[Federal Register Volume 77, Number 125 (Thursday, June 28, 2012)]
[Rules and Regulations]
[Pages 38509-38515]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15465]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2009-0785; FRL-9691-7]


Approval and Promulgation of Implementation Plans; South 
Carolina; Regional Haze State Implementation Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of a revision to the 
South Carolina State Implementation Plan (SIP) submitted by the State 
of South Carolina through the South Carolina Department of Health and 
Environmental Control (SC DHEC) on December 17, 2007. South Carolina's 
December 17, 2007, SIP revision addresses regional haze for the first 
implementation period. Specifically, this SIP revision addresses the 
requirements of the Clean Air Act (CAA or Act) and EPA's rules that 
require states to prevent any future and remedy any existing 
anthropogenic impairment of visibility in mandatory Class I areas 
(national parks and wilderness areas) caused by emissions of air 
pollutants from numerous sources located over a wide geographic area 
(also referred to as the ``regional haze program''). States are 
required to assure reasonable progress toward the national goal of 
achieving natural visibility conditions in Class I areas. EPA is 
finalizing a limited approval of South Carolina's December 17, 2007, 
SIP revision to implement the regional haze requirements for South 
Carolina on the basis that this SIP revision, as a whole, strengthens 
the South Carolina SIP. Additionally, EPA is rescinding the Federal 
regulations previously approved into the South Carolina SIP on July 12, 
1985, and November 24, 1987, and is approving the provisions in South 
Carolina's December 17, 2007, SIP submittal to meet the monitoring and 
long-term strategy (LTS) requirements for reasonably attributable 
visibility impairment (RAVI). In a separate action published on June 7, 
2012, EPA finalized a limited disapproval of this same SIP revision 
because of the deficiencies in the State's regional haze SIP revision 
arising from the remand by the U.S. Court of Appeals for the District 
of Columbia Circuit (DC Circuit) to EPA of the Clean Air Interstate 
Rule (CAIR).

DATES: Effective Date: This rule will be effective July 30, 2012, 
except for the amendment to Sec.  52.2132, which is effective on August 
7, 2012.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2009-0785. All documents in the docket 
are listed on the www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, i.e., Confidential 
Business Information 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 through 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 for 
further information. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, 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. Michele Notarianni can 
be reached at telephone number (404) 562-9031 and by electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. What is EPA's response to comments received on this action?
III. What is the effect of this final action?
IV. Final Action
V. Statutory and Executive Order Reviews

[[Page 38510]]

I. What is the background for this final action?

    Regional haze is visibility impairment that is produced by a 
multitude of sources and activities which are located across a broad 
geographic area and emit fine particles (e.g., sulfates, nitrates, 
organic carbon, elemental carbon, and soil dust), and their precursors 
(e.g., sulfur dioxide (SO2), nitrogen oxides 
(NOX), and in some cases, ammonia and volatile organic 
compounds. Fine particle precursors react in the atmosphere to form 
fine particulate matter (PM2.5) which impairs visibility by 
scattering and absorbing light. Visibility impairment reduces the 
clarity, color, and visible distance that one can see. PM2.5 
can also cause serious health effects and mortality in humans and 
contributes to environmental effects such as acid deposition and 
eutrophication.
    In section 169A of the 1977 Amendments to the CAA, Congress created 
a program for protecting visibility in the nation's national parks and 
wilderness areas. This section of the CAA establishes as a national 
goal the ``prevention of any future, and the remedying of any existing, 
impairment of visibility in mandatory Class I areas which impairment 
results from manmade air pollution.'' On December 2, 1980, EPA 
promulgated regulations to address visibility impairment in Class I 
areas that is ``reasonably attributable'' to a single source or small 
group of sources, i.e., ``reasonably attributable visibility 
impairment.'' See 45 FR 80084. These regulations represented the first 
phase in addressing visibility impairment. EPA deferred action on 
regional haze that emanates from a variety of sources until monitoring, 
modeling, and scientific knowledge about the relationships between 
pollutants and visibility impairment were improved.
    Congress added section 169B to the CAA in 1990 to address regional 
haze issues. EPA promulgated a rule to address regional haze on July 1, 
1999 (64 FR 35714), the Regional Haze Rule (RHR). The RHR revised the 
existing visibility regulations to integrate into the regulation 
provisions addressing regional haze impairment and established a 
comprehensive visibility protection program for Class I areas. The 
requirements for regional haze, found at 40 CFR 51.308 and 51.309, are 
included in EPA's visibility protection regulations at 40 CFR 51.300 
through .309. The requirement to submit a regional haze SIP applies to 
all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 
51.308(b) requires states to submit the first implementation plan 
addressing regional haze visibility impairment no later than December 
17, 2007.
    On December 17, 2007, SC DHEC submitted a revision to South 
Carolina's SIP to address regional haze in the State's and other 
states' Class I areas. On February 28, 2012, EPA published an action 
proposing a limited approval of South Carolina's December 17, 2007, SIP 
revision to address the first implementation period for regional 
haze.\1\ See 77 FR 11894. EPA proposed a limited approval of South 
Carolina's December 17, 2007, SIP revision to implement the regional 
haze requirements for South Carolina on the basis that this revision, 
as a whole, strengthens the South Carolina SIP. See section II of this 
rulemaking for a summary of the comments received on the proposed 
actions and EPA's responses to these comments. Detailed background 
information and EPA's rationale for the proposed action is provided in 
EPA's February 28, 2012, proposed rulemaking.
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    \1\ In a separate action, published on June 7, 2012 (77 FR 
33642), EPA finalized a limited disapproval of the South Carolina 
regional haze SIP because of deficiencies in the State's regional 
haze SIP submittal arising from the State's reliance on CAIR to meet 
certain regional haze requirements. Also, in that June 7, 2012, 
action, EPA finalized a Federal Implementation Plan (FIP) for South 
Carolina to address the deficiencies that resulted from the State's 
reliance on CAIR for their regional haze SIP.
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    Following the remand of CAIR, EPA issued a new rule in 2011 to 
address the interstate transport of NOX and SO2 
in the eastern United States. See 76 FR 48208 (August 8, 2011) (``the 
Transport Rule,'' also known as the Cross-State Air Pollution Rule 
(CSAPR)). On December 30, 2011, EPA proposed to find that the trading 
programs in the Transport Rule would achieve greater reasonable 
progress towards the national goal of achieving natural visibility 
conditions than would best available retrofit technology (BART) in the 
states in which the Transport Rule applies (including South Carolina). 
See 76 FR 82219. Based on this proposed finding, EPA also proposed to 
revise the RHR to allow states to substitute participation in the 
trading programs under the Transport Rule for source-specific BART. EPA 
finalized this finding and RHR revision on June 7, 2012 (77 FR 33642).
    Also on December 30, 2011, the DC Circuit stayed the Transport Rule 
(including the provisions that would have sunset CAIR and the CAIR 
FIPs) and instructed the EPA to continue to administer CAIR pending the 
outcome of the court's decision on the petitions for review challenging 
the Transport Rule. EME Homer City v. EPA, No. 11-1302.

II. What is EPA's response to comments received on this action?

    EPA received one set of comments on the February 28, 2012, 
rulemaking proposing a limited approval of South Carolina's December 
17, 2007, regional haze SIP revision. Specifically, the comments were 
received from the Southern Environmental Law Center on behalf of the 
South Carolina Coastal Conservation League. A full set of the comments 
provided by the aforementioned entity (hereinafter referred to as ``the 
Commenter'') is provided in the docket for today's final action. A 
summary of the comments and EPA's responses are provided below.
    Comment 1: The Commenter incorporates by reference comments 
submitted to EPA on February 28, 2012, by the ``Sierra Club, 
Earthjustice, and other organizations'' regarding the Agency's December 
30, 2011, proposed rulemaking to find that the Transport Rule is 
``better than BART'' and to use the Transport Rule as an alternative to 
BART for South Carolina and other states subject to the Transport Rule. 
See 76 FR 82219. The Commenter also restates several of these comments, 
including the following: the Transport Rule does not comply with EPA's 
criteria for an alternative to BART; the State cannot rely on the 
proposed ``better than BART'' rulemaking given the DC Circuit's action 
staying implementation of the Transport Rule; concluding that the 
Transport Rule achieves greater reasonable progress toward national 
visibility conditions than BART, without regard to defined reasonable 
progress goals (RPGs), is arbitrary and contrary to the CAA; EPA has 
not accounted for the differences in averaging time under BART, the 
Transport Rule, and in measuring visibility impacts; EPA's modeling 
assumed nitrate levels that are often lower than real-world conditions; 
in some instances, EPA relied on a single monitor to assess visibility 
conditions in multiple Class I areas; EPA uses a simple arithmetic mean 
to conclude that visibility improvements will be greater under the 
Transport Rule than BART; and EPA's proposed ``Better than BART'' 
determination relies on a 2014 base case that does not account for 
permanent emissions reductions at non-BART eligible sources.
    Response 1: These comments are beyond the scope of this rulemaking. 
In today's action, EPA is finalizing a limited approval of South 
Carolina's regional haze SIP. EPA did not propose to find that 
participation in the

[[Page 38511]]

Transport Rule is an alternative to BART in this action nor did EPA 
reopen discussions on the CAIR provisions as they relate to BART.\2\ As 
noted above, EPA proposed to find that the Transport Rule is ``Better 
than BART'' and to use the Transport Rule as an alternative to BART for 
South Carolina in a separate action on December 30, 2011, and the 
Commenter is merely reiterating and incorporating comments submitted on 
that separate action. EPA addressed these February 28, 2012, comments 
concerning the Transport Rule as a BART alternative in a final action 
that was published on June 7, 2012, and has determined that they do not 
affect the Agency's ability to finalize a limited approval of South 
Carolina's regional haze SIP. EPA's responses to these comments can be 
found in Docket ID No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.
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    \2\ In a final action published on July 6, 2005, EPA addressed 
similar comments related to CAIR and determined that CAIR makes 
greater reasonable progress than BART for certain EGUs and 
pollutants (70 FR 39138-39143). EPA did not reopen comment on that 
issue through this rulemaking.
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    Comment 2: The Commenter asserts that the proposed limited approval 
violates the CAA and RHR because a regional haze plan's BART 
requirements and long-term strategy to achieve reasonable progress 
cannot be evaluated in isolation from one another. The Commenter 
supports its position by repeating statements made in the 
aforementioned February 28, 2012, comments on the Agency's proposed 
December 30, 2011, rulemaking to find that the Transport Rule is 
``better than BART'' and to use the Transport Rule as an alternative to 
BART for South Carolina and other states subject to the Transport Rule. 
For example, the Commenter states that ``[b]ecause BART is a critical 
component to achieving reasonable progress, neither the states nor EPA 
are authorized to exempt sources from the RHR's BART requirements 
without considering how doing so will affect the overarching reasonable 
progress mandate. * * * Concluding that CSAPR achieves greater 
reasonable progress toward achieving natural visibility conditions than 
BART, without regard to defined reasonable progress goals, is arbitrary 
and contrary to law under the Clean Air Act and the RHR.''
    Response 2: As discussed in the response to Comment 1, today's 
action does not address reliance on CAIR or CSAPR to satisfy BART 
requirements. Comments related to the approvability of CAIR or CSAPR 
for the South Carolina regional haze SIP are therefore beyond the scope 
of this rulemaking and were addressed by EPA in a separate action 
published on June 7, 2012 (77 FR 33642). EPA addressed the Commenter's 
repeated statements regarding the interrelatedness of BART, the LTS, 
and RPGs in that final rulemaking action and those responses support 
this limited approval action.\3\
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    \3\ See EPA, Response to Comments Document, Regional Haze: 
Revisions to Provisions Governing Alternatives to Source-Specific 
Best Available Retrofit Technology (BART) Determinations, Limited 
SIP Disapprovals, and Federal Implementation Plans (76 FR 82219; 
December 30, 2011), Docket Number EPA-HQ-OAR-2011-0729 (May 30, 
2012), pages 49-51 (noting that EPA ``disagree[s] with comments that 
we cannot evaluate the BART requirements in isolation from the 
reasonable progress requirements. We have on several occasions 
undertaken evaluations of a state's BART determination or 
promulgated a FIP separately from our evaluation of whether the SIP 
as a whole will ensure reasonable progress.'').
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    Comment 3: The Commenter asserts that EPA does not have the 
authority under the CAA to issue a limited approval of South Carolina's 
regional haze SIP. The Commenter contends that section 110(k) of the 
Act only allows EPA to fully approve, partially approve and partially 
disapprove, conditionally approve, or fully disapprove a SIP.
    Response 3: As discussed in the September 7, 1992, EPA memorandum 
cited in the notice of proposed rulemaking,\4\ although section 110(k) 
of the CAA may not expressly provide authority for limited approvals, 
the plain language of section 301(a) does provide ``gap-filling'' 
authority authorizing the Agency to ``prescribe such regulations as are 
necessary to carry out'' EPA's CAA functions. EPA may rely on section 
301(a) in conjunction with the Agency's SIP approval authority in 
section 110(k)(3) to issue limited approvals where it has determined 
that a submittal strengthens a given state's implementation plan, and 
that the provisions meeting the applicable requirements of the Act are 
not separable from the provisions that do not meet the Act's 
requirements. EPA has adopted the limited approval approach numerous 
times in SIP actions across the nation over the last 20 years. A 
limited approval action is appropriate here because EPA has determined 
that South Carolina's SIP revision addressing regional haze, as a 
whole, strengthens the State's implementation plan and because the 
provisions in the SIP revision are not separable.
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    \4\ Processing of State Implementation Plan (SIP) Revisions, EPA 
Memorandum from John Calcagni, Director, Air Quality Management 
Division, OAQPS, to Air Division Directors, EPA Regional Offices I-
X, September 7, 1992, (``1992 Calcagni Memorandum'') located at 
http://www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf.
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    The Commenter states that EPA's action ``conflicts with the plain 
language of the [CAA]'' and cites several Federal appellate court 
decisions to support its contention that section 110(k) of the Act 
limits EPA to a full approval, ``a conditional approval, a partial 
approval and disapproval, or a full disapproval.'' However, adopting 
the Commenter's position would ignore section 301 and violate the `` 
`fundamental canon of statutory construction that the words of a 
statute must be read in their context and with a view to their place in 
the overall statutory scheme' * * * A court must therefore interpret 
the statute `as a symmetrical and coherent regulatory scheme,' * * * 
and `fit, if possible, all parts into an harmonious whole.' '' FDA v. 
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting 
Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809 (1989), 
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995), and FTC v. Mandel 
Brothers, Inc., 359 U.S. 385, 389 (1959)). Furthermore, the cases cited 
by the Commenter did not involve challenges to a limited approval 
approach, and one of the cases, Abramowitz v. EPA, 832 F.2d 1071 (9th 
Cir. 1988), predates the 1990 CAA amendments enacting section 110(k).
    Comment 4: The Commenter contends that it was inappropriate for the 
State to ``rel[y] on CAIR (and now CSAPR)'' in determining RPGs and 
that due, in part, to this reliance, the State ``failed to evaluate 
numerous sources that contribute significantly to visibility impairment 
at the State's Class I areas'' and that it ``cast doubts on the 
validity of DHEC's modeling.'' The Commenter therefore believes that 
EPA should not approve the SIP unless the State considers additional 
reasonable progress from the 10 electric generating units (EGUs) 
excluded from the reasonable progress analyses and the State conducts 
further analyses in setting its RPGs (or EPA ``ensure[s] that DHEC 
follows through on its commitment to re-evaluate its ability to meet 
its RPGs in the 5-year progress review, pursuant to 40 CFR. 
52.308(g)''). The Commenter also states that ``even when the uniform 
rate of progress [URP] is predicted to be met, the state still has an 
obligation `to go beyond the URP analysis in establishing RPGs * * * to 
determine whether additional progress would be reasonable based on the 
statutory factors.'''
    Response 4: The State took into account emissions reductions 
expected from CAIR to determine the 2018 RPGs for its Class I area, and 
this approach was fully consistent with EPA guidance at the time of SIP 
development. In the regional haze program, uncertainties associated 
with modeled emissions

[[Page 38512]]

projections into the future are addressed through the requirement under 
the RHR to submit periodic progress reports in the form of a SIP 
revision. Specifically, 40 CFR 51.308(g) requires each state to submit 
a report every five years evaluating progress toward the RPGs for each 
mandatory Class I area located in the state and for each Class I area 
outside the state that may be affected by emissions from the state. 
Since this 5-year progress re-evaluation is a mandatory requirement, it 
is unnecessary for EPA to take additional measures to ``ensure'' that 
the State meets its reporting obligation.
    Regarding the need to go beyond the URP analysis when establishing 
RPGs, EPA affirmed in the RHR that the URP is not a ``presumptive 
target;'' rather, it is an analytical requirement for setting RPGs. See 
64 FR 35731 and 35732, July 1, 1999. In determining RPGs for the South 
Carolina Class I area, the State identified sources through its area of 
influence methodology for reasonable progress control evaluation and 
described those evaluations in its SIP. For its EGUs subject to CAIR, 
SC DHEC reviewed the statutory factors (i.e., the costs of compliance, 
the time necessary for compliance, the energy and non-air quality 
environmental impacts of compliance, and the remaining useful life of 
any potentially affected sources) as evaluated by EPA for CAIR.
    Comment 5: The Commenter contends that the emissions reductions 
from some of the significant CAA emissions control programs and consent 
decrees identified in the 2018 emissions inventory are speculative and 
uncertain. The Commenter therefore believes that EPA should require 
South Carolina to address any discrepancies, prior to approval of the 
State's regional haze SIP.
    Response 5: The technical information provided in the record 
demonstrates that the emissions inventory in the SIP adequately 
reflects projected 2018 conditions and that the LTS meets the 
requirements of the RHR and is approvable. South Carolina's 2018 
projections are based on the State's technical analysis of the 
anticipated emissions rates and level of activity for EGUs, other point 
sources, nonpoint sources, on-road sources, and off-road sources based 
on their emissions in the 2002 base year, considering growth and 
additional emissions controls to be in place and federally enforceable 
by 2018. The emissions inventory used in the regional haze technical 
analyses was developed by the Visibility Improvement State and Tribal 
Association of the Southeast (VISTAS) with assistance from South 
Carolina. The 2018 emissions inventory was developed by projecting 2002 
emissions (the latest region-wide inventory available at the time the 
submittal was being developed) and applying reductions expected from 
Federal and state regulations affecting the emissions of VOC and the 
visibility impairing pollutants NOX, particulate matter 
(PM), and SO2. To minimize the differences between the 2018 
projected emissions used in the South Carolina regional haze submittal 
and what actually occurs in 2018, the RHR requires that the 5-year 
review address any expected significant differences due to changed 
circumstances from the initial 2018 projected emissions, provide 
updated expectations regarding emissions for the implementation period, 
and evaluate the impact of these differences on RPGs. It is expected 
that individual projections within a statewide inventory will vary from 
actual emissions over a 16-year period. For example, some facilities 
shut down whereas others expand operations. Furthermore, economic 
projections and population changes used to estimate growth often differ 
from actual events; new rules are modified, changing their expected 
effectiveness; and methodologies to estimate emissions improve, 
modifying emissions estimates. The 5-year review is a mechanism to 
assure that these expected differences from projected emissions are 
considered and their impact on the 2018 RPGs is evaluated. EPA finds 
that these inventories provide a reasonable assessment of future 
emissions from South Carolina sources.
    Comment 6: The Commenter states that in exempting EGUs from a BART 
analysis ``on the basis that their contribution to visibility 
impairment modeled less than 0.5 deciview, it does not appear that DHEC 
considered the cumulative impact of those sources that did not 
individually exceed the 0.5 dv threshold, but collectively may cause or 
contribute to impairment.'' The Commenter cites to EPA guidelines in 70 
FR 39161 and39162, July 6, 2005, to support its belief that this 
exemption threshold ``applies when all visibility impairing pollutants 
are modeled together, not one pollutant at a time, as used by DHEC.'' 
According to the Commenter, when considering the modeling impacts from 
coarse particulate matter (PM10) alone for the exempted 
sources, their combined ``contribution to visibility impairment greatly 
exceeds the 0.5 dv contribution threshold,'' calling into question the 
``validity of DHEC's exemptions of multiple sources from BART.''
    Response 6: As discussed in the proposal, (see section IV.C.6.B.2, 
February 28, 2012, 77 FR 11908), South Carolina adequately justified 
its contribution threshold of 0.5 deciview. While states have the 
discretion to set an appropriate contribution threshold considering the 
number of emissions sources affecting the Class I area at issue and the 
magnitude of the individual sources' impacts, the states' analysis must 
be consistent with the CAA, the RHR, and EPA's Guidelines for BART 
Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR 
part 51 (BART Guidelines). Consistent with the regulations and EPA's 
guidance, ``the contribution threshold should be used to determine 
whether an individual source is reasonably anticipated to contribute to 
visibility impairment. You should not aggregate the visibility effects 
of multiple sources and compare their collective effects against your 
contribution threshold because this would inappropriately create a 
`contribution to contribution' test.'' See also 70 FR 39121, Note 34, 
July 6, 2005. South Carolina's analysis in the regional haze SIP 
revision was consistent with EPA's regulations and guidance on the 
issue of cumulative analyses.
    Regarding modeling in South Carolina's submittal that uses PM only 
for its BART-eligible EGUs, EPA previously determined that this 
approach is appropriate for EGUs where the State proposed to rely on 
CAIR to satisfy the BART requirements for SO2 and 
NOX.\5\
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    \5\ Regional Haze Regulations and Guidelines for Best Available 
Retrofit Technology (BART) Determinations, EPA Memorandum from 
Joseph Paisie, Group Leader, Geographic Strategies Group, OAQPS, to 
Kay Prince, Branch Chief, EPA Region 4, July 19, 2006, located at: 
http://www.epa.gov/visibility/pdfs/memo_2006_07_19.pdf.
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    Comment 7: The Commenter believes that the PM BART determinations 
for South Carolina Electric & Gas' (``SCE&G's'') Wateree and Williams 
stations are flawed because ``it appears that DHEC did not evaluate 
BART for all particulate matter. BART requires an evaluation of 
technology for filterable PM10 and PM2.5 as well 
as condensable particulate matter * * *. DHEC's BART determinations * * 
* appear to have been based [on] cost analyses that were conducted for 
condensable PM10. The finer fractions of particulate matter 
(PM2.5) make a relatively larger contribution to visibility 
impacts. This has an impact in estimating emission reductions and 
selecting the most effective controls. EPA must require DHEC to conduct 
new BART determinations that correct this flaw.''
    Response 7: It is unclear from the comment what PM control 
strategies

[[Page 38513]]

were allegedly ignored by the State in the BART analyses for these two 
stations. Each of the control options evaluated for these facilities in 
South Carolina's regional haze SIP submittal considered the 
contribution of total PM10 and PM2.5 (as a subset 
of the total PM10) as well as condensables (primarily 
sulfuric acid mist) (see Appendix H.6 of South Carolina's December 17, 
2007, SIP submittal). The installed controls on both facilities are 
effective at reducing filterable and condensable particulates, and as a 
result, the State determined that additional reductions were not cost 
effective. The Commenter did not identify any alternative control 
technology for fine particles not considered by the State that could 
affect the BART determination.
    Comment 8: According to the Commenter, it was ``inappropriate and 
arbitrary for DHEC to use the CAIR cost per ton of SO2 
removed as the cost threshold for evaluating reasonable progress 
controls. The only rationale DHEC offered in support of this decision 
was that DHEC `believes it is not equitable to require non-EGUs to bear 
a greater economic burden than EGUs for a given control strategy' * * 
*. EPA, likewise, acknowledges that `the use of a specific threshold 
for assessing costs means that a state may not fully consider available 
emissions reduction measures above its threshold that would result in 
meaningful visibility improvement,' but proposes to approve South 
Carolina's reasonable progress analysis anyway * * * EPA should re-
evaluate this decision in its final action on this proposal, especially 
in light of the fact that DHEC determined that no additional reasonable 
controls were required at any of the sources affecting visibility in 
South Carolina's Class I area.''
    Response 8: As noted in EPA's Reasonable Progress Guidance \6\ and 
discussed further in EPA's February 28, 2012, proposal action on the 
South Carolina regional haze SIP submittal (77 FR 11906), the states 
have wide latitude to determine appropriate additional control 
requirements for ensuring reasonable progress, and there are many ways 
for a state to approach identification of additional reasonable 
measures. States must consider, at a minimum, the four statutory 
factors in determining reasonable progress, but states have flexibility 
in how to take these factors into consideration.
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    \6\ Guidance for Setting Reasonable Progress Goals Under the 
Regional Haze Program, July 1, 2007, memorandum from William 
L.Wehrum, Acting Assistant Administrator for Air and Radiation, to 
EPA Regional Administrators, EPA Regions 1-10 (``EPA's Reasonable 
Progress Guidance''), page 4-2.
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    After reviewing DHEC's methodology and analyses and the record 
prepared by DHEC, EPA finds South Carolina's conclusion that no further 
controls are necessary at this time acceptable and that the State 
adequately evaluated the control technologies available at the time of 
its analysis and applicable to this type of facility and consistently 
applied its criteria for reasonable compliance costs. See 77 FR 11906, 
February 28, 2012. The State also included appropriate documentation in 
its SIP of the technical analysis it used to assess the need for and 
implementation of reasonable progress controls. Although the use of a 
specific threshold for assessing costs means that a state may not fully 
consider available emissions reduction measures above its threshold 
that would result in meaningful visibility improvement, EPA believes 
that the South Carolina SIP ensures reasonable progress.
    In approving South Carolina's reasonable progress analysis, EPA is 
placing great weight on the fact that there is no indication in the SIP 
revision that South Carolina, as a result of using a specific cost 
effectiveness threshold, rejected potential reasonable progress 
measures that would have had a meaningful impact on visibility in its 
Class I areas.

III. What is the effect of this final action?

    Under CAA sections 301(a) and 110(k)(6) and EPA's long-standing 
guidance, a limited approval results in approval of the entire SIP 
revision, even of those parts that are deficient and prevent EPA from 
granting a full approval of the SIP revision.\7\ Today, EPA is 
finalizing a limited approval of South Carolina's December 17, 2007, 
regional haze SIP revision. This limited approval results in approval 
of South Carolina's entire regional haze submission and all its 
elements. EPA is taking this approach because South Carolina's SIP will 
be stronger and more protective of the environment with the 
implementation of those measures by the State and having Federal 
approval and enforceability than it would without those measures being 
included in its SIP.
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    \7\ 1992 Calcagni Memorandum.
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IV. Final Action

    EPA is finalizing a limited approval of a revision to the South 
Carolina SIP submitted by the State of South Carolina on December 17, 
2007, as meeting some of the applicable regional haze requirements as 
set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-
308. Also in this action, EPA is rescinding the Federal regulations in 
40 CFR 52.2132 that were approved into the South Carolina SIP on July 
12, 1985, and November 24, 1987, and is approving the provisions in 
South Carolina's December 17, 2007, SIP submittal to meet the 
monitoring and LTS requirements for RAVI at 40 CFR 51.305 and 40 CFR 
51.306, respectively.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * * 44 U.S.C. 3502(3)(A). The Paperwork Reduction Act 
does not apply to this action.

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval does not create any new 
requirements, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-state relationship under 
the CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of state action. The CAA 
forbids EPA to base its actions concerning SIPs on such

[[Page 38514]]

grounds. Union Electric Co., v. EPA, 427 U.S. 246, 255-66 (1976); 42 
U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act (UMRA)

    Under sections 202 of the UMRA of 1995 (``Unfunded Mandates Act''), 
signed into law on March 22, 1995, EPA must prepare a budgetary impact 
statement to accompany any proposed or final rule that includes a 
Federal mandate that may result in estimated costs to state, local, or 
tribal governments in the aggregate; or to the private sector, of $100 
million or more. Under section 205, EPA must select the most cost-
effective and least burdensome alternative that achieves the objectives 
of the rule and is consistent with statutory requirements. Section 203 
requires EPA to establish a plan for informing and advising any small 
governments that may be significantly or uniquely impacted by the rule.
    EPA has determined that today's action does not include a Federal 
mandate that may result in estimated costs of $100 million or more to 
either state, local, or tribal governments in the aggregate, or to the 
private sector. This Federal action approves pre-existing requirements 
under state or local law, and imposes no new requirements. Accordingly, 
no additional costs to state, local, or tribal governments, or to the 
private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have Federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by state and local governments, or EPA 
consults with state and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has Federalism implications and that preempts state law unless the 
Agency consults with state and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' Consistent with the EPA 
Policy on Consultation and Coordination with Indian Tribes, EPA 
complies with this Executive Order through the process of tribal 
consultation. With respect to today's action, EPA has offered the 
Catawba Indian Nation two opportunities to consult.\8\ First, in an 
email dated October 21, 2010, EPA extended the Catawba Indian Nation an 
opportunity to consult, however, the Tribe declined to consult with EPA 
at that time. Due to the passage of time between the initial offer of 
consultation and today's proposed action, EPA provided the Catawba 
Indian Nation a second opportunity to consult on the South Carolina 
Regional Haze SIP revision on February 1, 2012. In an email dated 
February 8, 2012, the Catawba Indian Nation stated that no consultation 
on this pending action was needed by the Tribe. Further, EPA has no 
information to suggest that today's action will impose substantial 
direct costs on tribal governments or preempt tribal law.
---------------------------------------------------------------------------

    \8\ The Catawba Indian Nation Reservation is located within the 
South Carolina. Generally, SIPs do not apply in Indian country 
throughout the United States, however, for purposes of the Catawba 
Indian Nation Reservation in Rock Hill, the South Carolina SIP does 
apply within the Reservation pursuant to the Catawba Indian Claims 
Settlement Act, S.C. Code Ann. 27-16-120 (providing that ``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.'')
---------------------------------------------------------------------------

G. Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it does 
not involve decisions intended to mitigate environmental health or 
safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12 of the NTTAA of 1995 requires Federal agencies to 
evaluate existing technical standards when developing a new regulation. 
To comply with NTTAA, EPA must consider and use ``voluntary consensus 
standards'' (VCS) if available and applicable when developing programs 
and policies unless doing so would be inconsistent with applicable law 
or otherwise impractical.
    EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a

[[Page 38515]]

copy of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

K. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 27, 2012. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

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

    Dated: June 13, 2012.
 A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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


0
2. Section 52.2120 (e) is amended by adding an entry for ``Regional 
Haze Plan'' at the end of the table to read as follows:


Sec.  52.2120  Identification of plan.

* * * * *
    (e) * * *

                              EPA-Approved South Carolina Non-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
             Provision                State effective date    EPA approval date             Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Regional haze plan.................            12/17/2007              6/28/2012            [Insert citation of
                                                                                                  publication].
----------------------------------------------------------------------------------------------------------------


0
3. Section 52.2132 is amended by removing and reserving paragraph (a) 
to read as follows:


Sec.  52.2132  Visibility protection.

    (a) [Reserved]
* * * * *
[FR Doc. 2012-15465 Filed 6-27-12; 8:45 am]
BILLING CODE 6560-50-P