[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Proposed Rules]
[Pages 33380-33387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13714]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0238; FRL- 9681-9]


Approval and Promulgation of Implementation Plans; South 
Carolina; 110(a)(1) and (2)(E) and (G) Infrastructure Requirements for 
the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality 
Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: 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 (SC DHEC), on April 3, 
2012, pertaining to Clean Air Act (CAA) Section 110(a)(2)(E) and (G) 
for the 1997 annual and 2006 24-hour fine particulate matter National 
Ambient Air Quality Standards (NAAQS). EPA is also proposing to approve 
portions of a certification submission provided by SC DHEC on March 14, 
2008, to address CAA section 110(a)(1) and (2) requirements for the 
1997 annual fine particulate matter (PM2.5) NAAQS, as well 
as portions of a certification submission provided on September 18, 
2009, to address CAA section 110(a)(1) and (2) requirements for the 
2006 24-hour PM2.5 NAAQS. Specifically, EPA is proposing 
action on two separate but related requirements addressed in South 
Carolina's April 3, 2012, SIP revision, and two previous 
certifications. First, South Carolina's SIP revision addresses the CAA 
section 128 requirements. Second, South Carolina's March 14, 2008, and 
September 18, 2009, certification submissions (as clarified in a letter 
on November 9, 2009), and the State's April 3, 2012, SIP revision were 
submitted to address sections 110(a)(2)(E)(ii) and 110(a)(2)(G), of the 
CAA for both the 1997 and 2006

[[Page 33381]]

PM2.5 NAAQS. Section 110(a) of the CAA requires that each 
state adopt and submit a SIP for the implementation, maintenance, and 
enforcement of each NAAQS promulgated by EPA, which is commonly 
referred to as an ``infrastructure'' SIP. SC DHEC certified that the 
South Carolina SIP contains provisions that ensure the 1997 and 2006 
PM2.5 NAAQS are implemented, enforced, and maintained in 
South Carolina (hereafter referred to as ``infrastructure 
submission''). South Carolina's infrastructure submissions, provided to 
EPA on April 3, 2012, March 14, 2008, and September 18, 2009 (as 
clarified in a letter on November 3, 2009), as a whole, addressed the 
required infrastructure elements for the 1997 and 2006 PM2.5 
NAAQS, however the subject of this notice is limited to infrastructure 
elements 110(a)(2)(E)(ii) and 110(a)(2)(G). All other applicable South 
Carolina infrastructure elements will be addressed in a separate 
rulemaking.

DATES: Written comments must be received on or before July 6, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0238, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: ``EPA-R04-OAR-2012-0238,'' Regulatory Development Section, 
Air Planning Branch, Air, Pesticides and Toxics Management Division, 
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory 
Development Section, Air Planning Branch, Air, Pesticides and Toxics 
Management Division, U.S. Environmental Protection Agency, Region 4, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The Regional Office's official hours of business are Monday through 
Friday, 8:30 to 4:30, excluding federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0238. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can be reached via electronic mail at 
[email protected].

Table of Contents

I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how South Carolina addressed the 
section 128 requirements?
V. What is EPA's analysis of how South Carolina addressed elements 
(E)(ii) and (G) of sections 110(a)(1) and (2) ``infrastructure'' 
provisions?
VI. Proposed Action
VII. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 36852), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m\3\) 
based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, SIPs meeting the requirements of sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and 
(2) require states to address basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, and no later than October 2009 for the 2006 24-hour 
PM2.5 NAAQS.
    On March 4, 2004, Earthjustice submitted a notice of intent to sue 
related to EPA's failure to issue findings of failure to submit related 
to the ``infrastructure'' requirements for the 1997 annual 
PM2.5 NAAQS. On March 10, 2005, EPA entered into a consent 
decree with Earthjustice which required EPA, among other things, to 
complete a Federal Register notice announcing EPA's determinations 
pursuant to section 110(k)(1)(B) as to whether each state had made 
complete submissions to meet the requirements of section 110(a)(2) for 
the 1997 PM2.5 NAAQS by October 5, 2008. In accordance with 
the consent decree, EPA made completeness findings for each state based 
upon what the Agency received from each state for

[[Page 33382]]

the 1997 PM2.5 NAAQS as of October 3, 2008.
    On October 22, 2008, EPA published a final rulemaking entitled, 
``Completeness Findings for Section 110(a) State Implementation Plans 
Pertaining to the Fine Particulate Matter (PM2.5) NAAQS'' 
making a finding that each state had submitted or failed to submit a 
complete SIP that provided the basic program elements of section 
110(a)(2) necessary to implement the 1997 PM2.5 NAAQS (See 
73 FR 62902). For those states that did receive findings, the findings 
of failure to submit for all or a portion of a state's implementation 
plan established a 24-month deadline for EPA to promulgate a Federal 
Implementation Plan (FIP) to address the outstanding SIP elements 
unless, prior to that time, the affected states submitted, and EPA 
approved, the required SIPs.
    The findings that all or portions of a state's submission are 
complete established a 12-month deadline for EPA to take action upon 
the complete SIP elements in accordance with section 110(k). South 
Carolina's infrastructure submissions were received by EPA on March 14, 
2008, for the 1997 annual PM2.5 NAAQS and on September 18, 
2009, for the 2006 24-hour PM2.5 NAAQS. The submissions were 
determined to be complete on September 14, 2008, and March 18, 2010, 
respectively. South Carolina was among other states that did not 
receive findings of failure to submit because it had provided a 
complete submission to EPA to address the infrastructure elements for 
the 1997 PM2.5 NAAQS by October 3, 2008.
    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint related to EPA's failure to take action on the SIP 
submittal related to the ``infrastructure'' requirements for the 2006 
24-hour PM2.5 NAAQS. On October 20, 2011, EPA entered into a 
consent decree with WildEarth Guardians and Sierra Club which required 
EPA, among other things, to complete a Federal Register notice of the 
Agency's final action either approving, disapproving, or approving in 
part and disapproving in part the South Carolina 2006 24-hour 
PM2.5 NAAQS Infrastructure SIP submittal addressing the 
applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except 
for section 110(a)(2)(C) the nonattainment area requirements and 
section 110(a)(2)(D)(i) interstate transport requirements, by September 
30, 2012.
    Today's action is proposing to approve South Carolina's 
infrastructure submissions for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS for sections 110(a)(2)(E)(ii) and 110(a)(2)(G). 
Additionally, EPA is proposing to approve the April 3, 2012, SIP 
revision to address section 128 requirements. EPA is taking action on 
South Carolina's infrastructure submissions for the 1997 and 2006 
PM2.5 NAAQS for sections 110(a)(2)(A)-(D), E(i) and E(iii), 
(F), (H), (J)-(M), except for section 110(a)(2)(C) the nonattainment 
area requirements and section 110(a)(2)(D)(i) interstate transport 
requirements in a separate action.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools available at the time the state develops and 
submits the SIP for a new or revised NAAQS affects the content of the 
submission. The contents of such SIP submissions may also vary 
depending upon what provisions the state's existing SIP already 
contains. In the case of the 1997 and 2006 PM2.5 NAAQS, 
states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous PM NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of the infrastructure rulemaking process are listed below \1\ 
and in EPA's October 2, 2007, memorandum entitled ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour 
Ozone and PM2.5 National Ambient Air Quality Standards,'' 
and EPA's September 25, 2009, memorandum entitled ``Guidance on SIP 
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour 
Fine Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS).''
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This element is only addressed in the PM2.5 
context as it relates to attainment areas.
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     110(a)(2)(D): Interstate transport.\3\
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    \3\ Today's proposed rule does not address element 
110(a)(2)(D)(i) (Interstate Transport) for the 1997 8-hour ozone 
NAAQS. Interstate transport requirements were formerly addressed by 
South Carolina consistent with the Clean Air Interstate Rule (CAIR). 
On December 23, 2008, CAIR was remanded by the D.C. Circuit Court of 
Appeals, without vacatur, back to EPA. See North Carolina v. EPA, 
531 F.3d 896 (D.C. Cir. 2008). Prior to this remand, EPA took final 
action to approve South Carolina's SIP revision, which was submitted 
to comply with CAIR. See 72 FR 46388 (August 20, 2007). In so doing, 
South Carolina's CAIR SIP revision addressed the interstate 
transport provisions in section 110(a)(2)(D)(i) for the 1997 8-hour 
ozone NAAQS. In response to the remand of CAIR, EPA has promulgated 
a new rule to address the interstate transport. See 76 FR 48208 
(August 8, 2011) (``the Transport Rule''). That rule was recently 
stayed by the D.C. Circuit Court of Appeals. EPA's action on element 
110(a)(2)(D)(i) will be addressed in a separate action.
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     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(I): Areas designated nonattainment and meet the 
applicable requirements of part D.\4\
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    \4\ This requirement was inadvertently omitted from EPA's 
October 2, 2007, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 
and PM2.5 National Ambient Air Quality Standards,'' but 
as mentioned above is not relevant to today's proposed rulemaking.
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     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.
    In today's action, EPA is only addressing section 110(a)(2)

[[Page 33383]]

requirements related to sub-elements 110(a)(2)(E)(ii) and 110(a)(2)(G) 
for South Carolina for both the 1997 and 2006 PM2.5 NAAQS. 
EPA is addressing the other 1997 and 2006 PM2.5 NAAQS 
infrastructure requirements in a separate rulemaking.

III. Scope of Infrastructure SIPs

    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on those infrastructure SIP 
submissions.\5\ Those Commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements in other 
proposals that it would address two issues separately and not as part 
of actions on the infrastructure SIP submissions: (i) Existing 
provisions related to excess emissions during periods of start-up, 
shutdown, or malfunction at sources, that may be contrary to the CAA 
and EPA's policies addressing such excess emissions (SSM); and (ii) 
existing provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (director's 
discretion). EPA notes that there are two other substantive issues for 
which EPA likewise stated in other proposals that it would address 
separately: (i) Existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (minor source NSR); and 
(ii) 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). In light of the comments, EPA believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth. It is important to emphasize that EPA is taking the same 
position with respect to these four substantive issues in this action 
on the infrastructure SIPs for the 1997 and 2006 PM2.5 NAAQS 
from South Carolina.
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    \5\ See Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the other proposals concerning these 
four issues merely to be informational, and to provide general notice 
of the potential existence of provisions within the existing SIPs of 
some states that might require future corrective action. EPA did not 
want states, regulated entities, or members of the public to be under 
the misconception that the Agency's approval of the infrastructure SIP 
submission of a given state should be interpreted as a re-approval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing state provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
re-approval of any existing provisions that relate to these four 
substantive issues. EPA is reiterating that position in this action on 
the infrastructure SIP for South Carolina.
    Unfortunately, the Commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issues in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements in those other proposals, however, we want to explain 
more fully the Agency's reasons for concluding that these four 
potential substantive issues in existing SIPs may be addressed 
separately from actions on infrastructure SIP submissions.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``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 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, NSR permitting program 
submissions required to address the requirements of part D, and a host 
of other specific types of SIP submissions that address other specific 
matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, 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 provisions, 
and some of which pertain to requirements

[[Page 33384]]

for both authority and substantive provisions.\6\ Some of the elements 
of section 110(a)(2) are relatively straightforward, but others clearly 
require interpretation by EPA through rulemaking, or recommendations 
through guidance, in order to give specific meaning for a particular 
NAAQS.\7\
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    \6\ For example, section 110(a)(2)(E) 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 substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \7\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See ``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 
(May 12, 2005) (defining, among other things, the phrase 
``contribute significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) provides that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\8\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\9\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's 
implementation plans. Finally, 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 and the attendant 
infrastructure SIP submission for that NAAQS. For example, the 
monitoring requirements that might be necessary for purposes of section 
110(a)(2)(B) for one NAAQS could be very different than what might be 
necessary for a different pollutant. Thus, the content of an 
infrastructure SIP submission to meet this element from a state might 
be very different for an entirely new NAAQS, versus a minor revision to 
an existing NAAQS.\10\
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    \8\ See Id., 70 FR 25162, at 63-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \9\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See ``Guidance for State Implementation 
Plan (SIP) Submissions to Meet Current Outstanding Obligations Under 
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division OAQPS, to Regional Air Division 
Director, Regions I-X, dated August 15, 2006.
    \10\ 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.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirements 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these ozone and PM2.5 NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS.\11\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \12\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \13\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \14\ However, for the one exception to that general 
assumption (i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS), EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
State

[[Page 33385]]

would work with its corresponding EPA regional office to refine the 
scope of a State's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the State's implementation plans for the NAAQS in 
question.
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    \11\ See ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance'').
    \12\ Id., at page 2.
    \13\ Id., at attachment A, page 1.
    \14\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
---------------------------------------------------------------------------

    On September 25, 2009, EPA issued guidance to make recommendations 
to states with respect to the infrastructure SIPs for the 2006 
PM2.5 NAAQS.\15\ In the 2009 Guidance, EPA addressed a 
number of additional issues that were not germane to the infrastructure 
SIPs for the 1997 8-hour ozone and 1997 PM2.5 NAAQS, but 
were germane to these SIP submissions for the 2006 PM2.5 
NAAQS (e.g., the requirements of section 110(a)(2)(D)(i) that EPA had 
bifurcated from the other infrastructure elements for those specific 
1997 ozone and PM2.5 NAAQS). Significantly, neither the 2007 
Guidance nor the 2009 Guidance explicitly referred to the SSM, 
director's discretion, minor source NSR, or NSR Reform issues as among 
specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 
2009 Guidance, however, EPA did not indicate to states that it intended 
to interpret these provisions as requiring a substantive submission to 
address these specific issues in existing SIP provisions in the context 
of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 
Guidance merely indicated its belief that the states should make 
submissions in which they established that they have the basic SIP 
structure necessary to implement, maintain, and enforce the NAAQS. EPA 
believes that states can establish that they have the basic SIP 
structure, notwithstanding that there may be potential deficiencies 
within the existing SIP. Thus, EPA's proposals for other states 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions. The same holds 
true for this action on the infrastructure SIPs for South Carolina.
---------------------------------------------------------------------------

    \15\ See ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
---------------------------------------------------------------------------

    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP merely for 
purposes of assuring that the state in question has the basic 
structural elements for a functioning SIP for a new or revised NAAQS. 
Because SIPs have grown by accretion over the decades as statutory and 
regulatory requirements under the CAA have evolved, they may include 
some outmoded provisions and historical artifacts that, 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 considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of 
the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
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 otherwise to comply with the CAA.\16\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\17\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\18\
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    \16\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 76 FR 21639 (April 18, 2011).
    \17\ EPA has recently utilized this authority to correct errors 
in past actions on SIP submissions related to PSD programs. See 
``Limitation of Approval of Prevention of Significant Deterioration 
Provisions Concerning Greenhouse Gas Emitting-Sources in State 
Implementation Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See 61 FR 38664 (July 25, 1996) and 62 FR 34641 
(June 27, 1997) (corrections to American Samoa, Arizona, California, 
Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) 
(corrections to California SIP); and 74 FR 57051 (November 3, 2009) 
(corrections to Arizona and Nevada SIPs).
    \18\ EPA has recently disapproved 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 75 FR 42342, 42344 (July 21, 2010) (proposed 
disapproval of director's discretion provisions); 76 FR 4540 
(January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

IV. What is EPA's analysis of how South Carolina addressed the section 
128 requirements?

    Section 128 of the CAA requires that states include provisions in 
their SIP to address conflict interest for state boards that oversee 
CAA permits and enforcement orders. Specifically, CAA section 128 reads 
as follows:
    (a) Not later than the date one year after August 7, 1977, each 
applicable implementation plan shall contain requirements that--
    (1) Any board or body which approves permits or enforcement orders 
under this chapter shall have at least a majority of members who 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permits or enforcement orders 
under this chapter, and
    (2) Any potential conflicts of interest by members of such board or 
body or the head of an executive agency with similar powers be 
adequately disclosed. A State may adopt any requirements respecting 
conflicts of interest for such

[[Page 33386]]

boards or bodies or heads of executive agencies, or any other entities 
which are more stringent than the requirements submitted as part of an 
implementation plan.
    During the evaluation of South Carolina's SIP in regards to EPA's 
pending action on the State's March 14, 2008, and September 18, 2009 
(as clarified on November 3, 2009), infrastructure submissions related 
to the section 110(a)(2)(E)(ii) sub-elements for the 1997 and 2006 
PM2.5 NAAQS, EPA noted that the State's implementation plan 
did not include provisions to address CAA 128 requirements. EPA alerted 
the State to this missing component of its implementation plan, and as 
a result, South Carolina provided the April 3, 2012, SIP revision to 
address the section 128 requirements.
    South Carolina's April 3, 2012, SIP revision, proposes to include 
existing state statues to meet the requirements of section 128. 
Specifically, South Carolina is requesting that EPA approve portions of 
South Carolina's Ethics Reform Act into the South Carolina SIP to 
address section 128 requirements.\19\ The State provides that the 
Ethics Reform Act satisfies the requirements of CAA section 128 for the 
SC DHEC Board, which is the ``board or body which approves permits and 
enforcement orders'' under the CAA in South Carolina. S.C. Code Ann. 
Section 8-13-100(31) defines ``State board, commission, or council * * 
* [as] an agency created by legislation which has statewide 
jurisdiction and which exercises some of the sovereign power of the 
State.'' South Carolina proposes that the aforementioned definition in 
conjunction with three sections of the Ethics Reform Act meet the CAA 
section 110(a)(1) requirements. These three sections are as follows:
---------------------------------------------------------------------------

    \19\ On November 12, 1993, South Carolina submitted a package 
addressing the requirements of section 507 of the CAA and 40 CFR 70. 
As provided in the Attorney General's November 5, 1993 opinion on 
the title V submission, South Carolina included a specific reference 
to the state laws and regulations that addressed CAA section 128 
requirements. Specifically, while EPA approved the delegation title 
V permitting authority, effective July 26, 1995 (40 CFR 70 Appendix 
A), EPA did not receive this as a SIP revision and as such has not 
yet approved the state statues that related to CAA section 128 into 
the South Carolina SIP.
---------------------------------------------------------------------------

    (1) S.C. Code Ann. Section 8-13-730 provides that ``[u]nless 
otherwise provided by law, no person may serve as a member of a 
governmental regulatory agency that regulates business with which that 
person is associated.''
    (2) S.C. Code Ann. Section 8-13-700(A) provides in part that ``[n]o 
public official, public member, or public employee may knowingly use 
his official office, membership, or employment to obtain an economic 
interest for himself, a member of his immediate family, an individual 
with whom he is associated, or a business with which he is 
associated.''
    (3) S.C. Code Ann Section 8-13-700(B) provides in part that ``[n]o 
public official, public member, or public employee may make, 
participate in making, or in any way attempt to use his official 
office, membership, or employment to influence a governmental decision 
in which he, a member of his immediate family, an individual with whom 
he is associated, or a business with which he is associated has an 
economic interest.''
    South Carolina asserts that S.C. Code Ann. Section 8-13-700(B)(1)-
(5) provides for disclosure of any conflicts of interest by public 
official, public members or public employee, which meets the 
requirement of CAA section 128(a)(2) that ``any potential conflicts of 
interest * * * be adequately disclosed.'' As mentioned in South 
Carolina's April 3, 2012, SIP revision, the South Carolina Attorney 
General concluded in an Opinion dated November 5, 1993, that the South 
Carolina Ethics, Government Accountability and Campaign Reform Act of 
1991 (``Ethics Reform Act'') \20\ in effect met the requirements of CAA 
section 128. This document can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2012-0238.
---------------------------------------------------------------------------

    \20\ S.C. Code Ann. Section 8-13-700 (2011).
---------------------------------------------------------------------------

    Today, EPA is proposing to approve S.C. Code Ann. Sections 8-13-
100(31), 8-13-730, 8-13-700(A) and 8-13-700(B)(1)-(5) into the South 
Carolina's SIP as meeting the requirements of section 128 of the CAA. 
This proposed approval supports EPA's proposed approval of the section 
110(a)(2)(E)(ii) for South Carolina's infrastructure submissions for 
the 1997 and 2006 PM2.5 NAAQS as discussed below.

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

    The South Carolina infrastructure submissions address the 
provisions of sections 110(a)(1) and (2) with respect to elements 
(E)(ii) and (G), as described below.
    1. 110(a)(2)(E) Adequate resources: Section 110(a)(2)(E) requires 
that each implementation plan provide (i) necessary assurances that the 
State will have adequate personnel, funding, and authority under state 
law to carry out its implementation plan, (ii) that the State comply 
with the requirements respecting state boards pursuant to section 128 
of the Act, and (iii) necessary assurances that, where the state has 
relied on a local or regional government, agency, or instrumentality 
for the implementation of any plan provision, the State has 
responsibility for ensuring adequate implementation of such plan 
provisions. In today's action, EPA is proposing to approve South 
Carolina's SIP as meeting the requirements of section 110(a)(2)(E)(ii) 
(which is one of the three sub-elements required pursuant to section 
110(a)(2)(E)) as described in South Carolina's certification 
submissions dated March 14, 2008, for the 1997 PM2.5 NAAQS, 
and September 18, 2009, for the 2006 PM2.5 NAAQS. See 
Section IV of this proposed rulemaking for EPA's analysis of South 
Carolina's SIP revision to address CAA section 128 requirements. EPA 
has made the preliminary determination that the South Carolina SIP will 
meet the section 128 requirements for implementation of the 1997 and 
2006 PM2.5 NAAQS once the proposed revisions discussed above 
in section IV have been adopted into the South Carolina SIP. EPA is 
taking action on 110(a)(2)(E)(i) and 110(a)(2)(E)(iii) as it relates to 
South Carolina in certification submissions dated March 14, 2008, for 
the 1997 PM2.5 NAAQS, and September 18, 2009, for the 2006 
PM2.5 NAAQS in a separate rulemaking.
    2. 110(a)(2)(G) Emergency episodes: Section 110(a)(2)(G) requires 
states to provide for authority to address activities causing imminent 
and substantial endangerment to public health, including contingency 
plans to implement the emergency episode provisions in their SIPs. The 
Executive Director of the SC DHEC is empowered by the South Carolina 
Code to respond to air pollution episodes and other air quality and the 
SC DHEC has contingency plans to implement emergency episode provisions 
in the SIP. On September 25, 2009, EPA released the guidance entitled 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 2006 24-Hour Fine Particulate (PM2.5) National 
Ambient Air Quality Standards (NAAQS).'' This guidance clarified that 
``to address the section 110(a)(2)(G) element, states with air quality 
control regions identified as either Priority I, IA, or Priority II by 
the `Prevention of Air Pollution Emergency Episodes' rule at 40 CFR 
51.150, must develop emergency episode contingency plans.'' EPA's 
September 25, 2009, guidance also states that ``until the Agency 
finalized changes to the emergency episode

[[Page 33387]]

regulation to establish for PM2.5 specific levels for 
classifying areas as Priority I, IA, or II for PM2.5, and to 
establish a significant harm level (SHL) * * *,'' the Agency recommends 
that states with a 24-Hour PM2.5 concentration above 140 
[mu]g/m\3\ (using the most recent three years of data) develop an 
emergency episode plan.
    On March 14, 2008, and September 18, 2009, SC DHEC submitted 
certifications that its SIP adequately addressed the section 
110(a)(2)(G) requirements for the 1997 and 2006 PM2.5 NAAQS. 
On November 3, 2009, following EPA's release of the September 25, 2009, 
guidance, South Carolina submitted a clarification to the South 
Carolina Fine Particulate Matter Air Quality Implementation Plan: CAA 
110(a)(2)(G) requirements for the 1997 PM2.5 and 2006 PM2.5 NAAQS. 
South Carolina had not previously public noticed its certification 
submissions with regard to 110(a)(2)(G) for the PM2.5 NAAQS, so on 
April 3, 2012, South Carolina submitted a SIP revision to address the 
110(a)(2)(G) requirements for the PM2.5 NAAQS and provided 
public notice for this element.
    EPA has reviewed South Carolina's April 3, 2012, SIP revision and 
has made the preliminary determination, that this SIP revision, and in 
combination with South Carolina's March 14, 2008, and September 8, 2009 
(as clarified on November 3, 2009), would meet the requirements of 
110(a)(2)(G). First, EPA has determined that the 2008-2010 ambient air 
quality monitoring data for South Carolina do not exceed 140.0 [mu]g/
m\3\ (the State's PM2.5 levels have consistently remained 
below the 140.0 [mu]g/m\3\ level). Second, the State has appropriate 
general emergency powers to address PM2.5 related episodes 
to protect the environment and public health. Given the State's 
monitored PM2.5 levels, EPA is proposing that South Carolina 
is not required to submit an emergency episode plan and contingency 
measures at this time, for the 1997 and 2006 PM2.5 
standards. As a result, EPA is proposing to approve South Carolina's 
infrastructure submissions for the 1997 and 2006 PM2.5 NAAQS 
as these submissions related to the section 110(a)(2)(G) requirement. 
EPA has made the preliminary determination that South Carolina's SIP 
and practices are adequate for emergency powers related to the 1997 and 
2006 PM2.5 NAAQS.

VI. Proposed Action

    As described above, EPA is proposing to approve South Carolina's 
April 3, 2012, SIP revision to incorporate provisions into the South 
Carolina SIP to address section 128 requirements of the CAA. In today's 
rulemaking, EPA is also proposing to approve portions of a 
certification submission provided by SC DHEC on March 14, 2008, to 
address infrastructure requirements for the 1997 PM2.5 
NAAQS, and to approve portions of a certification submission provided 
on September 18, 2009, to address infrastructure requirements for the 
2006 PM2.5 NAAQS. Specifically, EPA is proposing to approve 
infrastructure elements 110(a)(2)(E)(ii) and 110(a)(2)(G) of South 
Carolina's March 15, 2008, and September 19, 2009 (as clarified on 
November 3, 2009), infrastructure submissions because they are 
consistent with section 110 of the CAA.\21\
---------------------------------------------------------------------------

    \21\ As discussed in section V.1 above, EPA's proposed approval 
the section 110(a)(2)(E)(ii) sub-element is contingent upon the 
Agency taking final action to approve today's proposed substantive 
revisions to the South Carolina SIP discussed in section IV to 
address the requirements of CAA section 128.
---------------------------------------------------------------------------

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

EPA has preliminarily determined that this proposed rule does not have 
tribal implications as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000), because there are no ``substantial direct effects'' 
on an Indian Tribe as a result of this action. The Catawba Indian 
Nation Reservation is located within the South Carolina portion of the 
bi-state Charlotte nonattainment area. 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.'' Thus, the South Carolina SIP applies 
to the Catawba Reservation. EPA has also preliminarily determined that 
these revisions will not impose any substantial direct costs on tribal 
governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Particulate Matter, Reporting and 
recordkeeping requirements, Volatile organic compounds.

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

    Dated: May 24, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-13714 Filed 6-5-12; 8:45 am]
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