Approval and Promulgation of Implementation Plans State: Approval of Revisions to the State of North Carolina's State Implementation Plan (SIP)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NC-78-1-7236a; NC-80-1-2-9631a; FRL-5606-3]

Approval and Promulgation of Implementation Plans State: Approval

of Revisions to the State of North Carolina's State Implementation Plan

(SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving revisions to the North Carolina State

Implementation Plan (SIP) to allow the State air pollution control

agency and the Forsyth County, North Carolina air pollution control

agency to utilize exclusionary rules for the purpose of limiting

potential to emit (PTE) criteria pollutants for certain source

categories to less than the title V permitting major source thresholds.

EPA is also approving under section 112(l) of the Clean Air Act several

source-categories of the submitted regulations for limiting

[[Page 49415]]

PTE of hazardous air pollutants (HAP) to less than title V permitting

major source thresholds. These exclusionary rules allow facilities to

compute potential emissions based on actual emissions or raw material

usage for the following source categories: gasoline service stations

and dispensing facilities; coating, solvent degreasing, and graphic

arts operations; dry cleaning facilities, grain elevators, cotton gins,

and emergency generators. On August 4, 1995, the State of North

Carolina through the Department of Environment, Health, and Natural

Resources (DEHNR) submitted a SIP revision fulfilling the requirements

necessary to utilize exclusionary rules to limit PTE of air pollutants

in a federally enforceable manner. On December 28, 1995, the Forsyth

County Department of Environmental Affairs (FCDEA) through the DEHNR

submitted a SIP revision fulfilling the requirements necessary to allow

Forsyth County to utilize exclusionary rules to limit PTE of air

pollutants in a federally enforceable manner. Forsyth County's SIP

regulations are a verbatim adoption of the State of North Carolina

exclusionary regulations.

DATES: This action is effective November 19, 1996 unless notice is

received by October 21, 1996 that someone wishes to submit adverse or

critical comments. If the effective date is delayed, timely notice will

be published in the Federal Register.

ADDRESSES: Written comments should be addressed to Scott Miller at the

EPA Regional office listed below.

Copies of the material submitted by North Carolina may be examined

during normal business hours at the following locations:

Air and Radiation Docket and Information Center (Air Docket 6102), U.S.

Environmental Protection Agency, 401 M Street, SW., Washington, DC

20460

Environmental Protection Agency, Region 4 Air Planning Branch, 100

Alabama Street, SW, Atlanta, Georgia 30303

North Carolina Department of Health, Environment, and Natural

Resources, Air Quality Section, P.O. Box 29535, Raleigh, North Carolina

27626

Forsyth County Environmental Affairs Department, Air Quality Section,

537 North Spruce Street, Winston-Salem, North Carolina 27101

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch,

Air, Pesticides & Toxics Management Division, Region 4 Environmental

Protection Agency, 345 Courtland Street, NE, Atlanta, Georgia 30365.

The telephone number is 404/347-3555 extension 4153. Reference file

numbers NC78 and NC80.

SUPPLEMENTARY INFORMATION: On August 4, 1995, and December 28, 1995,

the State of North Carolina and the FCDEA, respectively, through the

DEHNR submitted SIP revisions designed to allow the two agencies to

utilize exclusionary rules for the purpose of limiting PTE for gasoline

service stations and dispensing facilities; coating, solvent

degreasing, and graphic arts operations; dry cleaning facilities, grain

elevators, cotton gins, and emergency generators. Exclusionary rules

are designed to create federally enforceable limits on a facility's PTE

in a manner that does not require a facility-specific evaluation of

emissions and limiting conditions. As such, exclusionary rules are

appropriate for the purpose of limiting PTE when a facility has one

type of emission source. EPA is approving all source-category rules

submitted for purposes of limiting PTE for criteria pollutants. EPA is

approving under section 112(l) of the CAA, North Carolina regulations

15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and Forsyth County

regulations 3Q.0801, 3Q.0803 through 3Q.0804 for purposes of limiting

PTE of HAP. For a description of this and other ways to limit PTE for a

facility see the EPA guidance document entitled ``Options for Limiting

the Potential to Emit (PTE) of a Stationary Source Under Section 112

and Title V of the Clean Air Act (Act)'' dated January 25, 1995, from

John Seitz to the EPA Regional Air Division Directors.

North Carolina and FCDEA exclusionary rules were designed to meet

criteria listed in the EPA guidance memorandum entitled ``Guidance for

State Rules for Optional Federally Enforceable Emissions Limits Based

on Volatile Organic Compound Use'' dated October 15, 1993, from D. Kent

Barry to the EPA Regional Air Division Directors, an EPA guidance

document entitled ``Approaches to Creating federally-Enforceable

Emissions Limits'' dated November 3, 1993, and the January 25, 1995,

guidance memorandum referenced above. These guidance documents set out

specific guidelines for exclusionary rule development regarding

applicability, compliance determination and certification, monitoring,

reporting, recordkeeping, public involvement, practical enforceability,

and the requirement that a facility cannot rely on emission limits or

caps contained in a exclusionary rule to justify violation of any rate-

based emission limits or other applicable requirements.

An exclusionary rule applies to facilities which agree to limit

their annual emissions to less than major source thresholds for

criteria and/or hazardous air pollutant (HAP) emissions. An

exclusionary rule must also provide that a facility owner or operator

specifically apply for coverage under the exclusionary rule. Regulation

15A North Carolina Administrative Code (NCAC) 2Q.0801(a) and Forsyth

County Regulation 3Q.0801(a) provide that certain source categories may

define and limit their potential emissions to less than 100 tons per

year of each regulated pollutant, 10 tons per year of each hazardous

air pollutant, and 25 tons per year of all hazardous air pollutants

combined. The source categories covered by the exclusionary rules are

gasoline service stations and dispensing facilities; coating, solvent

degreasing, and graphic arts operations; dry cleaning facilities, grain

elevators, cotton gins, and emergency generators. North Carolina

Regulation 15A NCAC 2Q.0801(c) and Forsyth County Regulation 3Q.0801(c)

provide that even though a facility is exempted from obtaining a title

V permit by complying with these exclusionary rules, it may still be

required to be permitted under the State or local's minor source

construction and operating permit regulations found at North Carolina

Regulation 15A NCAC 2Q.0300 and Forsyth County Regulation 3Q.0300. As

such, these regulations meet the guidelines specified in the October

15, 1993, and the January 25, 1995, guidance documents that require

that an exclusionary rule to clearly identify the category of sources

that qualify for the rule's coverage.

The October 15, 1993, and the January 25, 1995, guidance documents

suggest that facilities be required to show compliance with the

exclusionary rule on a yearly basis by requiring monthly recordkeeping

of the relevant variable causing emissions and showing compliance using

the monthly record of the relevant variable affecting emissions. The

January 25, 1995, guidance document stipulates that where monitoring

cannot be used to determine emissions directly, limits on appropriate

operating parameters must be established for the units or source, and

monitoring must verify compliance with those limits. In the case of the

State of North Carolina and Forsyth County regulations, a facility is

required to keep records of the use of or processing of a product or

substance that produces the emissions. For instance, North Carolina

Regulation 15A NCAC 2Q.0802 and

[[Page 49416]]

Forsyth County Regulation 3Q.0802 require gasoline service stations and

gasoline dispensing facilities to keep monthly records of gasoline

throughput. The gasoline service station and gasoline dispensing

facility must then show compliance with the 15,000,000 gallon

exclusionary yearly rule limit on a monthly rolling average of gasoline

throughput. EPA believes that the exclusionary rules submitted by the

DEHNR and FCDEA meet guidelines outlined in the October 15, 1993, and

January 25, 1995, guidance documents for purposes of detailing specific

compliance monitoring to show compliance with the relevant limit

resulting from a exclusionary rule.

The October 15, 1993, guidance document requires that all

submittals from a source required pursuant to an exclusionary rule be

certified for truth, accuracy, and completeness. Each facility which

chooses to be covered by an exclusionary rule submitted by the DEHNR

and FCDEA must make submissions which are certified by the appropriate

official as defined under North Carolina Regulation 15A NCAC 2Q.0304(j)

and Forsyth County Regulation 3Q.0304(j). Regulation 15A NCAC

2Q.0304(j) and Forsyth County Regulation 3Q.0304(j) require

certifications to be signed by the following: For corporations, by a

principal executive officer of at least the level of vice president, or

his duly authorized representative, if such representative is

responsible for the overall operation of the facility from which the

emissions described originates; for partnership or limited partnership,

by a general partner; for a sole proprietorship, by the proprietor; and

for municipal, state, Federal, or other public entity, by a principal

executive officer, ranking elected official, or other duly authorized

employee. These requirements for the certifying official are similar to

those requirements found in 40 CFR 70.2 for a responsible official

which would certify truth, accuracy, and completeness of a part 70

permit application. Therefore, EPA believes that the exclusionary rules

submitted by the DEHNR and FCDEA meet requirements outlined in the

October 15, 1993, guidance document for purposes of certification with

respect to truth, completeness, and accuracy.

The October 15, 1993, guidance document recommends that reporting

requirements should vary based on how close the facility emissions are

to the relevant major source threshold. For facilities that are close

to the major source threshold, the guidance recommends that a state or

local air pollution control agency require more frequent reporting of

the variable affecting emissions (i.e. gasoline throughput). For

instance, North Carolina Regulation 15A NCAC 2Q.0802 and Forsyth County

Regulation 3Q.0802 require that gasoline service stations and gasoline

dispensing facilities with annual gasoline throughput that exceeds

10,000,000 gallons per year report gasoline throughput once yearly. For

those gasoline service stations and gasoline dispensing facilities with

annual gasoline throughput that exceeds 13,000,000 gallons per year, a

facility must report gasoline throughput once every six months. EPA

believes that the exclusionary rules submitted by the DEHNR and FCDEA

meet requirements outlined in the October 15, 1993, guidance document

for purposes of reporting the relevant variable affecting emissions

from the process. The October 15, 1993, guidance document also requires

that a facility report any exceedance of an exclusionary rule within

one week after its occurrence. The DEHNR and FCDEA regulations satisfy

this requirement by a verbatim incorporation of this requirement under

each exclusionary rule source-category. Therefore, EPA believes that

the DEHNR and FCDEA regulations meet the requirements set out in the

above-listed guidance documents for reporting.

The October 15, 1993, and the January 25, 1995, guidance documents

specify that recordkeeping is required by a facility to show that the

facility is eligible for the exclusionary rule and that the facility is

in compliance with the relevant exclusionary rule. The October 15,

1993, guidance document requires that recordkeeping shall be maintained

on site and available to the permitting authority upon demand. The

October 15, 1993, guidance document also requires that a facility be

required to retain records for a period sufficient to support

enforcement efforts. The DEHNR and FCDEA regulations require that

copies of all records required to be kept for exclusionary rule

purposes be kept on site and be available to each agency on demand. The

exclusionary rules submitted by DEHNR and FCDEA require that records be

kept for a period of three years from the date the records are

originated. EPA believes that a three year time period is an adequate

time period for a facility subject to an exclusionary rule to maintain

records in order to support enforcement efforts.

The November 3, 1993, guidance document and the January 25, 1995,

guidance document set out requirements for public involvement in the

development and application of exclusionary rules. The November 3,

1993, guidance document states that if exclusionary rules are

sufficiently reliable and replicable, EPA and the public need not be

involved with their application to individual sources, as long as the

protocols themselves have been subject to notice and opportunity to

comment and have been approved by EPA into the SIP. The January 25,

1995, guidance document provides that source-category standards

approved into the SIP or under section 112(l) of the Clean Air Act can

be used as federally enforceable limits on PTE. Once a specific source

qualifies under the applicability requirements of the source-category

rule, additional public participation is not required to make the

limits federally enforceable as a matter of legal sufficiency since the

rule itself underwent public participation and EPA review. Both the

DEHNR and FCDEA exclusionary rules underwent public participation at

the State and local level when these rules were made State and locally-

effective. EPA believes that with this Federal Register document and

other public process received at the State and local level that the

DEHNR and FCDEA exclusionary rules satisfy requirements for public

participation outlined in the November 3, 1993, and the January 25,

1995, guidance documents.

The January 25, 1995, guidance document sets out requirements for

exclusionary rule conditions to be practically enforceable. These

requirements stem from past precedence in what the EPA has required for

a permit to be considered enforceable as a practical matter. See 54 FR

27274 (June 28, 1989) and a June 13, 1989, EPA policy memorandum

entitled ``Limiting Potential to Emit in New Source Permitting.'' The

criteria include clear statements as to the applicability, specificity

as to the standard that must be met, explicit statements of the

compliance time frames (e.g. hourly, daily, monthly, or 12-month

averages, etc.), that the time frame and method of compliance employed

must be sufficient to protect the standard involved, recordkeeping

requirements must be specified, and equivalency provisions must meet

specific requirements. In general, practical enforceability means that

the provision must specify (1) a technically accurate limitation and

the portions of the source subject to the limitation; (2) the time

period for the limitation; (3) the method to determine compliance

including appropriate monitoring, recordkeeping, and reporting. Each of

these elements have been discussed prior to this paragraph in this

Federal Register with the

[[Page 49417]]

exception of (2) above. The DEHNR and FCDEA regulations require

facilities subject to the exclusionary rule to keep records on a

monthly basis and to determine compliance with a yearly limit on a

calendar monthly rolling average basis. This method for determining

compliance with the exclusionary rule limitation was addressed

specifically as one practically enforceable way to show compliance with

a permit limit in the June 13, 1989, guidance document entitled

``Limiting Potential to Emit in New Source Permitting.'' As such, EPA

believes the DEHNR and FCDEA exclusionary rule regulations meet the

requirements necessary for exclusionary rules to be enforceable as a

practical matter.

Finally, the October 15, 1993, guidance document stipulates that a

facility cannot rely on emission limits or caps contained in a

exclusionary rule to justify violation of any rate-based emission

limits or other applicable requirements. This requirement is reflected

by a verbatim incorporation of this provision found at North Carolina

regulation 15A NCAC 2Q.0801(b) and Forsyth County regulation

3Q.0801(b). Therefore, EPA believes that the DEHNR and FCDEA

exclusionary rules meet the requirements listed in the October 15,

1993, guidance document regarding the use of an exclusionary rule cap

to justify violation of any rate-based emission limit or other

applicable requirements.

Eligibility for federally enforceable exclusionary rule

certifications extends not only to certifications made after the

effective date of this rule, but also to certifications issued under

the State or local current rule prior to the effective date of this

rulemaking. If the State or local agency followed its own regulation

meaning that, each source received exclusionary rule certifications

that established a limiting condition on the facility's PTE, EPA will

consider all such exclusionary rule certifications as federally

enforceable upon the effective date of this action.

Final action

In this action, EPA is approving the State of North Carolina

exclusionary rules found at 15A NCAC 2Q.0800 through 15A NCAC 2Q.0807

into the North Carolina SIP. EPA is also approving the Forsyth County

exclusionary rules found at 3Q.0800 through 3Q.0807 into the Forsyth

County portion of the North Carolina SIP. EPA is approving North

Carolina regulations 15A NCAC 2Q.0801, 2Q.0803 through 2Q.0804 and

Forsyth County regulations 3Q.0801, 3Q.0803 through 3Q.0804 for

purposes of limiting PTE of HAP under section 112(l) of the CAA. EPA is

publishing this document without prior proposal because the EPA views

this as a noncontroversial amendment and anticipates no adverse

comments. However, in a separate document in this Federal Register

publication, EPA is proposing to approve the SIP revision should

adverse or critical comments be filed. This action will be effective

November 19, 1996, unless within 30 days of its publication, adverse or

critical comments are received. If EPA receives such comments, this

action will be withdrawn before the effective date by publishing a

subsequent document that will withdraw the final action. All public

comments received will then be addressed in a subsequent final rule

based on this action serving as a proposed rule. EPA will not institute

a second comment period on this action. Any parties interested in

commenting on this action should do so at this time. If no such

comments are received, the public is advised that this action will be

effective November 19, 1996.

EPA has reviewed this request for revision of the federally-

approved SIP for conformance with the provisions of the 1990 Amendments

enacted on November 15, 1990. EPA has determined that this action

conforms with those requirements.

Under section 307(b)(1) of the CAA, 42 U.S.C. 7607 (b)(1),

petitions for judicial review of this action must be filed in the

United States Court of Appeals for the appropriate circuit by November

19, 1996. Filing a petition for reconsideration by the Administrator of

this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2).)

This action has been classified as a Table 3 action for signature

by the Regional Administrator under the procedures published in the

Federal Register on January 19, 1989, (54 FR 2214-2225), as revised by

a July 10, 1995, memorandum from Mary Nichols, Assistant Administrator

for Air and Radiation. The Office of Management and Budget has exempted

this action from review under Executive Order 12866.

Nothing in this action shall be construed as permitting or allowing

or establishing a precedent for any future request for a revision to

any state implementation plan. Each request for revision to the SIP

shall be considered separately in light of specific technical,

economic, and environmental factors and in relation to relevant

statutory and regulatory requirements.

Under the Regulatory Flexibility Act, 5 U.S.C. 600, EPA must

prepare a regulatory flexibility analysis assessing the impact of any

proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

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 impose any new requirements, I certify that it does

not have a significant impact on any small entities affected. Moreover,

due to the nature of the Federal-state relationship under the CAA,

preparation of a regulatory 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. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);

42 U.S.C. 7410(a)(2) and 7410(k)(3).

D. Unfunded Mandates Reform Act of 1995

Under section 202 of the Unfunded Mandates Reform Act 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 the direct final approval action

promulgated today does not include a Federal mandate that may result in

estimated costs of $100 million or more to State, local, or tribal

governments in the aggregate, or to the private sector. This Federal

action approves pre-existing requirements

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under State or local law, and imposes no new Federal requirements.

Accordingly, no additional costs to State, local, or tribal

governments, or to the private sector, result from this action.

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business

Regulatory Enforcement Fairness Act of 1996, EPA submitted 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

General Accounting Office prior to publication of the rule in today's

Federal Register. This rule is not a ``major rule'' as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Carbon monoxide,

Hydrocarbons, Incorporation by Reference, Intergovernmental relations,

Lead, Nitrogen oxides, Ozone, Particulate matter, Sulfur oxides.

Dated: August 5, 1996.

A. Stanley Meiburg,

Acting Regional Administrator.

Part 52 of chapter I, title 40, Code of Federal Regulations, is

amended as follows:

PART 52--[AMENDED]

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

Authority: 42. U.S.C. 7401-7671q.

2. Section 52.1770 is amended by adding paragraph (c)(89) to read

as follows:

Sec. 52.1770 Identification of plan.

* * * * *

(c) * * *

(89) Exclusionary rules for the State of North Carolina Department

of Environment, Health, and Natural Resources and the Forsyth County

Department of Environmental Affairs submitted by the North Carolina

Department of Environment, Health, and Natural Resources on August 8,

1995, and December 28, 1995, respectively, as part of the North

Carolina SIP.

(i) Incorporation by reference.

(A) Regulations 15A NCAC 2Q.0801 through 15A NCAC 2Q.0807 of the

North Carolina SIP as adopted by the North Carolina Environmental

Management Commission on June 8, 1995, and which became effective on

August 1, 1995.

(B) Regulations Subchapter 3Q.0801 through Subchapter 3Q.0807 of

the Forsyth County portion of the North Carolina SIP as adopted and

made effective by the Forsyth County Board of Commissioners on November

13, 1995.

(ii) Other material. None.

* * * * *

[FR Doc. 96-24043 Filed 9-19-96; 8:45 am]

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