Air Plan Approval; SC; Infrastructure Requirements for the 2012 PM2.5, 57509-57519 [2016-20141]

Download as PDF Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules involves a safety zone lasting four weeks, for three days a week, that will prohibit entry within 500 yards of the small boat ‘‘Nessy’’ and all involved associated support vessels, while in the area encompassing these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W., while personnel are conducting the removal operations of the DoubleCrested Cormorant. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2–1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. srobinson on DSK5SPTVN1PROD with PROPOSALS G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels. V. Public Participation and Request for Comments We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We encourage you to submit comments through the Federal eRulemaking Portal at http:// www.regulations.gov. If your material cannot be submitted using http:// www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. We accept anonymous comments. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 2005, issue of the Federal Register (70 FR 15086). Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site’s instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T13–0818 to read as follows: 57509 rules contained in this section pursuant to 46 U.S.C. 70118. In addition, the Captain of the Port may be assisted by members of the U.S. Army Corps of Engineers and U.S. Department of Agriculture Wildlife Services onboard the small boat ‘‘Nessy,’’ and other federal, state, or local agencies in enforcing this section. (d) Enforcement period. This section is effective from September 21, 2016, through October 21, 2016. It will be enforced when the small boat ‘‘Nessy,’’ and all involved associated support vessels, are conducting the removal operations of the Double-Crested Cormorant. The small boat ‘‘Nessy’’ is described as a 20-foot black and gray aluminum work skiff with an overhead light arch. The Coast Guard will inform mariners of any change to this period of enforcement via Broadcast Notice to Mariners. Dated: August 17, 2016. W. R. Timmons, Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River. [FR Doc. 2016–20132 Filed 8–22–16; 8:45 am] BILLING CODE 9110–04–P ■ § 165.T13–0818 River. Safety Zone; Columbia (a) Location. The safety zone covered by this rule will cover all navigable waters of the Columbia River within 500 yards of the small boat ‘‘Nessy,’’ and all involved associated support vessels, while in the area encompassing these points: 46°15′45″ N., 123°59′39″ W.; 46°15′24″ N., 123°59′42″ W.; 46°13′32″ N., 123°57′18″ W.; 46°15′9″ N., 123°55′24″ W.; and 46°15′54″ N., 123°58′6″ W. (b) Regulations. In accordance with the general regulations in subpart C of this part, no person may enter or remain in the safety zone created in this section or bring, cause to be brought, or allow to remain in the safety zone created in this section any vehicle, vessel, or object unless authorized by the Captain of the Port or his designated representative. (c) Enforcement. Any Coast Guard commissioned, warrant, or petty officer may enforce the rules in this section. In the navigable waters of the United States to which this section applies, when immediate action is required and representatives of the Coast Guard are not present or are not present in sufficient force to provide effective enforcement of this section, any Federal Law Enforcement Officer or Oregon Law Enforcement Officer or Washington Law Enforcement Officer may enforce the PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2014–0429; FRL–9951–16– Region 4] Air Plan Approval; SC; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard Environmental Protection Agency. ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC), on December 18, 2015, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Fine Particulate Matter (PM2.5) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an ‘‘infrastructure’’ SIP. SC DHEC certified that the South Carolina SIP contains provisions that ensure the 2012 Annual SUMMARY: E:\FR\FM\23AUP1.SGM 23AUP1 57510 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules srobinson on DSK5SPTVN1PROD with PROPOSALS PM2.5 NAAQS is implemented, enforced, and maintained in South Carolina. EPA is proposing to determine that portions of South Carolina’s infrastructure submission, submitted to EPA on December 18, 2015, satisfy certain required infrastructure elements for the 2012 Annual PM2.5 NAAQS. DATES: Written comments must be received on or before September 22, 2016. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R04– OAR–2014–0429 at http:// 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 http://www2.epa.gov/dockets/ commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Bell can be reached via electronic mail at bell.tiereny@epa.gov or via telephone at (404) 562–9088. I. Background and Overview On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM2.5 NAAQS. The standard was strengthened from 15.0 micrograms per cubic meter (mg/ m3) to 12.0 mg/m3. Pursuant to section 110(a)(1) of the CAA, States are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2012 Annual PM2.5 NAAQS to EPA no later than December 14, 2015.1 This rulemaking is proposing to approve portions of South Carolina’s PM2.5 infrastructure SIP submissions 2 for the applicable requirements of the 2012 Annual PM2.5 NAAQS, with the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA is not proposing any action in this rulemaking regarding these requirements. For the aspects of South Carolina’s submittal proposed for approval in this rulemaking, EPA notes that the Agency is not approving any specific rule, but rather proposing that South Carolina’s already approved SIP meets certain CAA requirements. II. What elements are required under sections 110(a)(1) and (2)? Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state’s existing SIP already contains. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) 1 In these infrastructure SIP submissions States generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federallyapproved SIP. In addition, certain federallyapproved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Throughout this rulemaking, unless otherwise indicated, the term ‘‘South Carolina Air Pollution Control Regulation’’ or ‘‘Regulation’’ indicates that the cited regulation has been approved into South Carolina’s federallyapproved SIP. The term ‘‘South Carolina statute’’ indicates cited South Carolina state statutes, which are not a part of the SIP unless otherwise indicated. 2 South Carolina’s 2012 Annual PM 2.5 NAAQS infrastructure SIP submission dated December 18, 2015, is referred to as ‘‘South Carolina’s PM2.5 infrastructure SIP’’ in this action. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 lists specific elements that states must meet for the ‘‘infrastructure’’ SIP requirements related to a newly established or revised NAAQS. As mentioned previously, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized later on and in EPA’s September 13, 2013, memorandum entitled ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).’’ 3 • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 4 • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 5 • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration (PSD) and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities 3 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. This proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C). 4 This rulemaking only addresses requirements for this element as they relate to attainment areas. 5 As mentioned previously, this element is not relevant to this proposed rulemaking. E:\FR\FM\23AUP1.SGM 23AUP1 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules srobinson on DSK5SPTVN1PROD with PROPOSALS III. What is EPA’s approach to the review of infrastructure SIP submissions? EPA is acting upon the SIP submission from South Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2012 Annual PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ‘‘within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),’’ and these SIP submissions are to provide for the ‘‘implementation, maintenance, and enforcement’’ of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA’s taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ‘‘[e]ach such plan’’ submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ‘‘infrastructure SIP’’ submissions. Although the term ‘‘infrastructure SIP’’ does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ‘‘nonattainment SIP’’ or ‘‘attainment plan SIP’’ submissions to address the nonattainment planning requirements of part D of title I of the CAA, ‘‘regional haze SIP’’ submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 substantive program provisions.6 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission. The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that ‘‘each’’ SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.7 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.8 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine 6 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies. 7 See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,’’ 70 FR 25162, at 25163–65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)). 8 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS. PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 57511 which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission. Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit ‘‘a plan’’ to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.9 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.10 Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states’ attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state 9 See, e.g., ‘‘Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,’’ 78 FR 4339 (January 22, 2013) (EPA’s final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA’s 2008 PM2.5 NSR rule), and ‘‘Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,’’ (78 FR 4337) (January 22, 2013) (EPA’s final action on the infrastructure SIP for the 2006 PM2.5 NAAQS). 10 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee’s December 14, 2007 submittal. E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 57512 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state’s infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.11 EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the ‘‘applicable requirements’’ of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others. Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS. Historically, EPA has elected to use guidance documents to make 11 For example, implementation of the 1997 fine particulate matter (PM2.5) NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS. VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.12 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).13 EPA developed this document to provide states with upto-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.14 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate. As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP 12 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate. 13 ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),’’ Memorandum from Stephen D. Page, September 13, 2013. 14 EPA’s September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state’s CAA obligations. On March 17, 2016, EPA released a memorandum titled, ‘‘Information on the Interstate Transport ‘Good Neighbor’ Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)’’ to provide guidance to states for interstate transport requirements specific to the PM2.5 NAAQS. PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state’s implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA’s interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state’s permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA’s evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128. As another example, EPA’s review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA’s PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA’s regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 Annual PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action. For other section 110(a)(2) elements, however, EPA’s review of a state’s infrastructure SIP submission focuses on assuring that the state’s implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state’s existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA’s regulations that pertain to such programs. With respect to certain other issues, EPA does not believe that an action on a state’s infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state’s existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA’s policies addressing such excess emissions (‘‘SSM’’); (ii) existing provisions related to ‘‘director’s variance’’ or ‘‘director’s discretion’’ that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA’s ‘‘Final NSR Improvement Rule,’’ 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (‘‘NSR Reform’’). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.15 It is important to note that EPA’s approval of a state’s infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described. EPA’s approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state’s existing SIP against all requirements in the CAA 15 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP. VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ‘‘implementation, maintenance, and enforcement’’ of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors. For example, EPA’s 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ‘‘SIP call’’ whenever the Agency determines that a state’s implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.16 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.17 16 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,’’ 74 FR 21639 (April 18, 2011). 17 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See ‘‘Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,’’ 75 FR PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 57513 Significantly, EPA’s determination that an action on a state’s infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA’s subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director’s discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.18 IV. What is EPA’s analysis of how South Carolina addressed the elements of the sections 110(a)(1) and (2) ‘‘infrastructure’’ provisions? South Carolina’s December 18, 2015, infrastructure SIP submission addresses the provisions of sections 110(a)(1) and (2) as described later in this preamble. 1. 110(a)(2)(A): Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Several regulations within South Carolina’s SIP are relevant to air quality control regulations. The regulations described later have been federally-approved in the South Carolina SIP and include enforceable emission limitations and other control measures. Regulation 61– 62.5, Standard No. 2, Ambient Air Quality Standards and Regulation 61– 62.1, Definitions and General Requirements, provide enforceable emission limits and other control 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). 18 See, e.g., EPA’s disapproval of a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director’s discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions). E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 57514 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules measures, means, and techniques. Section 48–1–50(23) of the 1976 South Carolina Code of Laws, as amended, (S.C. Code Ann.) provides SC DHEC with the authority to ‘‘Adopt emission and effluent control regulations standards and limitations that are applicable to the entire state, that are applicable only within specified areas or zones of the state, or that are applicable only when a specified class of pollutant is present.’’ Collectively these regulations establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to PM2.5 concentrations in the ambient air and provide authority for SC DHEC to establish such limits and measures as well as schedules for compliance to meet the applicable requirements of the CAA. EPA has made the preliminary determination that the provisions contained in these State regulations and State statute are adequate for enforceable emission limitations and other control measures, means, or techniques, as well as schedules and timetables for compliance to satisfy the requirements of Section 110(a)(2(A) for the 2012 Annual PM2.5 NAAQS in the State. In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during start up, shut down and malfunction (SSM) operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown’’ (September 20, 1999), and the Agency is addressing such state regulations in a separate action.19 Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director’s discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director’s discretion or variance provision which is contrary to the CAA and EPA 19 On June 12, 2015, EPA published a final action entitled, ‘‘State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.’’ See 80 FR 33840. VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 guidance to take steps to correct the deficiency as soon as possible. 2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to: (i) Monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. South Carolina’s Air Pollution Control Regulations, Regulation 61–62.5, Standard No. 7, Prevention of Significant Deterioration, along with the South Carolina Network Description and Ambient Air Network Monitoring Plan, provide for an ambient air quality monitoring system in the State. S.C. Code Ann. § 48–1–50(14) provides the Department with the necessary authority to ‘‘[c]ollect and disseminate information on air and water control.’’ Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the agency’s ambient monitors and auxiliary support equipment.20 On July 20, 2015, South Carolina submitted its plan to EPA. On November 19, 2015, EPA approved South Carolina’s monitoring network plan. South Carolina’s approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA–R04–OAR–2014–0429. EPA has made the preliminary determination that South Carolina’s SIP and practices are adequate for the ambient air quality monitoring and data system requirements related to the 2012 Annual PM2.5 NAAQS. 3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). These requirements are met through 20 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 Regulation 61–62.5, Standard No. 7, Prevention of Significant Deterioration, and Regulation 61–62.5, Standard No. 7.1, Nonattainment New Source Review, and 61–62.1, Section II, Permit Requirements, of South Carolina’s SIP, which pertain to the construction of any new major stationary source or any modification at an existing major stationary source in an area designated as attainment or unclassifiable. These regulations enable SC DHEC to regulate sources contributing to the 2012 Annual PM2.5 NAAQS. Enforcement: SC DHEC’s abovedescribed, SIP-approved regulations provide for enforcement of PM2.5 emission limits and control measures through construction permitting for new or modified stationary sources. South Carolina cites to statute 48–1–50(11), which provides SC DHEC the authority to administer penalties for violations of any order, permit, regulation or standards; and 48–1–50(10), which authorizes SCDHEC to require and approve construction plans for sources and inspect the construction thereof for compliance with the approved plan. Additionally, SCDHEC is authorized under 48–1–50(3) and (4) to issue orders requiring the discontinuance of the discharge of air contaminants into the ambient air that create an undesirable level, and seek an injunction to compel compliance with the Pollution Control Act and permits, permit conditions and orders. PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state’s infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state’s PSD permitting program is complete for this subelement (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state’s implementation plan with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA’s proposed action on the infrastructure SIP submission. For the 2012 Annual PM2.5 NAAQS, South Carolina’s authority to regulate new and modified sources to assist in the protection of air quality in South Carolina is established in Regulations 61–62.1, Section II, Permit Requirements; 61–62.5, Standard No. 7, Prevention of Significant Deterioration of South Carolina’s SIP. These regulations pertain to the construction of any new major stationary source or any modification at an existing major E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules stationary source in an area designated as attainment or unclassifiable. South Carolina also cites to 61–62.5, Standard No. 7.1, Nonattainment New Source Review. South Carolina’s infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the State designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.21 Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source preconstruction program that regulates emissions of the 2012 Annual PM2.5 NAAQS. Regulation 61–62.1, Section II, Permit Requirements governs the preconstruction permitting of minor modifications and construction of minor stationary sources in South Carolina. EPA has made the preliminary determination that South Carolina’s SIP and practices are adequate for enforcement of control measures, PSD permitting for major sources, and regulation of minor sources and modifications related to the 2012 Annual PM2.5 NAAQS. 4. 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as ‘‘prongs,’’ that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (‘‘prong 1’’), and interfering with maintenance of the NAAQS in another state (‘‘prong 2’’). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (‘‘prong 3’’), or to protect visibility in another state (‘‘prong 4’’). 110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate 21 More information concerning how the South Carolina infrastructure SIP submission currently meets applicable requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; and (J)) can be found in the technical support document in the docket for this rulemaking. VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2). EPA will consider these requirements in relation to South Carolina’s 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking. 110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this requirement may be met by a state’s confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area that has the potential to impact PSD in another state) a NNSR program. As discussed in more detail previously under section 110(a)(2)(C), South Carolina’s SIP contains provisions for the State’s PSD program that reflect the required structural PSD requirements to satisfy the requirement of prong 3 and a NNSR program at 61–62.5, Standard No. 7.1, Nonattainment New Source Review. EPA has made the preliminary determination that South Carolina’s SIP is adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2012 Annual PM2.5 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3). 110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to South Carolina’s 2012 Annual PM2.5 NAAQS infrastructure submission in a separate rulemaking. 5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Regulation 61–62.5, Standards 7 and 7.1 (q)(2)(iv), Public Participation, requires SC DHEC to notify air agencies ‘‘whose lands may be affected by emissions’’ from each new or modified major source if such emissions may significantly contribute to levels of pollution in excess of a NAAQS in any air quality control region outside of South Carolina. Additionally, South Carolina does not have any pending obligation under section 115 and 126 of the CAA. EPA has made the preliminary determination that South Carolina’s SIP and practices are adequate for ensuring compliance with the applicable PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 57515 requirements relating to interstate and international pollution abatement for the 2012 Annual PM2.5 NAAQS. 6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide: (i) Necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve South Carolina’s SIP as meeting the requirements of section 110(a)(2)(E). EPA’s rationale for this proposal respecting each requirement of section 110(a)(2)(E) is described in turn later in this preamble. With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC develops, implements and enforces EPA-approved SIP provisions in the State. S.C. Code Ann. Section 48, Title 1, as referenced in South Carolina’s infrastructure SIP submission, provides the SC DHEC’s general legal authority to establish a SIP and implement related plans. In particular, S.C. Code Ann. Section 48– 1–50(12) grants SC DHEC the statutory authority to ‘‘[a]ccept, receive and administer grants or other funds or gifts for the purpose of carrying out any of the purposes of this chapter; [and to] accept, receive and receipt for federal money given by the Federal government under any Federal law to the State of South Carolina for air or water control activities, surveys or programs.’’ S.C. Code Ann. Section 48, Title 2 grants SC DHEC statutory authority to establish environmental protection funds, which provide resources for SC DHEC to carry out its obligations under the CAA. Specifically, in Regulation 61–30, Environmental Protection Fees, SC DHEC established fees for sources subject to air permitting programs. SC DHEC implements the SIP in accordance with the provisions of S.C. Code Ann § 1–23–40 (the Administrative Procedures Act) and S.C. Code Ann. Section 48, Title 1. For Section 110(a)(2)(E)(iii), the submission states that South Carolina does not rely on localities for specific SIP implementation. The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed when EPA performs a completeness E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 57516 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules determination for each SIP submittal. This provides additional assurances that each submittal includes information addressing the adequacy of personnel, funding, and legal authority under State law used to carry out the State’s implementation plan and related issues. This information is included in all prehearings and final SIP submittal packages for approval by EPA. As evidence of the adequacy of SC DHEC’s resources with respect to subelements (i) and (iii), EPA submitted a letter to South Carolina on April 19, 2016, outlining 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to South Carolina can be accessed at www.regulations.gov using Docket ID No. EPA–R04–OAR– 2014–0429. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2015, therefore, SC DHEC’s grants were finalized and closed out. Section 110(a)(2)(E)(ii) requires that states comply with section 128 of the CAA. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements. With respect to 110(a)(2)(E)(ii), South Carolina satisfies the requirements of CAA section 128(a)(1) for the South Carolina Board of Health and Environmental Control, which is the ‘‘board or body which approves permits and enforcement orders’’ under the CAA in South Carolina, through S.C. Code Ann. Section 8–13–730. S.C. Code Ann. Section 8–13–730 provides that ‘‘[u]nless otherwise provided by law, no person may serve as a member of a governmental regulatory agency that regulates business with which that person is associated,’’ and S.C. Code Ann. Section 8–13–700(A) which provides in part that ‘‘[n]o public official, public member, or public VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated.’’ S.C. Code Ann. Section 8–13–700(B)(1)–(5) provides for disclosure of any conflicts of interest by public official, public member or public employee, which meets the requirement of CAA Section 128(a)(2) that ‘‘any potential conflicts of interest . . . be adequately disclosed.’’ These State statutes—S.C. Code Ann. Sections 8–13–730, 8–13–700(A), and 8–13–700(B)(1)–(5)—have been approved into the South Carolina SIP as required by CAA section 128. EPA has made the preliminary determination that South Carolina has satisfied the requirements of 110(a)(2)(E) for implementation of the 2012 Annual PM2.5 NAAQS. 7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. SC DHEC’s infrastructure SIP submission describes the establishment of requirements for compliance testing by emissions sampling and analysis, and for emissions and operation monitoring to ensure the quality of data in the State. SC DHEC uses these data to track progress towards maintaining the NAAQS, develop control and maintenance strategies, identify sources and general emission levels, and determine compliance with emission regulations and additional EPA requirements. These SIP requirements are codified at Regulation 61–62.1, Definitions and General Requirements, which provides for emission inventories and other emission monitoring and reporting requirements for stationary sources. R. 61–62.1, Section III, Emission Inventory, provides for an emission inventory plan that establishes reporting requirements for various pollutants from permitted facilities on annual or three year cycles, depending on emission levels and nonattainment area status. Further, S.C. Code Ann. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 § 48–1–22 provides the Department with the necessary authority to ‘‘Require the owner of operator of any source or disposal system to establish and maintain such operational records; make reports; install, use and maintain monitoring equipment or methods; samples and analyze emissions or discharges in accordance with prescribed methods, at locations, intervals, and procedures as the Department shall prescribe; and provide such other information as the Department reasonably may require.’’ Finally, R. 61–62.1, Section V, Credible Evidence, specifies that non-reference test data and other information already available and utilized for other purposes may be used to demonstrate compliance or noncompliance with emission standards. Accordingly, EPA is unaware of any provision preventing the use of credible evidence in the South Carolina SIP. Additionally, South Carolina is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA’s central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA’s online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—NOX, SO2, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. South Carolina made its latest update to the 2011 NEI on April 8, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/ chief/eiinformation.html. EPA has made the preliminary determination that South Carolina’s SIP and practices are adequate for the stationary source monitoring systems related to the Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(F). 8. 110(a)(2)(G) Emergency Powers: This section of the Act requires that states demonstrate authority comparable E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules with section 303 of the CAA and adequate contingency plans to implement such authority. Regulation 61–62.3, Air Pollution Episodes, provides for contingency measures when an air pollution episode or exceedance may lead to a substantial threat to the health of persons in the state or region. S.C. Code Ann. Section 48–1–290 provides SC DHEC, with concurrent notice to the Governor, the authority to issue an order recognizing the existence of an emergency requiring immediate action as deemed necessary by SC DHEC to protect the public health or property. Any person subject to this order is required to comply immediately. Additionally, S.C. Code Ann. Section 1–23–130 provides SC DHEC with the authority to establish emergency regulations to address an imminent peril to public health, or welfare, and authorizes emergency regulations to protect natural resources if any natural resource related agency in the State finds that abnormal or unusual conditions, immediate need, or the State’s best interest require such emergency action. EPA has made the preliminary determination that South Carolina’s SIP, State laws, and practices are adequate for emergency powers related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(G). 9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan: (i) As may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. SC DHEC is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in South Carolina. The State has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. S.C. Code Ann. Section 48, Title 1, provides SC DHEC with the necessary authority to revise the SIP to accommodate changes in the NAAQS and thus revise the SIP as appropriate. EPA has made the preliminary determination that South Carolina adequately demonstrates a commitment to provide future SIP revisions related to the 2012 Annual PM2.5 NAAQS when VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 necessary. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(H). 10. 110(a)(2)(J) Consultation with Government Officials, Public Notification, and PSD and Visibility Protection: EPA is proposing to approve South Carolina’s infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that complies with the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD and visibility protection. EPA’s rationale for each sub-element is described later in this preamble. Consultation with government officials (121 consultation): Section 110(a)(2)(J) of the CAA requires states to provide a process for consultation with local governments, designated organizations and Federal Land Managers (FLMs) carrying out NAAQS implementation requirements pursuant to section 121 relative to consultation. Regulation 61–62.5, Standard No. 7, Prevention of Significant Deterioration, as well as the State’s Regional Haze Implementation Plan (which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLM), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. South Carolina has SIPapproved state-wide consultation procedures for the implementation of transportation conformity (see 69 FR 4245). Implementation of transportation conformity as outlined in the consultation procedures requires SC DHEC to consult with federal, state and local transportation and air quality agency officials on the development of motor vehicle emissions budgets. Additionally, S.C. Code Section 48–1– 50(8) provides SC DHEC with the necessary authority to ‘‘Cooperate with the governments of the United States or other states or state agencies or organizations, official or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.’’ EPA has made the preliminary determination that South Carolina’s SIP and practices adequately demonstrate consultation with government officials related to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 57517 110(a)(2)(J) consultation with government officials. Public notification (127 public notification): Regulation 61–62.3, Air Pollution Episodes, requires that SC DHEC notify the public of any air pollution episode or NAAQS violation. S.C. Code Ann. § 48–1–60 establishes that ‘‘Classification and standards of quality and purity of the environment [are] authorized after notice and hearing.’’ Additionally, Regulation 61– 62.5, Standard 7.1 (q), Public Participation, notifies the public by advertisement in a newspaper of general circulation in each region in which a proposed plant or modifications will be constructed of the degree of increment consumption that is expected from the plant or modification, and the opportunity for comment at a public hearing as well as the opportunity to provide written public comment. An opportunity for a public hearing for interested persons to appear and submit written or oral comments on the air quality impact of the plant or modification, alternatives to the plant or modification, the control technology required, and other appropriate considerations is also offered. EPA also notes that SC DHEC maintains a Web site that provides the public with notice of the health hazards associated with PM2.5 NAAQS exceedances, measures the public can take to help prevent such exceedances, and the ways in which the public can participate in the regulatory process. See http://www.scdhec.gov/ HomeAndEnvironment/Air/ MostCommonPollutants/ ParticulateMatter/. EPA has made the preliminary determination that South Carolina’s SIP and practices adequately demonstrate the State’s ability to provide public notification related to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(J) public notification. PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement is be met by a state’s confirmation in an infrastructure SIP submission that the state has a SIP-approved PSD program meeting all the current structural requirements of part C of title I of the CAA for all NSR regulated pollutants. As discussed in more detail previously under the section discussing 110(a)(2)(C), South Carolina’s SIP contains provisions for the State’s PSD program that reflect required structural PSD requirements to satisfy the PSD element of section 110(a)(2)(J). EPA has made the preliminary determination E:\FR\FM\23AUP1.SGM 23AUP1 srobinson on DSK5SPTVN1PROD with PROPOSALS 57518 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules that South Carolina’s SIP is adequate for PSD permitting of major sources and major modifications for the PSD element of section 110(a)(2)(J). Visibility protection: EPA’s 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. SC DHEC referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so SC DHEC does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that South Carolina’s infrastructure SIP submission related to the 2012 Annual PM2.5 NAAQS is approvable for the visibility protection element of section 110(a)(2)(J) and that South Carolina does not need to rely on its regional haze program. 11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. Regulations 61–62.5, Standard No. 2, Ambient Air Quality Standards, and Regulation 61–62.5, Standard No. 7, Prevention of Significant Deterioration, of the South Carolina SIP specify that required air modeling be conducted in accordance with 40 CFR part 51, Appendix W, Guideline on Air Quality Models, as incorporated into the South Carolina SIP. Also, S.C. Code Ann. § 48– 1–50(14) provides SC DHEC with the necessary authority to ‘‘Collect and disseminate information on air and water control.’’ Additionally, South Carolina participates in a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2012 Annual PM2.5 NAAQS, for the southeastern states. Taken as a whole, South Carolina’s air quality regulations and practices demonstrate that SC DHEC has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 any pollutant for which a NAAQS had been promulgated, and to provide such information to the EPA Administrator upon request. EPA has made the preliminary determination that South Carolina’s SIP and practices adequately demonstrate the State’s ability to provide for air quality modeling, along with analysis of the associated data, related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(K). 12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator’s approval of a fee program under title V. S.C. Code Ann. Section 48–2–50 prescribes that SC DHEC charge fees for environmental programs it administers pursuant to federal and State law and regulations including those that govern the costs to review, implement and enforce PSD and NNSR permits. Regulation 61–30, Environmental Protection Fees 22 prescribes fees applicable to applicants and holders of permits, licenses, certificates, certifications, and registrations, establishes procedures for the payment of fees, provides for the assessment of penalties for nonpayment, and establishes an appeals process for refuting fees. This regulation may be amended as needed to meet the funding requirements of the State’s permitting program. Additionally, South Carolina has a federally-approved title V program, Regulation 61–62.70, Title V Operating Permit Program,23 which fees provide for the implementation and enforcement of the requirements of PSD and NNSR for facilities once they begin operating. EPA has made the preliminary determination that South Carolina’s SIP and practices adequately provide for permitting fees related to the 22 This regulation has not been incorporated into the federally-approved SIP. 23 Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 2012 NAAQS when necessary. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(L). 13. 110(a)(2)(M) Consultation/ participation by affected local entities: Section 110(a)(2)(M) of the Act requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP. Regulation 61–62.5, Standard No. 7, Prevention of Significant Deterioration, of the South Carolina SIP requires that SC DHEC notify the public, which includes local entities, of an application, preliminary determination, the activity or activities involved in the permit action, any emissions change associated with any permit modification, and the opportunity for comment prior to making a final permitting decision. Also, as noted previously, S.C. Code Ann. Section 48– 1–50(8) allows SC DHEC to ‘‘Cooperate with the governments of the United States or other states or state agencies or organizations, officials, or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.’’ By way of example, SC DHEC has recently worked closely with local political subdivisions during the development of its Transportation Conformity SIP, Regional Haze Implementation Plan, and Ozone Early Action Compacts. EPA has made the preliminary determination that South Carolina’s SIP and practices adequately demonstrate consultation with affected local entities related to the 2012 Annual PM2.5 NAAQS. Accordingly, EPA is proposing to approve South Carolina’s infrastructure SIP submission with respect to section 110(a)(2)(M). V. Proposed Action With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is proposing to approve South Carolina’s December 18, 2015, SIP submission for the 2012 Annual PM2.5 NAAQS for the previously described infrastructure SIP requirements. EPA is proposing to approve these portions of South Carolina’s infrastructure SIP submission for the 2012 Annual PM2.5 NAAQS because these aspects of the submission are consistent with section 110 of the CAA. E:\FR\FM\23AUP1.SGM 23AUP1 Federal Register / Vol. 81, No. 163 / Tuesday, August 23, 2016 / Proposed Rules srobinson on DSK5SPTVN1PROD with PROPOSALS VI. 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 that they meet the criteria of the CAA. Accordingly, this proposed 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 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). In addition, this proposed action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, VerDate Sep<11>2014 17:24 Aug 22, 2016 Jkt 238001 South Carolina statute 27–16–120, ‘‘all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.’’ However, EPA has determined that because this proposed rule does not have substantial direct effects on an Indian Tribe because, as noted previously, this action is not approving any specific rule, but rather proposing that South Carolina’s already approved SIP meets certain CAA requirements. EPA notes this action will not 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, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 et seq. Dated: August 9, 2016. Heather McTeer Toney, Regional Administrator, Region 4. [FR Doc. 2016–20141 Filed 8–22–16; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R01–OAR–2008–0486; EPA–R01– OAR–2008–0223; EPA–R01–OAR–2008– 0447; EPA–R01–OAR–2009–0358; A–1– FRL–9950–96–Region 1] Approval and Promulgation of Air Quality Implementation Plans; Maine, New Hampshire, Rhode Island and Vermont; Interstate Transport of Air Pollution Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the Maine Department of Environmental Protection (ME DEP), the New Hampshire Department of Environmental Services (NH DES), the Rhode Island Department of Environmental Management (RI DEM) and the Vermont Department of Environmental Conservation (VT DEC). These SIP revisions address provisions of the Clean Air Act that require each state to submit a SIP to address emissions that may adversely affect another state’s air quality through SUMMARY: PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 57519 interstate transport. The EPA is proposing that all four States have adequate provisions to prohibit in-state emissions activities from significantly contributing to, or interfering with the maintenance of, the 2008 ozone National Ambient Air Quality Standards (NAAQS) in other states. The intended effect of this action is to propose approval of the SIP revisions submitted by Maine, New Hampshire, Rhode Island, and Vermont. This action is being taken under the Clean Air Act. DATES: Comments must be received on or before September 22, 2016. ADDRESSES: Submit your comments, identified by EPA–R01–OAR–2008– 0486 for comments pertaining to our proposed action for Maine, EPA–R01– OAR–2008–0223 for comments pertaining to our proposed action for New Hampshire, EPA–R01–OAR–2008– 0447 for comments pertaining to our proposed action for Rhode Island, or EPA–R01–OAR–2009–0358 for comments pertaining to our proposed action for Vermont, at http:// www.regulations.gov, or via email to Arnold.Anne@EPA.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the 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. The 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, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/ commenting-epa-dockets. Publicly available docket materials are available either electronically in www.regulations.gov or at the U.S. Environmental Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, E:\FR\FM\23AUP1.SGM 23AUP1

Agencies

[Federal Register Volume 81, Number 163 (Tuesday, August 23, 2016)]
[Proposed Rules]
[Pages 57509-57519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20141]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0429; FRL-9951-16-Region 4]


Air Plan Approval; SC; Infrastructure Requirements for the 2012 
PM2.5 National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the State of South Carolina, through the South Carolina 
Department of Health and Environmental Control (SC DHEC), on December 
18, 2015, to demonstrate that the State meets the infrastructure 
requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Fine 
Particulate Matter (PM2.5) national ambient air quality 
standard (NAAQS). The CAA requires that each state adopt and submit a 
SIP for the implementation, maintenance and enforcement of each NAAQS 
promulgated by EPA, which is commonly referred to as an 
``infrastructure'' SIP. SC DHEC certified that the South Carolina SIP 
contains provisions that ensure the 2012 Annual

[[Page 57510]]

PM2.5 NAAQS is implemented, enforced, and maintained in 
South Carolina. EPA is proposing to determine that portions of South 
Carolina's infrastructure submission, submitted to EPA on December 18, 
2015, satisfy certain required infrastructure elements for the 2012 
Annual PM2.5 NAAQS.

DATES: Written comments must be received on or before September 22, 
2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0429 at http://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 http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Tiereny Bell, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Bell can be reached via electronic mail at 
bell.tiereny@epa.gov or via telephone at (404) 562-9088.

I. Background and Overview

    On December 14, 2012 (78 FR 3086, January 15, 2013), EPA 
promulgated a revised primary annual PM2.5 NAAQS. The 
standard was strengthened from 15.0 micrograms per cubic meter ([mu]g/
m\3\) to 12.0 [mu]g/m\3\. Pursuant to section 110(a)(1) of the CAA, 
States are required to submit SIPs meeting the applicable requirements 
of section 110(a)(2) within three years after promulgation of a new or 
revised NAAQS or within such shorter period as EPA may prescribe. 
Section 110(a)(2) requires states to address basic SIP elements such as 
requirements for monitoring, basic program requirements and legal 
authority that are designed to assure attainment and maintenance of the 
NAAQS. States were required to submit such SIPs for the 2012 Annual 
PM2.5 NAAQS to EPA no later than December 14, 2015.\1\
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    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``South Carolina Air Pollution Control 
Regulation'' or ``Regulation'' indicates that the cited regulation 
has been approved into South Carolina's federally-approved SIP. The 
term ``South Carolina statute'' indicates cited South Carolina state 
statutes, which are not a part of the SIP unless otherwise 
indicated.
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    This rulemaking is proposing to approve portions of South 
Carolina's PM2.5 infrastructure SIP submissions \2\ for the 
applicable requirements of the 2012 Annual PM2.5 NAAQS, with 
the exception of the interstate transport requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), for which EPA is not 
proposing any action in this rulemaking regarding these requirements. 
For the aspects of South Carolina's submittal proposed for approval in 
this rulemaking, EPA notes that the Agency is not approving any 
specific rule, but rather proposing that South Carolina's already 
approved SIP meets certain CAA requirements.
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    \2\ South Carolina's 2012 Annual PM2.5 NAAQS 
infrastructure SIP submission dated December 18, 2015, is referred 
to as ``South Carolina's PM2.5 infrastructure SIP'' in 
this action.
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II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for the ``infrastructure'' SIP requirements 
related to a newly established or revised NAAQS. As mentioned 
previously, these requirements include basic SIP elements such as 
requirements for monitoring, basic program requirements and legal 
authority that are designed to assure attainment and maintenance of the 
NAAQS. The requirements that are the subject of this proposed 
rulemaking are summarized later on and in EPA's September 13, 2013, 
memorandum entitled ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2).'' \3\
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    \3\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, title I of the CAA. This proposed rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources \4\
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    \4\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP Revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \5\
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    \5\ As mentioned previously, this element is not relevant to 
this proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public 
Notification, and Prevention of Significant Deterioration (PSD) and 
Visibility Protection
     110(a)(2)(K): Air Quality Modeling and Submission of 
Modeling Data
     110(a)(2)(L): Permitting fees
     110(a)(2)(M): Consultation and Participation by Affected 
Local Entities

[[Page 57511]]

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from South Carolina that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2012 Annual PM2.5 NAAQS. The requirement 
for states to make a SIP submission of this type arises out of CAA 
section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D. Section 
110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\6\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \6\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\7\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\8\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \7\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \8\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\9\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\10\
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    \9\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \10\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state

[[Page 57512]]

might need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\11\
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    \11\ For example, implementation of the 1997 fine particulate 
matter (PM2.5) NAAQS required the deployment of a system 
of new monitors to measure ambient levels of that new indicator 
species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others. Given 
the potential for ambiguity in some of the statutory language of 
section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\12\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\13\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\14\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \12\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \13\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \14\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations. On 
March 17, 2016, EPA released a memorandum titled, ``Information on 
the Interstate Transport `Good Neighbor' Provision for the 2012 Fine 
Particulate Matter National Ambient Air Quality Standards under 
Clean Air Act Section 110(a)(2)(D)(i)(I)'' to provide guidance to 
states for interstate transport requirements specific to the 
PM2.5 NAAQS.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
Annual PM2.5 NAAQS. Accordingly, the latter optional 
provisions are types of provisions EPA considers irrelevant in the 
context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, among other things, the 
requirement that states have a program to regulate minor new sources. 
Thus, EPA evaluates whether the state has an EPA-approved minor NSR 
program and whether the program addresses the pollutants relevant to 
that NAAQS. In the context of acting on an

[[Page 57513]]

infrastructure SIP submission, however, EPA does not think it is 
necessary to conduct a review of each and every provision of a state's 
existing minor source program (i.e., already in the existing SIP) for 
compliance with the requirements of the CAA and EPA's regulations that 
pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\15\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \15\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
---------------------------------------------------------------------------

    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II). Finally, EPA believes that its approach 
with respect to infrastructure SIP requirements is based on a 
reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA 
provides other avenues and mechanisms to address specific substantive 
deficiencies in existing SIPs. These other statutory tools allow EPA to 
take appropriately tailored action, depending upon the nature and 
severity of the alleged SIP deficiency. Section 110(k)(5) authorizes 
EPA to issue a ``SIP call'' whenever the Agency determines that a 
state's implementation plan is substantially inadequate to attain or 
maintain the NAAQS, to mitigate interstate transport, or to otherwise 
comply with the CAA.\16\ Section 110(k)(6) authorizes EPA to correct 
errors in past actions, such as past approvals of SIP submissions.\17\ 
Significantly, EPA's determination that an action on a state's 
infrastructure SIP submission is not the appropriate time and place to 
address all potential existing SIP deficiencies does not preclude EPA's 
subsequent reliance on provisions in section 110(a)(2) as part of the 
basis for action to correct those deficiencies at a later time. For 
example, although it may not be appropriate to require a state to 
eliminate all existing inappropriate director's discretion provisions 
in the course of acting on an infrastructure SIP submission, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that EPA relies upon in the course of addressing such deficiency in a 
subsequent action.\18\
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    \16\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \17\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \18\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how South Carolina addressed the elements 
of the sections 110(a)(1) and (2) ``infrastructure'' provisions?

    South Carolina's December 18, 2015, infrastructure SIP submission 
addresses the provisions of sections 110(a)(1) and (2) as described 
later in this preamble.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. Several regulations within South 
Carolina's SIP are relevant to air quality control regulations. The 
regulations described later have been federally-approved in the South 
Carolina SIP and include enforceable emission limitations and other 
control measures. Regulation 61-62.5, Standard No. 2, Ambient Air 
Quality Standards and Regulation 61-62.1, Definitions and General 
Requirements, provide enforceable emission limits and other control

[[Page 57514]]

measures, means, and techniques. Section 48-1-50(23) of the 1976 South 
Carolina Code of Laws, as amended, (S.C. Code Ann.) provides SC DHEC 
with the authority to ``Adopt emission and effluent control regulations 
standards and limitations that are applicable to the entire state, that 
are applicable only within specified areas or zones of the state, or 
that are applicable only when a specified class of pollutant is 
present.'' Collectively these regulations establish enforceable 
emissions limitations and other control measures, means or techniques, 
for activities that contribute to PM2.5 concentrations in 
the ambient air and provide authority for SC DHEC to establish such 
limits and measures as well as schedules for compliance to meet the 
applicable requirements of the CAA. EPA has made the preliminary 
determination that the provisions contained in these State regulations 
and State statute are adequate for enforceable emission limitations and 
other control measures, means, or techniques, as well as schedules and 
timetables for compliance to satisfy the requirements of Section 
110(a)(2(A) for the 2012 Annual PM2.5 NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during start 
up, shut down and malfunction (SSM) operations at a facility. EPA 
believes that a number of states have SSM provisions which are contrary 
to the CAA and existing EPA guidance, ``State Implementation Plans: 
Policy Regarding Excess Emissions During Malfunctions, Startup, and 
Shutdown'' (September 20, 1999), and the Agency is addressing such 
state regulations in a separate action.\19\
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    \19\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to: 
(i) Monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. South 
Carolina's Air Pollution Control Regulations, Regulation 61-62.5, 
Standard No. 7, Prevention of Significant Deterioration, along with the 
South Carolina Network Description and Ambient Air Network Monitoring 
Plan, provide for an ambient air quality monitoring system in the 
State. S.C. Code Ann. Sec.  48-1-50(14) provides the Department with 
the necessary authority to ``[c]ollect and disseminate information on 
air and water control.'' Annually, states develop and submit to EPA for 
approval statewide ambient monitoring network plans consistent with the 
requirements of 40 CFR parts 50, 53, and 58. The annual network plan 
involves an evaluation of any proposed changes to the monitoring 
network, includes the annual ambient monitoring network design plan and 
a certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\20\ On July 20, 2015, South Carolina submitted its 
plan to EPA. On November 19, 2015, EPA approved South Carolina's 
monitoring network plan. South Carolina's approved monitoring network 
plan can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2014-0429. EPA has made the preliminary determination that 
South Carolina's SIP and practices are adequate for the ambient air 
quality monitoring and data system requirements related to the 2012 
Annual PM2.5 NAAQS.
---------------------------------------------------------------------------

    \20\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). These requirements are met through Regulation 61-62.5, 
Standard No. 7, Prevention of Significant Deterioration, and Regulation 
61-62.5, Standard No. 7.1, Nonattainment New Source Review, and 61-
62.1, Section II, Permit Requirements, of South Carolina's SIP, which 
pertain to the construction of any new major stationary source or any 
modification at an existing major stationary source in an area 
designated as attainment or unclassifiable. These regulations enable SC 
DHEC to regulate sources contributing to the 2012 Annual 
PM2.5 NAAQS.
    Enforcement: SC DHEC's above-described, SIP-approved regulations 
provide for enforcement of PM2.5 emission limits and control 
measures through construction permitting for new or modified stationary 
sources. South Carolina cites to statute 48-1-50(11), which provides SC 
DHEC the authority to administer penalties for violations of any order, 
permit, regulation or standards; and 48-1-50(10), which authorizes 
SCDHEC to require and approve construction plans for sources and 
inspect the construction thereof for compliance with the approved plan. 
Additionally, SCDHEC is authorized under 48-1-50(3) and (4) to issue 
orders requiring the discontinuance of the discharge of air 
contaminants into the ambient air that create an undesirable level, and 
seek an injunction to compel compliance with the Pollution Control Act 
and permits, permit conditions and orders.
    PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has a complete PSD 
permitting program in place covering the structural PSD requirements 
for all regulated NSR pollutants. A state's PSD permitting program is 
complete for this sub-element (and prong 3 of D(i) and J related to 
PSD) if EPA has already approved or is simultaneously approving the 
state's implementation plan with respect to all structural PSD 
requirements that are due under the EPA regulations or the CAA on or 
before the date of the EPA's proposed action on the infrastructure SIP 
submission.
    For the 2012 Annual PM2.5 NAAQS, South Carolina's 
authority to regulate new and modified sources to assist in the 
protection of air quality in South Carolina is established in 
Regulations 61-62.1, Section II, Permit Requirements; 61-62.5, Standard 
No. 7, Prevention of Significant Deterioration of South Carolina's SIP. 
These regulations pertain to the construction of any new major 
stationary source or any modification at an existing major

[[Page 57515]]

stationary source in an area designated as attainment or 
unclassifiable. South Carolina also cites to 61-62.5, Standard No. 7.1, 
Nonattainment New Source Review. South Carolina's infrastructure SIP 
submission demonstrates that new major sources and major modifications 
in areas of the State designated attainment or unclassifiable for the 
specified NAAQS are subject to a federally-approved PSD permitting 
program meeting all the current structural requirements of part C of 
title I of the CAA to satisfy the infrastructure SIP PSD elements.\21\
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    \21\ More information concerning how the South Carolina 
infrastructure SIP submission currently meets applicable 
requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; 
and (J)) can be found in the technical support document in the 
docket for this rulemaking.
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    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source preconstruction program that regulates emissions of the 2012 
Annual PM2.5 NAAQS. Regulation 61-62.1, Section II, Permit 
Requirements governs the preconstruction permitting of minor 
modifications and construction of minor stationary sources in South 
Carolina.
    EPA has made the preliminary determination that South Carolina's 
SIP and practices are adequate for enforcement of control measures, PSD 
permitting for major sources, and regulation of minor sources and 
modifications related to the 2012 Annual PM2.5 NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport: 
Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components has two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2). EPA will consider these requirements in relation to South 
Carolina's 2012 Annual PM2.5 NAAQS infrastructure submission 
in a separate rulemaking.
    110(a)(2)(D)(i)(II)--prong 3: With regard to section 
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to: A PSD program meeting all the current structural 
requirements of part C of title I of the CAA, or (if the state contains 
a nonattainment area that has the potential to impact PSD in another 
state) a NNSR program. As discussed in more detail previously under 
section 110(a)(2)(C), South Carolina's SIP contains provisions for the 
State's PSD program that reflect the required structural PSD 
requirements to satisfy the requirement of prong 3 and a NNSR program 
at 61-62.5, Standard No. 7.1, Nonattainment New Source Review. EPA has 
made the preliminary determination that South Carolina's SIP is 
adequate for interstate transport for PSD permitting of major sources 
and major modifications related to the 2012 Annual PM2.5 
NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to provisions pertaining to visibility 
protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and 
will consider these requirements in relation to South Carolina's 2012 
Annual PM2.5 NAAQS infrastructure submission in a separate 
rulemaking.
    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
Regulation 61-62.5, Standards 7 and 7.1 (q)(2)(iv), Public 
Participation, requires SC DHEC to notify air agencies ``whose lands 
may be affected by emissions'' from each new or modified major source 
if such emissions may significantly contribute to levels of pollution 
in excess of a NAAQS in any air quality control region outside of South 
Carolina. Additionally, South Carolina does not have any pending 
obligation under section 115 and 126 of the CAA. EPA has made the 
preliminary determination that South Carolina's SIP and practices are 
adequate for ensuring compliance with the applicable requirements 
relating to interstate and international pollution abatement for the 
2012 Annual PM2.5 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide: 
(i) Necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the state comply with the requirements respecting state 
boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the state has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the state has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
South Carolina's SIP as meeting the requirements of section 
110(a)(2)(E). EPA's rationale for this proposal respecting each 
requirement of section 110(a)(2)(E) is described in turn later in this 
preamble.
    With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC 
develops, implements and enforces EPA-approved SIP provisions in the 
State. S.C. Code Ann. Section 48, Title 1, as referenced in South 
Carolina's infrastructure SIP submission, provides the SC DHEC's 
general legal authority to establish a SIP and implement related plans. 
In particular, S.C. Code Ann. Section 48-1-50(12) grants SC DHEC the 
statutory authority to ``[a]ccept, receive and administer grants or 
other funds or gifts for the purpose of carrying out any of the 
purposes of this chapter; [and to] accept, receive and receipt for 
federal money given by the Federal government under any Federal law to 
the State of South Carolina for air or water control activities, 
surveys or programs.'' S.C. Code Ann. Section 48, Title 2 grants SC 
DHEC statutory authority to establish environmental protection funds, 
which provide resources for SC DHEC to carry out its obligations under 
the CAA. Specifically, in Regulation 61-30, Environmental Protection 
Fees, SC DHEC established fees for sources subject to air permitting 
programs. SC DHEC implements the SIP in accordance with the provisions 
of S.C. Code Ann Sec.  1-23-40 (the Administrative Procedures Act) and 
S.C. Code Ann. Section 48, Title 1. For Section 110(a)(2)(E)(iii), the 
submission states that South Carolina does not rely on localities for 
specific SIP implementation.
    The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed 
when EPA performs a completeness

[[Page 57516]]

determination for each SIP submittal. This provides additional 
assurances that each submittal includes information addressing the 
adequacy of personnel, funding, and legal authority under State law 
used to carry out the State's implementation plan and related issues. 
This information is included in all prehearings and final SIP submittal 
packages for approval by EPA.
    As evidence of the adequacy of SC DHEC's resources with respect to 
sub-elements (i) and (iii), EPA submitted a letter to South Carolina on 
April 19, 2016, outlining 105 grant commitments and the current status 
of these commitments for fiscal year 2015. The letter EPA submitted to 
South Carolina can be accessed at www.regulations.gov using Docket ID 
No. EPA-R04-OAR-2014-0429. Annually, states update these grant 
commitments based on current SIP requirements, air quality planning, 
and applicable requirements related to the NAAQS. There were no 
outstanding issues in relation to the SIP for fiscal year 2015, 
therefore, SC DHEC's grants were finalized and closed out.
    Section 110(a)(2)(E)(ii) requires that states comply with section 
128 of the CAA. Section 128 of the CAA requires that states include 
provisions in their SIP to address conflicts of interest for state 
boards or bodies that oversee CAA permits and enforcement orders and 
disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements.
    With respect to 110(a)(2)(E)(ii), South Carolina satisfies the 
requirements of CAA section 128(a)(1) for the South Carolina Board of 
Health and Environmental Control, which is the ``board or body which 
approves permits and enforcement orders'' under the CAA in South 
Carolina, through S.C. Code Ann. Section 8-13-730. S.C. Code Ann. 
Section 8-13-730 provides that ``[u]nless otherwise provided by law, no 
person may serve as a member of a governmental regulatory agency that 
regulates business with which that person is associated,'' and S.C. 
Code Ann. Section 8-13-700(A) which provides in part that ``[n]o public 
official, public member, or public employee may knowingly use his 
official office, membership, or employment to obtain an economic 
interest for himself, a member of his immediate family, an individual 
with whom he is associated, or a business with which he is 
associated.'' S.C. Code Ann. Section 8-13-700(B)(1)-(5) provides for 
disclosure of any conflicts of interest by public official, public 
member or public employee, which meets the requirement of CAA Section 
128(a)(2) that ``any potential conflicts of interest . . . be 
adequately disclosed.'' These State statutes--S.C. Code Ann. Sections 
8-13-730, 8-13-700(A), and 8-13-700(B)(1)-(5)--have been approved into 
the South Carolina SIP as required by CAA section 128.
    EPA has made the preliminary determination that South Carolina has 
satisfied the requirements of 110(a)(2)(E) for implementation of the 
2012 Annual PM2.5 NAAQS.
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. SC DHEC's infrastructure SIP 
submission describes the establishment of requirements for compliance 
testing by emissions sampling and analysis, and for emissions and 
operation monitoring to ensure the quality of data in the State. SC 
DHEC uses these data to track progress towards maintaining the NAAQS, 
develop control and maintenance strategies, identify sources and 
general emission levels, and determine compliance with emission 
regulations and additional EPA requirements. These SIP requirements are 
codified at Regulation 61-62.1, Definitions and General Requirements, 
which provides for emission inventories and other emission monitoring 
and reporting requirements for stationary sources. R. 61-62.1, Section 
III, Emission Inventory, provides for an emission inventory plan that 
establishes reporting requirements for various pollutants from 
permitted facilities on annual or three year cycles, depending on 
emission levels and nonattainment area status. Further, S.C. Code Ann. 
Sec.  48-1-22 provides the Department with the necessary authority to 
``Require the owner of operator of any source or disposal system to 
establish and maintain such operational records; make reports; install, 
use and maintain monitoring equipment or methods; samples and analyze 
emissions or discharges in accordance with prescribed methods, at 
locations, intervals, and procedures as the Department shall prescribe; 
and provide such other information as the Department reasonably may 
require.'' Finally, R. 61-62.1, Section V, Credible Evidence, specifies 
that non-reference test data and other information already available 
and utilized for other purposes may be used to demonstrate compliance 
or noncompliance with emission standards. Accordingly, EPA is unaware 
of any provision preventing the use of credible evidence in the South 
Carolina SIP.
    Additionally, South Carolina is required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and their associated precursors--NOX, SO2, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also voluntarily report emissions of 
hazardous air pollutants. South Carolina made its latest update to the 
2011 NEI on April 8, 2014. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. 
EPA has made the preliminary determination that South Carolina's SIP 
and practices are adequate for the stationary source monitoring systems 
related to the Annual PM2.5 NAAQS. Accordingly, EPA is 
proposing to approve South Carolina's infrastructure SIP submission 
with respect to section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: This section of the Act requires 
that states demonstrate authority comparable

[[Page 57517]]

with section 303 of the CAA and adequate contingency plans to implement 
such authority. Regulation 61-62.3, Air Pollution Episodes, provides 
for contingency measures when an air pollution episode or exceedance 
may lead to a substantial threat to the health of persons in the state 
or region. S.C. Code Ann. Section 48-1-290 provides SC DHEC, with 
concurrent notice to the Governor, the authority to issue an order 
recognizing the existence of an emergency requiring immediate action as 
deemed necessary by SC DHEC to protect the public health or property. 
Any person subject to this order is required to comply immediately. 
Additionally, S.C. Code Ann. Section 1-23-130 provides SC DHEC with the 
authority to establish emergency regulations to address an imminent 
peril to public health, or welfare, and authorizes emergency 
regulations to protect natural resources if any natural resource 
related agency in the State finds that abnormal or unusual conditions, 
immediate need, or the State's best interest require such emergency 
action. EPA has made the preliminary determination that South 
Carolina's SIP, State laws, and practices are adequate for emergency 
powers related to the 2012 Annual PM2.5 NAAQS. Accordingly, 
EPA is proposing to approve South Carolina's infrastructure SIP 
submission with respect to section 110(a)(2)(G).
    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan: (i) As may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. SC DHEC is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in South Carolina. The State has the ability and authority to 
respond to calls for SIP revisions, and has provided a number of SIP 
revisions over the years for implementation of the NAAQS. S.C. Code 
Ann. Section 48, Title 1, provides SC DHEC with the necessary authority 
to revise the SIP to accommodate changes in the NAAQS and thus revise 
the SIP as appropriate. EPA has made the preliminary determination that 
South Carolina adequately demonstrates a commitment to provide future 
SIP revisions related to the 2012 Annual PM2.5 NAAQS when 
necessary. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submission with respect to section 110(a)(2)(H).
    10. 110(a)(2)(J) Consultation with Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve South Carolina's infrastructure SIP submission for the 2012 
Annual PM2.5 NAAQS with respect to the general requirement 
in section 110(a)(2)(J) to include a program in the SIP that complies 
with the applicable consultation requirements of section 121, the 
public notification requirements of section 127, PSD and visibility 
protection. EPA's rationale for each sub-element is described later in 
this preamble.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
Federal Land Managers (FLMs) carrying out NAAQS implementation 
requirements pursuant to section 121 relative to consultation. 
Regulation 61-62.5, Standard No. 7, Prevention of Significant 
Deterioration, as well as the State's Regional Haze Implementation Plan 
(which allows for consultation between appropriate state, local, and 
tribal air pollution control agencies as well as the corresponding 
FLM), provide for consultation with government officials whose 
jurisdictions might be affected by SIP development activities. South 
Carolina has SIP-approved state-wide consultation procedures for the 
implementation of transportation conformity (see 69 FR 4245). 
Implementation of transportation conformity as outlined in the 
consultation procedures requires SC DHEC to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. Additionally, S.C. Code 
Section 48-1-50(8) provides SC DHEC with the necessary authority to 
``Cooperate with the governments of the United States or other states 
or state agencies or organizations, official or unofficial, in respect 
to pollution control matters or for the formulation of interstate 
pollution control compacts or agreements.'' EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate consultation with government officials related 
to the 2012 Annual PM2.5 NAAQS when necessary. Accordingly, 
EPA is proposing to approve South Carolina's infrastructure SIP 
submission with respect to section 110(a)(2)(J) consultation with 
government officials.
    Public notification (127 public notification): Regulation 61-62.3, 
Air Pollution Episodes, requires that SC DHEC notify the public of any 
air pollution episode or NAAQS violation. S.C. Code Ann. Sec.  48-1-60 
establishes that ``Classification and standards of quality and purity 
of the environment [are] authorized after notice and hearing.'' 
Additionally, Regulation 61-62.5, Standard 7.1 (q), Public 
Participation, notifies the public by advertisement in a newspaper of 
general circulation in each region in which a proposed plant or 
modifications will be constructed of the degree of increment 
consumption that is expected from the plant or modification, and the 
opportunity for comment at a public hearing as well as the opportunity 
to provide written public comment. An opportunity for a public hearing 
for interested persons to appear and submit written or oral comments on 
the air quality impact of the plant or modification, alternatives to 
the plant or modification, the control technology required, and other 
appropriate considerations is also offered.
    EPA also notes that SC DHEC maintains a Web site that provides the 
public with notice of the health hazards associated with 
PM2.5 NAAQS exceedances, measures the public can take to 
help prevent such exceedances, and the ways in which the public can 
participate in the regulatory process. See http://www.scdhec.gov/HomeAndEnvironment/Air/MostCommonPollutants/ParticulateMatter/. EPA has 
made the preliminary determination that South Carolina's SIP and 
practices adequately demonstrate the State's ability to provide public 
notification related to the 2012 Annual PM2.5 NAAQS when 
necessary. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submission with respect to section 110(a)(2)(J) 
public notification.
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement is be met by a state's confirmation in an infrastructure 
SIP submission that the state has a SIP-approved PSD program meeting 
all the current structural requirements of part C of title I of the CAA 
for all NSR regulated pollutants. As discussed in more detail 
previously under the section discussing 110(a)(2)(C), South Carolina's 
SIP contains provisions for the State's PSD program that reflect 
required structural PSD requirements to satisfy the PSD element of 
section 110(a)(2)(J). EPA has made the preliminary determination

[[Page 57518]]

that South Carolina's SIP is adequate for PSD permitting of major 
sources and major modifications for the PSD element of section 
110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. SC 
DHEC referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so SC DHEC 
does not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that South Carolina's infrastructure SIP 
submission related to the 2012 Annual PM2.5 NAAQS is 
approvable for the visibility protection element of section 
110(a)(2)(J) and that South Carolina does not need to rely on its 
regional haze program.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. Regulations 61-62.5, Standard No. 2, 
Ambient Air Quality Standards, and Regulation 61-62.5, Standard No. 7, 
Prevention of Significant Deterioration, of the South Carolina SIP 
specify that required air modeling be conducted in accordance with 40 
CFR part 51, Appendix W, Guideline on Air Quality Models, as 
incorporated into the South Carolina SIP. Also, S.C. Code Ann. Sec.  
48-1-50(14) provides SC DHEC with the necessary authority to ``Collect 
and disseminate information on air and water control.'' Additionally, 
South Carolina participates in a regional effort to coordinate the 
development of emissions inventories and conduct regional modeling for 
several NAAQS, including the 2012 Annual PM2.5 NAAQS, for 
the southeastern states. Taken as a whole, South Carolina's air quality 
regulations and practices demonstrate that SC DHEC has the authority to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of any emissions of any pollutant for which a NAAQS 
had been promulgated, and to provide such information to the EPA 
Administrator upon request. EPA has made the preliminary determination 
that South Carolina's SIP and practices adequately demonstrate the 
State's ability to provide for air quality modeling, along with 
analysis of the associated data, related to the 2012 Annual 
PM2.5 NAAQS. Accordingly, EPA is proposing to approve South 
Carolina's infrastructure SIP submission with respect to section 
110(a)(2)(K).
    12. 110(a)(2)(L) Permitting fees: Section 110(a)(2)(L) requires the 
owner or operator of each major stationary source to pay to the 
permitting authority, as a condition of any permit required under the 
CAA, a fee sufficient to cover: (i) The reasonable costs of reviewing 
and acting upon any application for such a permit, and (ii) if the 
owner or operator receives a permit for such source, the reasonable 
costs of implementing and enforcing the terms and conditions of any 
such permit (not including any court costs or other costs associated 
with any enforcement action), until such fee requirement is superseded 
with respect to such sources by the Administrator's approval of a fee 
program under title V.
    S.C. Code Ann. Section 48-2-50 prescribes that SC DHEC charge fees 
for environmental programs it administers pursuant to federal and State 
law and regulations including those that govern the costs to review, 
implement and enforce PSD and NNSR permits. Regulation 61-30, 
Environmental Protection Fees \22\ prescribes fees applicable to 
applicants and holders of permits, licenses, certificates, 
certifications, and registrations, establishes procedures for the 
payment of fees, provides for the assessment of penalties for 
nonpayment, and establishes an appeals process for refuting fees. This 
regulation may be amended as needed to meet the funding requirements of 
the State's permitting program. Additionally, South Carolina has a 
federally-approved title V program, Regulation 61-62.70, Title V 
Operating Permit Program,\23\ which fees provide for the implementation 
and enforcement of the requirements of PSD and NNSR for facilities once 
they begin operating. EPA has made the preliminary determination that 
South Carolina's SIP and practices adequately provide for permitting 
fees related to the 2012 NAAQS when necessary. Accordingly, EPA is 
proposing to approve South Carolina's infrastructure SIP submission 
with respect to section 110(a)(2)(L).
---------------------------------------------------------------------------

    \22\ This regulation has not been incorporated into the 
federally-approved SIP.
    \23\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation/participation by affected local 
entities: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. Regulation 61-62.5, 
Standard No. 7, Prevention of Significant Deterioration, of the South 
Carolina SIP requires that SC DHEC notify the public, which includes 
local entities, of an application, preliminary determination, the 
activity or activities involved in the permit action, any emissions 
change associated with any permit modification, and the opportunity for 
comment prior to making a final permitting decision. Also, as noted 
previously, S.C. Code Ann. Section 48-1-50(8) allows SC DHEC to 
``Cooperate with the governments of the United States or other states 
or state agencies or organizations, officials, or unofficial, in 
respect to pollution control matters or for the formulation of 
interstate pollution control compacts or agreements.'' By way of 
example, SC DHEC has recently worked closely with local political 
subdivisions during the development of its Transportation Conformity 
SIP, Regional Haze Implementation Plan, and Ozone Early Action 
Compacts. EPA has made the preliminary determination that South 
Carolina's SIP and practices adequately demonstrate consultation with 
affected local entities related to the 2012 Annual PM2.5 
NAAQS. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submission with respect to section 110(a)(2)(M).

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is proposing to 
approve South Carolina's December 18, 2015, SIP submission for the 2012 
Annual PM2.5 NAAQS for the previously described 
infrastructure SIP requirements. EPA is proposing to approve these 
portions of South Carolina's infrastructure SIP submission for the 2012 
Annual PM2.5 NAAQS because these aspects of the submission 
are consistent with section 110 of the CAA.

[[Page 57519]]

VI. 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 that they meet the criteria of the CAA. Accordingly, this 
proposed 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 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).
    In addition, this proposed action for the state of South Carolina 
does not have Tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation 
is located within the State of South Carolina. Pursuant to the Catawba 
Indian Claims Settlement Act, South Carolina statute 27-16-120, ``all 
state and local environmental laws and regulations apply to the 
[Catawba Indian Nation] and Reservation and are fully enforceable by 
all relevant state and local agencies and authorities.'' However, EPA 
has determined that because this proposed rule does not have 
substantial direct effects on an Indian Tribe because, as noted 
previously, this action is not approving any specific rule, but rather 
proposing that South Carolina's already approved SIP meets certain CAA 
requirements. EPA notes this action will not 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, Nitrogen dioxide, Ozone, 
Particulate Matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.

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

    Dated: August 9, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-20141 Filed 8-22-16; 8:45 am]
 BILLING CODE 6560-50-P