
[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Rules and Regulations]
[Pages 38185-38191]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15468]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-0219; FRL-9691-5]


Approval and Promulgation of Implementation Plans; State of North 
Carolina; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of a revision 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 (NC DENR), Division of Air Quality (DAQ), on 
December 17, 2007. North Carolina's December 17, 2007, SIP revision 
addresses regional haze for the first implementation period. 
Specifically, this SIP revision addresses the requirements of the Clean 
Air Act (CAA or Act) and EPA's rules that require states to prevent any 
future and remedy any existing anthropogenic impairment of visibility 
in mandatory Class I areas (national parks and wilderness areas) caused 
by emissions of air pollutants from numerous sources located over a 
wide geographic area (also referred to as the ``regional haze 
program''). States are required to assure reasonable progress toward 
the national goal of achieving natural visibility conditions in Class I 
areas. EPA is finalizing a limited approval of North Carolina's 
December 17, 2007, SIP revision to implement the regional haze 
requirements for North Carolina on the basis that this SIP revision, as 
a whole, strengthens the North Carolina SIP. In a separate action 
published on June 7, 2012, EPA finalized a limited disapproval of this 
same SIP revision because of the deficiencies in the State's regional 
haze SIP revision arising from the remand by the U.S. Court of Appeals 
for the District of Columbia Circuit (D.C. Circuit) to EPA of the Clean 
Air Interstate Rule (CAIR).

DATES: Effective Date: This rule will be effective July 27, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2010-0219. All documents in the docket 
are listed on the 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 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 for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
notarianni.michele@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds). Fine particle precursors react in the atmosphere to form 
fine particulate matter (PM2.5) which impairs visibility by 
scattering and absorbing light. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. PM2.5 
can also cause serious health effects and mortality in humans and 
contributes to environmental effects such as acid deposition and 
eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge

[[Page 38186]]

about the relationships between pollutants and visibility impairment 
were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300-
309. The requirement to submit a regional haze SIP applies to all 50 
states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On December 17, 2007, NC DENR submitted a revision to North 
Carolina's SIP to address regional haze in the State's and other 
states' Class I areas. On February 28, 2012, EPA published an action 
proposing a limited approval of North Carolina's December 17, 2007, SIP 
revision to address the first implementation period for regional 
haze.\1\ See 77 FR 11858. EPA proposed a limited approval of North 
Carolina's December 17, 2007, SIP revision to implement the regional 
haze requirements for North Carolina on the basis that this revision, 
as a whole, strengthens the North Carolina SIP. See section II of this 
rulemaking for a summary of the comments received on the proposed 
actions and EPA's responses to these comments. Detailed background 
information and EPA's rationale for the proposed action is provided in 
EPA's February 28, 2012, proposed rulemaking.
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    \1\ In a separate action, published on June 7, 2012 (77 FR 
33642), EPA finalized a limited disapproval of the North Carolina 
regional haze SIP because of deficiencies in the State's regional 
haze SIP submittal arising from the State's reliance on CAIR to meet 
certain regional haze requirements. This final limited disapproval 
triggers a 24-month clock by which a Federal Implementation Plan 
(FIP) or EPA-approved SIP must be in place to address the 
deficiencies.
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    Following the remand of CAIR, EPA issued a new rule in 2011 to 
address the interstate transport of NOX and SO2 
in the eastern United States. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule,'' also known as the Cross-State Air Pollution Rule 
(CSAPR)). On December 30, 2011, EPA proposed to find that the trading 
programs in the Transport Rule would achieve greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions than would best available retrofit technology (BART) in the 
states in which the Transport Rule applies (including North Carolina). 
See 76 FR 82219. Based on this proposed finding, EPA also proposed to 
revise the RHR to allow states to substitute participation in the 
trading programs under the Transport Rule for source-specific BART. EPA 
finalized this finding and RHR revision on June 7, 2012 (77 FR 33642).
    Also on December 30, 2011, the DC Circuit stayed the Transport Rule 
(including the provisions that would have sunset CAIR and the CAIR 
FIPs) and instructed the EPA to continue to administer CAIR pending the 
outcome of the court's decision on the petitions for review challenging 
the Transport Rule. EME Homer City v. EPA, No. 11-1302.

II. What is EPA's response to comments received on this action?

    EPA received two sets of comments on the February 28, 2012, 
rulemaking proposing a limited approval of North Carolina's December 
17, 2007, regional haze SIP revision. Specifically, the comments were 
received from the Southern Environmental Law Center (on behalf of the 
National Parks Conservation Association and the Sierra Club) and the 
U.S. National Park Service. Full sets of the comments provided by all 
of the aforementioned entities (hereinafter referred to as ``the 
Commenter'') are provided in the docket for today's final action. A 
summary of the comments and EPA's responses are provided below.
    Comment 1: The Commenter incorporates by reference comments that it 
submitted to EPA on February 28, 2012, regarding the Agency's December 
30, 2011, proposed rulemaking to find that the Transport Rule is 
``Better than BART'' and to use the Transport Rule as an alternative to 
BART for North Carolina and other states subject to the Transport Rule. 
See 76 FR 82219. The Commenter also restates several of these comments, 
including the following: the Transport Rule does not comply with EPA's 
criteria for an alternative to BART; the State cannot rely on the 
proposed ``Better than BART'' rulemaking given the DC Circuit's action 
staying implementation of the Transport Rule; EPA has not accounted for 
the differences in averaging time under BART, the Transport Rule, and 
in measuring visibility impacts; EPA's modeling assumed nitrate levels 
that are often lower than real-world conditions; in some instances, EPA 
relied on a single monitor to assess visibility conditions in multiple 
Class I areas; EPA uses a simple arithmetic mean to conclude that 
visibility improvements will be greater under the Transport Rule than 
BART; and EPA's proposed ``Better than BART'' determination relies on a 
2014 base case that does not account for permanent emissions reductions 
at non-BART eligible sources.
    Response 1: These comments are beyond the scope of this rulemaking. 
In today's action, EPA is finalizing a limited approval of North 
Carolina's regional haze SIP. EPA did not propose to find that 
participation in the Transport Rule is an alternative to BART in this 
action nor did EPA reopen discussions on the CAIR provisions as they 
relate to BART.\2\ As noted above, EPA proposed to find that the 
Transport Rule is ``Better than BART'' and to use the Transport Rule as 
an alternative to BART for North Carolina in a separate action on 
December 30, 2011, and the Commenter is merely reiterating and 
incorporating its comments on that separate action. EPA addressed these 
comments concerning the Transport Rule as a BART alternative in a final 
action that was published on June 7, 2012, and has determined that they 
do not affect the Agency's ability to finalize a limited approval of 
North Carolina's regional haze SIP. EPA's responses to these comments 
can be found in Docket ID No. EPA-HQ-OAR-2011-0729 at 
www.regulations.gov.
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    \2\ In a final action published on July 6, 2005, EPA addressed 
similar comments related to CAIR and determined that CAIR makes 
greater reasonable progress than BART for certain EGUs and 
pollutants (70 FR 39138). EPA did not reopen comment on that issue 
through this rulemaking.
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    Comment 2: The Commenter asserts that the proposed limited approval 
of North Carolina's regional haze SIP violates the CAA and RHR because 
a regional haze plan's BART requirements and long-term strategy to 
achieve reasonable progress cannot be evaluated in isolation from one 
another. The Commenter supports its position by repeating statements 
made in its February 28, 2012, comments on the Agency's proposed 
December 30, 2011, rulemaking to find that the Transport Rule is 
``Better than BART'' and to use the Transport Rule as an alternative to 
BART for North Carolina and other states subject to the Transport Rule. 
For example, the Commenter states that ``[b]ecause BART is a critical 
component to achieving reasonable progress, neither the states nor EPA 
are authorized to exempt sources from the RHR's BART requirements 
without considering how doing so will affect the overarching reasonable 
progress

[[Page 38187]]

mandate. * * * Concluding that CSAPR achieves greater reasonable 
progress toward achieving natural visibility conditions than BART, 
without regard to defined reasonable progress goals, is arbitrary and 
contrary to law under the Clean Air Act and the RHR.''
    Response 2: As discussed in the response to Comment 1, today's 
action does not address reliance on CAIR or CSAPR to satisfy BART 
requirements. Comments related to the approvability of CAIR or CSAPR 
for the North Carolina regional haze SIP are therefore beyond the scope 
of this rulemaking and were addressed by EPA in a separate action 
published on June 7, 2012 (77 FR 33642). EPA addressed the Commenter's 
repeated statements regarding the interrelatedness of BART, the LTS, 
and RPGs in that final rulemaking action and those responses support 
this limited approval action.\3\
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    \3\ See EPA, Response to Comments Document, Regional Haze: 
Revisions to Provisions Governing Alternatives to Source-Specific 
Best Available Retrofit Technology (BART) Determinations, Limited 
SIP Disapprovals, and Federal Implementation Plans (76 FR 82219; 
December 30, 2011), Docket Number EPA-HQ-OAR-2011-0729 (May 30, 
2012), pages 49-51 (noting that EPA ``disagree[s] with comments that 
we cannot evaluate the BART requirements in isolation from the 
reasonable progress requirements. We have on several occasions 
undertaken evaluations of a state's BART determination or 
promulgated a FIP separately from our evaluation of whether the SIP 
as a whole will ensure reasonable progress.'').
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    Comment 3: The Commenter asserts that EPA does not have the 
authority under the CAA to issue a limited approval of North Carolina's 
regional haze SIP. The Commenter contends that section 110(k) of the 
Act only allows EPA to fully approve, partially approve and partially 
disapprove, conditionally approve, or fully disapprove a SIP.
    Response 3: As discussed in the September 7, 1992, EPA memorandum 
cited in the notice of proposed rulemaking,\4\ although section 110(k) 
of the CAA may not expressly provide authority for limited approvals, 
the plain language of section 301(a) does provide ``gap-filling'' 
authority authorizing the Agency to ``prescribe such regulations as are 
necessary to carry out'' EPA's CAA functions. EPA may rely on section 
301(a) in conjunction with the Agency's SIP approval authority in 
section 110(k)(3) to issue limited approvals where it has determined 
that a submittal strengthens a given state's implementation plan and 
that the provisions meeting the applicable requirements of the Act are 
not separable from the provisions that do not meet the Act's 
requirements. EPA has adopted the limited approval approach numerous 
times in SIP actions across the nation over the last twenty years. A 
limited approval action is appropriate here because EPA has determined 
that North Carolina's SIP revision addressing regional haze, as a 
whole, strengthen the State's implementation plan and because the 
provisions in the SIP revision are not separable.
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    \4\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at 
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    The Commenter states that EPA's action ``conflicts with the plain 
language of the [CAA]'' and cites several federal appellate court 
decisions to support its contention that section 110(k) of the Act 
limits EPA to a full approval, ``a conditional approval, a partial 
approval and disapproval, or a full disapproval.'' However, adopting 
the Commenter's position would ignore section 301 and violate the `` 
`fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme' * * *. A court must therefore interpret 
the statute `as a symmetrical and coherent regulatory scheme,' * * * 
and `fit, if possible, all parts into an harmonious whole.' '' FDA v. 
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting 
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), 
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and FTC v. Mandel 
Brothers, Inc., 359 U.S. 385, 389 (1959)). Furthermore, the cases cited 
by the Commenter did not involve challenges to a limited approval 
approach, and one of the cases, Abramowitz v. EPA, 832 F.2d 1071 (9th 
Cir. 1988), predates the 1990 CAA amendments enacting section 110(k).
    Comment 4: The Commenter contends that it was inappropriate for the 
State to ``rel[y] on CAIR (and now CSAPR)'' in determining RPGs and 
that due, in part, to this reliance, the State ``failed to evaluate 
numerous sources that contribute significantly to visibility impairment 
at the State's Class I areas'' and that it ``cast doubts on the 
validity of DAQ's modeling.'' The Commenter therefore believes that EPA 
should not approve the SIP unless the State considers additional 
reasonable progress from the 16 electric generating units (EGUs) 
excluded from the reasonable progress analyses and the State conducts 
further analyses in setting its RPGs (or EPA ``ensure[s] that DAQ 
follows through on its commitment to re-evaluate its ability to meet 
its RPGs in the five-year progress review, pursuant to 40 CFR 
52.308(g)''). The Commenter also states that ``even when the uniform 
rate of progress [URP] is predicted to be met, the state still has an 
obligation `to go beyond the URP analysis in establishing RPGs * * * to 
determine whether additional progress would be reasonable based on the 
statutory factors.' ''
    Response 4: The State took into account emissions reductions 
expected from CAIR to determine the 2018 RPGs for its Class I areas, 
and this approach was fully consistent with EPA guidance at the time of 
SIP development. In the regional haze program, uncertainties associated 
with modeled emissions projections into the future are addressed 
through the requirement under the RHR to submit periodic progress 
reports in the form of a SIP revision. Specifically, 40 CFR 51.308(g) 
requires each state to submit a report every five years evaluating 
progress toward the RPGs for each mandatory Class I area located in the 
state and for each Class I area outside the state that may be affected 
by emissions from the state. Since this five-year progress re-
evaluation is a mandatory requirement, it is unnecessary for EPA to 
take additional measures to ``ensure'' that the State meets its 
reporting obligation.
    Regarding the need to go beyond the URP analysis when establishing 
RPGs, EPA affirmed in the RHR that the URP is not a ``presumptive 
target;'' rather, it is an analytical requirement for setting RPGs. See 
64 FR 35731. In determining RPGs for the North Carolina Class I areas, 
the State identified sources through its area of influence methodology 
for reasonable progress control evaluation and described those 
evaluations in its SIP. For its EGUs subject to CAIR, DAQ reviewed the 
statutory factors (i.e., the costs of compliance, the time necessary 
for compliance, the energy and non-air quality environmental impacts of 
compliance, and the remaining useful life of any potentially affected 
sources) as evaluated by EPA for CAIR.
    Comment 5: The Commenter states that in exempting EGUs from a BART 
analysis for particulate matter ``on the basis that their contribution 
to visibility impairment modeled less than 0.5 deciview, it does not 
appear that DAQ considered the cumulative impact of those sources that 
did not individually exceed the 0.5 dv threshold, but collectively may 
cause or contribute to impairment.'' The Commenter cites to EPA 
guidelines in 70 FR 39161 to support its belief that this exemption 
threshold ``applies when all visibility impairing pollutants are 
modeled together, not one pollutant at a time, as used by DAQ.'' 
According to the

[[Page 38188]]

Commenter, when considering the modeling impacts from coarse 
particulate matter (PM10) alone for the exempted sources, 
their combined ``contribution to visibility impairment greatly exceeds 
the 0.5 dv contribution threshold,'' calling into question the 
``validity of DAQ's exemptions of multiple sources from BART.''
    Response 5: As discussed in the proposal, (see section IV.C.6.B.2, 
February 28, 2012, 77 FR 11873), North Carolina adequately justified 
its contribution threshold of 0.5 deciview. While states have the 
discretion to set an appropriate contribution threshold considering the 
number of emissions sources affecting the Class I area at issue and the 
magnitude of the individual sources' impacts, the states' analysis must 
be consistent with the CAA, the RHR, and EPA's Guidelines for BART 
Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR 
Part 51 (BART Guidelines). Consistent with the regulations and EPA's 
guidance, ``the contribution threshold should be used to determine 
whether an individual source is reasonably anticipated to contribute to 
visibility impairment. You should not aggregate the visibility effects 
of multiple sources and compare their collective effects against your 
contribution threshold because this would inappropriately create a 
`contribution to contribution' test.'' See also 70 FR 39121. North 
Carolina's analysis in the regional haze SIP revision was consistent 
with EPA's regulations and guidance on the issue of cumulative 
analyses.
    Regarding modeling in North Carolina's submittal that uses PM only 
for its BART-eligible EGUs, EPA previously determined that this 
approach is appropriate for EGUs where the State proposed to rely on 
CAIR to satisfy the BART requirements for SO2 and 
NOX.\5\
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    \5\ Regional Haze Regulations and Guidelines for Best Available 
Retrofit Technology (BART) Determinations, EPA Memorandum from 
Joseph Paisie, Group Leader, Geographic Strategies Group, OAQPS, to 
Kay Prince, Branch Chief, EPA Region 4, July 19, 2006, located at: 
http://www.epa.gov/visibility/pdfs/memo_2006_07_19.pdf.
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    Comment 6: The Commenter believes that ``it is simply absurd for 
North Carolina to exempt'' Blue Ridge Paper Products from the 
obligation to install BART and that the State ``should work with the 
company to develop a facility-wide emissions reduction plan by 2013 and 
to implement the plan by 2018.''
    Response 6: In accordance with the BART Guidelines, to determine 
the level of control that represents BART for each source, the State 
first reviewed existing controls on the five BART-eligible units at the 
Blue Ridge facility to assess whether these constituted the best 
controls currently available, then identified what other technically 
feasible controls are available, and finally, evaluated the technically 
feasible controls using the five BART statutory factors. The units 
subject to the BART requirements at Blue Ridge Paper include the two 
recovery furnaces, their associated smelt dissolving tanks, and the 
black liquor oxidation system. DAQ concluded that BART for all of these 
emissions sources is the existing emissions control systems currently 
in place. As discussed in the proposal (see section IV.C.6.C, February 
28, 2012, 77 FR 11874), DAQ evaluated the available controls for BART 
and determined that these additional controls were either technically 
or economically infeasible. EPA has reviewed North Carolina's analyses 
and concluded that they were conducted in a manner that is consistent 
with EPA's BART Guidelines and EPA's Air Pollution Control Cost Manual 
(http://www.epa.gov/ttncatc1/products.html#cccinfo). Therefore, the 
conclusions reflect a reasonable application of EPA's guidance to these 
sources.
    Comment 7: The Commenter contends that EPA must require North 
Carolina to include ``a retirement discussion that provides a realistic 
picture of future emissions from BART-subject sources'' in its SIP 
pursuant to 40 CFR 51.308(d)(3)(v) as there is ``no discussion of 
planned or potential EGU (or other source) retirements due to changes 
in energy markets, new regulations, and other factors.''
    Response 7: Source retirement and replacement schedules are 
explicitly part of the emissions inventory that the State used to 
project future conditions. The projected inventories for 2009 and 2018 
account for post-2002 emissions reductions from promulgated and 
proposed federal, state, local, and site-specific control programs. For 
EGUs, the Integrated Planning Model (IPM) was run to estimate emissions 
of the proposed and existing units in 2009 and 2018. These results were 
adjusted based on state and local air agencies' knowledge of planned 
emissions controls at specific EGUs. In the case of North Carolina, DAQ 
replaced all IPM 2009 results with emissions projections from Duke 
Power's and Progress Energy's North Carolina Clean Smokestacks Act 
Compliance Plan for 2006. For non-EGUs, Visibility Improvement State 
and Tribal Association of the Southeast (VISTAS) used recently updated 
growth and control data consistent with the data used in EPA's CAIR 
analyses and supplemented by state and local air agencies' data and 
updated forecasts from the U.S. Department of Energy. These updates are 
documented in the MACTEC emissions inventory report ``Documentation of 
the 2002 Base Year and 2009 and 2018 Projection Year Emission 
Inventories for VISTAS'' dated February 2007 (Appendix D of the North 
Carolina regional haze SIP submittal). The technical information 
provided in the record demonstrates that the emissions inventory in the 
SIP adequately reflects projection 2018 conditions and that the LTS 
meets the requirements of the RHR and is approvable. EPA finds that 
these inventories provide a reasonable assessment of future emissions 
from North Carolina sources.
    Comment 8: According to the Commenter, it was ``inappropriate and 
arbitrary for DAQ to use the [State's Clean Smokestack's Act] cost per 
ton of SO2 removed as the cost threshold for evaluating 
reasonable progress controls. The only rationale DAQ offered in support 
of this decision was that DAQ `believes it is not equitable to require 
non-EGUs to bear a greater economic burden than EGUs for a given 
control strategy'. * * * EPA acknowledges that `the use of a specific 
threshold for assessing costs means that a state may not fully consider 
available emissions reduction measures above its threshold that would 
result in meaningful visibility improvement,' but proposes to approve 
North Carolina's reasonable progress analysis anyway. EPA should re-
evaluate this decision in its final action on this proposal, especially 
in light of the fact that DAQ determined that no additional reasonable 
controls were required at any of the sources affecting visibility in 
North Carolina's Class I areas.''
    Response 8: As noted in EPA's Reasonable Progress Guidance,\6\ the 
states have wide latitude to determine appropriate additional control 
requirements for ensuring reasonable progress, and there are many ways 
for a state to approach identification of additional reasonable 
measures. States must consider, at a minimum, the four statutory 
factors in determining reasonable progress, but states have flexibility 
in how to take these factors into consideration.
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    \6\ Guidance for Setting Reasonable Progress Goals Under the 
Regional Haze Program,, July 1, 2007, memorandum from William 
L.Wehrum, Acting Assistant Administrator for Air and Radiation, to 
EPA Regional Administrators, EPA Regions 1-10 (``EPA's Reasonable 
Progress Guidance''), page 4-2.
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    After reviewing DAQ's methodology and analyses and the record 
prepared by

[[Page 38189]]

DAQ, EPA finds North Carolina's conclusion that no further controls are 
necessary at this time acceptable. As discussed in EPA's February 28, 
2012, proposal, the State adequately evaluated the control technologies 
available at the time of its analysis and applicable to this type of 
facility and consistently applied its criteria for reasonable 
compliance costs. See 77 FR 11872. The State also included appropriate 
documentation in its SIP of the technical analysis it used to assess 
the need for and implementation of reasonable progress controls. 
Although the use of a specific threshold for assessing costs means that 
a state may not fully consider available emissions reduction measures 
above its threshold that would result in meaningful visibility 
improvement, EPA believes that the North Carolina SIP ensures 
reasonable progress.
    In approving North Carolina's reasonable progress analysis, EPA is 
placing great weight on the fact that there is no indication in the SIP 
revision that North Carolina, as a result of using a specific cost 
effectiveness threshold, rejected potential reasonable progress 
measures that would have had a meaningful impact on visibility in its 
Class I areas.
    Comment 9: The Commenter believes that EPA should require the State 
to verify that units 3 and 4 at PCS Phosphate have been shut down.
    Response 9: The construction permit for the new unit 7 required the 
shutdown of these two units as a condition of commencing operation. The 
new unit is operating, and units 3 and 4 have been shut down.
    Comment 10: The Commenter states that ``[a]ssurances of the State's 
`intent' to `have discussions' and to `encourage' pollution reduction 
measures'' at Blue Ridge Paper, provided in response to the Federal 
Land Managers' (FLMs') request that the State describe a plan to 
consult with Blue Ridge Paper on potential control actions prior to 
2018 that may warrant a higher cost of control for reasonable progress, 
``does not satisfy the requirement to demonstrate reasonable progress 
toward the State's visibility goals.''
    Response 10: North Carolina did not rely on additional controls at 
this facility to demonstrate that the State would meet its RPGs for 
this first implementation period, and DAQ stated in its SIP revision 
that additional controls are not required at the facility during the 
first implementation period. The State did not rely on the 
``discussions'' and ``encouragement'' to contribute any emissions 
reductions to meeting the RPG goals for this first implementation 
period. It also made clear that conclusions reached regarding 
appropriate levels of control to meet reasonable progress for this 
first implementation period did not extend to the next implementation 
period. In subsequent implementation periods, North Carolina will once 
again determine the pollutants and sources with the greatest impact on 
visibility and implement appropriate emissions reduction measures as 
part of North Carolina's LTS for future implementation periods.
    Comment 11: The Commenter claims that there is no information in 
the docket supporting the cost estimates for Blue Ridge Paper Products 
used by the State to determine that ``there are no cost-effective 
controls available for these units at this time within the cost 
threshold established for this reasonable progress assessment. . . . 
Without supporting data in the docket, neither we nor EPA can determine 
that the proper costing methodology was followed.''
    Response 11: Blue Ridge Paper Products submitted supporting 
materials to the State for the BART determination that adequately 
document the cost methodology for the control equipment (included in 
Appendix L.10 of North Carolina's regional haze SIP submittal). North 
Carolina also summarized its evaluation methodology for lower sulfur 
coal options for two additional units evaluated for reasonable progress 
(Appendix H of the North Carolina's regional haze SIP submittal). Since 
this analysis involved the use of alternative coals, it is based on the 
cost premium for these coals and no costs for additional control 
equipment are projected. EPA has reviewed the supporting materials 
provided by DAQ and finds no reason to question the estimates or the 
conclusions reached by the State.
    Comment 12: The Commenter recommends that EPA defer action on the 
Reasonable Progress analysis for Blue Ridge Paper Products until the 
State conducts a ``valid four-factor analysis'' and provides that 
analysis for public review. Specifically, the Commenter ``could find no 
information in the docket to support any of the `cost of compliance' 
estimates presented by EPA'' and without such documentation, the 
Commenter is ``unable to provide informed comments on their validity or 
on the conclusions upon which they were based.''
    Response 12: See the response to Comment 11. In addition, EPA notes 
that the Commenter was provided a draft of the North Carolina's 
regional haze SIP for review prior to the State's release of the SIP 
revision for public comment, and that the SIP revision went through 
public notice and comment rulemaking before the State submitted it to 
EPA. The Commenter raised no concerns with the adequacy of the 
documentation prior to EPA's proposed limited approval action.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6), and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision.\7\ Today, EPA is 
finalizing a limited approval of North Carolina's December 17, 2007, 
regional haze SIP revision. This limited approval results in approval 
of North Carolina's entire regional haze submission and all its 
elements. EPA is taking this approach because North Carolina's SIP will 
be stronger and more protective of the environment with the 
implementation of those measures by the State and having federal 
approval and enforceability than it would without those measures being 
included in its SIP.
---------------------------------------------------------------------------

    \7\ 1992 Calcagni Memorandum.
---------------------------------------------------------------------------

IV. Final Action

    EPA is finalizing a limited approval of a revision to the North 
Carolina SIP submitted by the State of North Carolina on December 17, 
2007, as meeting some of the applicable regional haze requirements as 
set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-
308.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for answers to ``* * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *''. 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act 
does not apply to this action.

[[Page 38190]]

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the federal-state relationship under 
the CAA, preparation of flexibility analysis would constitute federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such grounds. Union 
Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 
7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA of 1995 (``Unfunded Mandates Act''), 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
federal mandate that may result in estimated costs to state, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This federal action approves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have Federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects 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.'' Under Executive Order 13132, EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has Federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects 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, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments. Thus, Executive 
Order 13175 does not apply to this rule.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12 of the NTTAA of 1995 requires federal agencies to 
evaluate existing technical standards when developing a new regulation. 
To comply with NTTAA, EPA must consider and use ``voluntary consensus 
standards'' (VCS) if available and applicable when developing programs 
and policies unless doing so would be inconsistent with applicable law 
or otherwise impractical.
    EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    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

[[Page 38191]]

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 rule 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).

K. Petitions for Judicial Review

    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 August 27, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: June 13, 2012.
 A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    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) is amended:
0
a. By adding a new entry to Table 1 in paragraph (c) for ``Sect .0543'' 
in numerical order, and
0
b. By adding a new entry to the table in paragraph (e) for ``Regional 
Haze Plan'' at the end of the table.


Sec.  52.1770  Identification of plan.

* * * * *
    (c) * * *

                                Table 1--EPA-Approved North Carolina Regulations
----------------------------------------------------------------------------------------------------------------
                                                                   State        EPA approval
        State citation                 Title/subject          effective date        date           Explanation
----------------------------------------------------------------------------------------------------------------
                                Subchapter 2D Air Pollution Control Requirements
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                    Section .0500 Emission Control Standards
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Sect .0543...................  Best Available Retrofit              9/6/2006  6/27/2012
                                Technology.                                    [Insert
                                                                               citation of
                                                                               publication].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

     (e) * * *

                              EPA-Approved North Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       State       EPA approval
            Provision             effective date       date                  Federal Register citation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional Haze Plan..............      11/17/2007       6/27/2012  [Insert citation of publication].
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-15468 Filed 6-26-12; 8:45 am]
BILLING CODE 6560-50-P


