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

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Environmental Protection Agency (EPA).


Final rule.


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 Start Printed Page 62497ozone 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.


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


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 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 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.

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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 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

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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.

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 Start Printed Page 62498action 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).)

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List of Subjects in 40 CFR Part 52

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Dated: November 17, 2009.

J. Scott Gordon,

Acting Regional Administrator, Region 4.

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is amended as follows:

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1. The authority 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. Section 52.1770(c), Table 1 is amended, under Subchapter 2D by:

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a. Adding in numerical order revised entries in Section .2400 for “.2403,” “.2405,” “.2412.”

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b. Adding in numerical order, new entries in Section .2400 for “.2401,” “.2402,” “.2404,” “.2406,” “.2407,” “.2408,” “.2409,” “.2410,” “.2411,” “.2413.”

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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 2D Air Pollution Control Requirement
*         *         *         *         *         *         *
Section .2400 Clean Air Interstate Rules
Sect. 2401Purpose and Applicability5/1/0811/30/09 [Insert citation of publication].
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Sect. 2402Definitions5/1/0811/30/09 [Insert citation of publication].
Sect .2403Nitrogen Oxide Emissions5/1/0811/30/09 [Insert citation of publication].
Sect. 2404Sulfur Dioxide5/1/0811/30/09 [Insert citation of publication].
Sect. 2405Nitrogen Oxide Emissions During Ozone Season5/1/0811/30/09 [Insert citation of publication].
Sect. 2406Permitting7/1/0611/30/09 [Insert citation of publication].
Sect. 2407Monitoring, Reporting, and Recordkeeping5/1/0811/30/09 [Insert citation of publication].
Sect. 2408Trading Program and Banking7/1/0611/30/09 [Insert citation of publication].
Sect. 2409Designated Representative5/1/0811/30/09 [Insert citation of publication].
Sect. 2410Computation of Time7/1/0611/30/09 [Insert citation of publication].
Sect. 2411Opt-In Provisions7/1/0611/30/09 [Insert citation of publication].
Sect. 2412New Unit Growth5/1/0811/30/09 [Insert citation of publication].
Sect. 2413Periodic Review and Reallocations7/1/0611/30/09 [Insert citation of publication].
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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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[FR Doc. E9-28416 Filed 11-27-09; 8:45 am]