Air Plan Approval; Forsyth County, North Carolina; Removal of Excess Emissions Provisions

ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 52</CFR> <DEPDOC>[EPA-R04-OAR-2023-0466; FRL-12179-01-R4]</DEPDOC> <SUBJECT>Air Plan Approval; Forsyth County, North Carolina; Removal of Excess Emissions Provisions</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 approve a State Implementation Plan (SIP) revision submitted by the North Carolina Division of Air Quality (NCDAQ) on behalf of the Forsyth County Office of Environmental Assistance and Protection (FCEAP or Forsyth County) on November 28, 2022. The revision was submitted in response to a finding of substantial inadequacy and SIP call published on June 12, 2015, concerning excess emissions during startup, shutdown, and malfunction (SSM) events, and is intended to correct deficiencies in the Forsyth County portion of the North Carolina SIP identified by EPA in the SIP call. EPA is proposing to approve the SIP revision in accordance with requirements for SIP provisions under the Clean Air Act (CAA or Act). In addition, EPA is proposing to approve minor and administrative changes to certain regulatory provisions that have been revised by the local agency since EPA's last approval of those provisions. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before October 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit your comments, identified by Docket ID No. EPA-R04-OAR-2023-0466 at <E T="03">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">https://www.epa.gov/dockets/commenting-epa-dockets.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Faith Goddard, 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) 562-8757. Ms. Goddard can also be reached via electronic mail at <E T="03">goddard.faith@epa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. EPA's 2015 SSM SIP Action</HD> On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “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,” hereinafter referred to as the “2015 SSM SIP Action.” <E T="03">See</E> 80 FR 33840 (June 12, 2015). The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 States, applicable in 45 statewide and local jurisdictions, including Forsyth County, North Carolina, were substantially inadequate to meet CAA requirements and issued a SIP call to those States to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected States had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016. In the 2015 SSM SIP Action, EPA determined that Forsyth County Air Quality Control Ordinance and Technical Code Subchapter 3D, Section .0500, Rule 3D .0535, <E T="03">Excess Emissions Reporting and Malfunctions,</E> paragraphs (c) and (g) (also referred to herein as “Rule 3D .0535(c) and (g)”), are substantially inadequate to meet CAA requirements on the basis that they contain impermissible director's discretion provisions. <E T="03">See</E> 80 FR 33840, 33964 (June 12, 2015). In the Forsyth County portion of the North Carolina SIP, Rule 3D .0535(c) and (g) provide exemptions for emissions exceeding otherwise applicable SIP emission limitations at the discretion of a local official during malfunctions at paragraph (c) and startup and shutdown at paragraph (g). The rationale underlying EPA's determination that these Forsyth County provisions are substantially inadequate to meet CAA requirements is detailed in the 2015 SSM SIP Action and the accompanying proposals. <HD SOURCE="HD2">B. 2022 Findings of Failure To Submit</HD> On January 12, 2022, pursuant to CAA section 110(k)(1), EPA finalized “Findings of Failure To Submit State Implementation Plan Revisions in Response to the 2015 Findings of Substantial Inadequacy and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction,” hereinafter referred to as the “2022 Findings of Failure to Submit.” <E T="03">See</E> 87 FR 1680 (January 12, 2022). The 2022 Findings of Failure to Submit found that twelve State and local agencies, including FCEAP, failed to submit timely corrective SIP revisions required by the 2015 SSM SIP Action. This action triggered certain CAA deadlines for EPA to impose sanctions if an affected agency did not submit a complete SIP revision addressing the outstanding deficiencies and to promulgate a Federal Implementation Plan (FIP) if EPA did not approve a required SIP submittal by February 11, 2024. On November 28, 2022, in response to the 2015 SSM SIP Action and the 2022 Findings of Failure to Submit, NCDAQ submitted on behalf of FCEAP a revision to the Forsyth County portion of the North Carolina SIP. In its submittal, Forsyth County requests that EPA revise the Forsyth County portion of the North Carolina SIP by removing the substantive text of Rule 3D .0535(c) and (g) and adding language clarifying that paragraphs (c) and (g) are not included in EPA's SIP-approved version of Rule 3D .0535 in the Forsyth County portion of the North Carolina SIP. Forsyth County also includes in the submittal minor and non-substantive administrative amendments to the remaining Rule 3D .0535 regulatory provisions, as revised since EPA's last approval on February 17, 2000. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> 65 FR 8053. </FTNT> <HD SOURCE="HD2">C. Environ. Comm. Fl. Elec. Power v. EPA, 94 F.4th 77 (D.C. Cir. 2024)</HD> On March 1, 2024, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision in <E T="03">Environmental Committee of the Florida Electric Power Coordinating Group, Inc.,</E> v. <E T="03">EPA,</E> 94 F.4th 77 (D.C. Cir. 2024). The case was a consolidated set of petitions for review of the 2015 SSM SIP Action. The court granted the petitions in part, vacating the SIP call with respect to SIP provisions that EPA identified as automatic exemptions, director's discretion provisions, and affirmative defenses that are functionally exemptions; and denied the petitions as to other provisions that EPA identified as overbroad enforcement discretion provisions or affirmative defense provisions that would preclude or limit a court from imposing relief in the case of violations. Although the court vacated the SIP call as to director's discretion provisions such as Rule 3D .0535(c) and (g), EPA is required, pursuant to CAA section 110(k)(3), to approve Forsyth County's submittal requesting removal of the substantive text of these provisions from the Forsyth County portion of the North Carolina SIP because the submittal meets all of the applicable CAA requirements. <E T="03">See</E> 42 U.S.C. 7410(k)(3). The D.C. Circuit's decision in <E T="03">Environmental Committee</E> does not preclude State and/or local air jurisdictions from submitting SIP revisions requesting removal of certain provisions from their SIP where that removal makes the SIP more protective of air quality, as FCEAP did here. <HD SOURCE="HD1">II. Analysis of the November 28, 2022, Submittal</HD> Forsyth County requests that EPA remove the substantive text of Rule 3D .0535(c) and (g) from the Forsyth County portion of the North Carolina SIP and add language clarifying that Rule 3D .0535(c) and (g) are not included in the Forsyth County portion of the North Carolina SIP. Removing the substantive text of Rule 3D .0535(c) and (g) from the SIP would mean that emission limits incorporated into the Forsyth County portion of the North Carolina SIP would apply at all times, including periods of SSM. If removed from the Forsyth County portion of the North Carolina SIP, the substantive text of Rule 3D .0535(c) and (g) will apply to Forsyth County in its exercise of enforcement authority for local-law purposes only. These provisions would remain enforceable as local-only provisions, and language would be added to clarify that Rule 3D .0535(c) and (g) are not included in the Forsyth County portion of the North Carolina SIP. Because the substantive text of Rule 3D .0535(c) and (g) would not be part of the Forsyth Coun ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━