submission for that NAAQS. For example, the monitoring requirements
that might be necessary for purposes of section 110(a)(2)(B) for one
NAAQS could be very different than what might be necessary for a
different pollutant. Thus, the content of an infrastructure SIP
submission to meet this element from a state might be very different
for an entirely new NAAQS, versus a minor revision to an existing
NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See ``Guidance for State Implementation
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director, Air Quality Policy Division OAQPS, to Regional Air
Division Director, Regions I-X, dated August 15, 2006.
    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \12\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \13\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \14\ However, for the one exception to that general
assumption (i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS), EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the state's implementation plans for the NAAQS in
question.
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    \11\ See ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by the
Commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    On September 25, 2009, EPA issued guidance to make recommendations
to states with respect to the infrastructure SIPs for the 2006
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a
number of additional issues that were not germane to the infrastructure
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but
were germane to these SIP submissions for the 2006 PM2.5
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had
bifurcated from the other infrastructure elements for those specific
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007
Guidance nor the 2009 Guidance explicitly referred to the SSM,
director's discretion, minor source NSR, or NSR Reform issues as among
specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the
2009 Guidance, however, EPA did not indicate to states that it intended
to interpret these provisions as requiring a substantive submission to
address these specific issues in existing SIP provisions in the context
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007
Guidance merely indicated its belief that the states should make
submissions in which they established that they have the basic SIP
structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP
structure, notwithstanding that there may be potential deficiencies
within the existing SIP. Thus, EPA's proposals for other states
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions. The same holds
true for this action on the infrastructure SIPs for North Carolina.
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    \15\ See ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
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    EPA believes that this approach to the infrastructure SIP
requirement is reasonable because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,

review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\16\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\17\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641
(June 27, 1997) (corrections to American Samoa, Arizona, California,
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004)
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See 75 FR 42342, 42344 (July 21, 2010) (proposed
disapproval of director's discretion provisions); 76 FR 4540
(January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how North Carolina addressed the elements
of sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    North Carolina's infrastructure submission addresses the provisions
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A) Emission limits and other control measures: North
Carolina's SIP provides an overview of the provisions of the North
Carolina Air Pollution Control Regulations relevant to air quality
control regulations. The regulations described below have been
federally approved in the North Carolina SIP and include enforceable
emission limitations and other control measures. NCAC 2D.0400, Ambient
Air Quality Standards, and 2D.0500, Emissions Control Standards,
establish emission limits for PM2.5 and address the required
control measures, means and techniques for compliance with the
PM2.5 NAAQS. EPA has made the preliminary determination that
the provisions contained in these regulations and North Carolina's
practices are adequate to protect the PM2.5 annual and 24-
hour NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any
existing state provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency plans to address such state regulations in the future. In the
meantime, EPA encourages any state having deficient SSM provisions to
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: NCAC
2D.0600, Monitoring, and 2D.0806, Ambient Monitoring and Modeling
Analysis, along with the North Carolina Network Description and Ambient
Air Monitoring Network Plan, provide for an ambient air quality
monitoring system in the State. Annually, EPA approves the ambient air
monitoring network plan for the state agencies. On July 1, 2011, North
Carolina submitted its plan to EPA, and on October 20, 2011, EPA
approved this plan. North Carolina's approved monitoring network plan
can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2010-1015. EPA has made the preliminary determination that North
Carolina's SIP and practices are adequate for the ambient air quality
monitoring and data systems related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures
including review of proposed new sources: Regulation NCAC 2D.0530,
Prevention of Significant Deterioration, and 2D.0531, Sources in a
Nonattainment Area, pertain to the construction or modification of any
major stationary source in areas designated as attainment,
nonattainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii)
of the CAA. These provisions are designed to ensure that sources in
areas attaining the NAAQS at the time of designations prevent any
significant deterioration in air quality. NCAC 2D.0531 also sets the
permitting requirements for areas in or around nonattainment areas. On
July 10, 2012, North Carolina submitted a letter to EPA to provide the
schedule to

address outstanding requirements related to the PM2.5
standard for its PSD program and committing to providing the necessary
SIP revision to address its SIP deficiencies related to the NSR
PM2.5 Rule requirements. Based on North Carolina's
commitment, EPA is proposing to conditionally approve North Carolina's
110(a)(2)(C) infrastructure SIP consistent with section 110(k)(4) of
the Act. EPA intends to move forward with finalizing the conditional
approval consistent with section 110(k)(4) of the Act.
    In this action, EPA is also proposing to conditionally approve
North Carolina's infrastructure SIP for the 1997 annual and 2006 24-
hour PM2.5 NAAQS with respect to the general requirement in
section 110(a)(2)(C) to include a program in the SIP that regulates the
modification and construction of any stationary source as necessary to
assure that the NAAQS are achieved. EPA is not proposing to approve or
disapprove the State's existing minor NSR program itself to the extent
that it is inconsistent with EPA's regulations governing this program.
EPA believes that a number of states may have minor NSR provisions that
are contrary to the existing EPA regulations for this program. EPA
intends to work with states to reconcile state minor NSR programs with
EPA's regulatory provisions for the program. The statutory requirements
of section 110(a)(2)(C) provide for considerable flexibility in
designing minor NSR programs, and EPA believes it may be time to
revisit the regulatory requirements for this program to give the states
an appropriate level of flexibility to design a program that meets
their particular air quality concerns, while assuring reasonable
consistency across the country in protecting the NAAQS with respect to
new and modified minor sources.
    4. 110(a)(2)(D)(ii) Interstate and International transport
provisions: NCAC 2D.0530, Prevention of Significant Deterioration,
2D.0531, Sources in a Nonattainment Area, and 2D.0532, Sources
Contributing to an Ambient Violation, describe how the State will
notify neighboring states of potential impacts from new or modified
sources. North Carolina does not have any pending obligation under
sections 115 and 126 of the CAA. EPA has made the preliminary
determination that North Carolina's SIP and practices are adequate for
insuring compliance with the applicable requirements relating to
interstate and international pollution abatement for the 1997 annual
and 2006 24-hour PM2.5 NAAQS.
    5. 110(a)(2)(E) Adequate resources: EPA is proposing two separate
actions with respect to the sub-elements required pursuant to section
110(a)(2)(E). Section 110(a)(2)(E) requires that each implementation
plan provide (i) necessary assurances that the State will have adequate
personnel, funding, and authority under state law to carry out its
implementation plan, (ii) that the State comply with the requirements
respecting State Boards pursuant to section 128 of the Act, and (iii)
necessary assurances that, where the State has relied on a local or
regional government, agency, or instrumentality for the implementation
of any plan provision, the State has responsibility for ensuring
adequate implementation of such plan provisions. EPA is proposing to
approve North Carolina's SIP as meeting the requirements of sub-
elements 110(a)(2)(E)(i) and (iii). With respect to 110(a)(2)(E)(ii)
(regarding state boards), EPA is proposing to conditionally approve
this sub-element. EPA's rationale for today's proposals respecting each
sub-element is described in turn below.
    In support of EPA's proposal to approve sub-elements
110(a)(2)(E)(i) and (iii), EPA notes that DAQ is responsible for
adopting air quality rules, revising SIPs, developing and tracking the
budget, establishing the title V fees, and other planning needs. DAQ
also coordinates agreements with local air pollution control programs.
Additionally, the SIP submittal cover letter provided by North Carolina
certifies the sufficiency of the state program with 110(a)(2)(E)(i) and
(iii) requirements. As evidence of the adequacy of DAQ's resources with
respect to sub-elements (i) and (iii), EPA submitted a letter to North
Carolina on March 17, 2011, outlining 105 grant commitments and the
current status of these commitments for fiscal year 2010. The letter
EPA submitted to North Carolina can be accessed at www.regulations.gov
using Docket ID No. EPA-R04-OAR-2011-0352. Annually, states update
these grant commitments based on current SIP requirements, air quality
planning, and applicable requirements related to the NAAQS. There were
no outstanding issues for fiscal year 2010, therefore, North Carolina's
grants were finalized and closed out. EPA has made the preliminary
determination that North Carolina has adequate resources for
implementation of the 1997 annual and 2006 24-hour PM2.5
NAAQS. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are
met when EPA performs a completeness determination for each SIP
submittal. This determination ensures that each submittal provides
evidence that adequate personnel, funding, and legal authority under
State Law has been used to carry out the state's implementation plan
and related issues. North Carolina's authority is included in all
prehearings and final SIP submittal packages submitted for approval by
EPA. EPA has made the preliminary determination that North Carolina has
adequate resources for implementation of the 1997 annual and 2006 24-
hour PM2.5 NAAQS.
    As discussed above, with respect to sub-element 110(a)(2)(E)(ii),
EPA is proposing to conditionally approve North Carolina's
infrastructure SIP as to this requirement. North Carolina's April 1,
2008, and September 21, 2009, infrastructure certification letters did
not certify the adequacy of the State's implementation plan to meet the
requirements of section 110(a)(2)(E)(ii) (requiring state compliance
with section 128 of the CAA), and presently North Carolina's SIP does
not include provisions to meet section 128 requirements.
    The section 128 State Board requirements--as applicable to the
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)--provide at
subsection (a)(1) that each SIP shall contain requirements that any
board or body which approves permits or enforcement orders be subject
to the described public interest and income restrictions. It further
requires at subsection (a)(2) that any board or body, or the head of an
executive agency with similar power to approve permits or enforcement
orders under the CAA, shall also be subject to conflict of interest
disclosure requirements. EPA's proposed conditional approval of North
Carolina's 110(a)(2)(E)(ii) infrastructure SIP is based upon the
State's commitment to adopt specific enforceable measures related to
both 128(a)(1) and 128(a)(2) to address current deficiencies in the
North Carolina SIP.
    For purposes of section 128(a)(1), initial permit approvals and
enforcement orders are issued by delegated officials within NC DENR.
Pursuant to N.C.G.S. Sec.  143-215.114A, the Secretary NC DENR is
authorized to assess civil penalties for violations of the State's Air
Pollution Control laws. NC DENR is also authorized pursuant to N.C.G.S.
Sec.  143-215.114C to request the Attorney General of the State to
institute a civil action seeking injunctive relief to restrain the
violation or threatened violation of the State's Air Pollution Control
laws. The North Carolina

Environmental Management Commission is authorized pursuant to N.C.G.S.
Sec.  143-215.108, to approve Air Pollution Control permits in the
State, however, the Commission has delegated by regulation this
authority to the Secretary of the Department of Environment, Health,
and Natural Resources. See 15A N.C. Admin. Code 02A.0105(a)(2).\19\ As
such, EPA is proposing to conditionally approve element
110(a)(2)(E)(ii) with respect to 128(a)(1) based upon a commitment by
the State to timely submit any SIP revisions necessary to remove the
Environmental Management Commission's authority to approve permits or
enforcement orders under the State's Air Pollution Act.\20\
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    \19\ Pursuant to a recent North Carolina law, which became
effective no later than June 15, 2012, final decisions on contested
cases involving permits and enforcement orders are made by
individual Administrative Law Judges in the North Carolina Office of
Administrative Hearings. See North Carolina Session Law 2011-398,
Section 18. However, NC DENR remains the permit-issuing authority.
    \20\ Pursuant to section 55.2 of N.C. Session Law 2011-398, the
North Carolina Office of Administrative Hearings is directed to seek
U.S. EPA approval to become an agency responsible for administering
programs under the Clean Air Act. This ongoing separate process may
result in additional SIP revisions implicating section
110(a)(2)(E)(ii). Any such actions are distinct from today's
proposed actions and would be addressed in a separate rulemaking.
---------------------------------------------------------------------------

    Regarding section 128(a)(2) (also made applicable to the
infrastructure SIP pursuant to section 110(a)(2)(E)(ii)), North
Carolina has committed to EPA to submit for incorporation into the SIP
relevant provisions of N.C.G.S. Sec.  138A, Article 3: Public
Disclosure of Economic Interests, sufficient to satisfy the conflict of
interest provisions applicable to the head of NC DENR and those
officials within the Department delegated his authority.
    As a result, EPA is proposing to conditionally approve North
Carolina's infrastructure SIP with respect to element 110(a)(2)(E)(ii)
consistent with section 110(k)(4) of the CAA. North Carolina's above-
described commitments are contained in the State's January 11, 2012,
letter of commitment submitted to EPA in connection with North
Carolina's infrastructure submittal for purposes of the 1997 Ozone
NAAQS. The letter North Carolina submitted can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2011-0352. In the
letter of commitment, North Carolina committed to adopt specific
enforceable measures related to both CAA sections 128(a)(1) and
128(a)(2) to address deficiencies in the North Carolina SIP related to
CAA section 110(a)(2)(E)(ii). Notably, changes to North Carolina rules
regarding the 1997 Ozone NAAQS are the same types of changes that would
be required as part of today's proposed conditional approval for the
1997 annual and 2006 24-hour PM2.5 NAAQS. EPA previously
finalized a conditional approval regarding sub-element 110(a)(2)(E)(ii)
for the 1997 Ozone NAAQS. 77 FR 5703 (February 6, 2012).
    Consistent with the State's January 11, 2012, commitment, North
Carolina must submit to EPA by February 6, 2013, SIP revisions adopting
specific enforceable measures related to both CAA sections 128(a)(1)
and 128(a)(2). If the State fails to submit these revisions by February
6, 2013, a final conditional approval would then automatically become a
disapproval on that date and EPA will issue a finding of disapproval.
EPA is not required to propose the finding of disapproval. If the
conditional approval is converted to a disapproval, the final
disapproval triggers the Federal Implementation Plan requirement under
section 110(c). However, if the State meets its commitment within the
applicable timeframe, the conditionally approved submission will remain
a part of the SIP until EPA takes final action approving or
disapproving the new submittal. If EPA disapproves the new submittal,
today's conditionally approved submittal will also be disapproved at
that time. If EPA approves the new submittal, North Carolina's
infrastructure SIP will be fully approved in its entirety and replace
the conditionally approved element in the SIP.
    6. 110(a)(2)(F) Stationary source monitoring system: North
Carolina's infrastructure submission describes how the State
establishes requirements for emissions compliance testing and utilizes
emissions sampling and analysis. It further describes how the State
ensures the quality of its data through observing emissions and
monitoring operations. North Carolina DAQ uses these data to track
progress towards maintaining the NAAQS, develop control and maintenance
strategies, identify sources and general emission levels, and determine
compliance with emission regulations and additional EPA requirements.
These requirements are provided in NCAC 2D.0605, General Recordkeeping
and Reporting Requirements, 2D.0613, Quality Assurance Program, and
2D.0614, Compliance Assurance Monitoring. Additionally, North Carolina
is required to submit emissions data to EPA for purposes of the
National Emissions Inventory (NEI). The NEI is EPA's central repository
for air emissions data. EPA published the Air Emissions Reporting Rule
(AERR) on December 5, 2008, which modified the requirements for
collecting and reporting air emissions data (73 FR 76539). The AERR
shortened the time states had to report emissions data from 17 to 12
months, giving states one calendar year to submit emissions data. All
states are required to submit a comprehensive emissions inventory every
three years and report emissions for certain larger sources annually
through EPA's online Emissions Inventory System. States report
emissions data for the six criteria pollutants and the precursors that
form them--nitrogen oxides, sulfur dioxide, ammonia, lead, carbon
monoxide, particulate matter, and volatile organic compounds. Many
states also voluntarily report emissions of hazardous air pollutants.
North Carolina made its latest update to the NEI on December 19, 2011.
EPA compiles the emissions data, supplementing it where necessary, and
releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary
determination that North Carolina's SIP and practices are adequate for
the stationary source monitoring systems related to the 1997 annual and
2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(G) Emergency power: NCAC 2D.0300, Air Pollution
Emergencies, authorizes the North Carolina DAQ Director to determine
the existence of an air pollution emergency and it describes the
preplanned abatement strategies triggered by the occurrence of such an
emergency. These criteria have previously been approved by EPA. On
September 25, 2009, EPA released the guidance entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particulate (PM2.5) National Ambient Air Quality
Standards (NAAQS).'' This guidance clarified that ``to address the
section 110(a)(2)(G) element, states with air quality control regions
identified as either Priority I, IA, or Priority II by the `Prevention
of Air Pollution Emergency Episodes' rule at 40 CFR 51.150, must
develop emergency episode contingency plans.'' EPA's September 25,
2009, guidance also states that ``until the Agency finalized changes to
the emergency episode regulation to establish for PM2.5
specific levels for classifying areas as Priority I, IA, or II for
PM2.5, and to establish a significant harm level (SHL) * *
*,'' it recommends that states with a 24-Hour PM2.5
concentration above 140 [micro]g/m\3\ (using the most recent three
years of

data) develop an emergency episode plan. For states where this level
has not been exceeded, the state can certify that it has appropriate
general emergency powers to address PM2.5 related episodes,
and that no specific emergency episode plans are needed at this time.
On September 19, 2008, DAQ submitted a letter to EPA verifying that it
is a Class III Priority Area and is exempt from adopting emergency
episode plan for PM2.5 NAAQS. EPA has made the preliminary
determination that North Carolina's SIP and practices are adequate for
emergency powers related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS.
    8. 110(a)(2)(H) Future SIP revisions: As previously discussed, DAQ
is responsible for adopting air quality rules and revising SIPs as
needed to attain or maintain the NAAQS. North Carolina has the ability
and authority to respond to calls for SIP revisions, and has provided a
number of SIP revisions over the years for implementation of the PM
NAAQS. Specific to the 1997 annual and 2006 24-hour PM2.5
NAAQS, North Carolina's submissions have included:
     August 21, 2009, Hickory PM2.5 Attainment
Demonstration;
     August 21, 2009, Triad PM2.5 Attainment
Demonstration;
     December 18, 2009, Triad PM2.5 Redesignation
Request and Maintenance Plan; and,
     December 18, 2009, Hickory PM2.5 Redesignation
Request and Maintenance Plan.
    EPA has made the preliminary determination that North Carolina's
SIP and practices adequately demonstrate a commitment to provide future
SIP revisions related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    9. 110(a)(2)(J) (121 consultation) Consultation with government
officials: NCAC 2D.0530, Prevention of Significant Deterioration, and
2D.0531, Sources in a Nonattainment Area, as well as North Carolina's
Regional Haze Implementation Plan (which allows for consultation
between appropriate state, local, and tribal air pollution control
agencies as well as the corresponding Federal Land Managers), provide
for consultation with government officials whose jurisdictions might be
affected by SIP development activities. North Carolina adopted state-
wide consultation procedures for the implementation of transportation
conformity. These consultation procedures include considerations
associated with the development of mobile inventories for SIPs.
Implementation of transportation conformity as outlined in the
consultation procedures requires DAQ to consult with federal, state and
local transportation and air quality agency officials on the
development of motor vehicle emissions budgets. EPA approved North
Carolina's consultation procedures on December 27, 2002 (See 67 FR
78983). Additionally, DAQ submitted a regional haze plan which outlines
its consultation practices with Federal Land Managers. EPA has made the
preliminary determination that North Carolina's SIP and practices
adequately demonstrate consultation with government officials related
to the 1997 annual and 2006 24-hour PM2.5 NAAQS when
necessary.
    10. 110(a)(2)(J) (127 public notification) Public notification: DAQ
has public notice mechanisms in place to notify the public of
PM2.5 and other pollutant forecasting, including an air
quality monitoring Web site providing PM2.5 alerts, http://xapps.enr.state.nc.us/aq/ForecastCenter. North Carolina also has an
outreach program to educate the public and promote voluntary emissions
reduction measures including the ``Turn Off Your Engine'' idling
reduction program. NCAC 2D.0300, Air Pollution Emergencies, requires
that DAQ notify the public of any air pollution episode or NAAQS
violation. EPA has made the preliminary determination that North
Carolina's SIP and practices adequately demonstrate the State's ability
to provide public notification related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.
    11. 110(a)(2)(J) (PSD) PSD and visibility protection: North
Carolina demonstrates its authority to regulate new and modified
sources of PM to assist in the protection of air quality in NCAC
2D.0530, Prevention of Significant Deterioration, and 2D.0531, Sources
in a Nonattainment Area, which describe the permit requirements for new
major sources or major modifications of existing sources in areas
classified as attainment or unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA. This ensures that sources in
areas attaining the NAAQS at the time of designations prevent any
significant deterioration in air quality. NCAC 2D.0531 also sets the
permitting requirements for areas in or around nonattainment areas. As
with infrastructure element 110(a)(2)(C), infrastructure element
110(a)(2)(J) of North Carolina's SIP does not include provisions to
meet all the requirements for NSR/PSD related to the PM2.5
standard. As noted above, on July 10, 2012, North Carolina submitted a
letter to EPA to provide the schedule to address outstanding
requirements related to the PM2.5 standard for its PSD
program and committing to providing the necessary SIP revision to
address the PM2.5 NSR/PSD requirements for which the SIP is
currently deficient. As a result, EPA is proposing to conditionally
approve North Carolina's infrastructure SIP with respect to element
110(a)(2)(J) in accordance with section 110(k)(4) of the Act. EPA
intends to move forward with finalizing the conditional approval
consistent with section 110(k)(4) of the Act.
    With regard to the applicable requirements for visibility
protection, EPA recognizes that states are subject to visibility and
regional haze program requirements under part C of the Act (which
includes sections 169A and 169B). In the event of the establishment of
a new NAAQS, however, the visibility and regional haze program
requirements under part C do not change. Thus, EPA finds that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. This would be the case even in the
event a secondary PM2.5 NAAQS for visibility is established,
because this NAAQS would not affect visibility requirements under part
C.
    12. 110(a)(2)(K) Air quality and modeling/data: NCAC 2D.0300, Air
Pollution Emergencies, and NCAC 2D.0806, Ambient Monitoring and
Modeling Analysis, require that air modeling be conducted to determine
permit applicability. These regulations demonstrate that North Carolina
has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of the 1997 annual and
2006 24-hour PM2.5 NAAQS. EPA has made the preliminary
determination that North Carolina's SIP and practices adequately
demonstrate the State's ability to provide for air quality and
modeling, along with analysis of the associated data, related to the
1997 annual and 2006 24-hour PM2.5 NAAQS when necessary.
    13. 110(a)(2)(L) Permitting fees: North Carolina addresses the
review of construction permits as previously discussed in 110(a)(2)(C)
above. Permitting fees in North Carolina are collected through the
State's federally-approved title V fees program, according to State's
federally-approved title V fees program according to State Regulation
NCAC 2Q.0200, Permit Fees. EPA has made the preliminary determination
that North Carolina's SIP and practices adequately provide for
permitting fees related to the 1997 annual and 2006 24-hour
PM2.5 NAAQS when necessary.
    14. 110(a)(2)(M) Consultation/participation by affected local
entities:

NCAC 2Q.0307, Public Participation Procedures requires that DAQ notify
the public of an application, a preliminary determination, the activity
or activities involved in a permit action, any emissions associated
with a permit modification, and the opportunity for comment prior to
making a final permitting decision. Furthermore, DAQ has demonstrated
consultation with, and participation by, affected local entities
through its work with local political subdivisions during the
developing of its Transportation Conformity SIP and Regional Haze
Implementation Plan. EPA has made the preliminary determination that
North Carolina's SIP and practices adequately demonstrate consultation
with affected local entities related to the 1997 annual and 2006 24-
hour PM2.5 NAAQS when necessary.

V. Proposed Action

    EPA is now proposing two related types of actions. First, EPA is
proposing to determine that the North Carolina SIP is currently
adequate, as explained in North Carolina's April 1, 2008, and September
21, 2009, submittals, to meet the requirements of CAA 110(a)(1) and
(2)(A)-(B), (D)-(H), (K)-(M), pursuant to EPA's October 2, 2007, and
September 25, 2009, guidance to ensure that the 1997 annual and 2006
24-hour PM2.5 NAAQS are implemented, enforced, and
maintained in North Carolina. Second, EPA is proposing to conditionally
approve North Carolina's infrastructure submissions for both the 1997
annual and 2006 24-hour PM2.5 NAAQS with regard to CAA
sections 110(a)(2)(C), 110(a)(2)(E)(ii) and 110(a)(2)(J).

VI. 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. Accordingly, this
proposed 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 proposed 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 proposed 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Particulate Matter, Reporting and
recordkeeping requirements, Volatile organic compounds.

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

    Dated: July 13, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-18051 Filed 7-23-12; 8:45 am]
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