Air Plan Approval; South Carolina; Interstate Transport (Prongs 1 and 2) for the 2010 1-Hour NO2, 38646-38651 [2017-17223]
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38646
Federal Register / Vol. 82, No. 156 / Tuesday, August 15, 2017 / Proposed Rules
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 61
RIN 2900–AP54
VA Homeless Providers Grant and Per
Diem Program
Correction
In proposed rule document 2017–
15338, appearing on pages 34457–34464
in the issue of Tuesday, July 25, 2017,
make the following correction:
On page 34463, in the second column,
in the twenty-third line from the top,
‘‘118’’ should read ‘‘1/8’’.
[FR Doc. C1–2017–15338 Filed 8–14–17; 8:45 am]
BILLING CODE 1301–00–D
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0078; FRL–9965–59–
Region 4]
Air Plan Approval; Georgia: New
Source Review and Permitting Updates
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
changes to the Georgia State
Implementation Plan (SIP) to update
new source review and miscellaneous
permitting regulations. EPA is
proposing to approve portions of SIP
revisions submitted by the State of
Georgia, through the Georgia
Department of Natural Resources’
Environmental Protection Division on
December 15, 2011, July 25, 2014, and
November 12, 2014. This action is being
proposed pursuant to the Clean Air Act
and its implementing regulations.
DATES: Written comments must be
received on or before September 14,
2017.
SUMMARY:
Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0078 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
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ADDRESSES:
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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.
D.
Brad Akers, Air Regulatory Management
Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr. Akers
can be reached via telephone at (404)
562–9089 or via electronic mail at
akers.brad@epa.gov.
FOR FURTHER INFORMATION CONTACT:
In the
Final Rules Section of this Federal
Register, EPA is approving portions of
Georgia’s December 15, 2011, July 25,
2014, and November 12, 2014 SIP
revisions as a direct final rule without
prior proposal because the Agency
views these portions of these SIP
revisions as noncontroversial and
anticipates no adverse comments. A
detailed rationale for the approval is set
forth in the direct final rule. If no
adverse comments are received in
response to this rule, no further activity
is contemplated. If EPA receives adverse
comments, the direct final rule will be
withdrawn and all adverse comments
received will be addressed in a
subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period on this
document. Any parties interested in
commenting on this document should
do so at this time.
SUPPLEMENTARY INFORMATION:
Dated: July 19, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–16489 Filed 8–14–17; 8:45 am]
BILLING CODE 6560–50–P
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2017–0045; FRL–9966–17–
Region 4]
Air Plan Approval; South Carolina;
Interstate Transport (Prongs 1 and 2)
for the 2010 1-Hour NO2 Standard
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the South Carolina State
Implementation Plan (SIP), submitted
by the South Carolina Department of
Health and Environmental Control
(DHEC), on December 7, 2016,
addressing the Clean Air Act (CAA)
interstate transport (prongs 1 and 2)
infrastructure SIP requirements for the
2010 1-hour Nitrogen Dioxide (NO2)
National Ambient Air Quality Standard
(NAAQS). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, commonly
referred to as an ‘‘infrastructure SIP.’’
Specifically, EPA is proposing to
approve South Carolina’s December 7,
2016, SIP submission addressing prongs
1 and 2 to ensure that air emissions in
the State do not significantly contribute
to nonattainment or interfere with
maintenance of the 2010 1-hour NO2
NAAQS in any other state.
DATES: Comments must be received on
or before September 14, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2017–0045 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
SUMMARY:
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Federal Register / Vol. 82, No. 156 / Tuesday, August 15, 2017 / Proposed Rules
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Andres Febres of the Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Febres can be reached by telephone at
(404) 562–8966 or via electronic mail at
febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by
states within three years after
promulgation of a new or revised
NAAQS to provide for the
implementation, maintenance, and
enforcement of the new or revised
NAAQS. EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Sections 110(a)(1) and (2) require states
to address basic SIP elements such as
requirements for monitoring, basic
program requirements, and legal
authority that are designed to assure
attainment and maintenance of the
newly established or revised NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for infrastructure SIPs.
Section 110(a)(2) lists specific elements
that states must meet for the
infrastructure SIP requirements related
to a newly established or revised
NAAQS. The contents of an
infrastructure SIP submission may vary
depending upon the data and analytical
tools available to the state, as well as the
provisions already contained in the
state’s implementation plan at the time
in which the state develops and submits
the submission for a new or revised
NAAQS.
Section 110(a)(2)(D) has two
components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
includes four distinct components,
commonly referred to as ‘‘prongs,’’ that
must be addressed in infrastructure SIP
submissions. The first two prongs,
which are codified in section
110(a)(2)(D)(i)(I), are provisions that
prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (prong 1) and from interfering with
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maintenance of the NAAQS in another
state (prong 2). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (prong 3) and
from interfering with measures to
protect visibility in another state (prong
4). Section 110(a)(2)(D)(ii) requires SIPs
to include provisions ensuring
compliance with sections 115 and 126
of the Act, relating to interstate and
international pollution abatement.
Through this proposed action, EPA is
proposing to approve South Carolina’s
December 7, 2016, SIP submission
addressing prong 1 and prong 2
requirements for the 2010 1-hour NO2
NAAQS. All other applicable
infrastructure SIP requirements for
South Carolina for the 2010 1-hour NO2
NAAQS have been addressed in
separate rulemakings. See 80 FR 14019
(March 18, 2015), 81 FR 56512 (August
22, 2016), and 81 FR 63704 (September
16, 2016). A brief background regarding
the 2010 1-hour NO2 NAAQS is
provided below.
On January 22, 2010, EPA established
a new 1-hour primary NAAQS for NO2
at a level of 100 parts per billion, based
on a 3-year average of the 98th
percentile of the yearly distribution of 1hour daily maximum concentrations.
See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against
exposure to the entire group of nitrogen
oxides (NOX). NO2 is the component of
greatest concern and is used as the
indicator for the larger group of NOX.
Emissions that lead to the formation of
NO2 generally also lead to the formation
of other NOX. Therefore, control
measures that reduce NO2 can generally
be expected to reduce population
exposures to all gaseous NOX which
may have the co-benefit of reducing the
formation of ozone and fine particles
both of which pose significant public
health threats.
States were required to submit
infrastructure SIP submissions for the
2010 1-hour NO2 NAAQS to EPA no
later than January 22, 2013. For
comprehensive information on 2010 1hour NO2 NAAQS, please refer to the
Federal Register notice cited
immediately above.
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (2) as ‘‘infrastructure SIP’’
submissions. Although the term
‘‘infrastructure SIP’’ does not appear in
the CAA, EPA uses the term to
distinguish this particular type of SIP
submission from submissions that are
intended to satisfy other SIP
requirements under the CAA, such as
‘‘nonattainment SIP’’ or ‘‘attainment
plan SIP’’ submissions to address the
nonattainment planning requirements of
part D of Title I of the CAA, ‘‘regional
haze SIP’’ submissions required by EPA
rule to address the visibility protection
requirements of section 169A of the
CAA, and nonattainment new source
review permit program submissions to
address the permit requirements of
CAA, Title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.1 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
II. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The requirement for states to make a
SIP submission of this type arises out of
section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
1 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; Section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of
Title I of the CAA; and section 110(a)(2)(G) provides
that states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
Title I of the CAA, which specifically
address nonattainment SIP
requirements.2 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.3 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
2 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
3 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
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multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.4 Similarly, EPA
interprets the CAA to allow it to take
action on the individual parts of one
larger, comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.5
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.6
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
4 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
5 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
6 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, attainment plan SIP
submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the
Prevention of Significant Deterioration
(PSD) program required in part C of
Title I of the CAA, because PSD does
not apply to a pollutant for which an
area is designated nonattainment and
thus subject to part D planning
requirements. As this example
illustrates, each type of SIP submission
may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
infrastructure SIPs, in some cases
conveying needed interpretations on
newly arising issues and in some cases
conveying interpretations that have
already been developed and applied to
individual SIP submissions for
particular elements.7 EPA most recently
7 EPA notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
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issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).8 EPA developed this
document to provide states with up-todate guidance for infrastructure SIPs for
any new or revised NAAQS. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
SIP submissions.9 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need
to address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
8 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
9 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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agency). However they are addressed by
the state, the substantive requirements
of Section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
including Greenhouse Gases. By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the fine
particulate matter (PM2.5) NAAQS.
Accordingly, the latter optional
provisions are types of provisions EPA
considers irrelevant in the context of an
infrastructure SIP action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
NSR program and whether the program
addresses the pollutants relevant to that
NAAQS. In the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
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emissions; 10 (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
further approval by EPA; and (iii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform).
Thus, EPA believes that it may approve
an infrastructure SIP submission
without scrutinizing the totality of the
existing SIP for such potentially
deficient provisions and may approve
the submission even if it is aware of
such existing provisions.11 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
section 110(a)(2) as requiring review of
each and every provision of a state’s
existing SIP against all requirements in
the CAA and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
10 Subsequent to issuing the 2013 Guidance,
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘State Implementation Plans:
Response to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP
Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and
Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
11 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA
would need to evaluate that provision for
compliance against the rubric of applicable CAA
requirements in the context of the action on the
infrastructure SIP.
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include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.12 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.13
12 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
13 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under section 110(k)(6) of the
CAA to remove numerous other SIP provisions that
the Agency determined it had approved in error.
See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American
Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062, November 16, 2004 (corrections
to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
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Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
such deficiency in a subsequent
action.14
III. What are the Prong 1 and Prong 2
requirements?
For each new NAAQS, section
110(a)(2)(D)(i)(I) of the CAA requires
each state to submit a SIP revision that
contains adequate provisions
prohibiting emissions activity in the
state from contributing significantly to
nonattainment, or interfering with
maintenance, of the NAAQS in any
downwind state. EPA sometimes refers
to these requirements as prong 1
(significant contribution to
nonattainment) and prong 2
(interference with maintenance), or
conjointly as the ‘‘good neighbor’’
provision of the CAA.
IV. What is EPA’s analysis of how
South Carolina addressed Prongs 1 and
2?
In South Carolina’s December 7, 2016,
SIP revision, the State concluded that its
SIP adequately addresses prongs 1 and
2 with respect to the 2010 1-hour NO2
NAAQS. South Carolina provides the
following reasons for its determination:
(1) The SIP contains state regulations
that directly or indirectly control NOX
emissions; (2) all areas in the United
States are designated as unclassifiable/
attainment for the 2010 1-hour NO2
NAAQS; (3) monitored 1-hour NO2
design values in South Carolina and
surrounding states (Georgia, North
Carolina, and Florida) are below the
2010 standard; 15 and (4) point source
14 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
15 A design value is a statistic that describes the
air quality status of a given area relative to the level
of the National Ambient Air Quality Standards
(NAAQS). The design value for the 1-hour NO2
NAAQS is the 3-year average of annual 98th
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emissions of NOX in the State have
trended downward. EPA preliminarily
agrees with the State’s conclusion based
on the rationale discussed below.
First, South Carolina identifies SIPapproved portions of the following State
rules that directly or indirectly control
NOX emissions: S.C. Regulation 61–
62.5, Standard No. 5.2 (Control of
Oxides of Nitrogen (NOX)); Regulation
61–62.96 (Nitrogen Oxides (NOX) and
Sulfur Dioxide (SO2) Budget Trading
Program General Provisions); Regulation
61–62.5, Standard No. 7 (Prevention of
Significant Deterioration); and
Regulation 61–62.5, Standard No. 7.1
(Nonattainment New Source Review
(NSR)). Regulation 61–62.5, Standard
No. 5.2 requires NOX controls on certain
new stationary sources and requires
certain existing sources that replace
their burners to replace them with low
NOX burners or equivalent technology
capable of achieving a 30 percent
reduction from uncontrolled levels.
Regulation 61–62.96 implemented the
Clean Air Interstate Rule (CAIR) which
created regional cap-and-trade programs
to reduce SO2 and NOX emissions in 27
eastern states, including South Carolina,
that contributed to downwind
nonattainment and maintenance of the
1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS.16 Regulations 61–
62.5, Standards No. 7 and 7.1 require
any new major source or major
modification to go through prevention
of significant deterioration (PSD) or
nonattainment new source review
permitting, respectively.
Second, there are no designated
nonattainment areas for the 2010 1-hour
NO2 NAAQS. On February 17, 2012 (77
FR 9532), EPA designated the entire
country as ‘‘unclassifiable/attainment’’
for the 2010 1-hour NO2 NAAQS, stating
that ‘‘available information does not
indicate that the air quality in these
areas exceeds the 2010 1-hour NO2
NAAQS.’’
percentile daily maximum 1-hour values for a
monitoring site.
16 EPA replaced CAIR with the Cross-State Air
Pollution Rule (CSAPR) which, following litigation,
became effective on January 1, 2015. 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 ozone NAAQS, the 1997 annual
PM2.5 NAAQS, the 2006 24-hour PM2.5 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. On May 26,
2017, South Carolina submitted a draft SIP revision
for parallel processing that adopts provisions for
participation in the CSAPR annual NOX and annual
SO2 trading programs. EPA signed a notice of
proposed rulemaking on July 28, 2017, proposing to
approve this SIP revision.
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Third, the 2013–2015 NO2 design
values in South Carolina and
surrounding states are well below the
100 ppb standard. The highest
monitored design values during this
time period are 56 to 65 percent below
the NAAQS with Georgia and Florida
recording the highest design values (48
and 44 ppb, respectively).17
Fourth, NOX point source emissions
data provided in the SIP submittal show
that NOX emissions decreased from
72,885 tons in 2008 to 41,070 tons in
2014, a reduction of approximately 44
percent.18
For all the reasons discussed above,
EPA has preliminarily determined that
South Carolina does not contribute
significantly to nonattainment or
interfere with maintenance of the 2010
1-hour NO2 NAAQS in any other state
and that South Carolina’s SIP includes
adequate provisions to prevent
emissions sources within the State from
significantly contributing to
nonattainment or interfering with
maintenance of this standard in any
other state.
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V. Proposed Action
As described above, EPA is proposing
to approve South Carolina’s December
7, 2016, SIP revision addressing prongs
1 and 2 of CAA section 110(a)(2)(D)(i)
for the 2010 1-hour NO2 NAAQS.
VI. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable federal regulations.
See 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this proposed
action merely proposes to approve 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
actions’’ 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
17 This information is available in the SIP
submittal and at https://www.epa.gov/air-trends/
air-quality-design-values. Design values are
computed and published annually by EPA’s Office
of Air Quality Planning and Standards and
reviewed in conjunction with the EPA Regional
Offices.
18 The State reported these NO emissions as NO
X
2
emissions in its SIP submittal.
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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 actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory
actions 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 the
state of 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.’’ EPA
notes this action will not impose
substantial direct costs on Tribal
governments or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 3, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017–17223 Filed 8–14–17; 8:45 am]
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38651
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2007–1092; FRL–9966–14–
Region 5]
Air Plan Approval; Michigan Minor New
Source Review
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
certain changes to the Michigan State
Implementation Plan (SIP). This action
relates to changes to the Permit to Install
(PTI) requirements of the Michigan
Rules submitted on November 12, 1993;
May 16, 1996; April 3, 1998; September
2, 2003; March 24, 2009; and February
28, 2017.
DATES: Comments must be received on
or before September 14, 2017.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R05–
OAR–2007–1092 at https://
www.regulations.gov, or via email to
damico.genvieve@epa.gov. For
comments submitted at Regulations.gov,
follow the online instructions for
submitting comments. Once submitted,
comments cannot be edited or removed
from Regulations.gov. For either manner
of submission, 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, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Rachel Rineheart, Environmental
Engineer, Air Permits Section, Air
Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
SUMMARY:
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[Federal Register Volume 82, Number 156 (Tuesday, August 15, 2017)]
[Proposed Rules]
[Pages 38646-38651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-17223]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2017-0045; FRL-9966-17-Region 4]
Air Plan Approval; South Carolina; Interstate Transport (Prongs 1
and 2) for the 2010 1-Hour NO2 Standard
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the South Carolina State Implementation Plan
(SIP), submitted by the South Carolina Department of Health and
Environmental Control (DHEC), on December 7, 2016, addressing the Clean
Air Act (CAA) interstate transport (prongs 1 and 2) infrastructure SIP
requirements for the 2010 1-hour Nitrogen Dioxide (NO2)
National Ambient Air Quality Standard (NAAQS). The CAA requires that
each state adopt and submit a SIP for the implementation, maintenance,
and enforcement of each NAAQS promulgated by EPA, commonly referred to
as an ``infrastructure SIP.'' Specifically, EPA is proposing to approve
South Carolina's December 7, 2016, SIP submission addressing prongs 1
and 2 to ensure that air emissions in the State do not significantly
contribute to nonattainment or interfere with maintenance of the 2010
1-hour NO2 NAAQS in any other state.
DATES: Comments must be received on or before September 14, 2017.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2017-0045 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
[[Page 38647]]
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Andres Febres of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Febres can be reached by telephone at (404) 562-8966 or
via electronic mail at febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and
(2) require states to address basic SIP elements such as requirements
for monitoring, basic program requirements, and legal authority that
are designed to assure attainment and maintenance of the newly
established or revised NAAQS. More specifically, section 110(a)(1)
provides the procedural and timing requirements for infrastructure
SIPs. Section 110(a)(2) lists specific elements that states must meet
for the infrastructure SIP requirements related to a newly established
or revised NAAQS. The contents of an infrastructure SIP submission may
vary depending upon the data and analytical tools available to the
state, as well as the provisions already contained in the state's
implementation plan at the time in which the state develops and submits
the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit
any source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS in another
state (prong 1) and from interfering with maintenance of the NAAQS in
another state (prong 2). The third and fourth prongs, which are
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit
emissions activity in one state from interfering with measures required
to prevent significant deterioration of air quality in another state
(prong 3) and from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Through this proposed action, EPA is proposing to approve South
Carolina's December 7, 2016, SIP submission addressing prong 1 and
prong 2 requirements for the 2010 1-hour NO2 NAAQS. All
other applicable infrastructure SIP requirements for South Carolina for
the 2010 1-hour NO2 NAAQS have been addressed in separate
rulemakings. See 80 FR 14019 (March 18, 2015), 81 FR 56512 (August 22,
2016), and 81 FR 63704 (September 16, 2016). A brief background
regarding the 2010 1-hour NO2 NAAQS is provided below.
On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against exposure to the entire group of
nitrogen oxides (NOX). NO2 is the component of
greatest concern and is used as the indicator for the larger group of
NOX. Emissions that lead to the formation of NO2
generally also lead to the formation of other NOX.
Therefore, control measures that reduce NO2 can generally be
expected to reduce population exposures to all gaseous NOX
which may have the co-benefit of reducing the formation of ozone and
fine particles both of which pose significant public health threats.
States were required to submit infrastructure SIP submissions for
the 2010 1-hour NO2 NAAQS to EPA no later than January 22,
2013. For comprehensive information on 2010 1-hour NO2
NAAQS, please refer to the Federal Register notice cited immediately
above.
II. What is EPA's approach to the review of infrastructure SIP
submissions?
The requirement for states to make a SIP submission of this type
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within 3 years (or such shorter period as
the Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``each such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of Title I of the CAA,
``regional haze SIP'' submissions required by EPA rule to address the
visibility protection requirements of section 169A of the CAA, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, Title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
[[Page 38648]]
concerning what is required for inclusion in an infrastructure SIP
submission.
---------------------------------------------------------------------------
\1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; Section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------
The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP requirements.\2\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\3\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\3\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\4\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\5\
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\4\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\5\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, because the content
and scope of a state's infrastructure SIP submission to meet this
element might be very different for an entirely new NAAQS than for a
minor revision to an existing NAAQS.\6\
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\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------
EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the
Prevention of Significant Deterioration (PSD) program required in part
C of Title I of the CAA, because PSD does not apply to a pollutant for
which an area is designated nonattainment and thus subject to part D
planning requirements. As this example illustrates, each type of SIP
submission may implicate some elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\7\ EPA
most recently
[[Page 38649]]
issued guidance for infrastructure SIPs on September 13, 2013 (2013
Guidance).\8\ EPA developed this document to provide states with up-to-
date guidance for infrastructure SIPs for any new or revised NAAQS.
Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\9\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
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\7\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\8\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\9\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of Section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including Greenhouse Gases. By contrast, structural PSD
program requirements do not include provisions that are not required
under EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the fine particulate
matter (PM2.5) NAAQS. Accordingly, the latter optional
provisions are types of provisions EPA considers irrelevant in the
context of an infrastructure SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor NSR program and whether the program
addresses the pollutants relevant to that NAAQS. In the context of
acting on an infrastructure SIP submission, however, EPA does not think
it is necessary to conduct a review of each and every provision of a
state's existing minor source program (i.e., already in the existing
SIP) for compliance with the requirements of the CAA and EPA's
regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \10\ (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform). Thus, EPA believes that it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\11\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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\10\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\11\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA would need to evaluate
that provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may
[[Page 38650]]
include some outmoded provisions and historical artifacts. These
provisions, while not fully up to date, nevertheless may not pose a
significant problem for the purposes of ``implementation, maintenance,
and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy
of the infrastructure SIP submission. EPA believes that a better
approach is for states and EPA to focus attention on those elements of
section 110(a)(2) of the CAA most likely to warrant a specific SIP
revision due to the promulgation of a new or revised NAAQS or other
factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\12\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\13\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\14\
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\12\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\13\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\14\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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III. What are the Prong 1 and Prong 2 requirements?
For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires
each state to submit a SIP revision that contains adequate provisions
prohibiting emissions activity in the state from contributing
significantly to nonattainment, or interfering with maintenance, of the
NAAQS in any downwind state. EPA sometimes refers to these requirements
as prong 1 (significant contribution to nonattainment) and prong 2
(interference with maintenance), or conjointly as the ``good neighbor''
provision of the CAA.
IV. What is EPA's analysis of how South Carolina addressed Prongs 1 and
2?
In South Carolina's December 7, 2016, SIP revision, the State
concluded that its SIP adequately addresses prongs 1 and 2 with respect
to the 2010 1-hour NO2 NAAQS. South Carolina provides the
following reasons for its determination: (1) The SIP contains state
regulations that directly or indirectly control NOX
emissions; (2) all areas in the United States are designated as
unclassifiable/attainment for the 2010 1-hour NO2 NAAQS; (3)
monitored 1-hour NO2 design values in South Carolina and
surrounding states (Georgia, North Carolina, and Florida) are below the
2010 standard; \15\ and (4) point source emissions of NOX in
the State have trended downward. EPA preliminarily agrees with the
State's conclusion based on the rationale discussed below.
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\15\ A design value is a statistic that describes the air
quality status of a given area relative to the level of the National
Ambient Air Quality Standards (NAAQS). The design value for the 1-
hour NO2 NAAQS is the 3-year average of annual 98th
percentile daily maximum 1-hour values for a monitoring site.
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First, South Carolina identifies SIP-approved portions of the
following State rules that directly or indirectly control
NOX emissions: S.C. Regulation 61-62.5, Standard No. 5.2
(Control of Oxides of Nitrogen (NOX)); Regulation 61-62.96 (Nitrogen
Oxides (NOX) and Sulfur Dioxide (SO2) Budget Trading Program General
Provisions); Regulation 61-62.5, Standard No. 7 (Prevention of
Significant Deterioration); and Regulation 61-62.5, Standard No. 7.1
(Nonattainment New Source Review (NSR)). Regulation 61-62.5, Standard
No. 5.2 requires NOX controls on certain new stationary
sources and requires certain existing sources that replace their
burners to replace them with low NOX burners or equivalent
technology capable of achieving a 30 percent reduction from
uncontrolled levels. Regulation 61-62.96 implemented the Clean Air
Interstate Rule (CAIR) which created regional cap-and-trade programs to
reduce SO2 and NOX emissions in 27 eastern
states, including South Carolina, that contributed to downwind
nonattainment and maintenance of the 1997 8-hour ozone NAAQS and the
1997 PM2.5 NAAQS.\16\ Regulations 61-62.5, Standards No. 7
and 7.1 require any new major source or major modification to go
through prevention of significant deterioration (PSD) or nonattainment
new source review permitting, respectively.
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\16\ EPA replaced CAIR with the Cross-State Air Pollution Rule
(CSAPR) which, following litigation, became effective on January 1,
2015. 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 ozone
NAAQS, the 1997 annual PM2.5 NAAQS, the 2006 24-hour
PM2.5 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. On May 26, 2017, South Carolina submitted a
draft SIP revision for parallel processing that adopts provisions
for participation in the CSAPR annual NOX and annual
SO2 trading programs. EPA signed a notice of proposed
rulemaking on July 28, 2017, proposing to approve this SIP revision.
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Second, there are no designated nonattainment areas for the 2010 1-
hour NO2 NAAQS. On February 17, 2012 (77 FR 9532), EPA
designated the entire country as ``unclassifiable/attainment'' for the
2010 1-hour NO2 NAAQS, stating that ``available information
does not indicate that the air quality in these areas exceeds the 2010
1-hour NO2 NAAQS.''
[[Page 38651]]
Third, the 2013-2015 NO2 design values in South Carolina
and surrounding states are well below the 100 ppb standard. The highest
monitored design values during this time period are 56 to 65 percent
below the NAAQS with Georgia and Florida recording the highest design
values (48 and 44 ppb, respectively).\17\
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\17\ This information is available in the SIP submittal and at
https://www.epa.gov/air-trends/air-quality-design-values. Design
values are computed and published annually by EPA's Office of Air
Quality Planning and Standards and reviewed in conjunction with the
EPA Regional Offices.
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Fourth, NOX point source emissions data provided in the
SIP submittal show that NOX emissions decreased from 72,885
tons in 2008 to 41,070 tons in 2014, a reduction of approximately 44
percent.\18\
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\18\ The State reported these NOX emissions as
NO2 emissions in its SIP submittal.
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For all the reasons discussed above, EPA has preliminarily
determined that South Carolina does not contribute significantly to
nonattainment or interfere with maintenance of the 2010 1-hour
NO2 NAAQS in any other state and that South Carolina's SIP
includes adequate provisions to prevent emissions sources within the
State from significantly contributing to nonattainment or interfering
with maintenance of this standard in any other state.
V. Proposed Action
As described above, EPA is proposing to approve South Carolina's
December 7, 2016, SIP revision addressing prongs 1 and 2 of CAA section
110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely proposes to approve 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 actions'' 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 actions
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory actions 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 the state of 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.'' EPA notes this
action will not impose substantial direct costs on Tribal governments
or preempt Tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 3, 2017.
V. Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2017-17223 Filed 8-14-17; 8:45 am]
BILLING CODE 6560-50-P