
[Federal Register: November 30, 2009 (Volume 74, Number 228)]
[Rules and Regulations]               
[Page 62496-62499]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no09-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0454; FRL-9086-2]

 
Approval and Promulgation of Air Quality Implementation Plans; 
North Carolina; Clean Air Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve revisions to the North 
Carolina State Implementation Plan (SIP) submitted by the State of 
North Carolina through the North Carolina Department of Environment and 
Natural Resources on June 20, 2008. This revision addresses the 
requirements of EPA's Clean Air Interstate Rule (CAIR). Although the DC 
Circuit Court found CAIR to be flawed, the rule was remanded without 
vacatur and thus remains in place. EPA is continuing to approve CAIR 
provisions into SIPs as appropriate. CAIR, as promulgated, requires 
States to reduce emissions of sulfur dioxide (SO2) and 
nitrogen oxides (NOX) that significantly contribute to, or 
interfere with maintenance of, the national ambient air quality 
standards (NAAQS) for fine particulates and/or

[[Page 62497]]

ozone in any downwind State. CAIR establishes budgets for 
SO2 and NOX in States that contribute 
significantly to nonattainment of the NAAQS in downwind States and 
requires the significantly contributing States to submit SIP revisions 
that implement these budgets. States have the flexibility to choose 
which control measures to adopt to achieve the budgets, including 
participation in EPA administered cap-and-trade programs addressing 
SO2, NOX annual, and NOX ozone season 
emissions. In the SIP revision that EPA is approving today, North 
Carolina has met the CAIR requirements by electing to participate in 
the EPA-administered cap-and-trade programs addressing SO2, 
NOX annual, and NOX ozone season emissions. 
Consequently, this SIP revision approval will automatically replace and 
withdraw the CAIR Federal Implementation Plans (FIP) currently in place 
for North Carolina.

DATES: Effective Date: The final rule is effective on November 30, 
2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OAR-2009-0454. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
some information is not publicly available, i.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 http://www.regulations.gov or in hard copy at 
the Regulatory Development Section, Air Planning Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 
30303-8960. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Deanne Grant, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9291. Ms. Grant can also be reached via electronic mail at 
grant.deanne@epa.gov. For information relating to the North Carolina 
SIP, please contact Ms. Nacosta Ward at (404) 562-9140. Ms. Ward can 
also be reached via electronic mail at ward.nacosta@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. EPA's Action
II. Background
III. Final Action
IV. What Is the Effective Date?
V. Statutory and Executive Order Reviews

I. EPA's Action

    EPA is taking final action to approve North Carolina's full SIP 
revision, submitted on June 20, 2008, as meeting the applicable CAIR 
requirements by requiring certain electric generating units (EGUs) to 
participate in the EPA-administrated CAIR cap-and-trade programs 
addressing SO2, NOX annual and NOX 
ozone season emissions. As a consequence of the SIP approval, the CAIR 
FIPs concerning SO2, NOX annual, and 
NOX ozone season emissions for North Carolina are 
automatically withdrawn, deleting and reserving the provisions in Part 
52 that establish the CAIR FIPs for North Carolina.
    EPA proposed to approve North Carolina's request to amend the SIP 
on August 7, 2009 (74 FR 39592). In that proposal, EPA also stated that 
upon final approval of the SIP, the FIP would be automatically 
withdrawn. The comment period closed on September 8, 2009. One comment 
in support of this action was received, as well as one source-specific 
comment which was not directly related to the rulemaking. That source-
specific comment was withdrawn by the commenter shortly after the 
public comment period closed. EPA is finalizing the approval as 
proposed based on the rationale stated in the proposal and in this 
final action.

II. Background

    On June 20, 2008, North Carolina submitted a full SIP revision to 
meet the requirements of CAIR as promulgated on May 12, 2005. The SIP 
revision adopts the budgets established for the State in CAIR. The 
NOX annual budget from 2009 through 2014 is 62,183 tons, and 
51,819 tons from 2015 and thereafter; the NOX ozone season 
budget from 2009 through 2014 is 28,392 tons, and 23,660 tons from 2015 
and thereafter; and the SO2 annual budget from 2009 through 
2014 is 137,342 tons, and 96,139 tons from 2015 and thereafter. 
Additionally, because North Carolina has chosen to include all non-EGUs 
in the State's NOX SIP call trading program, the CAIR 
NOX ozone season budget will be increased annually by 2,443 
tons to account for such NOX SIP Call trading sources. These 
budgets are the total amounts of allowances available for allocation 
for each year under EPA-administered cap-and-trade programs in North 
Carolina.
    EPA notes that, in North Carolina v. EPA, 531 F.3d 836 (DC Cir. 
July 11, 2008) at 916-21, the Court determined, among other things, 
that the State SO2 and NOX budgets established in 
CAIR were arbitrary and capricious\1\. However, the action approved 
today is consistent with the Court's decision to leave CAIR in place to 
``temporarily preserve the environmental values covered by CAIR'' 
pending EPA's development and promulgation of a replacement rule that 
remedies CAIR's flaws. North Carolina vs. EPA, 550 F.3d at 1178.
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    \1\ The Court also determined that the CAIR trading programs 
were unlawful (id. at 906-8) and that the treatment of title IV 
allowances in CAIR was unlawful (id. at 921-23). For the same 
reasons that EPA is approving the provisions of North Carolina's SIP 
revision that use the SO2 and NOX budgets set 
in CAIR, EPA is also approving, as discussed below, North Carolina's 
SIP revision to the extent the SIP revision adopts the CAIR trading 
programs, including the provisions addressing applicability, 
allowance allocations, and use of title IV allowances.
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    As noted above, in accordance with 40 CFR 52.35 and 52.36, EPA's 
action approving North Carolina's SIP automatically withdraws the CAIR 
FIPs for SO2, NOX annual and NOX ozone 
season emissions for North Carolina sources.
    The August 7, 2009, notice proposed EPA's approval of North 
Carolina's methodology for allocating NOX allowances for the 
NOX annual and NOX ozone season trading programs, 
which will be used to allocate NOX allowance to sources in 
North Carolina, instead of the Federal allocation methodology provided 
in the FIP. A detailed discussion of CAIR requirements, North 
Carolina's CAIR submittals and EPA's rationale for approval of the 
North Carolina SIP revision may be found in the proposed rulemaking 
notice.

III. Final Action

    EPA is taking final action to approve North Carolina's full CAIR 
SIP revision submitted on June 20, 2008. Under this SIP revision, the 
State is choosing to participate in the EPA-administered cap-and-trade 
programs for SO2, and NOX emissions. EPA has 
determined that the SIP revision meets the applicable requirements in 
40 CFR 51.123(o) and (aa), with regard to NOX annual and 
NOX ozone season emissions, and 40 CFR 51.124(o), with 
regard to SO2 emissions. EPA has determined that the SIP as 
revised will meet the requirements of CAIR. This

[[Page 62498]]

action also withdraws the CAIR FIP for North Carolina.

IV. What Is the Effective Date?

    An expedited effective date for this action is authorized under 
both 5 U.S.C. 553(d)(1), which provides that rule actions may become 
effective less than 30 days after publication if the rule ``grants or 
recognizes an exemption or relieves a restriction'' and section 5 
U.S.C. 553(d)(3), which allows an effective date less than 30 days 
after publication ``as otherwise provided by the agency for good cause 
found and published with the rule.'' EPA finds that there is good cause 
for this approval to become effective upon publication. This action 
will allow the State to implement CAIR to include its non-electric 
generating units in the NOX ozone season program, implement 
its allowance allocations and remove the opt-in provisions of the FIP.

V. 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. 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 
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 action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by January 29, 2010. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Electric 
utilities, Intergovernmental relations, Incorporation by reference, 
Carbon monoxide, Nitrogen oxides, Ozone, Particulate matter, Reporting 
and recordkeeping requirements, Sulfur dioxide.

    Dated: November 17, 2009.
J. Scott Gordon,
Acting Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart II--North Carolina

0
2. Section 52.1770(c), Table 1 is amended, under Subchapter 2D by:
0
a. Adding in numerical order revised entries in Section .2400 for 
``.2403,'' ``.2405,'' ``.2412.''
0
b. Adding in numerical order, new entries in Section .2400 for 
``.2401,'' ``.2402,'' ``.2404,'' ``.2406,'' ``.2407,'' ``.2408,'' 
``.2409,'' ``.2410,'' ``.2411,'' ``.2413.''


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                Table 1--EPA Approved North Carolina Regulations
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                                                        State
      State citation            Title/subject      effective date     EPA approval date         Explanation
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                                 Subchapter 2D Air Pollution Control Requirement
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                                                  * * * * * * *
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                                    Section .2400 Clean Air Interstate Rules
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Sect. 2401................  Purpose and                    5/1/08  11/30/09 [Insert
                             Applicability.                         citation of
                                                                    publication].

[[Page 62499]]


Sect. 2402................  Definitions..........          5/1/08  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect .2403................  Nitrogen Oxide                 5/1/08  11/30/09 [Insert
                             Emissions.                             citation of
                                                                    publication].
Sect. 2404................  Sulfur Dioxide.......          5/1/08  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect. 2405................  Nitrogen Oxide                 5/1/08  11/30/09 [Insert
                             Emissions During                       citation of
                             Ozone Season.                          publication].
Sect. 2406................  Permitting...........          7/1/06  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect. 2407................  Monitoring,                    5/1/08  11/30/09 [Insert
                             Reporting, and                         citation of
                             Recordkeeping.                         publication].
Sect. 2408................  Trading Program and            7/1/06  11/30/09 [Insert
                             Banking.                               citation of
                                                                    publication].
Sect. 2409................  Designated                     5/1/08  11/30/09 [Insert
                             Representative.                        citation of
                                                                    publication].
Sect. 2410................  Computation of Time..          7/1/06  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect. 2411................  Opt-In Provisions....          7/1/06  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect. 2412................  New Unit Growth......          5/1/08  11/30/09 [Insert
                                                                    citation of
                                                                    publication].
Sect. 2413................  Periodic Review and            7/1/06  11/30/09 [Insert
                             Reallocations.                         citation of
                                                                    publication].
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[FR Doc. E9-28416 Filed 11-27-09; 8:45 am]

BILLING CODE 6560-50-P
