[Federal Register Volume 88, Number 56 (Thursday, March 23, 2023)]
[Proposed Rules]
[Pages 17479-17481]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05238]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2022-0428; FRL-9991-01-R4]


Air Plan Approval; North Carolina; Air Quality Control, Revisions 
to Particulates From Fugitive Dust Emissions Sources Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve changes to the North Carolina State Implementation Plan (SIP), 
submitted by the State of North Carolina through the North Carolina 
Division of Air Quality (NCDAQ), through a letter dated September 10, 
2021. The SIP revision includes changes to the fugitive dust emissions 
rule in the State's SIP that modify several definitions, clarify its 
applicability requirements, adjust the requirement for fugitive dust 
control plan submissions, and make minor language and formatting 
changes. EPA is proposing to approve these changes pursuant to the 
Clean Air Act (CAA or Act).

DATES: Comments must be received on or before April 24, 2023.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0428 at www.regulations.gov. Follow the online instructions 
for submitting comments. Once submitted, comments cannot be edited or 
removed from Regulations.gov. 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 (i.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 www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Pearlene Williams-Miles, 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, North Carolina 30303-8960. The 
telephone number is (404) 562-9144. Ms. Williams-Miles can also be 
reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    North Carolina adopted 15 NCAC 02D .0540, Particulates from 
Fugitive Non-Process Dust Emission Sources (hereinafter Rule 02D 
.0540), in 1998 to regulate excess non-process fugitive dust emissions 
generated from activities associated with four specified source 
categories (i.e., hot mix asphalt plants; mica or feldspar processing 
plants; sand, gravel, or crushed stone operations; and light weight 
aggregate processes). On November 10, 1999, EPA incorporated this 
particulate matter fugitive emission control regulation into the North 
Carolina SIP at Section .0500--Emission Control Standards under 
Subchapter 2D--Air Pollution Control Requirements of the North Carolina 
SIP.\1\ See 64 FR 61213. Later,

[[Page 17480]]

on January 31, 2008, North Carolina submitted amendments to EPA that 
would make the rule applicable to all fugitive dust emissions instead 
of only non-process fugitive dust emissions. See 84 FR 33850 (July 16, 
2019). Additionally, 15 NCAC 02D .0540 was renamed Particulates from 
Fugitive Dust Emission Sources. Id. EPA approved the January 31, 2008, 
SIP submission on July 16, 2019. On September 10, 2021, NCDAQ submitted 
another revision to Rule 02D .0540 that includes several 
changes.2 3 EPA is proposing to approve these changes 
because they are consistent with CAA requirements, including the 
requirement that they would not interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable CAA requirement. EPA's rationale for proposing 
approval is described in more detail in Section II of this notice of 
proposed rulemaking (NPRM).
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    \1\ In the table of North Carolina regulations federally 
approved into the SIP at 40 CFR 52.1770(c), 15A NCAC 02D is referred 
to as ``Subchapter 2D Air Pollution Control Requirements.''
    \2\ EPA received the September 10, 2021, submittal on September 
14, 2021. For clarity, throughout this notice EPA will refer to the 
September 14, 2021, submission by its cover letter date of September 
10, 2021.
    \3\ The September 10, 2021, submittal included several changes 
to other North Carolina SIP-approved rules that are not addressed in 
this notice. EPA will act on those rule revisions in separate 
rulemakings.
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II. Analysis of the State's Submission

    The September 10, 2021, SIP submittal revises Rule 02D .0540 by 
modifying several definitions, clarifying its applicability 
requirements, adjusting the requirement for fugitive dust control plan 
submissions, and making minor language and formatting.
    In the September 10, 2021, submission, two definitions in paragraph 
.0540(a) have been modified substantively. Other definitions have only 
minor, non-substantive language changes that do not alter the meaning 
of the rule as well as formatting changes.\4\ All definitions have been 
reorganized in alphabetical order. The first definition with a 
substantive change is ``Fugitive dust emissions.'' This revised 
definition removes the phrase ``from process operations'' from the 
definition to better align the rule with the State's intent to make the 
rule applicable to all fugitive dust emissions at subject 
facilities.\5\ The removal of this limiting language expands 
applicability to both process and non-process operations, thus 
increasing the rule's scope. The revision also substantively modifies 
the definition of ``Substantive complaints.'' This definition is 
revised to clarify what kind of physical evidence is necessary to 
constitute a substantive complaint and to clarify that verification is 
provided by NCDAQ. The revision now requires physical evidence ``of 
excess fugitive dust emissions'' and identifies NCDAQ as the verifying 
entity. EPA finds this change acceptable because it resolves ambiguity 
by clarifying what evidence is required to develop a substantive 
complaint.
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    \4\ One example is a modification to the definition ``Production 
of crops'', which removes the phrase ``them'' and adds ``crops'' in 
its place, to specify that the protection of ``crops'' from disease 
is included within the definition.
    \5\ See the rule applicability exclusions in paragraph .0540(b).
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    Paragraph .0540(b) is revised with one substantive change and some 
minor non-substantive changes. The substantive change addresses the 
limitation that Rule .0540 does not apply to land disturbing activities 
generally. The revision cabins that limitation by narrowing the 
exemption to apply only to those land disturbing activities that are 
not required to obtain a permit pursuant to 15A NCAC 02Q or that are 
not subject to a requirement under 15A NCAC 02D.\6\ Previously, even 
those land disturbing activities that did require a permit pursuant to 
15 NCAC 02Q or were subject to a requirement pursuant to 15 NCAC 02D 
were exempt. EPA finds this change acceptable as the language is SIP 
strengthening since it narrows an exemption to Rule .0540. In addition 
to this substantive change, the revision includes some minor non-
substantive changes to paragraph .0540(b), such as minor language 
choice modifications and changes to the formatting of rule titles.
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    \6\ Examples of land disturbing activities include clearing, 
grading, digging, and related activities such as hauling fill and 
cut material, building material, or equipment.
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    Paragraphs .0540(c) and (d) are primarily revised with minor and 
non-substantive changes, primarily dealing with word choice, such as 
changing the word ``under'' to the phrase, ``pursuant to.'' One other 
minor change the revision makes is to add a cross-reference to 
``Paragraph (g)'' in Paragraph .0540(d)(3). This cross-reference 
clarifies when the Director's approval of a fugitive dust control plan 
is complete and does not substantively change the requirements of the 
rule. One substantive change in the revision removes the word ``non-
process'' from paragraph .0540(d) to increase the rule's scope by 
making it applicable to both process and non-process operations. 
Another substantive change removes the word ``immediate'' from 
Paragraph .0540(d)(1) with respect to the description of ``measures'' 
used to abate fugitive emissions. Previously, this subparagraph 
required that owners/operators of applicable sources submit a report to 
the Director that included what immediate measures could be used to 
abate fugitive emissions if a substantive complaint was filed. The 
change makes the term ``measures'' more inclusive as owners/operators 
will now need to include immediate and non-immediate measures in the 
report.
    Paragraph .0540(e) is revised with two substantive changes.\7\ The 
first change occurs at the beginning of paragraph .0540(e), which now 
mandates that the Director require the owner or operator of a facility 
subject to paragraph (c) of the rule to submit a fugitive dust control 
plan if either ambient air quality measurements or dispersion modeling 
shows excess fugitive dust emissions cause the ambient air quality 
standard for particulates to be exceeded, or if NCDAQ observes excess 
fugitive dust emissions beyond the property boundary. The previous 
version of paragraph (e) gave the Director the discretion to require 
such a plan. The revision is SIP strengthening as the Director's 
ability to require the submittal of a fugitive dust control plan is no 
longer discretionary. The second change removes the word ``non-
process'' from paragraph .0540(e) to increase the rule's scope by 
making it applicable to both process and non-process operations. 
Paragraph .0540(e) also includes other minor changes to wording which 
do not alter the meaning of the provision.
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    \7\ NCDAQ submitted a letter to EPA on January 25, 2023, 
requesting withdrawal of the changes to 15 NCAC 02D .0540(e)(1) from 
consideration for inclusion in the North Carolina SIP. For this 
reason, EPA is not proposing to approve the changes to paragraph 02D 
.0540(e)(1) through this rulemaking.
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    Next, paragraph .0540(g), which identifies the findings that the 
Director must make to approve a fugitive dust control plan, includes 
several wording changes. Subparagraph (g)(2) currently requires a 
finding that the proposed schedule to implement the fugitive dust plan 
required in subparagraph (f)(3) will reduce fugitive emissions ``in a 
timely manner.'' The submittal revises this requirement by removing the 
phrase ``in a timely manner.'' EPA is proposing to approve this change 
because paragraph .0540(c) continues to prohibit visible emissions in 
excess of that allowed under paragraph (e) and because the phrase ``in 
a timely manner'' was discretionary and never defined. Paragraph (e) 
requires a dust control plan if ambient air quality measurements or 
dispersion modeling show a violation or potential violation

[[Page 17481]]

of the ambient air quality standards for particulates or if NCDAQ 
observes excess fugitive dust emissions from the facility beyond the 
property boundary for six minutes in any one hour using Reference 
Method 22 in 40 CFR part 60, Appendix A-7. Pursuant to paragraph (g), 
the Director must approve the plan if, among other things, the methods 
used to control fugitive dust emissions prevent fugitive dust emissions 
from causing or contributing to a violation of the ambient air quality 
standards for particulates. Paragraph (g) also includes non-substantive 
wording changes.
    EPA has preliminarily determined that the changes to the 
regulations above are consistent with CAA requirements, including the 
requirement that they would not interfere with any applicable 
requirement concerning attainment and reasonable further progress or 
any other applicable CAA requirement. Therefore, EPA is proposing 
approval of the changes to these regulations.

III. Incorporation by Reference

    In this document, EPA is proposing to include in a final rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference 15A NCAC Subchapter 02D .0540, Particulates from Fugitive 
Dust Emission Sources, state effective on September 1, 2019, as 
discussed in sections I. and II. of this preamble. EPA has made, and 
will continue to make, these materials generally available through 
www.regulations.gov and at the EPA Region 4 office (please contact the 
person identified in the ``For Further Information Contact'' Section of 
this preamble for more information).

IV. Proposed Action

    EPA is proposing to approve the September 10, 2021, SIP revision to 
incorporate various changes to Rule 02D .0540, Particulates from 
Fugitive Dust Emission Sources. EPA is proposing to approve these 
changes for the reasons discussed above.

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. See 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 they meet the criteria of the CAA. This action merely proposes 
to approve state law as meeting Federal requirements and does not 
impose additional requirements beyond those imposed by state law. For 
that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).
    The SIP is not approved to apply on any Indian reservation land or 
in any other area where EPA or an Indian tribe has demonstrated that a 
tribe has jurisdiction. In those areas of Indian country, the rule does 
not have tribal implications as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements, Volatile organic compounds.
    Authority: 42 U.S.C. 7401 et seq.

    Dated: March 3, 2023.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2023-05238 Filed 3-22-23; 8:45 am]
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