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Approval and Promulgation of Implementation Plans; North Carolina: Approval of Revisions to the Visible Emissions Regulation Within the North Carolina State Implementation Plan

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Direct final rule.


On April 16, 2001, the North Carolina Department of Environment and Natural Resources submitted revisions to the North Carolina State Implementation Plan (SIP). Addressed in this rulemaking is a revision to rule 15 NCAC 2D .0521. The purpose of this revision is to make the revised regulations consistent with the requirements of the Clean Air Act as amended in 1990. The EPA is approving the revision.


This direct final rule is effective August 5, 2003, without further notice, unless EPA receives adverse comment by July 7, 2003. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.


All comments should be addressed to: Randy Terry at the EPA, Region 4 Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

Copies of the State submittal(s) are available at the following addresses for inspection during normal business hours:

Environmental Protection Agency, Region 4, Air Planning Branch, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Randy Terry, 404/562-9032. Start Printed Page 33874

North Carolina Department of Environment and Natural Resources, 512 North Salisbury Street, Raleigh, North Carolina 27604.

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Randy B. Terry at 404/562-9032, or by electronic mail at

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I. Background

On April 16, 2001, the North Carolina Department of Environment and Natural Resources submitted a revision to the North Carolina State Implementation Plan (SIP) modifying rule 15A NCAC 2D .0521 Visible Emissions. These revisions include an exemption to this rule for engine maintenance and testing controls where visible emissions controls are infeasible.

Additionally, rule .0521 is being amended to establish an equitable reasonable procedure for sources using continuous opacity monitors (COM) to show compliance with the visible emission standard. This amendment is designed to provide sources using COMs the same opportunity to comply with the visible emissions rule as sources that do not use COM devices. Under the previous rule, the opacity is violated if two six minute averages exceed the standard in one hour or if five six-minute averages exceed the standard in 24 hours. Under the new amendment, sources with COMs are allowed to exceed the current opacity limit for up to .8 percent of the total operating hours without violating the visible emissions rule. Exceedances of the opacity limit greater than .8 percent of the total operating hours will be considered a violation of this rule.

In a letter dated March 29, 2002, EPA provided comments to North Carolina explaining the additional requirements that must be met in order for EPA to approve this rule. These requirements included the submittal of a worst case demonstration proving that such an exemption would not violate the National Ambient Air Quality Standards. On July 10, 2002, North Carolina submitted this demonstration to EPA. After a detailed review of this demonstration, EPA finds that North Carolina's amendments to rule .0521 Visible Emissions are approveable.

In addition to the revision being addressed within this notice, several other revisions were contained in this submittal and approved in 67 FR 51527. The additional revisions included the adoption of rules 15 NCAC 2Q .0316 and .0317, and the amending of rules .0109, .0803 and .0805 through .0808.

II. Final Action

EPA is approving the aforementioned changes to the SIP because the revisions are consistent with Clean Air Act and EPA regulatory requirements. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective August 5, 2003, without further notice unless the Agency receives adverse comments by July 7, 2003.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 5, 2003, and no further action will be taken on the proposed rule. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

III. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action 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 Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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 rule and other required information to the U.S. Senate, Start Printed Page 33875the 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 5, 2003. 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).)

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List of Subjects in 40 CFR Part 52

  • Environmental protection
  • Air pollution control
  • Carbon monoxide
  • Intergovernmental relations
  • Nitrogen dioxide
  • Ozone
  • Reporting and recordkeeping requirements
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Dated: April 30, 2003.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

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Part 52 of chapter I, title 40, Code of Federal Regulations, is amended as follows:

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

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

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Subpart II—North Carolina

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2. In the table in § 52.1770(c), table 1 is amended under subchapter 2D by revising the entry for “.0521 Cotrol of Visible Emissions” to read as follows:

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Identification of plan.
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(c) * * *

Table 1.—EPA Approved North Carolina Regulations

State citationTitle/subjectState effective dateEPA approval dateExplanation
Subchapter 2DAir Pollution Control Requirements
*         *         *         *          *       *         *
Section .0500Emission Control Standards
*         *         *         *          *       *         *
Sect. .0521Control of Visible Emissions4/01/016/06/03 [Insert citation of publication]
*         *         *         *          *       *         *
* * * * *
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[FR Doc. 03-12024 Filed 6-5-03; 8:45 am]