Air Plan Approval; South Carolina; Cross-State Air Pollution Rule, 37389-37396 [2017-16902]
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Federal Register / Vol. 82, No. 153 / Thursday, August 10, 2017 / Proposed Rules
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
The SIP is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 26, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–16819 Filed 8–9–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0364; FRL–9965–99–
Region 4]
Air Plan Approval; South Carolina;
Cross-State Air Pollution Rule
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
portions of a draft revision to the South
Carolina State Implementation Plan
(SIP) concerning the Cross-State Air
Pollution Rule (CSAPR) that was
submitted by South Carolina for parallel
processing on May 26, 2017. Under
CSAPR, large electricity generating units
(EGUs) in South Carolina are subject to
Federal Implementation Plans (FIPs)
requiring the units to participate in
CSAPR’s federal trading program for
annual emissions of nitrogen oxides
(NOX) and one of CSAPR’s two federal
trading programs for annual emissions
of sulfur dioxide (SO2). This action
would approve the State’s regulations
requiring large South Carolina EGUs to
participate in new CSAPR state trading
programs for annual NOX and SO2
emissions integrated with the CSAPR
federal trading programs, replacing the
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SUMMARY:
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corresponding FIP requirements. These
CSAPR state trading programs are
substantively identical to the CSAPR
federal trading programs, with the State
retaining EPA’s default allowance
allocation methodology and EPA
remaining the implementing authority
for administration of the trading
program. EPA is proposing to approve
the portions of the draft SIP revision
concerning these CSAPR state trading
programs because these portions of the
draft SIP revision meet the requirements
of the Clean Air Act (CAA or Act) and
EPA’s regulations for approval of a
CSAPR full SIP revision replacing the
requirements of a CSAPR FIP. Under the
CSAPR regulations, approval of these
portions of the draft SIP revision would
automatically eliminate South Carolina
units’ obligations to participate in
CSAPR’s federal trading programs for
annual NOX and SO2 emissions under
the corresponding CSAPR FIPs
addressing interstate transport
requirements for the 1997 Annual Fine
Particulate Matter (PM2.5) national
ambient air quality standards (NAAQS).
Approval of these portions of the SIP
revision would satisfy South Carolina’s
good neighbor obligation for the 1997
Annual PM2.5 NAAQS.
DATES: Comments must be received on
or before September 11, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0364 at https://
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
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Ashten Bailey, Air Regulatory
Management Section, Air, Pesticides
and Toxics Management Division, U.S.
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37389
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Ms. Bailey
can be reached by telephone at (404)
562–9164 or via electronic mail at
bailey.ashten@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the
portions of the May 26, 2017, draft
revision to the South Carolina SIP
concerning CSAPR 1 trading programs
for annual emissions of NOx and SO2.
Large EGUs in South Carolina are
subject to CSAPR FIPs that require the
units to participate in the federal
CSAPR NOx Annual Trading Program
and the federal CSAPR SO2 Group 2
Trading Program. CSAPR also provides
a process for the submission and
approval of SIP revisions to replace the
requirements of CSAPR FIPs with SIP
requirements under which a state’s
units participate in CSAPR state trading
programs that are integrated with and,
with certain permissible exceptions,
substantively identical to the CSAPR
federal trading programs.
The portions of the draft SIP revision
proposed for approval would
incorporate into South Carolina’s SIP
state trading program regulations for
annual NOX and SO2 emissions that
would replace EPA’s federal trading
program regulations for those emissions
for South Carolina units for control
periods in 2017 and later years.2 EPA is
proposing to approve these portions of
the draft SIP revision because they meet
the requirements of the CAA and EPA’s
regulations for approval of a CSAPR full
SIP revision replacing a federal trading
program with a state trading program
that is integrated with and substantively
identical to the federal trading program.
Under the CSAPR regulations, approval
of these portions of the draft SIP
revision would automatically eliminate
the obligations of large EGUs in South
Carolina (but not any units in Indian
country within South Carolina’s
borders) to participate in CSAPR’s
federal trading programs for annual NOX
and SO2 emissions under the
corresponding CSAPR FIPs. EPA
proposes to find that approval of these
portions of the draft SIP revision would
satisfy South Carolina’s obligation
1 Federal Implementation Plans; Interstate
Transport of Fine Particulate Matter and Ozone and
Correction of SIP Approvals, 76 FR 48208 (August
8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40
CFR part 97).
2 Under South Carolina’s draft regulations, the
State will retain EPA’s default allowance allocation
methodology and EPA will remain the
implementing authority for administration of the
trading program. See sections IV and V.B.2, below.
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pursuant to CAA section
110(a)(2)(D)(i)(I) to prohibit emissions
which will significantly contribute to
nonattainment or interfere with
maintenance of the 1997 Annual PM2.5
NAAQS in any other state.
The Phase 2 SO2 budget established
for South Carolina in the CSAPR
rulemaking has been remanded to EPA
for reconsideration.3 If EPA finalizes
approval of the portions of the draft SIP
revision as proposed, South Carolina
will have fulfilled its obligations to
provide a SIP that address the interstate
transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS. Thus, EPA
would no longer be under an obligation
to (nor would EPA have the authority
to) address those interstate transport
requirements through implementation
of a FIP, and approval of these portions
of the draft SIP revision would
eliminate South Carolina units’
obligations to participate in the federal
CSAPR NOX Annual Trading Program
and the federal CSAPR SO2 Group 2
Trading Program. Elimination of South
Carolina units’ obligations to participate
in the federal trading programs would
include elimination of the federallyestablished Phase 2 budgets capping
allocations of CSAPR NOX Annual
allowances and CSAPR SO2 Group 2
allowances to South Carolina units
under those federal trading programs.
As approval of these portions of the
draft SIP revision would eliminate
South Carolina’s remanded federallyestablished Phase 2 SO2 budget and
eliminate EPA’s authority to subject
units in South Carolina to a FIP, it is
EPA’s opinion that finalization of
approval of this SIP action would
address the judicial remand of South
Carolina’s federally-established Phase 2
SO2 budget.4
EPA is proposing to approve the draft
SIP revision through parallel processing.
Should South Carolina not submit a
final SIP revision to EPA and/or should
EPA not be able to finalize a full
approval action addressing interstate
transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS, EPA will
undertake further reconsideration of the
FIP pursuant to the judicial remand.
3 EME Homer City Generation, L.P. v. EPA (EME
Homer City II), 795 F.3d 118, 138 (D.C. Cir. 2015).
4 Although the court in EME Homer City II
remanded South Carolina’s Phase 2 SO2 budget
because it determined that the budget may be too
stringent, nothing in the court’s decision affects
South Carolina’s authority to seek incorporation
into its SIP of a state-established budget as stringent
as the remanded federally-established budget or
limits EPA’s authority to approve such a SIP
revision. See 42 U.S.C. 7416, 7410(k)(3).
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Section II of this document describes
the requirements and steps for parallel
processing. Section III summarizes the
relevant aspects of the CSAPR federal
trading programs and FIPs as well as the
range of opportunities states have to
submit SIP revisions to modify or
replace the FIP requirements while
continuing to rely on CSAPR’s trading
programs to address the states’
obligations to mitigate interstate air
pollution. Section IV describes the
specific conditions for approval of such
SIP revisions. Section V contains EPA’s
analysis of South Carolina’s SIP draft
submittal, and Section VI sets forth
EPA’s proposed action on the draft
submittal. Section VII addresses
required statutory and Executive Order
reviews.
II. What is ‘‘parallel processing?’’
Parallel processing refers to a
concurrent state and federal proposed
rulemaking action. Generally, the state
submits a copy of the proposed
regulation or other revisions to EPA
before conducting its public hearing.
EPA reviews this proposed state action,
and prepares a notice of proposed
rulemaking. EPA’s notice of proposed
rulemaking is published in the Federal
Register during the same timeframe that
the state is holding its public hearing.
The state and EPA then provide for
concurrent public comment periods on
both the state action and federal action.
If the state’s formal SIP revision is
changed from the draft SIP revision,
EPA will evaluate those changes and
may publish another notice of proposed
rulemaking. A final rulemaking action
by EPA will occur only after the SIP
revision has been adopted by South
Carolina and submitted formally to EPA
for incorporation into the SIP.
On May 26, 2017, the State of South
Carolina, through South Carolina
Department of Health and
Environmental Control (SCDHEC),
submitted a request for parallel
processing for a draft SIP revision
related to the interstate transport
provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS. This
revision was noticed for public
comment by the State on May 26, 2017,
and is not yet state-effective. Through
this proposed rulemaking, EPA is
proposing parallel approval of this draft
SIP revision.
Once the May 26, 2017, draft revision
is state-effective, South Carolina will
need to provide EPA with a formal SIP
revision. After South Carolina submits
the formal SIP revision (including a
response to any public comments raised
during the State’s public participation
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process), EPA will evaluate the revision.
If the formal SIP revision is changed
from the draft SIP revision, EPA will
evaluate those changes for significance.
If any such changes are found by EPA
to be significant, then the Agency
intends to re-propose the action based
upon the revised submission.
While EPA may not be able to have
a concurrent public comment process
with the State, the SCDHEC-requested
parallel processing allows EPA to begin
to take action on the State’s draft SIP
revision in advance of the submission of
the formal SIP revision. As stated above,
the final rulemaking action by EPA will
occur only after the SIP revision has
been: (1) Adopted by South Carolina, (2)
submitted formally to EPA for
incorporation into the SIP, and (3)
evaluated for changes.
III. Background on CSAPR and CSAPRRelated SIP Revisions
EPA issued CSAPR in July 2011 to
address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning
interstate transport of air pollution. As
amended (including the 2016 CSAPR
Update 5), CSAPR requires 27 Eastern
states to limit their statewide emissions
of SO2 and/or NOX in order to mitigate
transported air pollution unlawfully
impacting other states’ ability to attain
or maintain four NAAQS: The 1997
Annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 NAAQS, the 1997 8-hour ozone
NAAQS, and the 2008 8-hour ozone
NAAQS. The CSAPR emissions
limitations are defined in terms of
maximum statewide ‘‘budgets’’ for
emissions of annual SO2, annual NOX,
and/or ozone season NOX by each
covered state’s large EGUs. The CSAPR
state budgets are implemented in two
phases of generally increasing
stringency, with the Phase 1 budgets
applying to emissions in 2015 and 2016
and the Phase 2 (and CSAPR Update)
budgets applying to emissions in 2017
and later years. As a mechanism for
achieving compliance with the
emissions limitations, CSAPR
establishes five federal emissions
trading programs: A program for annual
NOX emissions, two geographically
5 81 FR 74504 (October 26, 2016). The CSAPR
Update was promulgated to address interstate
pollution with respect to the 2008 ozone NAAQS
and to address a judicial remand of certain original
CSAPR ozone season NOX budgets promulgated
with respect to the 1997 ozone NAAQS. 81 FR at
74505. The CSAPR Update established new
emission reduction requirements addressing the
more recent NAAQS and coordinated them with the
remaining emission reduction requirements
addressing the older NAAQS, so that starting in
2017, CSAPR includes two geographically separate
trading programs for ozone season NOX emissions
covering EGUs in a total of 23 states. See 40 CFR
52.38(b)(1)–(2).
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separate programs for annual SO2
emissions, and two geographically
separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP
requirements applicable to the large
EGUs in each covered state. Currently,
the CSAPR FIP provisions require each
state’s units to participate in up to three
of the five CSAPR trading programs.
CSAPR includes provisions under
which states may submit and EPA will
approve SIP revisions to modify or
replace the CSAPR FIP requirements
while allowing states to continue to
meet their transport-related obligations
using either CSAPR’s federal emissions
trading programs or state emissions
trading programs integrated with the
federal programs.6 Through such a SIP
revision, a state may replace EPA’s
default provisions for allocating
emission allowances among the state’s
units, employing any state-selected
methodology to allocate or auction the
allowances, subject to timing conditions
and limits on overall allowance
quantities. In the case of CSAPR’s
federal trading programs for ozone
season NOX emissions (or an integrated
state trading program), a state may also
expand trading program applicability to
include certain smaller electricity
generating units.7 If a state wants to
replace CSAPR FIP requirements with
SIP requirements under which the
state’s units participate in a state trading
program that is integrated with and
identical to the federal trading program
even as to the allocation and
applicability provisions, the state may
submit a SIP revision for that purpose
as well. However, no emissions budget
increases or other substantive changes
to the trading program provisions are
allowed. A state whose units are subject
to multiple CSAPR FIPs and federal
trading programs may submit SIP
revisions to modify or replace either
some or all of those FIP requirements.
States can submit two basic forms of
CSAPR-related SIP revisions effective
for emissions control periods in 2017 or
later years.8 Specific conditions for
approval of each form of SIP revision
6 See 40 CFR 52.38, 52.39. States also retain the
ability to submit SIP revisions to meet their
transport-related obligations using mechanisms
other than the CSAPR federal trading programs or
integrated state trading programs.
7 States covered by both the CSAPR Update and
the NOX SIP Call have the additional option to
expand applicability under the CSAPR NOX Ozone
Season Group 2 Trading Program to include nonelectric generating units that would have
participated in the former NOX Budget Trading
Program.
8 CSAPR also provides for a third, more
streamlined form of SIP revision that is effective
only for control periods in 2016 and is not relevant
here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7); 52.39(d),
(g).
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are set forth in the CSAPR regulations,
as described in section IV below. Under
the first alternative—an ‘‘abbreviated’’
SIP revision—a state may submit a SIP
revision that upon approval replaces the
default allowance allocation and/or
applicability provisions of a CSAPR
federal trading program for the state.9
Approval of an abbreviated SIP revision
leaves the corresponding CSAPR FIP
and all other provisions of the relevant
federal trading program in place for the
state’s units.
Under the second alternative—a
‘‘full’’ SIP revision—a state may submit
a SIP revision that upon approval
replaces a CSAPR federal trading
program for the state with a state trading
program integrated with the federal
trading program, so long as the state
trading program is substantively
identical to the federal trading program
or does not substantively differ from the
federal trading program except as
discussed above with regard to the
allowance allocation and/or
applicability provisions.10 For purposes
of a full SIP revision, a state may either
adopt state rules with complete trading
program language, incorporate the
federal trading program language into its
state rules by reference (with
appropriate conforming changes), or
employ a combination of these
approaches.
The CSAPR regulations identify
several important consequences and
limitations associated with approval of
a full SIP revision. First, upon EPA’s
approval of a full SIP revision as
correcting the deficiency in the state’s
implementation plan that was the basis
for a particular set of CSAPR FIP
requirements, the obligation to
participate in the corresponding CSAPR
federal trading program is automatically
eliminated for units subject to the state’s
jurisdiction without the need for a
separate EPA withdrawal action, so long
as EPA’s approval of the SIP is full and
unconditional.11 Second, approval of a
full SIP revision does not terminate the
obligation to participate in the
corresponding CSAPR federal trading
program for any units located in any
Indian country within the borders of the
state, and if and when a unit is located
in Indian country within a state’s
borders, EPA may modify the SIP
approval to exclude from the SIP, and
include in the surviving CSAPR FIP
instead, certain trading program
provisions that apply jointly to units in
the state and to units in Indian country
9 40
CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
11 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
10 40
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within the state’s borders.12 Finally, if at
the time a full SIP revision is approved
EPA has already started recording
allocations of allowances for a given
control period to a state’s units, the
federal trading program provisions
authorizing EPA to complete the process
of allocating and recording allowances
for that control period to those units
will continue to apply, unless EPA’s
approval of the SIP revision provides
otherwise.13
On July 28, 2015, the United States
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued a
decision on a number of petitions
related to CSAPR, which found that
EPA required more emissions
reductions than may have been
necessary to address the downwind air
quality problems to which some states
contribute. The court remanded several
CSAPR emission budgets to EPA for
reconsideration, including the Phase 2
SO2 trading budget for South Carolina.14
However, South Carolina has proposed
to voluntarily adopt into their SIP a
CSAPR state trading program that is
integrated with the federal trading
program and includes a stateestablished SO2 budget equal to the
state’s remanded Phase 2 SO2 emission
budget.15 EPA notes that nothing in the
court’s decision affects South Carolina’s
authority to seek incorporation into its
SIP of a state-established budget as
stringent as the remanded federallyestablished budget or limits EPA’s
authority to approve such a SIP
revision. The CSAPR regulations
provide each covered state with the
option to meet its transport obligations
through SIP revisions replacing the
federal trading programs and requiring
the state’s EGUs to participate in
integrated CSAPR state trading
12 40 CFR 52.38(a)(5)(iv)–(v), (a)(6), (b)(5)(v)–(vi),
(b)(9)(vi)–(vii), (b)(10)(i); 52.39(f)(4)–(5), (i)(4)–(5),
(j).
13 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
14 EME Homer City II, 795 F.3d 118; See also EME
Homer City Generation, L.P. v. EPA, 696 F.3d 7
(D.C. Cir. 2012), EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). The D.C.
Circuit also remanded SO2 budgets for Alabama,
Georgia, and Texas. The court also remanded Phase
2 ozone-season NOX budgets for eleven states,
including South Carolina.
15 See memo entitled ‘‘The U.S. Environmental
Protection Agency’s Plan for Responding to the
Remand of the Cross-State Air Pollution Rule Phase
2 SO2 Budgets for Alabama, Georgia, South Carolina
and Texas’’ from Janet G. McCabe, EPA Acting
Assistant Administrator for Air and Radiation, to
EPA Regional Air Division Directors (June 27,
2016), available at https://www.regulations.gov/
document?D=EPA-HQ-OAR-2016-0598-0003. The
memo directs the Regional Air Division Directors to
share the memo with state officials. EPA also
communicated orally with officials in Alabama,
Georgia, South Carolina, and Texas in advance of
the memo.
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programs that apply emissions budgets
of the same or greater stringency. Under
the CSAPR regulations, when such a SIP
revision is approved, the corresponding
FIP provisions are automatically
withdrawn.
IV. Conditions for Approval of CSAPRRelated SIP Revisions
Each CSAPR-related abbreviated or
full SIP revision must meet the
following general submittal conditions:
• Timeliness and completeness of SIP
submittal. The SIP submittal
completeness criteria in section 2.1 of
appendix V to 40 CFR part 51 apply. In
addition, if a state wants to replace the
default allowance allocation or
applicability provisions of a CSAPR
federal trading program, the complete
SIP revision must be submitted to EPA
by December 1 of the year before the
deadlines described below for
submitting allocation or auction
amounts to EPA for the first control
period for which the state wants to
replace the default allocation and/or
applicability provisions.16 This SIP
submission deadline is inoperative in
the case of a SIP revision that seeks only
to replace a CSAPR FIP and federal
trading program with a SIP and a
substantively identical state trading
program integrated with the federal
trading program.
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP seeking to address the
allocation or auction of emission
allowances must meet the following
further conditions:
Units
• Methodology covering all
allowances potentially requiring
allocation. For each federal trading
program addressed by a SIP revision,
the SIP revision’s allowance allocation
or auction methodology must replace
both the federal program’s default
allocations to existing units 17 at 40 CFR
97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable,
and the federal trading program’s
provisions for allocating allowances
from the new unit set-aside (NUSA) for
the state at 40 CFR 97.411(b)(1) and
97.412(a), 97.511(b)(1) and 97.512(a),
97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and
97.812(a), as applicable.18 In the case of
a state with Indian country within its
borders, while the SIP revision may
neither alter nor assume the federal
program’s provisions for administering
the Indian country NUSA for the state,
the SIP revision must include
procedures addressing the disposition of
any otherwise unallocated allowances
from an Indian country NUSA that may
be made available for allocation by the
state after EPA has carried out the
Indian country NUSA allocation
procedures.19
• Assurance that total allocations will
not exceed the state budget. For each
federal trading program addressed by a
SIP revision, the total amount of
allowances auctioned or allocated for
each control period under the SIP
revision (prior to the addition by EPA of
any unallocated allowances from any
Indian country NUSA for the state)
Year of the control period
generally may not exceed the state’s
emissions budget for the control period
less the sum of the amount of any
Indian country NUSA for the state for
the control period and any allowances
already allocated to the state’s units for
the control period and recorded by
EPA.20 Under its SIP revision, a state is
free to not allocate allowances to some
or all potentially affected units, to
allocate or auction allowances to
entities other than potentially affected
units, or to allocate or auction fewer
than the maximum permissible quantity
of allowances and retire the remainder.
Under the CSAPR NOX Ozone Season
Group 2 Trading Program only,
additional allowances may be allocated
if the state elects to expand applicability
to non-electric generating units that
would have been subject to the NOX
Budget Trading Program established for
compliance with the NOX SIP Call.21
• Timely submission of statedetermined allocations to EPA. The SIP
revision must require the state to submit
to EPA the amounts of any allowances
allocated or auctioned to each unit for
each control period (other than
allowances initially set aside in the
state’s allocation or auction process and
later allocated or auctioned to such
units from the set-aside amount) by the
following deadlines.22 Note that the
submission deadlines differ for amounts
allocated or auctioned to units
considered existing units for CSAPR
purposes and amounts allocated or
auctioned to other units.
Deadline for submission to EPA of allocations or auction results
CSAPR NOX Annual, CSAPR NOOzone Season Group 1, CSAPR SO2 Group 1, and CSAPR SO2 Group 2 Trading Programs
Existing .........
Other ............
2017 and 2018 ..........................................
2019 and 2020 ..........................................
2021 and 2022 ..........................................
2023 and later years .................................
All years ....................................................
June 1, 2016.
June 1, 2017.
June 1, 2018.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
CSAPR NOX Ozone Season Group 2 Trading Program
Existing .........
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Other ............
2019 and 2020 ..........................................
2021 and 2022 ..........................................
2023 and 2024 ..........................................
2025 and later years .................................
All years ....................................................
16 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6),
(h)(2), (i)(6).
17 In the context of the approval conditions for
CSAPR-related SIP revisions, an ‘‘existing unit’’ is
a unit for which EPA has determined default
allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing
and amending CSAPR. A document describing
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June 1, 2018.
June 1, 2019.
June 1, 2020.
June 1 of the fourth year before the year of the control period.
July 1 of the year of the control period.
EPA’s default allocations to existing units is
available at https://www.epa.gov/sites/production/
files/2017-05/documents/csapr_allowance_
allocations_final_rule_tsd.pdf.
18 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii),
(b)(5)(ii), (b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1),
(h)(1), (i)(1).
19 See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
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20 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A),
(b)(4)(ii)(A), (b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A);
52.39(e)(1)(i), (f)(1)(i), (h)(1)(i), (i)(1)(i).
21 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
22 40 CFR 52.38(a)(4)(i)(B)–(C), (a)(5)(i)(B)–(C),
(b)(4)(ii)(B)–(C), (b)(5)(ii)(B)–(C), (b)(8)(iii)(B)–(C),
(b)(9)(iii)(B)–(C); 52.39(e)(1)(ii)–(iii), (f)(1)(ii)–(iii),
(h)(1)(ii)–(iii), (i)(1)(ii)–(iii).
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• No changes to allocations already
submitted to EPA or recorded. The SIP
revision must not provide for any
change to the amounts of allowances
allocated or auctioned to any unit after
those amounts are submitted to EPA or
any change to any allowance allocation
determined and recorded by EPA under
the federal trading program
regulations.23
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
revision that also expands program
applicability as described below.24 Any
new definitions adopted in the SIP
revision (in addition to the federal
trading program’s definitions) may
apply only for purposes of the SIP
revision’s allocation or auction
provisions.25
In addition to the general submittal
conditions, a CSAPR-related abbreviated
or full SIP revision seeking to expand
applicability under the CSAPR NOX
Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading
Programs (or an integrated state trading
program) must meet the following
further conditions:
• Only electricity generating units
with nameplate capacity of at least 15
MWe. The SIP revision may expand
applicability only to additional fossil
fuel-fired boilers or combustion turbines
serving generators producing electricity
for sale, and only by lowering the
generator nameplate capacity threshold
used to determine whether a particular
boiler or combustion turbine serving a
particular generator is a potentially
affected unit. The nameplate capacity
threshold adopted in the SIP revision
may not be less than 15 MWe.26 In
addition or alternatively, applicability
under the CSAPR NOX Ozone Season
Group 2 Trading Program may be
expanded to non-electric generating
units that would have been subject to
the NOX Budget Trading Program
established for compliance with the
NOX SIP Call.27
• No other substantive changes to
federal trading program provisions. The
SIP revision may not substantively
change any other trading program
provisions, except in the case of a SIP
23 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D),
(b)(4)(ii)(D), (b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D);
52.39(e)(1)(iv), (f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
24 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8),
(b)(9); 52.39(e), (f), (h), (i).
25 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii),
(b)(5)(iii), (b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2),
(h)(1), (i)(2).
26 40 CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
27 40 CFR 52.38(b)(8)(ii), (b)(9)(ii).
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revision that also addresses the
allocation or auction of emission
allowances as described above.28
In addition to the general submittal
conditions and the other applicable
conditions described above, a CSAPRrelated full SIP revision must meet the
following further conditions:
• Complete, substantively identical
trading program provisions. The SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435, 97.502
through 97.535, 97.602 through 97.635,
97.702 through 97.735, or 97.802
through 97.835, as applicable, except as
described above in the case of a SIP
revision that seeks to replace the default
allowance allocation and/or
applicability provisions.29
• Only non-substantive substitutions
for the term ‘‘State.’’ The SIP revision
may substitute the name of the state for
the term ‘‘State’’ as used in the federal
trading program regulations, but only to
the extent that EPA determines that the
substitutions do not substantively
change the trading program
regulations.30
• Exclusion of provisions addressing
units in Indian country. The SIP
revision may not impose requirements
on any unit in any Indian country
within the state’s borders and must not
include the federal trading program
provisions governing allocation of
allowances from any Indian country
NUSA for the state.31
V. South Carolina’s SIP Draft Submittal
and EPA’s Analysis
A. South Carolina’s Draft SIP Submittal
In the CSAPR rulemaking, EPA
determined that air pollution
transported from EGUs in South
Carolina would unlawfully affect other
states’ ability to attain or maintain the
1997 8-hour ozone NAAQS and the
1997 Annual PM2.5 NAAQS, and
included South Carolina in the CSAPR
ozone season NOX trading program and
the annual SO2 and NOX trading
programs.32 In the CSAPR Update
rulemaking, EPA determined that South
Carolina was no longer linked to any
identified downwind nonattainment or
maintenance receptors for the 1997 8hour ozone NAAQS or 2008 8-hour
ozone NAAQS, and removed South
28 40
CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
29 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
30 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
31 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi);
52.39(f)(4), (i)(4).
32 76 FR 48208, 48213 (August 8, 2011).
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Carolina from the CSAPR ozone season
NOX trading program beginning in
2017.33 South Carolina’s units meeting
the CSAPR applicability criteria are
consequently currently subject to
CSAPR FIPs that require participation in
the CSAPR NOX Annual Trading
Program and the CSAPR SO2 Group 2
Trading Program.34 South Carolina’s
May 26, 2017, draft SIP revision
incorporates into the SIP CSAPR state
trading program regulations that would
replace the CSAPR federal trading
program regulations with regard to
South Carolina units’ SO2 and annual
NOX emissions. The draft SIP submittal
includes the addition of South Carolina
Regulation 61–62.97, Cross-State Air
Pollution Rule (CSAPR) Trading
Program. This rule will contain two
subparts: 61–62.97, Subpart A—South
Carolina CSAPR NOX Annual Trading
Program, and 61–62.97 Subpart B—
South Carolina CSAPR SO2 Group 2
Trading Program. In general, each
subpart in South Carolina’s draft CSAPR
state trading program rule is designed to
replace the corresponding federal
trading program regulations. For
example, South Carolina draft
Regulation 61–62.97, Subpart A—South
Carolina CSAPR NOX Annual Trading
program is designed to replace subpart
AAAAA of 40 CFR part 97 (i.e., 40 CFR
97.401 through 97.435).
With regard to form, some of the
individual draft rules for each South
Carolina CSAPR state trading program
are set forth as full regulatory text—
notably the rules identifying the trading
budgets, NUSAs, and Indian country
NUSA—but most of the draft rules
incorporate the corresponding federal
trading program section or sections by
reference.
With regard to substance, the draft
rules for each South Carolina CSAPR
state trading program differ from the
corresponding CSAPR federal trading
program regulations in two main ways.
First, the applicability provisions in the
South Carolina draft rules require
participation in South Carolina CSAPR
state trading programs only for units in
South Carolina, not for units in any
other state or in Indian country within
the borders of South Carolina or any
other state. Second, the South Carolina
draft rules omit some federal trading
program provisions not applicable to
33 81 FR 74504, 74524 (October 26, 2016).
Removal of South Carolina from the CSAPR ozone
season trading program beginning in 2017
addressed the portion of the D.C. Circuit’s remand
in EME Homer City II related to South Carolina’s
ozone season NOX budget for the 1997 8-hour ozone
NAAQS. Id.
34 40 CFR 52.38(a)(2), (b)(2); 52.39(c); 52.2140(a),
(b); 52.2141.
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South Carolina’s state trading programs,
including provisions setting forth the
amounts of emissions budgets, NUSAs,
Indian country NUSAs, and variability
limits for other states and provisions
relating to EPA’s administration of
Indian country NUSAs.
The South Carolina draft rules adopt
the Phase 2 annual NOX and SO2
budgets found at 40 CFR
97.410(a)(18)(iv) and 97.710(a)(6)(iv),
respectively. Accordingly, EPA will
evaluate the approvability of the South
Carolina draft SIP submission consistent
with these budgets.
At this time, EPA is proposing to take
action on the portions of South
Carolina’s draft SIP submission
designed to replace the federal CSAPR
NOX Annual Trading Program and the
federal CSAPR SO2 Group 2 Trading
Program with regard to South Carolina
units.
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B. EPA’s Analysis of South Carolina’s
Draft Submittal
As described in section V.A above, at
this time EPA is proposing to take
action on the portions of South
Carolina’s draft SIP submittal designed
to replace the federal CSAPR NOX
Annual Trading Program and the federal
CSAPR SO2 Group 2 Trading Program
for South Carolina units.35 The analysis
discussed in this section addresses only
the portions of South Carolina’s draft
SIP submittal on which EPA is taking
action at this time. For simplicity,
throughout this section EPA refers to the
portions of the draft submittal on which
EPA is proposing to take action as ‘‘the
draft submittal’’ or ‘‘the draft SIP
revision’’ without repeating the
qualification that at this time EPA is
analyzing and proposing to act on only
portions of the draft SIP submittal.
1. Timeliness and Completeness of SIP
Submittal
South Carolina submitted its draft SIP
revision to EPA on May 26, 2017, and
EPA has determined that the submittal
complies with the applicable minimum
completeness criteria for parallel
processing in section 2.3 of appendix V
to 40 CFR part 51.36 The SIP submission
deadline specified in 40 CFR
52.38(a)(5)(vi) and 52.39(i)(6) is defined
with reference to certain separate
CSAPR deadlines for submission of
state-determined allowance allocations
to EPA and is therefore inoperative in
the case of a SIP revision that does not
seek to replace the EPA-administered
35 The other portions of the draft state submittal
will be addressed in separate actions.
36 The requirements of paragraph 2.1 must be met
prior to publication of EPA’s final determination of
plan approvability. 40 CFR 51, App. V, 2.3.2.
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allowance allocation methodology and
process set forth in the federal trading
program rules. Because South Carolina
is seeking to replace the federal trading
program rules with substantively
identical state trading program rules and
is not seeking to replace the EPAadministered allowance allocation
methodology and process, the SIP
submission deadline does not apply.37
2. Complete, Substantively Identical
Trading Program Provisions
As discussed above, the South
Carolina draft SIP revision adopts state
budgets identical to the Phase 2 budgets
for South Carolina under the federal
trading programs and adopts almost all
of the provisions of the federal CSAPR
NOX Annual Trading Program and
CSAPR SO2 Group 2 Trading Program,
including the default allocation
provisions. Under the State’s draft rules,
EPA would administer the programs
and would retain the authority to
allocate and record allowances.
With the following exceptions, the
South Carolina draft rules comprising
South Carolina’s CSAPR state trading
program for annual NOX emissions
either incorporate by reference or adopt
full-text replacements for all of the
provisions of 40 CFR 97.402 through
97.435, and the South Carolina draft
rules comprising South Carolina’s
CSAPR state trading program for SO2
emissions either incorporate by
reference or adopt full-text replacements
for all of the provisions of 40 CFR
97.702 through 97.735.
The first exception is that, as
discussed below in section V.B.3,
paragraphs 61–62.97.A.3 and B.3 of the
South Carolina draft rules limit
applicability of the rules to units located
in South Carolina, excluding units
located in Indian country within South
Carolina’s borders. This modification of
the applicability provisions in the
federal trading program rules is
appropriate for state trading program
rules which necessarily must be
designed to apply only to sources
subject to the State’s jurisdiction.
The second exception is that South
Carolina draft rule 61–62.97 omits the
provisions of 40 CFR 97.410(a) and (b)
and 97.710(a) and (b) setting forth the
forth amounts of the Phase 1 emissions
budgets, NUSAs, Indian country
NUSAs, and variability limits for South
Carolina and the amounts of the Phase
1 and Phase 2 emissions budgets,
NUSAs, Indian country NUSAs, and
variability limits for other states.
Omission of the South Carolina Phase 1
emissions budget, NUSA, Indian
37 See
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country NUSA, and variability limit
amounts is appropriate because South
Carolina’s state trading programs do not
apply to emissions occurring in Phase 1
of CSAPR. Omission of the Phase 1 and
Phase 2 budget, NUSA, Indian country
NUSA, and variability limit amounts for
other states from state trading programs
in which only South Carolina units
participate does not undermine the
completeness of the state trading
programs. South Carolina’s draft rules
include full-text replacement provisions
for the remaining provisions of 40 CFR
97.410 and 97.710 that are relevant to
trading programs applicable only to
South Carolina units during Phase 2 of
CSAPR.
The third exception is that South
Carolina draft rule 61–62.97 omits 40
CFR 97.411(b)(2), 97.411(c)(5)(iii),
97.412(b), 97.421(h), 97.421(j),
97.711(b)(2), 97.711(c)(5)(iii), 97.712(b),
97.721(h), and 97.721(j), concerning
EPA’s administration of Indian country
NUSAs. Omission of these provisions
from South Carolina’s state trading
program rules is required, as discussed
in section V.B.4 below.
None of the omissions undermine the
completeness of the South Carolina’s
state trading programs and EPA has
determined that South Carolina’s draft
SIP revision makes no substantive
changes to the provisions of the federal
trading program regulations. Thus,
South Carolina’s draft SIP revision
meets the condition under 40 CFR
52.38(a)(5) and 52.39(i) that the SIP
revision must adopt complete state
trading program regulations
substantively identical to the complete
federal trading program regulations at
40 CFR 97.402 through 97.435 and
97.702 through 97.735, respectively,
except to the extent permitted in the
case of a SIP revision that seeks to
replace the default allowance allocation
and/or applicability provisions.
3. Only Non-Substantive Substitutions
for the Term ‘‘State’’
Paragraphs 61–62.97.A.3 and B.3 of
the South Carolina draft rules substitute
the phrase ‘‘The following units in
South Carolina (but not in Indian
country within South Carolina’s
borders),’’ for the phrase ‘‘The following
units in a State (and Indian country
within the borders of such State)’’ in the
corresponding federal trading program
regulations at 40 CFR 97.410(a)(1) and
97.710(a)(1) and at 97.410(b) and
97.710(b), respectively. These
provisions of the South Carolina draft
rules define the units that are required
to participate in South Carolina’s
CSAPR state trading programs. The
substitutions appropriately exclude
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units located in other states and units
located in Indian country within the
borders of South Carolina or any other
state, thereby limiting the applicability
of South Carolina’s state trading
programs to units that are subject to
South Carolina’s jurisdiction. These
substitutions do not substantively
change the provisions of CSAPR’s
federal trading program regulations. The
remaining South Carolina rules do not
substitute for the term ‘‘State’’ as used
in the federal trading program
regulations. EPA proposes to find that
South Carolina’s draft SIP revision
therefore meets the condition under 40
CFR 52.38(a)(5)(iii) and 52.39(i)(3) that
the SIP revision may substitute the
name of the state for the term ‘‘State’’ as
used in the federal trading program
regulations, but only to the extent that
EPA determines that the substitutions
do not substantively change the
provisions of the federal trading
program regulations.
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4. Exclusion of Provisions Addressing
Units in Indian Country
As discussed above in section V.B.3,
paragraphs 61–62.97.A.3 and B.3 of the
South Carolina draft rules explicitly
exclude units in Indian country within
South Carolina’s borders from the
applicable requirements of the state
rule. In addition, as required under 40
CFR 52.38(a)(5)(iv) and 52.39(i)(4),
South Carolina’s draft SIP revision
excludes federal trading program
provisions related to EPA’s process for
allocating and recording allowances
from Indian country NUSAs (i.e., 40
CFR 97.411(b)(2), 97.411(c)(5)(iii),
97.412(b), 97.421(h), 97.421(j),
97.711(b)(2), 97.711(c)(5)(iii), 97.712(b),
and 97.721(h) and 97.721(j)). South
Carolina’s draft SIP revision therefore
meets the conditions under
52.38(a)(5)(iv) and 52.39(i)(4) that a SIP
submittal must not impose any
requirement on any unit in Indian
country within the borders of the State
and must exclude certain provisions
related to administration of Indian
country NUSAs.38
VI. EPA’s Proposed Action on South
Carolina’s Draft Submittal
EPA is proposing to approve the
portions of South Carolina’s May 26,
2017, draft SIP submittal concerning the
establishment for South Carolina units
of CSAPR state trading programs for
annual NOX and SO2 emissions. The
proposed draft revision would adopt
into the SIP state trading program rules
38 A FIP will remain in place for any units that
are in Indian country within South Carolina’s
borders.
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to be codified in SC Code of Annotated
Regulations at 61–62.97, ‘‘Cross-State
Air Pollution Rule (CSAPR) Trading
Program.’’ These South Carolina CSAPR
state trading programs would be
integrated with the federal CSAPR NOX
Annual Trading Program and the federal
CSAPR SO2 Group 2 Trading Program,
respectively, and would be
substantively identical to the federal
trading programs.39 If EPA approves
these portions of the proposed draft SIP
revision, South Carolina units therefore
would generally be required to meet
requirements under South Carolina’s
CSAPR state trading programs
equivalent to the requirements the units
otherwise would have been required to
meet under the corresponding CSAPR
federal trading programs. EPA is
proposing to approve these portions of
the draft SIP revision because they meet
the requirements of the CAA and EPA’s
regulations for approval of a CSAPR full
SIP revision replacing a federal trading
program with a state trading program
that is integrated with and substantively
identical to the federal trading program
except for permissible differences, as
discussed in section V above.
EPA promulgated FIPs requiring
South Carolina units to participate in
the federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2
Group 2 Trading Program in order to
address South Carolina’s obligations
under CAA section 110(a)(2)(D)(i)(I)
with respect to the 1997 Annual PM2.5
NAAQS in the absence of SIP provisions
addressing those requirements.
Approval of the portions of South
Carolina’s draft SIP submittal adopting
CSAPR state trading program rules for
annual NOX and SO2 substantively
identical to the corresponding CSAPR
federal trading program regulations (or
differing only with respect to the
allowance allocation methodology)
would satisfy South Carolina’s
obligation pursuant to CAA section
110(a)(2)(D)(i)(I) to prohibit emissions
which will significantly contribute to
nonattainment or interfere with
maintenance of the 1997 Annual PM2.5
NAAQS in any other state and therefore
would correct the same deficiency in
the SIP that otherwise would be
corrected by those CSAPR FIPs. Under
the CSAPR regulations, upon EPA’s full
and unconditional approval of a SIP
revision as correcting the SIP’s
deficiency that is the basis for a
particular CSAPR FIP, the obligation to
39 As previously discussed in sections IV and
V.B.2, under South Carolina’s draft regulations, the
State will retain EPA’s default allowance allocation
methodology and EPA will remain the
implementing authority for administration of the
trading program.
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37395
participate in the corresponding CSAPR
federal trading program is automatically
eliminated for units subject to the state’s
jurisdiction (but not for any units
located in any Indian country within the
state’s borders).40 Approval of the
portions of South Carolina’s draft SIP
submittal establishing CSAPR state
trading program rules for annual NOX
and SO2 emissions therefore would
result in automatic termination of the
obligations of South Carolina units to
participate in the federal CSAPR NOX
Annual Trading Program and the federal
CSAPR SO2 Group 2 Trading Program.
As noted in section III above, the
Phase 2 SO2 budget established for
South Carolina in the CSAPR
rulemaking has been remanded to EPA
for reconsideration. If EPA finalizes
approval of these portions of the SIP
revision as proposed, South Carolina
will have fulfilled its obligations to
provide a SIP that address the interstate
transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS. Thus, EPA
would no longer be under an obligation
to (nor would EPA have the authority
to) address those transport requirements
through implementation of a FIP, and
approval of these portions of the SIP
revision would eliminate South
Carolina units’ obligations to participate
in the federal CSAPR NOX Annual
Trading Program and the federal CSAPR
SO2 Group 2 Trading Program.
Elimination of South Carolina units’
obligations to participate in the federal
trading programs would include
elimination of the federally-established
Phase 2 budgets capping allocations of
CSAPR NOX Annual allowances and
CSAPR SO2 Group 2 allowances to
South Carolina units under those federal
trading programs. As approval of these
portions of the SIP revision would
eliminate South Carolina’s remanded
federally-established Phase 2 SO2
budget and eliminate EPA’s authority to
subject units in South Carolina to a FIP,
it is EPA’s opinion that finalization of
approval of this SIP action would
address the judicial remand of South
Carolina’s federally-established Phase 2
SO2 budget.
EPA’s proposed approval is
contingent on South Carolina’s
submission of a final SIP revision to
address interstate transport provisions
of CAA section 110(a)(2)(D)(i)(I) with
respect to the 1997 Annual PM2.5
NAAQS. Should South Carolina not
submit a final SIP revision to EPA
addressing interstate transport
provisions of CAA section
40 40 CFR 52.38(a)(6); 52.39(j); see also
52.2140(a)(1); 52.2141(a).
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110(a)(2)(D)(i)(I) with respect to the
1997 Annual PM2.5 NAAQS and/or
should EPA not be able to finalize a full
approval action, EPA will undertake
further reconsideration of the FIP
pursuant to the judicial remand. The
Agency has made the preliminary
determination that these proposed
actions are consistent with the CAA and
EPA’s regulations for approval of a
CSAPR full SIP revision replacing the
requirements of a CSAPR FIP.
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submittal 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 submittals,
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
VerDate Sep<11>2014
16:24 Aug 09, 2017
Jkt 241001
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this proposed rule for
South Carolina does not have Tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), because it does not have
substantial direct effects on an Indian
Tribe. The Catawba Indian Nation
Reservation is located within the state of
South Carolina. Pursuant to the Catawba
Indian Claims Settlement Act, S.C. Code
Ann. 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, the draft rules proposed for
approval exclude units in Indian
country from the applicable
requirements of the draft rules and
exclude federal trading provisions
related to EPA’s process for allocating
and recording allowances from Indian
country NUSAs. 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,
Administrative practice and procedure,
Air pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 28, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–16902 Filed 8–9–17; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 271
[EPA–R03–RCRA–2014–0407; FRL–9965–
86-Region 3]
Delaware: Final Authorization of State
Hazardous Waste Management
Program Revisions
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Delaware has applied to the
United States Environmental Protection
Agency (EPA) for final authorization of
revisions to its hazardous waste
program under the Resource
SUMMARY:
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
Conservation and Recovery Act (RCRA).
EPA proposes to grant final
authorization to Delaware. In the Rules
and Regulations section of this issue of
the Federal Register, EPA is authorizing
the revisions by a direct final rule. We
have explained the reasons for this
authorization in the preamble to the
direct final rule. Unless EPA receives
written comments that oppose this
authorization during the comment
period, the direct final rule will become
effective on the date it establishes, and
EPA will not take further action on this
proposal.
DATES: Send your written comments by
September 11, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R03–
RCRA–2014–0407, at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
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, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Evelyn Sorto, U.S. EPA Region III,
RCRA Waste Branch, Mailcode 3LC32,
1650 Arch Street, Philadelphia, PA
19103–2029, Phone Number: (215) 814–
2123; Email: sorto.evelyn@epa.gov.
SUPPLEMENTARY INFORMATION: In the
‘‘Rules and Regulations’’ section of this
issue of the Federal Register, EPA is
authorizing the revisions by a direct
final rule. EPA did not make a proposal
prior to the direct final rule because we
believe this action is not controversial
and do not expect comments that
oppose it. We have explained the
reasons for this authorization in the
preamble of the direct final rule. Unless
EPA receives adverse written comments
that oppose this authorization during
the comment period, the direct final
E:\FR\FM\10AUP1.SGM
10AUP1
Agencies
[Federal Register Volume 82, Number 153 (Thursday, August 10, 2017)]
[Proposed Rules]
[Pages 37389-37396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-16902]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0364; FRL-9965-99-Region 4]
Air Plan Approval; South Carolina; Cross-State Air Pollution Rule
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of a draft revision to the South Carolina State
Implementation Plan (SIP) concerning the Cross-State Air Pollution Rule
(CSAPR) that was submitted by South Carolina for parallel processing on
May 26, 2017. Under CSAPR, large electricity generating units (EGUs) in
South Carolina are subject to Federal Implementation Plans (FIPs)
requiring the units to participate in CSAPR's federal trading program
for annual emissions of nitrogen oxides (NOX) and one of
CSAPR's two federal trading programs for annual emissions of sulfur
dioxide (SO2). This action would approve the State's
regulations requiring large South Carolina EGUs to participate in new
CSAPR state trading programs for annual NOX and
SO2 emissions integrated with the CSAPR federal trading
programs, replacing the corresponding FIP requirements. These CSAPR
state trading programs are substantively identical to the CSAPR federal
trading programs, with the State retaining EPA's default allowance
allocation methodology and EPA remaining the implementing authority for
administration of the trading program. EPA is proposing to approve the
portions of the draft SIP revision concerning these CSAPR state trading
programs because these portions of the draft SIP revision meet the
requirements of the Clean Air Act (CAA or Act) and EPA's regulations
for approval of a CSAPR full SIP revision replacing the requirements of
a CSAPR FIP. Under the CSAPR regulations, approval of these portions of
the draft SIP revision would automatically eliminate South Carolina
units' obligations to participate in CSAPR's federal trading programs
for annual NOX and SO2 emissions under the
corresponding CSAPR FIPs addressing interstate transport requirements
for the 1997 Annual Fine Particulate Matter (PM2.5) national
ambient air quality standards (NAAQS). Approval of these portions of
the SIP revision would satisfy South Carolina's good neighbor
obligation for the 1997 Annual PM2.5 NAAQS.
DATES: Comments must be received on or before September 11, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0364 at https://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 https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Ashten Bailey, Air Regulatory
Management Section, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. Ms. Bailey can be reached by telephone at
(404) 562-9164 or via electronic mail at bailey.ashten@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary
EPA is proposing to approve the portions of the May 26, 2017, draft
revision to the South Carolina SIP concerning CSAPR \1\ trading
programs for annual emissions of NOx and SO2. Large EGUs in
South Carolina are subject to CSAPR FIPs that require the units to
participate in the federal CSAPR NOx Annual Trading Program and the
federal CSAPR SO2 Group 2 Trading Program. CSAPR also
provides a process for the submission and approval of SIP revisions to
replace the requirements of CSAPR FIPs with SIP requirements under
which a state's units participate in CSAPR state trading programs that
are integrated with and, with certain permissible exceptions,
substantively identical to the CSAPR federal trading programs.
---------------------------------------------------------------------------
\1\ Federal Implementation Plans; Interstate Transport of Fine
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR
48208 (August 8, 2011) (codified as amended at 40 CFR 52.38 and
52.39 and subparts AAAAA through EEEEE of 40 CFR part 97).
---------------------------------------------------------------------------
The portions of the draft SIP revision proposed for approval would
incorporate into South Carolina's SIP state trading program regulations
for annual NOX and SO2 emissions that would
replace EPA's federal trading program regulations for those emissions
for South Carolina units for control periods in 2017 and later
years.\2\ EPA is proposing to approve these portions of the draft SIP
revision because they meet the requirements of the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program. Under
the CSAPR regulations, approval of these portions of the draft SIP
revision would automatically eliminate the obligations of large EGUs in
South Carolina (but not any units in Indian country within South
Carolina's borders) to participate in CSAPR's federal trading programs
for annual NOX and SO2 emissions under the
corresponding CSAPR FIPs. EPA proposes to find that approval of these
portions of the draft SIP revision would satisfy South Carolina's
obligation
[[Page 37390]]
pursuant to CAA section 110(a)(2)(D)(i)(I) to prohibit emissions which
will significantly contribute to nonattainment or interfere with
maintenance of the 1997 Annual PM2.5 NAAQS in any other
state.
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\2\ Under South Carolina's draft regulations, the State will
retain EPA's default allowance allocation methodology and EPA will
remain the implementing authority for administration of the trading
program. See sections IV and V.B.2, below.
---------------------------------------------------------------------------
The Phase 2 SO2 budget established for South Carolina in
the CSAPR rulemaking has been remanded to EPA for reconsideration.\3\
If EPA finalizes approval of the portions of the draft SIP revision as
proposed, South Carolina will have fulfilled its obligations to provide
a SIP that address the interstate transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS. Thus, EPA would no longer be under an obligation to (nor would
EPA have the authority to) address those interstate transport
requirements through implementation of a FIP, and approval of these
portions of the draft SIP revision would eliminate South Carolina
units' obligations to participate in the federal CSAPR NOX
Annual Trading Program and the federal CSAPR SO2 Group 2
Trading Program. Elimination of South Carolina units' obligations to
participate in the federal trading programs would include elimination
of the federally-established Phase 2 budgets capping allocations of
CSAPR NOX Annual allowances and CSAPR SO2 Group 2
allowances to South Carolina units under those federal trading
programs. As approval of these portions of the draft SIP revision would
eliminate South Carolina's remanded federally-established Phase 2
SO2 budget and eliminate EPA's authority to subject units in
South Carolina to a FIP, it is EPA's opinion that finalization of
approval of this SIP action would address the judicial remand of South
Carolina's federally-established Phase 2 SO2 budget.\4\
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\3\ EME Homer City Generation, L.P. v. EPA (EME Homer City II),
795 F.3d 118, 138 (D.C. Cir. 2015).
\4\ Although the court in EME Homer City II remanded South
Carolina's Phase 2 SO2 budget because it determined that
the budget may be too stringent, nothing in the court's decision
affects South Carolina's authority to seek incorporation into its
SIP of a state-established budget as stringent as the remanded
federally-established budget or limits EPA's authority to approve
such a SIP revision. See 42 U.S.C. 7416, 7410(k)(3).
---------------------------------------------------------------------------
EPA is proposing to approve the draft SIP revision through parallel
processing. Should South Carolina not submit a final SIP revision to
EPA and/or should EPA not be able to finalize a full approval action
addressing interstate transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS, EPA will undertake further reconsideration of the FIP pursuant
to the judicial remand.
Section II of this document describes the requirements and steps
for parallel processing. Section III summarizes the relevant aspects of
the CSAPR federal trading programs and FIPs as well as the range of
opportunities states have to submit SIP revisions to modify or replace
the FIP requirements while continuing to rely on CSAPR's trading
programs to address the states' obligations to mitigate interstate air
pollution. Section IV describes the specific conditions for approval of
such SIP revisions. Section V contains EPA's analysis of South
Carolina's SIP draft submittal, and Section VI sets forth EPA's
proposed action on the draft submittal. Section VII addresses required
statutory and Executive Order reviews.
II. What is ``parallel processing?''
Parallel processing refers to a concurrent state and federal
proposed rulemaking action. Generally, the state submits a copy of the
proposed regulation or other revisions to EPA before conducting its
public hearing. EPA reviews this proposed state action, and prepares a
notice of proposed rulemaking. EPA's notice of proposed rulemaking is
published in the Federal Register during the same timeframe that the
state is holding its public hearing. The state and EPA then provide for
concurrent public comment periods on both the state action and federal
action. If the state's formal SIP revision is changed from the draft
SIP revision, EPA will evaluate those changes and may publish another
notice of proposed rulemaking. A final rulemaking action by EPA will
occur only after the SIP revision has been adopted by South Carolina
and submitted formally to EPA for incorporation into the SIP.
On May 26, 2017, the State of South Carolina, through South
Carolina Department of Health and Environmental Control (SCDHEC),
submitted a request for parallel processing for a draft SIP revision
related to the interstate transport provisions of CAA section
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS. This revision was noticed for public comment by the State on May
26, 2017, and is not yet state-effective. Through this proposed
rulemaking, EPA is proposing parallel approval of this draft SIP
revision.
Once the May 26, 2017, draft revision is state-effective, South
Carolina will need to provide EPA with a formal SIP revision. After
South Carolina submits the formal SIP revision (including a response to
any public comments raised during the State's public participation
process), EPA will evaluate the revision. If the formal SIP revision is
changed from the draft SIP revision, EPA will evaluate those changes
for significance. If any such changes are found by EPA to be
significant, then the Agency intends to re-propose the action based
upon the revised submission.
While EPA may not be able to have a concurrent public comment
process with the State, the SCDHEC-requested parallel processing allows
EPA to begin to take action on the State's draft SIP revision in
advance of the submission of the formal SIP revision. As stated above,
the final rulemaking action by EPA will occur only after the SIP
revision has been: (1) Adopted by South Carolina, (2) submitted
formally to EPA for incorporation into the SIP, and (3) evaluated for
changes.
III. Background on CSAPR and CSAPR-Related SIP Revisions
EPA issued CSAPR in July 2011 to address the requirements of CAA
section 110(a)(2)(D)(i)(I) concerning interstate transport of air
pollution. As amended (including the 2016 CSAPR Update \5\), CSAPR
requires 27 Eastern states to limit their statewide emissions of
SO2 and/or NOX in order to mitigate transported
air pollution unlawfully impacting other states' ability to attain or
maintain four NAAQS: The 1997 Annual PM2.5 NAAQS, the 2006
24-hour PM2.5 NAAQS, the 1997 8-hour ozone NAAQS, and the
2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in
terms of maximum statewide ``budgets'' for emissions of annual
SO2, annual NOX, and/or ozone season
NOX by each covered state's large EGUs. The CSAPR state
budgets are implemented in two phases of generally increasing
stringency, with the Phase 1 budgets applying to emissions in 2015 and
2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions
in 2017 and later years. As a mechanism for achieving compliance with
the emissions limitations, CSAPR establishes five federal emissions
trading programs: A program for annual NOX emissions, two
geographically
[[Page 37391]]
separate programs for annual SO2 emissions, and two
geographically separate programs for ozone-season NOX
emissions. CSAPR also establishes FIP requirements applicable to the
large EGUs in each covered state. Currently, the CSAPR FIP provisions
require each state's units to participate in up to three of the five
CSAPR trading programs.
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\5\ 81 FR 74504 (October 26, 2016). The CSAPR Update was
promulgated to address interstate pollution with respect to the 2008
ozone NAAQS and to address a judicial remand of certain original
CSAPR ozone season NOX budgets promulgated with respect
to the 1997 ozone NAAQS. 81 FR at 74505. The CSAPR Update
established new emission reduction requirements addressing the more
recent NAAQS and coordinated them with the remaining emission
reduction requirements addressing the older NAAQS, so that starting
in 2017, CSAPR includes two geographically separate trading programs
for ozone season NOX emissions covering EGUs in a total
of 23 states. See 40 CFR 52.38(b)(1)-(2).
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CSAPR includes provisions under which states may submit and EPA
will approve SIP revisions to modify or replace the CSAPR FIP
requirements while allowing states to continue to meet their transport-
related obligations using either CSAPR's federal emissions trading
programs or state emissions trading programs integrated with the
federal programs.\6\ Through such a SIP revision, a state may replace
EPA's default provisions for allocating emission allowances among the
state's units, employing any state-selected methodology to allocate or
auction the allowances, subject to timing conditions and limits on
overall allowance quantities. In the case of CSAPR's federal trading
programs for ozone season NOX emissions (or an integrated
state trading program), a state may also expand trading program
applicability to include certain smaller electricity generating
units.\7\ If a state wants to replace CSAPR FIP requirements with SIP
requirements under which the state's units participate in a state
trading program that is integrated with and identical to the federal
trading program even as to the allocation and applicability provisions,
the state may submit a SIP revision for that purpose as well. However,
no emissions budget increases or other substantive changes to the
trading program provisions are allowed. A state whose units are subject
to multiple CSAPR FIPs and federal trading programs may submit SIP
revisions to modify or replace either some or all of those FIP
requirements.
---------------------------------------------------------------------------
\6\ See 40 CFR 52.38, 52.39. States also retain the ability to
submit SIP revisions to meet their transport-related obligations
using mechanisms other than the CSAPR federal trading programs or
integrated state trading programs.
\7\ States covered by both the CSAPR Update and the
NOX SIP Call have the additional option to expand
applicability under the CSAPR NOX Ozone Season Group 2
Trading Program to include non-electric generating units that would
have participated in the former NOX Budget Trading
Program.
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States can submit two basic forms of CSAPR-related SIP revisions
effective for emissions control periods in 2017 or later years.\8\
Specific conditions for approval of each form of SIP revision are set
forth in the CSAPR regulations, as described in section IV below. Under
the first alternative--an ``abbreviated'' SIP revision--a state may
submit a SIP revision that upon approval replaces the default allowance
allocation and/or applicability provisions of a CSAPR federal trading
program for the state.\9\ Approval of an abbreviated SIP revision
leaves the corresponding CSAPR FIP and all other provisions of the
relevant federal trading program in place for the state's units.
---------------------------------------------------------------------------
\8\ CSAPR also provides for a third, more streamlined form of
SIP revision that is effective only for control periods in 2016 and
is not relevant here. See 40 CFR 52.38(a)(3), (b)(3), (b)(7);
52.39(d), (g).
\9\ 40 CFR 52.38(a)(4), (b)(4), (b)(8); 52.39(e), (h).
---------------------------------------------------------------------------
Under the second alternative--a ``full'' SIP revision--a state may
submit a SIP revision that upon approval replaces a CSAPR federal
trading program for the state with a state trading program integrated
with the federal trading program, so long as the state trading program
is substantively identical to the federal trading program or does not
substantively differ from the federal trading program except as
discussed above with regard to the allowance allocation and/or
applicability provisions.\10\ For purposes of a full SIP revision, a
state may either adopt state rules with complete trading program
language, incorporate the federal trading program language into its
state rules by reference (with appropriate conforming changes), or
employ a combination of these approaches.
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\10\ 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
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The CSAPR regulations identify several important consequences and
limitations associated with approval of a full SIP revision. First,
upon EPA's approval of a full SIP revision as correcting the deficiency
in the state's implementation plan that was the basis for a particular
set of CSAPR FIP requirements, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction without the need for a
separate EPA withdrawal action, so long as EPA's approval of the SIP is
full and unconditional.\11\ Second, approval of a full SIP revision
does not terminate the obligation to participate in the corresponding
CSAPR federal trading program for any units located in any Indian
country within the borders of the state, and if and when a unit is
located in Indian country within a state's borders, EPA may modify the
SIP approval to exclude from the SIP, and include in the surviving
CSAPR FIP instead, certain trading program provisions that apply
jointly to units in the state and to units in Indian country within the
state's borders.\12\ Finally, if at the time a full SIP revision is
approved EPA has already started recording allocations of allowances
for a given control period to a state's units, the federal trading
program provisions authorizing EPA to complete the process of
allocating and recording allowances for that control period to those
units will continue to apply, unless EPA's approval of the SIP revision
provides otherwise.\13\
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\11\ 40 CFR 52.38(a)(6), (b)(10)(i); 52.39(j).
\12\ 40 CFR 52.38(a)(5)(iv)-(v), (a)(6), (b)(5)(v)-(vi),
(b)(9)(vi)-(vii), (b)(10)(i); 52.39(f)(4)-(5), (i)(4)-(5), (j).
\13\ 40 CFR 52.38(a)(7), (b)(11)(i); 52.39(k).
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On July 28, 2015, the United States Court of Appeals for the
District of Columbia Circuit (D.C. Circuit) issued a decision on a
number of petitions related to CSAPR, which found that EPA required
more emissions reductions than may have been necessary to address the
downwind air quality problems to which some states contribute. The
court remanded several CSAPR emission budgets to EPA for
reconsideration, including the Phase 2 SO2 trading budget
for South Carolina.\14\ However, South Carolina has proposed to
voluntarily adopt into their SIP a CSAPR state trading program that is
integrated with the federal trading program and includes a state-
established SO2 budget equal to the state's remanded Phase 2
SO2 emission budget.\15\ EPA notes that nothing in the
court's decision affects South Carolina's authority to seek
incorporation into its SIP of a state-established budget as stringent
as the remanded federally-established budget or limits EPA's authority
to approve such a SIP revision. The CSAPR regulations provide each
covered state with the option to meet its transport obligations through
SIP revisions replacing the federal trading programs and requiring the
state's EGUs to participate in integrated CSAPR state trading
[[Page 37392]]
programs that apply emissions budgets of the same or greater
stringency. Under the CSAPR regulations, when such a SIP revision is
approved, the corresponding FIP provisions are automatically withdrawn.
---------------------------------------------------------------------------
\14\ EME Homer City II, 795 F.3d 118; See also EME Homer City
Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), EPA v. EME
Homer City Generation, L.P., 134 S. Ct. 1584 (2014). The D.C.
Circuit also remanded SO2 budgets for Alabama, Georgia,
and Texas. The court also remanded Phase 2 ozone-season
NOX budgets for eleven states, including South Carolina.
\15\ See memo entitled ``The U.S. Environmental Protection
Agency's Plan for Responding to the Remand of the Cross-State Air
Pollution Rule Phase 2 SO2 Budgets for Alabama, Georgia,
South Carolina and Texas'' from Janet G. McCabe, EPA Acting
Assistant Administrator for Air and Radiation, to EPA Regional Air
Division Directors (June 27, 2016), available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0598-0003. The memo
directs the Regional Air Division Directors to share the memo with
state officials. EPA also communicated orally with officials in
Alabama, Georgia, South Carolina, and Texas in advance of the memo.
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IV. Conditions for Approval of CSAPR-Related SIP Revisions
Each CSAPR-related abbreviated or full SIP revision must meet the
following general submittal conditions:
Timeliness and completeness of SIP submittal. The SIP
submittal completeness criteria in section 2.1 of appendix V to 40 CFR
part 51 apply. In addition, if a state wants to replace the default
allowance allocation or applicability provisions of a CSAPR federal
trading program, the complete SIP revision must be submitted to EPA by
December 1 of the year before the deadlines described below for
submitting allocation or auction amounts to EPA for the first control
period for which the state wants to replace the default allocation and/
or applicability provisions.\16\ This SIP submission deadline is
inoperative in the case of a SIP revision that seeks only to replace a
CSAPR FIP and federal trading program with a SIP and a substantively
identical state trading program integrated with the federal trading
program.
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\16\ 40 CFR 52.38(a)(4)(ii), (a)(5)(vi), (b)(4)(iii),
(b)(5)(vii), (b)(8)(iv), (b)(9)(viii); 52.39(e)(2), (f)(6), (h)(2),
(i)(6).
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In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP seeking to address the allocation or auction of
emission allowances must meet the following further conditions:
Methodology covering all allowances potentially requiring
allocation. For each federal trading program addressed by a SIP
revision, the SIP revision's allowance allocation or auction
methodology must replace both the federal program's default allocations
to existing units \17\ at 40 CFR 97.411(a), 97.511(a), 97.611(a),
97.711(a), or 97.811(a) as applicable, and the federal trading
program's provisions for allocating allowances from the new unit set-
aside (NUSA) for the state at 40 CFR 97.411(b)(1) and 97.412(a),
97.511(b)(1) and 97.512(a), 97.611(b)(1) and 97.612(a), 97.711(b)(1)
and 97.712(a), or 97.811(b)(1) and 97.812(a), as applicable.\18\ In the
case of a state with Indian country within its borders, while the SIP
revision may neither alter nor assume the federal program's provisions
for administering the Indian country NUSA for the state, the SIP
revision must include procedures addressing the disposition of any
otherwise unallocated allowances from an Indian country NUSA that may
be made available for allocation by the state after EPA has carried out
the Indian country NUSA allocation procedures.\19\
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\17\ In the context of the approval conditions for CSAPR-related
SIP revisions, an ``existing unit'' is a unit for which EPA has
determined default allowance allocations (which could be allocations
of zero allowances) in the rulemakings establishing and amending
CSAPR. A document describing EPA's default allocations to existing
units is available at https://www.epa.gov/sites/production/files/2017-05/documents/csapr_allowance_allocations_final_rule_tsd.pdf.
\18\ 40 CFR 52.38(a)(4)(i), (a)(5)(i), (b)(4)(ii), (b)(5)(ii),
(b)(8)(iii), (b)(9)(iii); 52.39(e)(1), (f)(1), (h)(1), (i)(1).
\19\ See 40 CFR 97.412(b)(10)(ii), 97.512(b)(10)(ii),
97.612(b)(10)(ii), 97.712(b)(10)(ii), 97.812(b)(10)(ii).
---------------------------------------------------------------------------
Assurance that total allocations will not exceed the state
budget. For each federal trading program addressed by a SIP revision,
the total amount of allowances auctioned or allocated for each control
period under the SIP revision (prior to the addition by EPA of any
unallocated allowances from any Indian country NUSA for the state)
generally may not exceed the state's emissions budget for the control
period less the sum of the amount of any Indian country NUSA for the
state for the control period and any allowances already allocated to
the state's units for the control period and recorded by EPA.\20\ Under
its SIP revision, a state is free to not allocate allowances to some or
all potentially affected units, to allocate or auction allowances to
entities other than potentially affected units, or to allocate or
auction fewer than the maximum permissible quantity of allowances and
retire the remainder. Under the CSAPR NOX Ozone Season Group
2 Trading Program only, additional allowances may be allocated if the
state elects to expand applicability to non-electric generating units
that would have been subject to the NOX Budget Trading
Program established for compliance with the NOX SIP
Call.\21\
---------------------------------------------------------------------------
\20\ 40 CFR 52.38(a)(4)(i)(A), (a)(5)(i)(A), (b)(4)(ii)(A),
(b)(5)(ii)(A), (b)(8)(iii)(A), (b)(9)(iii)(A); 52.39(e)(1)(i),
(f)(1)(i), (h)(1)(i), (i)(1)(i).
\21\ 40 CFR 52.38(b)(8)(iii)(A), (b)(9)(iii)(A).
---------------------------------------------------------------------------
Timely submission of state-determined allocations to EPA.
The SIP revision must require the state to submit to EPA the amounts of
any allowances allocated or auctioned to each unit for each control
period (other than allowances initially set aside in the state's
allocation or auction process and later allocated or auctioned to such
units from the set-aside amount) by the following deadlines.\22\ Note
that the submission deadlines differ for amounts allocated or auctioned
to units considered existing units for CSAPR purposes and amounts
allocated or auctioned to other units.
---------------------------------------------------------------------------
\22\ 40 CFR 52.38(a)(4)(i)(B)-(C), (a)(5)(i)(B)-(C),
(b)(4)(ii)(B)-(C), (b)(5)(ii)(B)-(C), (b)(8)(iii)(B)-(C),
(b)(9)(iii)(B)-(C); 52.39(e)(1)(ii)-(iii), (f)(1)(ii)-(iii),
(h)(1)(ii)-(iii), (i)(1)(ii)-(iii).
------------------------------------------------------------------------
Deadline for submission
Units Year of the control to EPA of allocations or
period auction results
------------------------------------------------------------------------
CSAPR NO Annual, CSAPR NOOzone Season Group 1, CSAPR SO Group 1, and
CSAPR SO Group 2 Trading Programs
------------------------------------------------------------------------
Existing.............. 2017 and 2018........ June 1, 2016.
2019 and 2020........ June 1, 2017.
2021 and 2022........ June 1, 2018.
2023 and later years. June 1 of the fourth year
before the year of the
control period.
Other................. All years............ July 1 of the year of the
control period.
------------------------------------------------------------------------
CSAPR NO Ozone Season Group 2 Trading Program
------------------------------------------------------------------------
Existing.............. 2019 and 2020........ June 1, 2018.
2021 and 2022........ June 1, 2019.
2023 and 2024........ June 1, 2020.
2025 and later years. June 1 of the fourth year
before the year of the
control period.
Other................. All years............ July 1 of the year of the
control period.
------------------------------------------------------------------------
[[Page 37393]]
No changes to allocations already submitted to EPA or
recorded. The SIP revision must not provide for any change to the
amounts of allowances allocated or auctioned to any unit after those
amounts are submitted to EPA or any change to any allowance allocation
determined and recorded by EPA under the federal trading program
regulations.\23\
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\23\ 40 CFR 52.38(a)(4)(i)(D), (a)(5)(i)(D), (b)(4)(ii)(D),
(b)(5)(ii)(D), (b)(8)(iii)(D), (b)(9)(iii)(D); 52.39(e)(1)(iv),
(f)(1)(iv), (h)(1)(iv), (i)(1)(iv).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also expands program applicability as described below.\24\ Any new
definitions adopted in the SIP revision (in addition to the federal
trading program's definitions) may apply only for purposes of the SIP
revision's allocation or auction provisions.\25\
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\24\ 40 CFR 52.38(a)(4), (a)(5), (b)(4), (b)(5), (b)(8), (b)(9);
52.39(e), (f), (h), (i).
\25\ 40 CFR 52.38(a)(4)(i), (a)(5)(ii), (b)(4)(ii), (b)(5)(iii),
(b)(8)(iii), (b)(9)(iv); 52.39(e)(1), (f)(2), (h)(1), (i)(2).
---------------------------------------------------------------------------
In addition to the general submittal conditions, a CSAPR-related
abbreviated or full SIP revision seeking to expand applicability under
the CSAPR NOX Ozone Season Group 1 or CSAPR NOX
Ozone Season Group 2 Trading Programs (or an integrated state trading
program) must meet the following further conditions:
Only electricity generating units with nameplate capacity
of at least 15 MWe. The SIP revision may expand applicability only to
additional fossil fuel-fired boilers or combustion turbines serving
generators producing electricity for sale, and only by lowering the
generator nameplate capacity threshold used to determine whether a
particular boiler or combustion turbine serving a particular generator
is a potentially affected unit. The nameplate capacity threshold
adopted in the SIP revision may not be less than 15 MWe.\26\ In
addition or alternatively, applicability under the CSAPR NOX
Ozone Season Group 2 Trading Program may be expanded to non-electric
generating units that would have been subject to the NOX
Budget Trading Program established for compliance with the
NOX SIP Call.\27\
---------------------------------------------------------------------------
\26\ 40 CFR 52.38(b)(4)(i), (b)(5)(i), (b)(8)(i), (b)(9)(i).
\27\ 40 CFR 52.38(b)(8)(ii), (b)(9)(ii).
---------------------------------------------------------------------------
No other substantive changes to federal trading program
provisions. The SIP revision may not substantively change any other
trading program provisions, except in the case of a SIP revision that
also addresses the allocation or auction of emission allowances as
described above.\28\
---------------------------------------------------------------------------
\28\ 40 CFR 52.38(b)(4), (b)(5), (b)(8), (b)(9).
---------------------------------------------------------------------------
In addition to the general submittal conditions and the other
applicable conditions described above, a CSAPR-related full SIP
revision must meet the following further conditions:
Complete, substantively identical trading program
provisions. The SIP revision must adopt complete state trading program
regulations substantively identical to the complete federal trading
program regulations at 40 CFR 97.402 through 97.435, 97.502 through
97.535, 97.602 through 97.635, 97.702 through 97.735, or 97.802 through
97.835, as applicable, except as described above in the case of a SIP
revision that seeks to replace the default allowance allocation and/or
applicability provisions.\29\
---------------------------------------------------------------------------
\29\ 40 CFR 52.38(a)(5), (b)(5), (b)(9); 52.39(f), (i).
---------------------------------------------------------------------------
Only non-substantive substitutions for the term ``State.''
The SIP revision may substitute the name of the state for the term
``State'' as used in the federal trading program regulations, but only
to the extent that EPA determines that the substitutions do not
substantively change the trading program regulations.\30\
---------------------------------------------------------------------------
\30\ 40 CFR 52.38(a)(5)(iii), (b)(5)(iv), (b)(9)(v);
52.39(f)(3), (i)(3).
---------------------------------------------------------------------------
Exclusion of provisions addressing units in Indian
country. The SIP revision may not impose requirements on any unit in
any Indian country within the state's borders and must not include the
federal trading program provisions governing allocation of allowances
from any Indian country NUSA for the state.\31\
---------------------------------------------------------------------------
\31\ 40 CFR 52.38(a)(5)(iv), (b)(5)(v), (b)(9)(vi); 52.39(f)(4),
(i)(4).
---------------------------------------------------------------------------
V. South Carolina's SIP Draft Submittal and EPA's Analysis
A. South Carolina's Draft SIP Submittal
In the CSAPR rulemaking, EPA determined that air pollution
transported from EGUs in South Carolina would unlawfully affect other
states' ability to attain or maintain the 1997 8-hour ozone NAAQS and
the 1997 Annual PM2.5 NAAQS, and included South Carolina in
the CSAPR ozone season NOX trading program and the annual
SO2 and NOX trading programs.\32\ In the CSAPR
Update rulemaking, EPA determined that South Carolina was no longer
linked to any identified downwind nonattainment or maintenance
receptors for the 1997 8-hour ozone NAAQS or 2008 8-hour ozone NAAQS,
and removed South Carolina from the CSAPR ozone season NOX
trading program beginning in 2017.\33\ South Carolina's units meeting
the CSAPR applicability criteria are consequently currently subject to
CSAPR FIPs that require participation in the CSAPR NOX
Annual Trading Program and the CSAPR SO2 Group 2 Trading
Program.\34\ South Carolina's May 26, 2017, draft SIP revision
incorporates into the SIP CSAPR state trading program regulations that
would replace the CSAPR federal trading program regulations with regard
to South Carolina units' SO2 and annual NOX
emissions. The draft SIP submittal includes the addition of South
Carolina Regulation 61-62.97, Cross-State Air Pollution Rule (CSAPR)
Trading Program. This rule will contain two subparts: 61-62.97, Subpart
A--South Carolina CSAPR NOX Annual Trading Program, and 61-
62.97 Subpart B--South Carolina CSAPR SO2 Group 2 Trading
Program. In general, each subpart in South Carolina's draft CSAPR state
trading program rule is designed to replace the corresponding federal
trading program regulations. For example, South Carolina draft
Regulation 61-62.97, Subpart A--South Carolina CSAPR NOX
Annual Trading program is designed to replace subpart AAAAA of 40 CFR
part 97 (i.e., 40 CFR 97.401 through 97.435).
---------------------------------------------------------------------------
\32\ 76 FR 48208, 48213 (August 8, 2011).
\33\ 81 FR 74504, 74524 (October 26, 2016). Removal of South
Carolina from the CSAPR ozone season trading program beginning in
2017 addressed the portion of the D.C. Circuit's remand in EME Homer
City II related to South Carolina's ozone season NOX
budget for the 1997 8-hour ozone NAAQS. Id.
\34\ 40 CFR 52.38(a)(2), (b)(2); 52.39(c); 52.2140(a), (b);
52.2141.
---------------------------------------------------------------------------
With regard to form, some of the individual draft rules for each
South Carolina CSAPR state trading program are set forth as full
regulatory text--notably the rules identifying the trading budgets,
NUSAs, and Indian country NUSA--but most of the draft rules incorporate
the corresponding federal trading program section or sections by
reference.
With regard to substance, the draft rules for each South Carolina
CSAPR state trading program differ from the corresponding CSAPR federal
trading program regulations in two main ways. First, the applicability
provisions in the South Carolina draft rules require participation in
South Carolina CSAPR state trading programs only for units in South
Carolina, not for units in any other state or in Indian country within
the borders of South Carolina or any other state. Second, the South
Carolina draft rules omit some federal trading program provisions not
applicable to
[[Page 37394]]
South Carolina's state trading programs, including provisions setting
forth the amounts of emissions budgets, NUSAs, Indian country NUSAs,
and variability limits for other states and provisions relating to
EPA's administration of Indian country NUSAs.
The South Carolina draft rules adopt the Phase 2 annual
NOX and SO2 budgets found at 40 CFR
97.410(a)(18)(iv) and 97.710(a)(6)(iv), respectively. Accordingly, EPA
will evaluate the approvability of the South Carolina draft SIP
submission consistent with these budgets.
At this time, EPA is proposing to take action on the portions of
South Carolina's draft SIP submission designed to replace the federal
CSAPR NOX Annual Trading Program and the federal CSAPR
SO2 Group 2 Trading Program with regard to South Carolina
units.
B. EPA's Analysis of South Carolina's Draft Submittal
As described in section V.A above, at this time EPA is proposing to
take action on the portions of South Carolina's draft SIP submittal
designed to replace the federal CSAPR NOX Annual Trading
Program and the federal CSAPR SO2 Group 2 Trading Program
for South Carolina units.\35\ The analysis discussed in this section
addresses only the portions of South Carolina's draft SIP submittal on
which EPA is taking action at this time. For simplicity, throughout
this section EPA refers to the portions of the draft submittal on which
EPA is proposing to take action as ``the draft submittal'' or ``the
draft SIP revision'' without repeating the qualification that at this
time EPA is analyzing and proposing to act on only portions of the
draft SIP submittal.
---------------------------------------------------------------------------
\35\ The other portions of the draft state submittal will be
addressed in separate actions.
---------------------------------------------------------------------------
1. Timeliness and Completeness of SIP Submittal
South Carolina submitted its draft SIP revision to EPA on May 26,
2017, and EPA has determined that the submittal complies with the
applicable minimum completeness criteria for parallel processing in
section 2.3 of appendix V to 40 CFR part 51.\36\ The SIP submission
deadline specified in 40 CFR 52.38(a)(5)(vi) and 52.39(i)(6) is defined
with reference to certain separate CSAPR deadlines for submission of
state-determined allowance allocations to EPA and is therefore
inoperative in the case of a SIP revision that does not seek to replace
the EPA-administered allowance allocation methodology and process set
forth in the federal trading program rules. Because South Carolina is
seeking to replace the federal trading program rules with substantively
identical state trading program rules and is not seeking to replace the
EPA-administered allowance allocation methodology and process, the SIP
submission deadline does not apply.\37\
---------------------------------------------------------------------------
\36\ The requirements of paragraph 2.1 must be met prior to
publication of EPA's final determination of plan approvability. 40
CFR 51, App. V, 2.3.2.
\37\ See 40 CFR 52.38(a)(5)(vi) and 52.39(i)(6).
---------------------------------------------------------------------------
2. Complete, Substantively Identical Trading Program Provisions
As discussed above, the South Carolina draft SIP revision adopts
state budgets identical to the Phase 2 budgets for South Carolina under
the federal trading programs and adopts almost all of the provisions of
the federal CSAPR NOX Annual Trading Program and CSAPR
SO2 Group 2 Trading Program, including the default
allocation provisions. Under the State's draft rules, EPA would
administer the programs and would retain the authority to allocate and
record allowances.
With the following exceptions, the South Carolina draft rules
comprising South Carolina's CSAPR state trading program for annual
NOX emissions either incorporate by reference or adopt full-
text replacements for all of the provisions of 40 CFR 97.402 through
97.435, and the South Carolina draft rules comprising South Carolina's
CSAPR state trading program for SO2 emissions either
incorporate by reference or adopt full-text replacements for all of the
provisions of 40 CFR 97.702 through 97.735.
The first exception is that, as discussed below in section V.B.3,
paragraphs 61-62.97.A.3 and B.3 of the South Carolina draft rules limit
applicability of the rules to units located in South Carolina,
excluding units located in Indian country within South Carolina's
borders. This modification of the applicability provisions in the
federal trading program rules is appropriate for state trading program
rules which necessarily must be designed to apply only to sources
subject to the State's jurisdiction.
The second exception is that South Carolina draft rule 61-62.97
omits the provisions of 40 CFR 97.410(a) and (b) and 97.710(a) and (b)
setting forth the forth amounts of the Phase 1 emissions budgets,
NUSAs, Indian country NUSAs, and variability limits for South Carolina
and the amounts of the Phase 1 and Phase 2 emissions budgets, NUSAs,
Indian country NUSAs, and variability limits for other states. Omission
of the South Carolina Phase 1 emissions budget, NUSA, Indian country
NUSA, and variability limit amounts is appropriate because South
Carolina's state trading programs do not apply to emissions occurring
in Phase 1 of CSAPR. Omission of the Phase 1 and Phase 2 budget, NUSA,
Indian country NUSA, and variability limit amounts for other states
from state trading programs in which only South Carolina units
participate does not undermine the completeness of the state trading
programs. South Carolina's draft rules include full-text replacement
provisions for the remaining provisions of 40 CFR 97.410 and 97.710
that are relevant to trading programs applicable only to South Carolina
units during Phase 2 of CSAPR.
The third exception is that South Carolina draft rule 61-62.97
omits 40 CFR 97.411(b)(2), 97.411(c)(5)(iii), 97.412(b), 97.421(h),
97.421(j), 97.711(b)(2), 97.711(c)(5)(iii), 97.712(b), 97.721(h), and
97.721(j), concerning EPA's administration of Indian country NUSAs.
Omission of these provisions from South Carolina's state trading
program rules is required, as discussed in section V.B.4 below.
None of the omissions undermine the completeness of the South
Carolina's state trading programs and EPA has determined that South
Carolina's draft SIP revision makes no substantive changes to the
provisions of the federal trading program regulations. Thus, South
Carolina's draft SIP revision meets the condition under 40 CFR
52.38(a)(5) and 52.39(i) that the SIP revision must adopt complete
state trading program regulations substantively identical to the
complete federal trading program regulations at 40 CFR 97.402 through
97.435 and 97.702 through 97.735, respectively, except to the extent
permitted in the case of a SIP revision that seeks to replace the
default allowance allocation and/or applicability provisions.
3. Only Non-Substantive Substitutions for the Term ``State''
Paragraphs 61-62.97.A.3 and B.3 of the South Carolina draft rules
substitute the phrase ``The following units in South Carolina (but not
in Indian country within South Carolina's borders),'' for the phrase
``The following units in a State (and Indian country within the borders
of such State)'' in the corresponding federal trading program
regulations at 40 CFR 97.410(a)(1) and 97.710(a)(1) and at 97.410(b)
and 97.710(b), respectively. These provisions of the South Carolina
draft rules define the units that are required to participate in South
Carolina's CSAPR state trading programs. The substitutions
appropriately exclude
[[Page 37395]]
units located in other states and units located in Indian country
within the borders of South Carolina or any other state, thereby
limiting the applicability of South Carolina's state trading programs
to units that are subject to South Carolina's jurisdiction. These
substitutions do not substantively change the provisions of CSAPR's
federal trading program regulations. The remaining South Carolina rules
do not substitute for the term ``State'' as used in the federal trading
program regulations. EPA proposes to find that South Carolina's draft
SIP revision therefore meets the condition under 40 CFR
52.38(a)(5)(iii) and 52.39(i)(3) that the SIP revision may substitute
the name of the state for the term ``State'' as used in the federal
trading program regulations, but only to the extent that EPA determines
that the substitutions do not substantively change the provisions of
the federal trading program regulations.
4. Exclusion of Provisions Addressing Units in Indian Country
As discussed above in section V.B.3, paragraphs 61-62.97.A.3 and
B.3 of the South Carolina draft rules explicitly exclude units in
Indian country within South Carolina's borders from the applicable
requirements of the state rule. In addition, as required under 40 CFR
52.38(a)(5)(iv) and 52.39(i)(4), South Carolina's draft SIP revision
excludes federal trading program provisions related to EPA's process
for allocating and recording allowances from Indian country NUSAs
(i.e., 40 CFR 97.411(b)(2), 97.411(c)(5)(iii), 97.412(b), 97.421(h),
97.421(j), 97.711(b)(2), 97.711(c)(5)(iii), 97.712(b), and 97.721(h)
and 97.721(j)). South Carolina's draft SIP revision therefore meets the
conditions under 52.38(a)(5)(iv) and 52.39(i)(4) that a SIP submittal
must not impose any requirement on any unit in Indian country within
the borders of the State and must exclude certain provisions related to
administration of Indian country NUSAs.\38\
---------------------------------------------------------------------------
\38\ A FIP will remain in place for any units that are in Indian
country within South Carolina's borders.
---------------------------------------------------------------------------
VI. EPA's Proposed Action on South Carolina's Draft Submittal
EPA is proposing to approve the portions of South Carolina's May
26, 2017, draft SIP submittal concerning the establishment for South
Carolina units of CSAPR state trading programs for annual
NOX and SO2 emissions. The proposed draft
revision would adopt into the SIP state trading program rules to be
codified in SC Code of Annotated Regulations at 61-62.97, ``Cross-State
Air Pollution Rule (CSAPR) Trading Program.'' These South Carolina
CSAPR state trading programs would be integrated with the federal CSAPR
NOX Annual Trading Program and the federal CSAPR
SO2 Group 2 Trading Program, respectively, and would be
substantively identical to the federal trading programs.\39\ If EPA
approves these portions of the proposed draft SIP revision, South
Carolina units therefore would generally be required to meet
requirements under South Carolina's CSAPR state trading programs
equivalent to the requirements the units otherwise would have been
required to meet under the corresponding CSAPR federal trading
programs. EPA is proposing to approve these portions of the draft SIP
revision because they meet the requirements of the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing a
federal trading program with a state trading program that is integrated
with and substantively identical to the federal trading program except
for permissible differences, as discussed in section V above.
---------------------------------------------------------------------------
\39\ As previously discussed in sections IV and V.B.2, under
South Carolina's draft regulations, the State will retain EPA's
default allowance allocation methodology and EPA will remain the
implementing authority for administration of the trading program.
---------------------------------------------------------------------------
EPA promulgated FIPs requiring South Carolina units to participate
in the federal CSAPR NOX Annual Trading Program and the
federal CSAPR SO2 Group 2 Trading Program in order to
address South Carolina's obligations under CAA section
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS in the absence of SIP provisions addressing those requirements.
Approval of the portions of South Carolina's draft SIP submittal
adopting CSAPR state trading program rules for annual NOX
and SO2 substantively identical to the corresponding CSAPR
federal trading program regulations (or differing only with respect to
the allowance allocation methodology) would satisfy South Carolina's
obligation pursuant to CAA section 110(a)(2)(D)(i)(I) to prohibit
emissions which will significantly contribute to nonattainment or
interfere with maintenance of the 1997 Annual PM2.5 NAAQS in
any other state and therefore would correct the same deficiency in the
SIP that otherwise would be corrected by those CSAPR FIPs. Under the
CSAPR regulations, upon EPA's full and unconditional approval of a SIP
revision as correcting the SIP's deficiency that is the basis for a
particular CSAPR FIP, the obligation to participate in the
corresponding CSAPR federal trading program is automatically eliminated
for units subject to the state's jurisdiction (but not for any units
located in any Indian country within the state's borders).\40\ Approval
of the portions of South Carolina's draft SIP submittal establishing
CSAPR state trading program rules for annual NOX and
SO2 emissions therefore would result in automatic
termination of the obligations of South Carolina units to participate
in the federal CSAPR NOX Annual Trading Program and the
federal CSAPR SO2 Group 2 Trading Program.
---------------------------------------------------------------------------
\40\ 40 CFR 52.38(a)(6); 52.39(j); see also 52.2140(a)(1);
52.2141(a).
---------------------------------------------------------------------------
As noted in section III above, the Phase 2 SO2 budget
established for South Carolina in the CSAPR rulemaking has been
remanded to EPA for reconsideration. If EPA finalizes approval of these
portions of the SIP revision as proposed, South Carolina will have
fulfilled its obligations to provide a SIP that address the interstate
transport provisions of CAA section 110(a)(2)(D)(i)(I) with respect to
the 1997 Annual PM2.5 NAAQS. Thus, EPA would no longer be
under an obligation to (nor would EPA have the authority to) address
those transport requirements through implementation of a FIP, and
approval of these portions of the SIP revision would eliminate South
Carolina units' obligations to participate in the federal CSAPR
NOX Annual Trading Program and the federal CSAPR
SO2 Group 2 Trading Program. Elimination of South Carolina
units' obligations to participate in the federal trading programs would
include elimination of the federally-established Phase 2 budgets
capping allocations of CSAPR NOX Annual allowances and CSAPR
SO2 Group 2 allowances to South Carolina units under those
federal trading programs. As approval of these portions of the SIP
revision would eliminate South Carolina's remanded federally-
established Phase 2 SO2 budget and eliminate EPA's authority
to subject units in South Carolina to a FIP, it is EPA's opinion that
finalization of approval of this SIP action would address the judicial
remand of South Carolina's federally-established Phase 2 SO2
budget.
EPA's proposed approval is contingent on South Carolina's
submission of a final SIP revision to address interstate transport
provisions of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997
Annual PM2.5 NAAQS. Should South Carolina not submit a final
SIP revision to EPA addressing interstate transport provisions of CAA
section
[[Page 37396]]
110(a)(2)(D)(i)(I) with respect to the 1997 Annual PM2.5
NAAQS and/or should EPA not be able to finalize a full approval action,
EPA will undertake further reconsideration of the FIP pursuant to the
judicial remand. The Agency has made the preliminary determination that
these proposed actions are consistent with the CAA and EPA's
regulations for approval of a CSAPR full SIP revision replacing the
requirements of a CSAPR FIP.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submittal 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 submittals, 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 rule for South Carolina does not have
Tribal implications as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000), because it does not have substantial direct effects
on an Indian Tribe. The Catawba Indian Nation Reservation is located
within the state of South Carolina. Pursuant to the Catawba Indian
Claims Settlement Act, S.C. Code Ann. 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, the draft rules proposed for
approval exclude units in Indian country from the applicable
requirements of the draft rules and exclude federal trading provisions
related to EPA's process for allocating and recording allowances from
Indian country NUSAs. 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, Administrative practice and procedure,
Air pollution control, Incorporation by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 28, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017-16902 Filed 8-9-17; 8:45 am]
BILLING CODE 6560-50-P