Air Plan Approval; North Carolina; Permitting Provisions Revisions

<RULE> 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-11971-02-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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Environmental Protection Agency (EPA) is correcting 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> This rule is effective October 21, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2017-0454. Additional supporting materials associated with this final action are included in Docket Nos. EPA-R04-OAR-2019-0638 and EPA-R04-OAR-2020-0186. All documents in the docket are listed on the <E T="03">regulations.gov</E> website. Although listed in the index, some information may not be publicly available, <E T="03">i.e.,</E> Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through <E T="03">www.regulations.gov</E> or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Steve Scofield, Multi-Air Pollutant Coordination Section, Air Planning and Implementation Branch, Air and Radiation Division, Region 4, U.S. Environmental Protection Agency, 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 included cross-references to North Carolina General Statutes (G.S.) <E T="03">143-215.108 and 143-215.108A;</E> however, these cross-referenced provisions were not incorporated into the SIP. EPA has determined these prior approvals of the cross-referenced provisions were in error and is finalizing removal of 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 could 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. <FTREF/> <SU>3</SU> 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> 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 for it 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). Through a notice of proposed rulemaking (NPRM) published on May 28, 2024 (89 FR 46049), EPA proposed to correct the erroneous incorporation of certain cross-references into 15A NCAC 02Q Section .0101, <E T="03">Required Air Quality Permits;</E> .0103, <E T="03">Definitions;</E> and .0301, <E T="03">Applicability</E> of the North Carolina SIP. EPA's rationale for removing the cross references is described in the May 28, 2024, NPRM. Comments on the May 28, 2024, NPRM were due on or before June 27, 2024. One comment was received on the NPRM and is addressed below. <HD SOURCE="HD1">II. Response to Comments</HD> EPA received one comment from the North Carolina Department of Environmental Quality (NCDEQ)'s Division of Air Quality (DAQ), regarding the May 28, 2024, NPRM. The comment is provided in the docket for this final action. EPA has summarized and responded to the comment below. <E T="03">Comment:</E> North Carolina DAQ (NC DAQ) supports EPA's proposal and “recommends that the EPA proceed with its error correction regarding its prior approvals of the phrases referencing the North Carolina General Statutes.” The commenter further suggests that EPA also correct the first line of 15A NCAC 02Q .0103 by removing references to G.S. 143-212 and G.S. 143-213. <E T="03">Response:</E> EPA acknowledges NC DAQ's suggestion and will consider future action(s) to address the first line of 15A NCAC 02Q .0103 and other instances where there are cross references to statutory or regulatory provisions that are outside the SIP. <HD SOURCE="HD1">III. Incorporation by Reference</HD> In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in section I of this preamble, EPA is finalizing the incorporation by reference of 15A NCAC Section 02Q Rule .0101, <E T="03">Required Air Quality Permits,</E> except for the phrase “With the exception allowed by G.S. 143-215.108A” in paragraph (b); Rule .0103, <E T="03">Definitions,</E> except for the phrase “pursuant to G.S. 143-215.108” in subparagraph (9)(d); and Rule .0301, <E T="03">Applicability,</E> except for the phrase “or as allowed pursuant G.S. 143-215.108A” in paragraph (a), all state-effective April 1, 2018. EPA has made, and will continue to make, these materials generally available through <E T="03">www.regulations.gov</E> and at the EPA Region 4 Office (please contact the person identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. <SU>4</SU> <FTREF/> <FTNT> <SU>4</SU>   <E T="03">See</E> 62 FR 27968 (May 22, 1997). </FTNT> <HD SOURCE="HD1">IV. Final Action</HD> Pursuant to the error correction provision of section 110(k)(6) of the CAA, EPA is finalizing the removal of portions of 15A NCAC Section 02Q .0101, <E T="03">Required Air Quality Permits,</E> Section 02Q .0103, <E T="03">Definitions,</E> and Section 02Q .0301, <E T="03">Applicability,</E> with the cross-references to North Carolina General Statutes as discussed above because the inclusion of these cross-references in the SIP is inconsistent with the CAA. <HD SOURCE="HD1">V. Statutory and Executive Order Reviews</HD> Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. <E T="03">See</E> 42 U.S.C. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 17k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━