[Federal Register Volume 77, Number 109 (Wednesday, June 6, 2012)]
[Proposed Rules]
[Pages 33372-33380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13716]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0238; FRL-9681-8]


Approval and Promulgation of Implementation Plans; South 
Carolina; 110(a)(1) and (2) 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 the State Implementation Plans 
(SIP), submitted by the State of South Carolina, through the Department 
of Health and Environmental Control (DHEC), as demonstrating that the 
State meets the requirements of sections 110(a)(1) and (2) of the Clean 
Air Act (CAA or the Act) for the 1997 annual and 2006 24-hour fine 
particulate matter (PM2.5) national ambient air quality 
standards (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 the EPA, which is commonly 
referred to as an ``infrastructure'' SIP. South Carolina certified that 
the South Carolina SIP contains provisions that ensure the 1997 annual 
and 2006 24-hour PM2.5 NAAQS is implemented, enforced, and 
maintained in South Carolina (hereafter referred to as ``infrastructure 
submission''). South Carolina's infrastructure submissions, provided to 
EPA on March 14, 2008, and on September 18, 2009, addressed all the 
required infrastructure elements for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS with the exception of section 110(a)(2)(E)(ii) 
and 110(a)(2)(G) which were submitted by South Carolina on April 3, 
2012. South Carolina's April 3, 2012, submittal is being addressed in a 
separate action.

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

[[Page 33373]]

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].

SUPPLEMENTARY INFORMATION:

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 
elements of sections 110(a)(1) and (2) ``Infrastructure'' 
provisions?
V. Proposed Action
VI. 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 PM2.5 NAAQS of 
35 [mu]g/m\3\ based on a 3-year average of the 98th percentile of 24-
hour concentrations. Pursuant to the CAA, 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, 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 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 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 submission for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS for sections 110(a)(2)(A)-(H), (J)-(M), except 
for sections 110(a)(2)(C)--the nonattainment area requirements; 
110(a)(2)(D)(i)--the interstate transport requirements; 
110(a)(2)(E)(ii)--board requirements; and 110(a)(2)(G)--emergency 
powers. Requirements supporting EPA action on sections 110(a)(2)(E)(ii) 
and 110(a)(2)(G) were submitted by South Carolina through a SIP 
revision on April 3, 2012. South Carolina's April 3, 2012, SIP revision 
is being addressed in a separate action. This action is not approving 
any specific rule, but rather proposing that South Carolina's already 
approved SIP meets certain CAA requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools

[[Page 33374]]

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 annual 
and 2006 24-hour PM2.5 NAAQS, some states may need to adopt 
language specific to the PM2.5 NAAQS to ensure that they 
have adequate SIP provisions to implement the PM2.5 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 this proposed rulemaking 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 
September 25, 2009, memorandum entitled ``Guidance on SIP Elements 
Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards.''
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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) but does provide detail on how South Carolina's 
SIP addresses 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 rulemaking only addresses requirements for this element 
as they relate 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 and 2006 
PM2.5 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 DC Circuit Court of Appeals, without vacatur, back to EPA. See 
North Carolina v. EPA, 531 F.3d 896 (DC Cir. 2008). Prior to this 
remand, EPA took final action to approve South Carolina SIP 
revision, which was submitted to comply with CAIR. See 72 FR 57209 
(October 9, 2007). In so doing, South Carolina CAIR SIP revision 
addressed the interstate transport provisions in section 
110(a)(2)(D)(i) for the 1997 and 2006 PM2.5 NAAQS. In 
response to the remand of CAIR, EPA has recently finalized a new 
rule to address the interstate transport of nitrogen oxides 
(NOX) and sulfur dioxide (SO2) in the eastern 
United States. See 76 FR 48208 (August 8, 2011) (``the Transport 
Rule''). That rule was recently stayed by the DC 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,'' and 
the September 25, 2009, memorandum entitled ``Guidance on SIP 
Elements Required Under Section 110(a)(1) and (2) for the 2006 Fine 
Particle (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.

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 (SSM), that may be contrary to the 
CAA and EPA's policies addressing such excess emissions; 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 Prevention of Significant Deterioration 
(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,

[[Page 33375]]

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, new source review 
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 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 implementation plan 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

[[Page 33376]]

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 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.
---------------------------------------------------------------------------

    \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 the 
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

[[Page 33377]]

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\
---------------------------------------------------------------------------

    \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,'' 74 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 elements 
of sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    South Carolina's infrastructure submission addresses the provisions 
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: South 
Carolina's infrastructure submissions provide an overview of the 
provisions of the South Carolina's Air Pollution Control Requirements 
relevant to air quality control regulations. The regulations listed 
below have been federally approved in the South Carolina SIP and 
include enforceable emission limitations and other control measures:
     Regulation 61-62.1--Definitions, Permit Requirements, and 
Emissions Inventory;
     Regulation 61-62.2--Prohibition of Open Burning;
     Regulation 61-62.5--Standard No. 1, Emissions form Fuel 
Burning Operations; Standard No. 2, Ambient Air Quality Standards; and 
Standard No. 4, Emission from Process Industries; Standard No. 6, 
Alternative Emissions Limitation Options;
     Regulation 61-62.6-- Control of Fugitive Particulate 
Matter; and,
     Regulation 61-30--(state-only regulation)--Environmental 
Protection Fees.
    EPA has made the preliminary determination that the provisions 
contained in these chapters and South Carolina's practices are adequate 
to protect the PM2.5 annual and 24-hour NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing state provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in the future. In the 
meantime, EPA encourages any state having deficient SSM provisions to 
take steps to correct it as soon as possible.
    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing state rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: South 
Carolina's Regulation 61-62.1, Section II, Permit Requirements, and 
Section IV, Source Tests, along with the South Carolina Network 
Description and Ambient Air Monitoring Network Plan, provide for an 
ambient air quality monitoring system in the State. Annually, EPA 
approves the ambient air monitoring network plan for the state 
agencies. On July 18, 2011, South Carolina submitted its plan to EPA. 
On October 12, 2011, EPA approved South Carolina's monitoring network 
plan. South Carolina's approved monitoring network plan can be accessed 
at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0238. EPA 
has made the preliminary determination that South Carolina's SIP and 
practices are adequate for the ambient air quality monitoring and data 
systems related to the 1997 annual and 2006 24-hour PM2.5 
NAAQS.
    3. 110(a)(2)(C) Program for enforcement of control measures 
including review of proposed new sources: The regulations described 
below have been federally approved in the South Carolina SIP and 
pertain to the construction or modification of any major stationary 
source in areas designated as attainment, nonattainment or 
unclassifiable:
     Regulation 61-62.1, Section II, Permit Requirements;
     Regulation 61-62.5, Standard No. 7, Prevention of 
Significant Deterioration; and,
     Regulation 61-62.5, Standard No. 7.1, Nonattainment New 
Source Review.

South Carolina's SIP is current with regard to PSD requirements.\19\ On 
June 23, 2011, EPA approved several revisions to South Carolina's SIP 
to

[[Page 33378]]

update requirements for the State's PSD program. See 76 FR 36875.
---------------------------------------------------------------------------

    \19\ On June 11, 2010, the South Carolina Governor signed an 
Executive Order to confirm that the State had authority to implement 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to PSD permitting 
requirements for their Greenhouse Gas emissions at the state level. 
A copy of the Executive Order and a letter of clarification can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-
2012-0238.
---------------------------------------------------------------------------

    In this action, EPA is proposing to approve South Carolina's 
infrastructure SIP for the 1997 annual and 2006 24-hour 
PM2.5 NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates the 
modification and construction of any stationary source as necessary to 
assure that the NAAQS are achieved. EPA is not proposing to approve or 
disapprove the State's existing minor NSR program itself to the extent 
that it is inconsistent with EPA's regulations governing this program. 
EPA believes that a number of states may have minor NSR provisions that 
are contrary to the existing EPA regulations for this program. EPA 
intends to work with states to reconcile state minor NSR programs with 
EPA's regulatory provisions for the program. The statutory requirements 
of section 110(a)(2)(C) provide for considerable flexibility in 
designing minor NSR programs, and EPA believes it may be time to 
revisit the regulatory requirements for this program to give the states 
an appropriate level of flexibility to design a program that meets 
their particular air quality concerns, while assuring reasonable 
consistency across the country in protecting the NAAQS with respect to 
new and modified minor sources.
    EPA has made the preliminary determination that South Carolina's 
SIP and practices are adequate for program enforcement of control 
measures including review of proposed new sources related to the 1997 
annual and 2006 24-hour PM2.5 NAAQS.
    4. 110(a)(2)(D)(ii) Interstate and International transport 
provisions: Regulation 61-62.5 Standard 7, Prevention of Significant 
Deterioration, outlines how the State will notify neighboring states of 
potential impacts from new or modified sources. South Carolina does not 
have any pending obligation under sections 115 and 126 of the CAA. EPA 
has made the preliminary determination that South Carolina's SIP and 
practices are adequate for insuring compliance with the applicable 
requirements relating to interstate and international pollution 
abatement for the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    5. 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. As with the remainder of the infrastructure elements 
addressed by this notice, EPA is proposing to approve South Carolina's 
SIP as meeting the requirements of sub-elements 110(a)(2)(E)(i) and 
(iii). With respect to 110(a)(2)(E)(ii) (regarding state boards), South 
Carolina's submission is being addressed in a separate action. EPA's 
rationale for today's proposals respecting sub-elements (i) and (iii) 
is described in turn below.
    In support of EPA's proposal to approve sub-elements 
110(a)(2)(E)(i) and (iii), DHEC's legal authority to establish SIPs and 
implement related plans, in general, is prescribed in S.C. Code Ann. 
Title 48, Chapter 1, Pollution Control Act. Specifically, S.C. Code 
Ann. Section 48-1-50(12) grants DHEC the statutory authority to 
``[a]ccept, receive and administer grants or other funds or gifts for 
the purpose of carrying out any of the purposes of this chapter; 
accept, receive and receipt for Federal money given by the Federal 
government under any Federal law to the State of South Carolina for air 
or water control activities, surveys or programs * * *.'' S.C. Code 
Ann. Title 48, Chapter 2, Environmental Protection Funds, grants DHEC 
statutory authority to establish environmental protection funds. 
Additionally, Regulation 61-30, Environmental Protection Fees, provides 
DHEC with the ability to access fees for environmental permitting 
programs. In addition, the requirements of 110(a)(2)(E)(i) and 
110(a)(2)(E)(iii) are met when EPA performs a completeness 
determination for each SIP submittal. This determination ensures that 
each submittal provides evidence that adequate personnel, funding, and 
legal authority under State Law has been used to carry out the state's 
implementation plan and related issues. South Carolina's authority is 
included in all prehearings and final SIP submittal packages for 
approval by EPA.
    Annually, states update grant commitments based on current SIP 
requirements, air quality planning, and applicable requirements related 
to the NAAQS, including 1997 annual and 2006 24-hour PM2.5 
NAAQS. On March 8, 2012, EPA submitted a letter to South Carolina 
outlining 105 grant commitments and current status for fiscal year 
2011. The letter EPA submitted to South Carolina can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0238. There 
were no outstanding issues, therefore South Carolina's grants were 
finalized and closed out. EPA has made the preliminary determination 
that South Carolina has adequate resources for implementation of the 
1997 annual and 2006 24-hour PM2.5 NAAQS.
    Section 110(a)(2)(E)(ii) requires that the state comply with 
section 128 of the CAA. Section 128 requires that: (1) The majority of 
members of the state body which approves permits or enforcement orders 
represent the public interest and do not derive any significant portion 
of their income from persons subject to permitting or enforcement 
orders under the CAA; and (2) any potential conflicts of interest by 
such body be adequately disclosed. As stated above section 
110(a)(2)(E)(ii) is being addressed in a separate action.
    6. 110(a)(2)(F) Stationary source monitoring system: Regulation 61-
62.1, Definitions and General Requirements, Section III--Emissions 
Inventory, of the South Carolina SIP provides for an emission inventory 
plan that establishes reporting requirements. DHEC uses this data to 
track progress towards maintaining the NAAQS, develop control and 
maintenance strategies, identify sources and general emission levels, 
and determine compliance with emission regulations and additional EPA 
requirements.
    Additionally, South Carolina is required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory System 
(EIS). States report emissions data for the six criteria pollutants and 
the precursors that form them--NOX, SO2, ammonia, 
lead, carbon monoxide, particulate matter, and volatile organic 
compounds (VOCs). Many states also voluntarily report emissions of 
hazardous air pollutants. South Carolina made its latest update to the 
NEI on December 21, 2011. EPA compiles the emissions data, 
supplementing it where necessary, and releases it to the general public 
through

[[Page 33379]]

the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has 
made the preliminary determination that South Carolina's SIP and 
practices are adequate for the stationary source monitoring systems 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS.
    7. 110(a)(2)(H) Future SIP revisions: As previously discussed, DHEC 
is responsible for adopting air quality rules and revising SIPs as 
needed to attain or maintain the NAAQS. South Carolina has the ability 
and authority to respond to calls for SIP revisions, and has provided a 
number of SIP revisions over the years for implementation of the PM 
NAAQS. Specific to the 1997 annual and 2006 24-hour PM2.5 
NAAQS, South Carolina has provided the following submissions:
     November 19, 2004, SIP Revision--(EPA approval, 72 FR 
46903, August 22, 2007) Revisions to Ambient Air Quality Standards;
     August 14, 2007, SIP Revision--(EPA approval, 72 FR 57209, 
October 9, 2007) Clean Air Interstate Rule;
     December 2, 2010, SIP Revision--(EPA approval, 76 FR 
36875, June 23, 2011) New Source Review PM2.5; and,
     March 14, 2011, SIP Revision--(EPA approval, 76 FR 36875, 
June 23, 2011) New Source Review PM2.5.
    EPA has made the preliminary determination that South Carolina's 
SIP and practices adequately demonstrate a commitment to provide future 
SIP revisions related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    8. 110(a)(2)(J) (121 consultation) Consultation with government 
officials: South Carolina Air Regulation 61-62.5, Air Pollution Control 
Standards, Standard No. 7, Prevention of Significant Deterioration, as 
well as the Regional Haze Implementation Plan (which allows for 
consultation between appropriate state, local, and tribal air pollution 
control agencies as well as the corresponding Federal Land Managers), 
provide for consultation with government officials whose jurisdictions 
might be affected by SIP development activities. More specifically, 
South Carolina adopted state-wide consultation procedures for the 
implementation of transportation conformity which includes the 
consideration of the development of mobile inventories for SIP 
development. Required partners covered by South Carolina's consultation 
procedures include federal, state and local transportation and air 
quality agency officials. EPA approved South Carolina's consultation 
procedures on July 28, 2009 (See 74 FR 37168). EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate consultation with government officials related 
to the 1997 annual and 2006 24-hour PM2.5 NAAQS when 
necessary.
    9. 110(a)(2)(J) (127 public notification) Public notification: DHEC 
has several public notice mechanisms in place to notify the public of 
PM2.5 and other pollutant forecasting, including an air 
quality monitoring Web site. South Carolina also has an extensive 
outreach program to educate the public and promote the use of voluntary 
emissions reduction measures. Such outreach programs include the 
State's open burning awareness program. In addition DHEC has produced 
public education materials including factsheets on the following 
topics: PM generally including a link to EPA PM Web page, ``How smoke 
from fires can affect your health, ``Particle pollution and your 
health'' and ``Protect your lungs from wildlife smoke.'' Regulation 61-
62.3, Air Pollution Episodes, requires that DHEC notify the public of 
any air pollution episode or NAAQS violation. EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate the State's ability to provide public 
notification related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    10. 110(a)(2)(J) (PSD) PSD and visibility protection: South 
Carolina demonstrates its authority to regulate new and modified 
sources of PM to assist in the protection of air quality in Regulation 
61-62.1, Definitions and General Requirements, Section II, Permit 
Resources, and Regulation 61-62.5, Air Pollution Control Standards, 
Standard No. 7, Prevention of Significant Deterioration, and 7.1, 
Nonattainment New Source Review. South Carolina's SIP is current with 
regard to PSD requirements. On June 23, 2011, EPA approved several 
revisions to South Carolina's SIP to update requirements for the 
State's PSD program. See 76 FR 36875.
    With regard to the applicable requirements for visibility 
protection, EPA recognizes that states are subject to visibility and 
regional haze program requirements under Part C of the Act (which 
includes sections 169A and 169B). In the event of the establishment of 
a new NAAQS, however, the visibility and regional haze program 
requirements under part C do not change. Thus, EPA finds that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. This would be the case even in the 
event a secondary PM2.5 NAAQS for visibility is established, 
because this NAAQS would not affect visibility requirements under part 
C. South Carolina has submitted SIP revisions for approval to satisfy 
the requirements of the CAA Section 169A, and the regional haze and 
best available retrofit technology rules contained in 40 CFR 51.308. 
These revisions are currently under review and will be acted on in a 
separate action. EPA has made the preliminary determination that South 
Carolina's SIP and practices adequately demonstrate the State's ability 
to implement PSD programs and to provide for visibility protection 
related to the 1997 annual and 2006 24-hour PM2.5 NAAQS when 
necessary.
    11. 110(a)(2)(K) Air quality and modeling/data: South Carolina 
Regulation 61-62.5, Air Pollution Control Standards, Standards No. 2, 
Ambient Air Quality Standards, and No. 7, Prevention of Significant 
Deterioration, require that air modeling be conducted to determine 
permit applicability. These standards demonstrate that South Carolina 
has the authority to provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 1997 annual and 
2006 24-hour PM2.5 NAAQS. Additionally, South Carolina 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 1997 annual and 2006 24-hour PM2.5 NAAQS, for the 
Southeastern states. Taken as a whole, South Carolina's air quality 
regulations demonstrate that South Carolina has the authority to 
provide relevant data for the purpose of predicting the effect on 
ambient air quality of the 1997 annual and 2006 24-hour 
PM2.5 NAAQS. EPA has made the preliminary determination that 
South Carolina's SIP and practices adequately demonstrate the State's 
ability to provide for air quality and modeling, along with analysis of 
the associated data, related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting fees: Pursuant to S.C. Code Ann. 
Section 48-2-50, DHEC shall charge fees for environmental programs it 
administers pursuant to federal and state law and regulations. 
Regulation 61-30, Environmental Protection Fees, prescribes fees 
applicable to applicants and holders of permits, licenses, 
certificates, certifications, and registrations as well as establishes 
procedures for the payment of fees, provides for the assessment of 
penalties for nonpayment, and establishes an appeals process for 
refuting fees. EPA has made the preliminary determination

[[Page 33380]]

that South Carolina's SIP and practices adequately provide for 
permitting fees related to the 1997 annual and 2006 24-hour 
PM2.5 NAAQS when necessary.
    13. 110(a)(2)(M) Consultation/participation by affected local 
entities: Regulation 61-62.5, Air Pollution Control Standards, Standard 
No. 7, Prevention of Significant Deterioration, of the South Carolina 
SIP requires that DHEC notify the public of the application, 
preliminary determination, degree of incremental consumption, and the 
opportunity for comment prior to making a final permitting decision. 
DHEC has worked closely with local political subdivisions when 
developing its Transportation Conformity SIP, Regional Haze 
Implementation Plan, Early Action Compacts, and the 8-hour Ozone 
Attainment Demonstration for York County, South Carolina portion of the 
Charlotte-Gastonia-Rock Hill NC-SC nonattainment area. EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate consultation with affected local entities when 
necessary.

V. Proposed Action

    As described above, DHEC has addressed the elements of the CAA 
110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, 
and September 25, 2009, guidance to ensure that the 1997 annual and 
2006 24-hour PM2.5 NAAQS are implemented, enforced, and 
maintained in South Carolina. EPA is proposing to approve South 
Carolina's infrastructure submission for the 1997 annual and 2006 24-
hour PM2.5 NAAQS, specifically 1997 annual and 2006 24-hour 
PM2.5 NAAQS for sections 110(a)(2)(A)-(H), (J)-(M), with the 
exception of 110(a)(2)(C) the nonattainment area requirements, 
110(a)(2)(D)(i), sub-element 110(a)(2)(E)(ii) and 110(a)(2)(G) for 
section because its March 14, 2008, and September 18, 2009, submissions 
are consistent with section 110 of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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. 2012-13716 Filed 6-5-12; 8:45 am]
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