Air Plan Approval; North Carolina; Permitting Provisions Revisions

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R04-OAR-2017-0454; EPA-R04-OAR-2019-0638; EPA-R04-OAR-2020-0186; FRL-11971-01-R4]</DEPDOC> <SUBJECT>Air Plan Approval; North Carolina; Permitting Provisions Revisions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is proposing to correct the erroneous incorporation of cross-references into the North Carolina State Implementation Plan (SIP) using the Clean Air Act (CAA or Act) error correction provision. EPA has determined that portions of its May 23, 2019, July 17, 2020, and March 1, 2021, final SIP rulemaking actions were in error and that it is appropriate to correct those actions by removing specific cross-references in the permitting rules from the SIP. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before June 27, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R04-OAR-2017-0454 at <E T="03">www.regulations.gov.</E> Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from <E T="03">Regulations.gov</E> . 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 ( <E T="03">i.e.,</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 <E T="03">www.epa.gov/dockets/commenting-epa-dockets.</E> There are three dockets supporting this action, EPA-R04-OAR-2017-0454, EPA-R04-OAR-2019-0638, and EPA-R04-OAR-2020-0186. Docket No. EPA-R04-OAR-2017-0454 includes a March 24, 2006, SIP submittal from North Carolina and EPA's original approval of the cross-references to North Carolina General Statutes that are proposed for removal in this Notice of Proposed Rulemaking (NPRM). Docket Nos. EPA-R04-OAR-2019-0638 and EPA-R04-OAR-2020-0186 include a July 10, 2019, SIP submittal from North Carolina with additional ministerial and minor changes to the provisions at issue in this NPRM. All comments regarding information in any of these dockets are to be made in Docket No. EPA-R04-OAR-2017-0454. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit <E T="03">https://www.epa.gov/dockets/commenting-epadockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Steven Scofield, Multi-Air Pollutant Coordination Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9034. Mr. Scofield can also be reached via electronic mail at <E T="03">scofield.steve@epa.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On May 23, 2019, July 17, 2020, and March 1, 2021, <SU>1</SU> <FTREF/> EPA approved revisions to 15A North Carolina Administrative Code (NCAC) 02Q .0101, 02Q .0103, and 02Q .0301 into the North Carolina SIP. <SU>2</SU> <FTREF/> These revisions include cross-references to North Carolina General Statutes 143-215.108 and 143-215.108A; however, these cross-referenced provisions are not incorporated into the SIP. EPA has determined these prior approvals of the cross-referenced provisions were in error and is proposing to remove these cross-references from 15A NCAC 02Q.0101, 02Q.0103 and 02Q.0301 of the SIP. Because the cross-referenced provisions are not incorporated into the SIP, changes to those provisions can change the SIP without the submission of a SIP revision and subsequent EPA action to approve such a change, which is inconsistent with the CAA. Specifically, CAA section 110(l) requires each SIP revision submitted by a state to undergo reasonable public notice and hearing and prevents EPA from approving a SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. <SU>3</SU> <FTREF/> Changes to the statutory provisions cross-referenced in the SIP could change the SIP without fulfilling public notice and hearing requirements and without EPA evaluation of the revision pursuant to the requirements of section 7410(l) and any other CAA requirements applicable to the specific SIP provision at issue. <FTNT> <SU>1</SU>   <E T="03">See</E> 84 FR 23725, 85 FR 43461, and 86 FR 11875. </FTNT> <FTNT> <SU>2</SU>  The revisions were submitted by the North Carolina Division of Air Quality in submissions dated March 24, 2006, and July 10, 2019. </FTNT> <FTNT> <SU>3</SU>  CAA sections 110(a)(1) and (2) also require each SIP submitted by a state to undergo reasonable public notice and hearing. </FTNT> <HD SOURCE="HD1">II. What is EPA's authority to correct errors in SIP rulemakings?</HD> Section 110(k)(6) of the CAA authorizes EPA to revise a state's SIP when it “determines that [its] action approving, disapproving, or promulgating any plan or plan revision (or part thereof) . . . was in error.” Once EPA has made the determination that it erred, it “may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State.” <E T="03">Ala. Envtl. Council</E> v. <E T="03">EPA,</E> 711 F.3d 1277, 1286 (11th Cir. 2013). This determination and the basis must be provided to the state and the public. Section 110(k)(6) of the CAA has been interpreted by courts as a “broad provision [that] was enacted to provide the EPA with an avenue to correct its own erroneous actions and grant the EPA the discretion to decide when to act pursuant to the provision.” <E T="03">Miss. Comm'n on Envtl. Quality</E> v. <E T="03">EPA,</E> 790 F.3d 138, 150 (D.C. Cir. 2015). EPA can take action under section 110(k)(6) to correct an error only if the error existed at the time the SIP was originally approved. <E T="03">See Texas</E> v. <E T="03">EPA,</E> 726 F.3d 180, 204 (D.C. Cir. 2013) (Kavanaugh, J., dissenting). <HD SOURCE="HD1">III. Which provisions are EPA proposing to remove?</HD> <HD SOURCE="HD2">A. Section 02Q .0101, Required Air Quality Permits</HD> EPA approved changes to 15A North Carolina Administrative Code (NCAC) 02Q section .0101, <E T="03">Required Air Quality Permits,</E> to include a cross-reference to a North Carolina General Statute that is not incorporated into the SIP. Specifically, on May 23, 2019, EPA approved revisions to subparagraph (b)(1) that added the phrase “With the exception allowed by G.S. 143-215.108A”. <SU>4</SU> <FTREF/> Subsequently, on July 17, 2020, EPA approved other changes to paragraph (b), including consolidating the subparagraphs into one paragraph .0101(b) and making other ministerial edits which do not otherwise change the meaning of the provision. This July 17, 2020, revision also included the same language cross-referencing G.S. 143-215.108A. EPA is proposing to correct both the May 23, 2019, and July 17, 2020, final actions by removing the phrase in paragraph .0101(b), “With the exception allowed by G.S. 143-215.108A.” The effect of this change, if finalized, would merely remove the cross-reference to the statute and would not modify specific exemptions from permitting and other changes otherwise approved in EPA's May 23, 2019, and July 17, 2020, actions. <FTNT> <SU>4</SU>  The full text of 15A NCAC 02Q .0101(b)(1) (now renumbered to 02Q .0101(b)) in the SIP reads: “Stationary Source Construction and Operation Permit: With the exception allowed by G.S. 143-215.108A, the owner or operator of a new, modified, or existing facility or source shall not begin construction or operation without first obtaining a construction and operation permit pursuant to 15A NCAC 02Q .0300. Title V facilities are subject to the Title V procedures pursuant to 15A NCAC 02Q .0500 including the acid rain procedures pursuant to 15A NCAC 02Q .0400. A facility may also be subject to the air toxic procedures pursuant to 15A NCAC 2Q .0700.” </FTNT> <HD SOURCE="HD2">B. Section 02Q .0103, Definitions</HD> EPA approved changes to 15A NCAC 02Q .0103, <E T="03">Definitions,</E> that include a cross-reference to a North Carolina General Statute that is not incorporated into the SIP. Specifically, on July 18, 2017, EPA approved revisions to the definition of “construction” at paragraph (9) that added subparagraphs (a) through (d). Newly added subparagraph (9)(d) included the phrase “for which a permit is required by G.S. 143-215.108.”  <SU>5</SU> <FTREF/> Subsequently, on July 17, 2020, EPA approved a change to this phrase to read “for which a permit is required pursuant to G.S. 143-215.108.” EPA also approved changes to paragraph .0103(9) in the July 17, 2020, action which do not alter the meaning of the definition. EPA is proposing to correct both the July 18, 2017, and July 17, 2020, final actions by removing the phrase in subparagraph (9)(d), “pursuant to G.S. 143-215.108.” The effect of this change, if finalized, would merely remove the cross-reference to the statute a ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━