[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47115-47123]
[FR Doc No: 2016-17071]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0362; FRL-9949-26-Region 4]

Air Plan Approval; North Carolina Infrastructure Requirements for
the 2010 Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the State Implementation Plan (SIP) submission,
submitted by the State of North Carolina, through the North Carolina
Department of Environment and Natural Resources (NC DENR), Division of
Air Quality (NCDAQ) on August 23, 2013, for inclusion into the North
Carolina SIP. This proposal pertains to the infrastructure requirements
of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide
(NO2) national ambient air quality standards (NAAQS). The
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance and enforcement of each NAAQS promulgated
by EPA, which is commonly referred to as an ``infrastructure'' SIP
submission. NCDAQ certified that the North Carolina SIP contains
provisions that ensure the 2010 1-hour NO2 NAAQS is
implemented, enforced, and maintained in North Carolina. EPA is
proposing to find that portions of North Carolina's infrastructure SIP
submission, provided to EPA on August 23, 2013, satisfy certain
infrastructure elements for the 2010 1-hour NO2 NAAQS.

DATES: Written comments must be received on or before August 19, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0362 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Wong can be reached via telephone at<PHONE_NUMBER> or
via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section
110(a)(1) of the CAA, states are required to submit SIPs meeting the
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS. Section 110(a)(2) requires 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 for the 2010 1-hour NO2
NAAQS to EPA no later than January 22, 2013.\1\
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    \1\ In these 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 federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Unless otherwise indicated, the Title 15A
regulations of the North Carolina Administrative Code (``15A NCAC'')
cited throughout this rulemaking have either been approved, or
submitted for approval into North Carolina's federally-approved SIP.
The North Carolina General Statutes (``NCGS'') cited throughout this
rulemaking, however, are not approved into the North Carolina SIP
unless otherwise indicated.
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    This action is proposing to approve North Carolina's infrastructure
submission for the applicable requirements of the 2010 1-hour
NO2 NAAQS, with the exception of the PSD permitting
requirements for major sources of section 110(a)(2)(C) and (J), the
interstate transport requirements of section 110(a)(2)(D)(i)(I) and
(II) (prongs 1 through 4), and the state board requirements of
110(E)(ii). On November 3, 2015, EPA took final action to approve North
Carolina's August 23, 2013, infrastructure SIP submission regarding the
state board requirements of section 110(a)(2)(E)(ii), for the 2010 1-
hour NO2 NAAQS. See 80 FR 67645. Therefore, EPA is not
proposing any action today pertaining to section 110(a)(2)(E)(ii). With
respect to North Carolina's infrastructure SIP submission related to
the provisions pertaining to the PSD permitting requirements for major
sources of section 110(a)(2)(C) and (J) and the interstate transport
requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through
4), EPA is not proposing any action at this time. For the aspects of
North Carolina's submittal proposed for approval today, EPA notes that
the Agency is not approving any specific rule, but rather proposing
that North Carolina's already approved SIP meets 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 2010 1-hour NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
NAAQS.
    More specifically, 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 basic SIP 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 and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2).'' \2\
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    \2\ 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. This proposed rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) or the nonattainment planning requirements of
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): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to this
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 and Submission of Modeling
Data
 110(a)(2)(L): Permitting Fees
 110(a)(2)(M): Consultation and Participation by Affected Local
Entities

III. What is EPA's approach to the review of infrastructure SIP
submissions?

    EPA is acting upon the SIP submission from North Carolina that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 1-hour NO2 NAAQS. The requirement for
states to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``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
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. 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 program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) 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 SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``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, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a

plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, 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. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \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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    EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on

the structure of an individual state's permitting or enforcement
program (e.g., whether permits and enforcement orders are approved by a
multi-member board or by a head of an executive agency). However they
are addressed by the state, the substantive requirements of section 128
are necessarily included in EPA's evaluation of infrastructure SIP
submissions because section 110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases (GHGs). By contrast, structural
PSD program requirements do not include provisions that are not
required under EPA's regulations at 40 CFR 51.166 but are merely
available as an option for the state, such as the option to provide
grandfathering of complete permit applications with respect to the 2012
fine particulate matter (PM2.5) NAAQS. Accordingly, the
latter optional provisions are types of provisions EPA considers
irrelevant in the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, among other things, the
requirement that states have a program to regulate minor new sources.
Thus, EPA evaluates whether the state has an EPA-approved minor NSR
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
    With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for 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''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in 110(a)(2) as requiring review of
each and every provision of a state's existing SIP against all
requirements in the CAA and EPA regulations 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. These provisions, 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 evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach
with respect to infrastructure SIP requirements is based on a
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA
provides other avenues and mechanisms to address specific substantive
deficiencies in existing SIPs. These other statutory tools allow EPA to
take appropriately 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 implementation plan is substantially inadequate to attain or
maintain the NAAQS, to mitigate interstate transport, or to otherwise
comply with the CAA.\15\ Section 110(k)(6) authorizes EPA to correct
errors in past actions, such as past approvals of SIP submissions.\16\
Significantly, EPA's determination that an action on a state's
infrastructure SIP submission is not the appropriate time and place to
address all potential existing SIP deficiencies does not preclude EPA's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action to correct those

deficiencies 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 an
infrastructure SIP submission, EPA believes that section 110(a)(2)(A)
may be among the statutory bases that EPA relies upon in the course of
addressing such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used 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 section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 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).
    \17\ See, e.g., EPA's disapproval of 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, e.g., 75 FR 42342 at 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 the 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:
Section 110(a)(2)(A) requires that each implementation plan include
enforceable emission limitations and other control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements. These requirements are met through several
North Carolina Administrative Code (NCAC) regulations. Specifically,
15A NCAC 2D .0500 Emission Control Standards establishes emission
limits for NO2. The following rules address additional
control measures, means and techniques: 15A NCAC 2D .0600 Monitoring:
Recordkeeping: Reporting, and 15A NCAC 2D .2600 Source Testing. In
addition, NCGS 143-215.107(a)(5), Air quality standards and
classifications, provides the North Carolina Environmental Management
Commission (EMC) with the statutory authority, ``To develop and adopt
emission control standards as in the judgment of the Commission may be
necessary to prohibit, abate, or control air pollution commensurate
with established air quality standards.'' EPA has made the preliminary
determination that the cited provisions are adequate for enforceable
emission limitations and other control measures, means, or techniques,
as well as schedules and timetables for compliance for the 2010 1-hour
NO2 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 is addressing such state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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    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: Section
110(a)(2)(B) requires SIPs to provide for establishment and operation
of appropriate devices, methods, systems, and procedures necessary to:
(i) Monitor, compile, and analyze data on ambient air quality, and (ii)
upon request, make such data available to the Administrator. NCGS 143-
215.107(a)(2), Air quality standards and classifications, provides the
EMC with the statutory authority ``To determine by means of field
sampling and other studies, including the examination of available data
collected by any local, State or federal agency or any person, the
degree of air contamination and air pollution in the State and the
several areas of the State.''
    Annually, states develop and submit to EPA for approval statewide
ambient monitoring network plans consistent with the requirements of 40
CFR parts 50, 53, and 58. The annual network plan involves an
evaluation of any proposed changes to the monitoring network, and
includes the annual ambient monitoring network design plan and a
certified evaluation of the state's ambient monitors and auxiliary
support equipment.\19\ The latest monitoring network plan for North
Carolina was submitted to EPA on July 23, 2015, and on November 19,
2015, 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-2015-0362.
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    \19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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    NCGS 143-215.107(a)(2), EPA regulations, along with North
Carolina's Ambient Air Monitoring Network Plan, provide for the
establishment and operation of ambient air quality monitors, the
compilation and analysis of ambient air quality data, and the
submission of these data to EPA upon request. EPA has made the
preliminary determination that North Carolina's SIP and practices are
adequate for the ambient air quality monitoring and data system
requirements related to the 2010 1-hour NO2 NAAQS.
    3. 110(a)(2)(C) Program for Enforcement of Control Measures and for
Construction or Modification of Stationary Sources: This element
consists of three sub-elements: enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources; and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). To meet these obligations, North Carolina cited the
following regulations: 15A NCAC 2D. 0500 Emissions Control Standards;
15A NCAC 2D. 0530 Prevention of Significant Deterioration; 15A NCAC 2D.
0531 Sources in Nonattainment Areas; 15A NCAC 2Q .0300 Construction
Operation Permits; and 15A NCAC 2Q .0500 Title V Procedures.
Collectively, these regulations enable North Carolina to regulate
sources contributing to the 2010 1-hour NO2 NAAQS through
enforceable permits. North Carolina also cited to the following
statutory provisions as supporting this element: NCGS 143-215.108,
Control of sources of air pollution; permits required; NCGS 143-
215.107(a)(7), Air quality standards and classifications; and NCGS 143-
215.6A, 6B, and 6C, Enforcement procedures: civil penalties, criminal
penalties, and injunctive relief.
    In this action, EPA is proposing to approve North Carolina's
infrastructure SIP for the 2010 1-hour NO2 NAAQS with
respect to the general requirement

in section 110(a)(2)(C) to include a program in the SIP for enforcement
of NO2 emissions controls and measures and the regulation of
minor sources and modifications to assist in the protection of air
quality in nonattainment, attainment or unclassifiable areas.
    Enforcement: NC DAQ's above-described, SIP-approved regulations
provide for enforcement of NO2 emission limits and control
measures through enforceable permits. In addition, North Carolina cited
NCGS 143-215.6A, 6B, and 6C, Enforcement procedures: civil penalties,
criminal penalties, and injunctive relief, which provides NC DENR with
the statutory authority to seek civil and criminal penalties, and
injunctive relief to enforce air quality rules.
    Preconstruction PSD Permitting for Major Sources: With respect to
North Carolina's infrastructure SIP submission related to the
preconstruction PSD permitting requirements for major sources of
section 110(a)(2)(C), EPA is not proposing any action today regarding
these requirements and instead will act on this portion of the
submission in a separate action.
    Regulation of minor sources and modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program that regulates emissions of the 2010 1-hour
NO2 NAAQS. Regulation 15A NCAC 2Q .0300 Construction
Operation Permits governs the preconstruction permitting of minor
modifications and construction of minor stationary sources.
    EPA has made the preliminary determination that North Carolina's
SIP is adequate for enforcement of control measures and regulation of
minor sources and construction or modifications related to the 2010 1-
hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components have two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (``prong 3''), or to protect visibility
in another state (``prong 4''). With respect to North Carolina's
infrastructure SIP in relation to the interstate transport requirements
of section 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II) (prongs 1 through
4), EPA is not proposing any action today regarding these requirements.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act relating to interstate and international pollution abatement.
Regulations 15A NCAC 2D .0530, Prevention of Significant Deterioration,
and 15A NCAC 2D .0531, Sources of Nonattainment Areas, provide how
NCDAQ will notify neighboring states of potential impacts from new or
modified sources consistent with the requirements of 40 CFR 51.166.
These regulations require NC DAQ to provide an opportunity for a public
hearing to the public, which includes state or local air pollution
control agencies, ``whose lands may be affected by emissions from the
source or modification'' in North Carolina. In addition, North Carolina
does not have any pending obligation under sections 115 and 126 of the
CAA. Accordingly, EPA has made the preliminary determination that North
Carolina's SIP is adequate for ensuring compliance with the applicable
requirements relating to interstate and international pollution
abatement for the 2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
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 North Carolina's August 23,
2013, infrastructure SIP submission related to the state board
requirements of section 110(a)(2)(E)(ii), EPA took final action to
approve these provisions for the 2010 1-hour NO2 NAAQS on
November 3, 2015. See 80 FR 67645. EPA's rationale for today's proposal
respecting sub-elements (i) and (iii) is described below.
    To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii),
North Carolina's infrastructure SIP submission cites several
regulations. Rule 15A NCAC 2Q. 0200, Permit Fees, provides the
mechanism by which stationary sources that emit air pollutants pay a
fee based on the quantity of emissions. State statutes NCGS 143-215.3,
General Powers of Commission and Department: Auxiliary Powers, and NCGS
143-215.107(a)(1), Air Quality Standards and Classifications, provide
the EMC with the statutory authority ``[t]o prepare and develop, after
proper study, a comprehensive plan or plans for the prevention,
abatement and control of air pollution in the State or in any
designated area of the State.'' NCGS 143-215.112, Local air pollution
control programs, provides the EMC with the statutory authority ``to
review and have general oversight and supervision over all local air
pollution control programs.'' North Carolina has three local air
agencies located in Buncombe, Forsyth, and Mecklenburg Counties that
implement the air program in these areas.
    As further evidence of the adequacy of NCDAQ's resources with
respect to sub-elements (i) and (iii), EPA submitted a letter to North
Carolina on April 19, 2016, outlining section 105 grant commitments and
the current status of these commitments for fiscal year 2015. The
letter EPA submitted to North Carolina can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0362.
Annually, states update these grant commitments based on current SIP
requirements, air quality planning, and applicable requirements related
to the NAAQS. North Carolina satisfactorily met all commitments agreed
to in the Air Planning Agreement for fiscal year 2015, therefore North
Carolina's grants were finalized and closed out. Collectively, these
rules and commitments provide evidence that NC DAQ has adequate
personnel, funding, and legal authority to carry out the State's
implementation plan and related issues. EPA has made the preliminary
determination that North Carolina has adequate resources and authority
to satisfy sections 110(a)(2)(E)(i) and (iii), North Carolina has
adequate resources for implementation of the 2010 1-hour NO2
NAAQS.
    7. 110(a)(2)(F) Stationary source monitoring system: Section
110(a)(2)(F) requires SIPs to meet applicable

requirements addressing: (i) The installation, maintenance, and
replacement of equipment, and the implementation of other necessary
steps, by owners or operators of stationary sources to monitor
emissions from such sources, (ii) periodic reports on the nature and
amounts of emissions and emissions related data from such sources, and
(iii) correlation of such reports by the state agency with any emission
limitations or standards established pursuant to this section, which
reports shall be available at reasonable times for public inspection.
North Carolina's infrastructure submission describes how the State
establishes requirements for emissions compliance testing and utilizes
emissions sampling and analysis.
    NC 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. North Carolina meets these
requirements through 15A NCAC 2D .0604 Exceptions to Monitoring and
Reporting Requirements; 15A NCAC 2D .0605 General Recordkeeping and
Reporting Requirements; 15A NCAC 2D .0611 Monitoring Emissions from
Other Sources; 15A NCAC 2D .0612 Alternative Monitoring and Reporting
Procedures; 15A NCAC 2D .0613 Quality Assurance Program; and 15A NCAC
2D .0614 Compliance Assurance Monitoring. In addition, 15A NCAC 2D
.0605(c) General Recordkeeping and Reporting Requirements allows for
the use of credible evidence in the event that the NCDAQ Director has
evidence that a source is violating an emission standard or permit
condition, the Director may require that the owner or operator of any
source submit to the Director any information necessary to determine
the compliance status of the source. In addition, EPA is unaware of any
provision preventing the use of credible evidence in the North Carolina
SIP. Also, NCGS 143-215.107(a)(4), Air quality standards and
classifications, provides the EMC with the statutory authority ``To
collect information or to require reporting from classes of sources
which, in the judgment of the [EMC], may cause or contribute to air
pollution.''
    Stationary sources are required to submit periodic emissions
reports to the State by Rule 15A NCAC 2Q .0207 ``Annual Emissions
Reporting.'' North Carolina is also 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
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 2011 NEI on December 5,
2014. 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
2010 1-hour NO2 NAAQS. Accordingly, EPA is proposing to
approve North Carolina's infrastructure SIP submission with respect to
section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: Section 110(a)(2)(G) requires
that states demonstrate authority comparable with section 303 of the
CAA and adequate contingency plans to implement such authority. North
Carolina's infrastructure SIP submission cites 15A NCAC 2D .0300, Air
Pollution Emergencies, as identifying air pollution emergency episodes
and preplanned abatement strategies, and provides the means to
implement emergency air pollution episode measures. Under NCGS 143-
215.3(a)(12), General powers of Commission and Department; auxiliary
powers, if NC DENR finds that such a ``condition of . . . air pollution
exists and that it creates an emergency requiring immediate action to
protect the public health and safety or to protect fish and wildlife,
the Secretary of the Department [NC DENR] with the concurrence of the
Governor, shall order persons causing or contributing to the . . . air
pollution in question to reduce or discontinue immediately the emission
of air contaminants or the discharge of wastes.'' In addition, NCGS
143-215.3(a)(12) provides NC DENR with the authority to declare an
emergency when it finds that a generalized condition of water or air
pollution which is causing imminent danger to the health or safety of
the public. This statute also allows, in the absence of a generalized
condition of air pollution, should the Secretary find ``that the
emissions from one or more air contaminant sources . . . is causing
imminent danger to human health and safety or to fish and wildlife, he
may with the concurrence of the Governor order the person or persons
responsible for the operation or operations in question to immediately
reduce or discontinue the emissions of air contaminants . . . or to
take such other measures as are, in his judgment, necessary.'' EPA has
made the preliminary determination that North Carolina's SIP submission
is adequate to satisfy the emergency powers obligations of the 2010 1-
hour NO2 NAAQS.
    9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in
summary, requires each SIP to provide for revisions of such plan (i) as
may be necessary to take account of revisions of such national primary
or secondary ambient air quality standard or the availability of
improved or more expeditious methods of attaining such standard, and
(ii) whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. NC DAQ is responsible for adopting
air quality rules and revising SIPs as needed to attain or maintain the
NAAQS in North Carolina. NCGS 143-215.107(a)(1) and (a)(10) grant NC
DAQ the authority to prepare and develop, after proper study, a
comprehensive plan for the prevention of air pollution and implement
the CAA, respectively. These provisions also provide NC DAQ the ability
and authority to respond to calls for SIP revisions, and North Carolina
has provided a number of SIP revisions over the years for
implementation of the NAAQS. In addition, State regulation 15A NCAC 2D
.2401(d) states that ``The EMC may specify through rulemaking a
specific emission limit lower than that established under this rule for
a specific source if compliance with the lower emission limit is
required to attain or maintain the ambient air quality standard for
ozone or PM2.5 or any other ambient air quality standard in
Section 15A NCAC 2D .0400.'' 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 2010 1-hour NO2 NAAQS when necessary.
    10. 110(a)(2)(J) Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve North Carolina's infrastructure SIP submission for the 2010 1-
hour NO2 NAAQS with respect to the general requirement in
section 110(a)(2)(J) to include a program in the SIP that provides for
meeting the applicable consultation requirements of section 121, the
public notification requirements of section 127, and the visibility
requirements. With respect to North Carolina's infrastructure SIP
submission related to the preconstruction PSD permitting, EPA is not
proposing any action today regarding these requirements and instead
will act on these portions of the submission in a separate action.
EPA's rationale for its proposed action regarding applicable
consultation requirements of section 121, the public notification
requirements of section 127, and visibility is described below.
    Consultation with government officials (121 consultation): Section
110(a)(2)(J) of the CAA requires states to provide a process for
consultation with local governments, designated organizations and
federal land managers (FLMs) carrying out NAAQS implementation
requirements pursuant to section 121 relative to consultation. Rules
15A NCAC 2D .0531, Sources in a Nonattainment Areas, 2D .1600, General
Conformity, 2D .2000, Transportation Conformity, along with the State's
Regional Haze Implementation Plan, (which allows for consultation
between appropriate state, local, and tribal air pollution control
agencies as well as the corresponding FLMs), 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.
Implementation of transportation conformity as outlined in the
consultation procedures requires NC DAQ to consult with Federal, state
and local transportation and air quality agency officials on the
development of motor vehicle emissions budgets. The Regional Haze SIP
provides for consultation between appropriate state, local, and tribal
air pollution control agencies as well as the corresponding FLMs. EPA
has made the preliminary determination that North Carolina's SIP and
practices adequately demonstrate consultation with government officials
related to the 2010 1-hour NO2 NAAQS when necessary.
    Public notification (127 public notification): Rule 15A NCAC 2D
.0300 Air Pollution Emergencies provides North Carolina with the
authority to declare an emergency and notify the public accordingly
when it finds a generalized condition of water or air pollution which
is causing imminent danger to the health or safety of the public.
Additionally, the NC DAQ has the North Carolina Air Awareness Program
which is a program to educate the public on air quality issues and
promote voluntary emission reduction measures. The NC DAQ also features
a Web page providing ambient monitoring information regarding current
and historical air quality across the State at http://www.ncair.org/monitor/. North Carolina participates in the EPA AirNOW program, which
enhances public awareness of air quality in North Carolina and
throughout the country. 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 2010 1-hour
NO2 NAAQS when necessary for the public notification element
of section 110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not
treat the visibility protection aspects of section 110(a)(2)(J) as
applicable for purposes of the infrastructure SIP approval process. NC
DENR referenced its regional haze program as germane to the visibility
component of section 110(a)(2)(J). EPA recognizes that states are
subject to visibility protection and regional haze program requirements
under part C of the Act (which includes sections 169A and 169B).
However, there are no newly applicable visibility protection
obligations after the promulgation of a new or revised NAAQS. Thus, EPA
has determined that states do not need to address the visibility
component of 110(a)(2)(J) in infrastructure SIP submittals so NC DENR
does not need to rely on its regional haze program to fulfill its
obligations under section 110(a)(2)(J). As such, EPA has made the
preliminary determination that North Carolina's infrastructure SIP
submission is approvable for the visibility protection element of
section 110(a)(2)(J) related to the 2010 1-hour NO2 NAAQS
and that North Carolina does not need to rely on its regional haze
program to satisfy this element.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling so that effects on air quality of
emissions from NAAQS pollutants can be predicted and submission of such
data to EPA can be made. This infrastructure requirement is met through
emissions data collected through 15A NCAC 2D .0600 Monitoring:
Recordkeeping: Reporting (authorized under NCGS 143-215.107(a)(4)),
which provides information to model potential impact of major and some
minor sources. 15A NCAC 2D .0530 Prevention of Significant
Deterioration and 15A NCAC 2D .0531 Sources in Nonattainment Areas
require that air modeling be conducted in accordance with 40 CFR part
51, Appendix W, Guideline on Air Quality Models. NCGS 143-215.107(a)
also provides authority for the EMC to determine by means of field
sampling and other studies, the degree of air contamination and air
pollution in the State. These regulations demonstrate that North
Carolina has the authority to perform air quality modeling and to
provide relevant data for the purpose of predicting the effect on
ambient air quality of the 2010 1-hour NO2 NAAQS. The NC DAQ
currently has personnel with training and experience to conduct source-
oriented dispersion modeling that would likely be used in
NO2 NAAQS applications with models approved by EPA.
Additionally, North Carolina participates in a regional effort to
coordinate the development of emissions inventories and conduct
regional modeling for several NAAQS, including the 2010 1-hour
NO2 NAAQS, for the Southeastern states. Taken as a whole,
North Carolina's air quality regulations and practices demonstrate that
NC DAQ has the authority to provide relevant data for the purpose of
predicting the effect on ambient air quality of any emissions of any
pollutant for which a NAAQS has been promulgated, and to provide such
information to the EPA Administrator upon request. 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 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the
owner or operator of each major stationary source to pay to the
permitting authority, as a condition of any permit required under the
CAA, a fee sufficient to cover (i) the reasonable costs of reviewing
and acting upon any application for such a permit, and (ii) if the
owner or operator receives a permit for such source, the reasonable
costs of implementing and enforcing the terms and conditions of any
such permit (not

including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under title V.
    To satisfy these requirements, North Carolina's infrastructure SIP
submission cites Regulation 15A NCAC 2Q .0200 Permit Fees, which
requires the owner or operator of each major stationary source to pay
to the permitting authority, as a condition of any permit required
under the CAA, a sufficient fee to cover the costs of the permitting
program. Additionally, North Carolina has a fully approved title V
operating permit program at 15A NCAC.0500 Emissions Control Standards
and 2Q .0500, Title V Procedures,\20\ which include provisions to
implement and enforce PSD and NNSR permits once Title V permits have
been issued. The fees collected under 15A NCAC 2Q .0200 also support
this activity. NCGS 143-215.3, General powers of Commission and
Department; auxiliary Powers, provides authority for NC DAQ to require
a processing fee in an amount sufficient for the reasonable cost of
reviewing and acting upon PSD and NNSR permits. EPA has made the
preliminary determination that North Carolina's SIP and practices
adequately provide for permitting fees related to the 2010 1-hour
NO2 NAAQS, when necessary.
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    \20\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/participation by affected local
entities: Section 110(a)(2)(M) of the Act requires states to provide
for consultation and participation in SIP development by local
political subdivisions affected by the SIP. Rule 15A NCAC 2Q .0530,
Prevention of Significant Deterioration, requires that the NCDAQ notify
the public, including affected local entities, of PSD permit
applications and associated information related to PSD permits, and the
opportunity for comment prior to making final permitting decisions.
NCGS 150B-21.1 and 150B-21.2 authorize and require NCDAQ to advise,
consult, cooperate and enter into agreements with other agencies of the
state, the Federal government, other states, interstate agencies,
groups, political subdivisions, and industries affected by the
provisions of this act, rules, or policies of the Department. Also,
Rule 15A NCAC 2D .2000 Transportation Conformity requires consultation
with all affected partners to be implemented for transportation
conformity determinations. Furthermore, NC 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, Regional Haze
Implementation Plan, and the 8-Hour Ozone Attainment Demonstration for
the North Carolina portion of the Charlotte-Gastonia-Rock Hill NC-SC
nonattainment area. EPA has made the preliminary determination that
North Carolina's SIP and practices adequately demonstrate consultation
with affected local entities related to the 2010 1-hour NO2
NAAQS when necessary.

V. Proposed Action

    EPA is proposing to approve that portions of NCDAQ's infrastructure
SIP submission, submitted August 23, 2013, for the 2010 1-hour
NO2 NAAQS, has met the above described infrastructure SIP
requirements. EPA is proposing to approve these portions of North
Carolina's infrastructure SIP submission for the 2010 1-hour
NO2 NAAQS because these aspects of the submission are
consistent with section 110 of the CAA. The PSD permitting requirements
for major sources of section 110(a)(2)(C) and (J), the interstate
transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1
through 4), will not be addressed by EPA at this time. EPA has already
taken action to approve North Carolina's infrastructure SIP submission
related to section 110(a)(2)(E)(ii) for the 2010 NO2 NAAQS.

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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).
    The SIP is not approved to apply on any Indian reservation land or
in any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Reporting and
recordkeeping requirements.

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

    Dated: July 8, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-17071 Filed 7-19-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 82, Number 100 (Thursday, May 25, 2017)]
[Rules and Regulations]
[Pages 24054-24056]
[FR Doc No: 2017-10701]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0312]
RIN 1625-AA00

Safety Zone; Upper Mississippi River, St. Louis, MO

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
Upper Mississippi River near St. Louis, MO. This temporary safety zone
is necessary to protect persons and property from potential damage and
safety hazards during a fireworks display on and over the navigable
waterway. During the period of enforcement, entry into the safety zone
is prohibited unless specifically authorized by the Captain of the Port
Upper Mississippi River or other designated representative.

DATES: This rule is effective from 8:30 p.m. on May 28, 2017 through 10
p.m. on May 29, 2017. This rule will be enforced from 8.30 p.m. to 10
p.m. on May 28, 2017, unless the fireworks display is postponed because
of adverse weather, in which case this rule will be enforced from 8.30
p.m. to 10 p.m. on May 29, 2017.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0312 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LCDR Sean Peterson, Chief of Prevention, Sector Upper
Mississippi River, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

BNM Broadcast Notice to Mariners
CFR Code of Federal Regulations
COTP Captain of the Port Upper Mississippi River
DHS Department of Homeland Security
FR Federal Register
LNM Local Notice to Mariners
NPRM Notice of proposed rulemaking
Sec.  Section
UMR Upper Mississippi River
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because the Coast Guard did not receive the
application until February 23, 2017. After full review of the details
for the planned and locally advertised displays, the Coast Guard
determined action is needed to protect people and property from the
safety hazards associated with the fireworks display on the Upper
Mississippi River (UMR) near St. Louis, MO. It is impracticable to
publish an NPRM because we must establish this safety zone by May 28,
2017. As such, it is impracticable to publish an NPRM because we lack
sufficient time to provide a reasonable comment period and then
consider those comments before issuing the rule.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for making it effective less than 30
days after publication in the Federal Register. Delaying the effective
date of the rule is contrary to the public interest as it would delay
the effectiveness of the

temporary safety zone needed to respond to potential related safety
hazards associated with the fireworks display.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP has determined that potential hazards associated with
the fireworks display will be a safety concern before, during, and
after the display. The purpose of this rule is to ensure safety of
vessels and the navigable waters in the safety zone before, during, and
after the scheduled event.

IV. Discussion of the Rule

    This rule establishes a safety zone from 8:30 p.m. on May 28, 2017
through 10 p.m. on May 29, 2017. This rule will be enforced from 8.30
p.m. to 10 p.m. on May 28, 2017, unless the fireworks display is
postponed because of adverse weather, in which case this rule will be
enforced from 8.30 p.m. to 10 p.m. on May 29, 2017. The safety zone
will cover all navigable waters between miles 180 and 180.5 on the UMR
in St. Louis, MO. Any changes to the planned schedule will be
communicated to mariners using Broadcast Notice to Mariners (BNM) and
Local Notice to Mariners (LNM). The safety zone is intended to ensure
the safety of vessels and these navigable waters before, during and
after the fireworks display. No vessel or person will be permitted to
enter the safety zone without obtaining permission from the COTP or a
designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive Orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive Orders, and we
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. These rules have not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, they have not been reviewed by the Office of
Management and Budget.
    This temporary final rule establishes a safety zone impacting a
one-half mile area on the UMR for a limited time period of one hour and
a half. During the enforcement period, vessels are prohibited from
entering into or remaining within the safety zone unless specifically
authorized by the COTP or other designated representative. Based on the
location, limited safety zone area, and short duration of the
enforcement period, this rule does not pose a significant regulatory
impact. Additionally, notice of the safety zone or any changes in the
planned schedule will be made via BNM and LNM. Permission to enter this
safety zone must be requested from the COTP or other designated
representative.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
safety zone may be small entities, for the reasons stated in section
V.A. above, this rule will not have a significant economic impact on
any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding these rules. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule will not call for a new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under that Order and have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
    Also, this rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

F. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that
this action is one of a category of actions that do not

individually or cumulatively have a significant effect on the human
environment. This rule involves a safety zone lasting two hours that
will prohibit entry from mile 180 to 180.5 on the UMR. It is
categorically excluded from further review under paragraph 34(g) of
Figure 2-1 of the Commandant Instruction. An environmental analysis
checklist supporting this determination and a Record of Environmental
Consideration are available in the docket where indicated under
ADDRESSES. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T08-0689 to read as follows:

Sec.  165.08-0689   Safety Zone; Upper Mississippi River between miles
180 and 180.5; St. Louis, MO.

    (a) Location. The following area is a safety zone: All navigable
waters of the Upper Mississippi River between miles 180 to 180.5, St.
Louis, MO.
    (b) Definitions. As used in this section, ``designated
representative'' means a Coast Guard Patrol Commander, including a
Coast Guard coxswain, petty officer, or other officer operating a Coast
Guard vessel and a Federal, State, and local officer designated by or
assisting the Captain of the Port Upper Mississippi River (COTP) in the
enforcement of the safety zone.
    (c) Regulations. (1) Under the general safety zone regulations in
subpart C of this part, you may not enter the safety zone described in
paragraph (a) of this section unless authorized by the COTP or the
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's
representative via VHF-FM channel 16, or through Coast Guard Sector
Upper Mississippi River at<PHONE_NUMBER>. Those in the safety zone must
comply with all lawful orders or directions given to them by the COTP
or the COTP's designated representative.
    (d) Enforcement period. This section will be enforced from 8.30
p.m. to 10 p.m. on May 28, 2017, unless the fireworks display is
postponed because of adverse weather, in which case this rule will be
enforced from 8.30 p.m. to 10 p.m. on May 29, 2017.
    (e) Informational broadcasts. The COTP or a designated
representative will inform the public through broadcast notices to
mariners of the enforcement period for the safety zone as well as any
changes in the dates and times of enforcement.

    Dated: May 15, 2017.
M.L. Malloy,
Captain, U.S. Coast Guard, Captain of the Port Upper Mississippi River.
[FR Doc. 2017-10701 Filed 5-24-17; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 84, Number 167 (Wednesday, August 28, 2019)]
[Notices]
[Page 45138]
[FR Doc No: 2019-18471]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER19-2644-000]

Whitney Hill Wind Power, LLC; Supplemental Notice That Initial
Market-Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced Whitney Hill
Wind Power, LLC's application for market-based rate authority, with an
accompanying rate tariff, noting that such application includes a
request for blanket authorization, under 18 CFR part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is September 10, 2019.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
5 copies of the intervention or protest to the Federal Energy
Regulatory Commission, 888 First Street NE, Washington, DC 20426.
    The filings in the above-referenced proceeding are accessible in
the Commission's eLibrary system by clicking on the appropriate link in
the above list. They are also available for electronic review in the
Commission's Public Reference Room in Washington, DC. There is an
eSubscription link on the website that enables subscribers to receive
email notification when a document is added to a subscribed docket(s).
For assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.

    Dated: August 21, 2019.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2019-18471 Filed 8-27-19; 8:45 am]
 BILLING CODE 6717-01-P