[Federal Register Volume 77, Number 141 (Monday, July 23, 2012)]
[Proposed Rules]
[Pages 43018-43023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17885]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0553; FRL-9702-7]


Partial Approval and Partial Disapproval of Air Quality 
Implementation Plans for Florida, Mississippi, and South Carolina; 
Clean Air Act Section 110(a)(2)(D)(i)(I) Transport Requirements for the 
2006 24-Hour 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 partially approve and partially disapprove 
revisions to the State Implementation Plans (SIPs) for Florida, 
Mississippi, and South Carolina submitted on September 23, 2009, 
October 6, 2009 and September 18, 2009, respectively. EPA is proposing 
to approve the determinations, contained in those submittals, that the 
existing SIPs for Florida, Mississippi, and South Carolina are adequate 
to meet the obligation under section 110(a)(2)(D)(i)(I) of the Clean 
Air Act (CAA or Act) to address interstate transport requirements with 
regard to the 2006 24-hour particulate matter (PM2.5) 
national ambient air quality standard (NAAQS). Specifically, the 
interstate transport requirements contained in section 
110(a)(2)(D)(i)(I) of the CAA prohibit a state's emissions from 
significantly contributing to nonattainment or interfering with the 
maintenance of the NAAQS in any other state. EPA is proposing to 
approve the States' determinations that their existing SIPs satisfy 
this requirement and to conclude that additional control measures are 
not necessary under section 110(a)(2)(D)(i)(I) because emissions from 
Florida, Mississippi and South Carolina do not contribute significantly 
to nonattainment or interfere with maintenance of the 2006 24-hour 
PM2.5 NAAQS in any other state. EPA is also proposing to 
disapprove the SIP submissions from Florida, Mississippi and South 
Carolina to the extent that they rely on the Clean Air Interstate Rule 
to meet the 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour 
PM2.5 NAAQS. Because the Clean Air Interstate Rule has been 
remanded by the court and did not address the 2006 PM2.5 
NAAQS, it cannot be relied upon to satisfy any requirements related to 
that NAAQS. In this action, EPA is only addressing the SIP revisions 
respecting section

[[Page 43019]]

110(a)(2)(D)(i)(I). The SIP revisions respecting the remainder of 
section 110(a)(2)(D)(i) and sections 110(a)(2)(A)-(M), except for 
sections 110(a)(2)(C) and 110(a)(2)(I) nonattainment area requirements, 
are being addressed in separate actions.

DATES: Written comments must be received on or before August 22, 2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0553, 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-2010-0553,'' 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-
2012-0553. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. What is the background for this proposed action?
    A. 2006 24-Hour PM2.5 Infrastructure Requirements
    B. Background on Infrastructure Actions
    C. Transport Rules
II. What is EPA's analysis of Florida's, Mississippi's and South 
Carolina's compliance with section 110(a)(2)(D)(i)(I) for the 2006 
24-hour PM2.5 NAAQS?
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. What is the background for this proposed action?

A. 2006 24-Hour PM2.5 Infrastructure Requirements

    On September 21, 2006, EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([mu]g/m\3\) to 35 [mu]g/m\3\ based on a 3-year average of 
the 98th percentile of 24-hour concentrations. 71 FR 61144 (October 17, 
2006). Section 110(a)(1) of the CAA requires states to submit to EPA 
SIPs that provide for the ``implementation, maintenance, and 
enforcement'' of a new or revised NAAQS within 3 years after 
promulgation of such standards, or within such shorter period as EPA 
may prescribe.\1\ Sections 110(a)(1) and (2) require these submissions 
to address basic SIP requirements, including emissions inventories, 
monitoring, and modeling to assure attainment and maintenance of the 
NAAQS. EPA thus refers to these submissions as ``infrastructure'' SIPs. 
States were required to submit such SIPs to EPA no later than September 
21, 2009, for the 2006 24-hour PM2.5 NAAQS. SIPs must 
address the requirements of 110(a)(2), as applicable, including section 
110(a)(2)(D)(i)(I), which pertains to interstate transport of certain 
emissions.
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    \1\ The rule establishing the revised PM2.5 NAAQS was 
signed by the Administrator and publically disseminated on September 
21, 2006. Because EPA did not prescribe a shorter period for 110(a) 
``infrastructure'' SIP submittals, these submittals were due on 
September 21, 2009, three years from the September 21, 2006, 
signature date pursuant to section 110(a)(1) of the CAA. See 42 
U.S.C. 7410(a)(1).
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    On July 6, 2011, WildEarth Guardians and Sierra Club filed an 
amended complaint alleging that EPA had failed to take final action on 
SIP submittals addressing 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 sign for publication in the 
Federal Register a notice of the Agency's final action either 
approving, disapproving, or approving in part and disapproving in part 
the Florida, Mississippi, and South Carolina 2006 24-hour 
PM2.5 NAAQS infrastructure SIP submittals 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 the 
visibility requirements of section 110(a)(2)(D)(i)(II), no later than 
September 30, 2012.

[[Page 43020]]

B. Background on Infrastructure Actions

    Section 110(a) imposes the obligation upon states to make 
infrastructure SIP submissions to EPA for each new or revised NAAQS, 
but the contents of that submission may vary depending upon the facts 
and circumstances. In particular, the data and analytical tools 
available at the time the state develops and submits the SIP for a new 
or revised NAAQS affects the content of the submission. The contents of 
such SIP submissions may also vary depending upon what provisions the 
state's existing SIP already contains. In the case of the 1997 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.
    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. As a general matter, the infrastructure 
requirements are listed 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.'' Although all the elements are identified below, today's 
action pertains only to Section 110(a)(2)(D)(i)(I).
     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.
     110(a)(2)(D): Interstate transport.
     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 the 
applicable requirements of part D.\2\
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    \2\ 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.
    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. EPA has 
previously discussed the scope of such actions in prior infrastructure 
actions. See, e.g., 76 FR 14631 (March 17, 2011); 76 FR 41123 (July 13, 
2011). Because today's action is focused on only the 110(a)(2)(D)(i)(I) 
infrastructure element, EPA is not repeating its previously articulated 
discussion on the scope of infrastructure SIP actions; however, such 
considerations remain applicable here.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, NSR permitting program 
submissions required to address the requirements of part D, and a host 
of other specific types of SIP submissions that address other specific 
matters.
    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).\3\ 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.\4\ 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.
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    \3\ See Id., 70 FR 25162 (May 12, 2005) (explaining relationship 
between timing requirement of section 110(a)(2)(D) versus section 
110(a)(2)(I)).
    \4\ 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.
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C. Transport Rules

    EPA has previously addressed the requirements of section 
110(a)(2)(D)(i)(I) in past regulatory actions such as the 1998 
NOX SIP call, the 2005 Clean Interstate Rule (CAIR), and the 
2011 Cross-State Air Pollution Rule (CSAPR), also known as the 
Transport Rule.\5\ In the 1998 NOX SIP call, EPA evaluated 
whether or not the ozone-season NOX emissions in certain 
states had prohibited interstate impacts, and if they had such impacts, 
required the states to adopt substantive SIP revisions

[[Page 43021]]

to eliminate the NOX emissions, whether through 
participation in a regional cap and trade program or by other means. 
EPA's general approach to section 110(a)(2)(D) in the NOX 
SIP call was upheld in Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000), 
cert denied, 532 U.S. 904 (2001). However, EPA's approach to 
interference with maintenance in the NOX SIP call was not 
explicitly reviewed by the court. See North Carolina v. EPA, 531 F.3d 
896, 907-09 (D.C. Cir. 2008).
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    \5\ See 63 FR 57371 (October 27, 1998), NOX SIP Call; 
70 FR 25172 (May 12, 2005), CAIR; and 76 FR 48208 (August 8, 2011) 
(Transport Rule, also known as Cross-State Air Pollution Rule or 
CSAPR).
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    On May 12, 2005, EPA published the Clean Air Interstate Rule (CAIR) 
in the Federal Register. See 70 FR 25162. CAIR required States to 
reduce emissions of sulfur dioxide (SO2) and nitrogen oxides 
(NOX) that significantly contribute to nonattainment and 
interfere with maintenance of the 1997 NAAQS for PM2.5 and/
or ozone in any downwind state. EPA was sued by a number of parties on 
various aspects of CAIR and on July 11, 2008, the U.S. Court of Appeals 
for the District of Columbia (D.C. Circuit) issued its decision to 
vacate and remand both CAIR and the associated CAIR federal 
implementation plans (FIPs) in their entirety. See North Carolina v. 
EPA, 531 F.3d 896 (D.C. Cir. 2008). Among other things, the Court found 
that EPA failed to give independent meaning to the term ``interfere 
with maintenance.'' Subsequently, in response to EPA's petition for 
rehearing, the Court issued an order remanding CAIR to EPA without 
vacating either CAIR or the CAIR federal implementation plans (FIPs). 
See North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008). The Court 
remanded the rule to EPA without vacatur because it found that 
``allowing CAIR to remain in effect until it is replaced by a rule 
consistent with [the court's] opinion would at least temporarily 
preserve the environmental values covered by CAIR.'' North Carolina v. 
EPA, 550 F.3d at 1178.
    In order to address the judicial remand of CAIR, EPA promulgated a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i)(I), in the eastern United States, the ``Federal 
Implementation Plans to Reduce Interstate Transport of Fine Particulate 
Matter and Ozone'' (i.e., the Transport Rule, also known as the Cross-
State Air Pollution Rule (CSAPR)). See 76 FR 48208 (August 8, 2011). In 
the Transport Rule, EPA finalized regulatory changes to sunset (i.e., 
discontinue) CAIR and the CAIR FIPs for control periods in 2012 and 
beyond. See 76 FR 48321.
    On December 30, 2011, the D.C. Circuit issued an order addressing 
the status of the Transport Rule and CAIR in response to motions filed 
by numerous parties seeking a stay of the Transport Rule pending 
judicial review. In that order, the D.C. Circuit stayed the Transport 
Rule pending the court's resolution of the petitions for review of that 
rule in EME Homer Generation, L.P. v. EPA (No. 11-1302 and consolidated 
cases). The court also indicated that EPA is expected to continue to 
administer CAIR in the interim until the court rules on the petitions 
for review of the Transport Rule.

II. What is EPA's analysis of Florida's, Mississippi's, and South 
Carolina's compliance with section 110(a)(2)(D)(i)(I) for the 2006 24-
hour PM2.5 NAAQS?

    On September 25, 2009, EPA issued a guidance entitled, ``Guidance 
on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 
24-Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2006 PM2.5 NAAQS Infrastructure 
Guidance). EPA developed the 2006 PM2.5 NAAQS Infrastructure 
Guidance to provide additional recommendations to states for developing 
SIP submissions to meet the requirements of section 110, including 
110(a)(2)(D)(i) for the revised 2006 24-hour PM2.5 NAAQS.
    In the 2006 24-hour PM2.5 NAAQS Infrastructure Guidance, 
EPA explained that submissions from states pertaining to the 
``significant contribution'' and ``interfere with maintenance'' 
requirements in section 110(a)(2)(D)(i)(I) must contain adequate 
provisions to prohibit air pollutant emissions from within the state 
that contribute significantly to nonattainment or interfere with 
maintenance of the NAAQS in any other state. In the Infrastructure 
Guidance, EPA explained that states could not rely on the CAIR to 
comply with CAA section 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS because CAIR does not address this 
NAAQS. Recognizing that the demonstration required may be a challenging 
task for the affected states, EPA also noted in the 2006 24-hour 
PM2.5 NAAQS Infrastructure Guidance the Agency's intention 
to complete a rule to address interstate pollution transport in the 
eastern half of the continental United States (i.e., the Transport 
Rule). As noted above EPA published the Transport Rule in the Federal 
Register on August 8, 2011. See 76 FR 48208.
    On September 23, 2009, October 6, 2009, and September 18, 2009, 
Florida, Mississippi and South Carolina, respectively, provided EPA 
with infrastructure submissions certifying that their current SIPs 
addressed all the required infrastructure elements for the 2006 24-hour 
PM2.5 NAAQS. In these submissions Florida, Mississippi and 
South Carolina all relied on CAIR to meet section 110(a)(2)(D)(i)(I) 
requirements for the 2006 PM2.5 NAAQS. CAIR addressed only 
the 110(a)(2)(D)(i)(I) requirements with respect to the 1997 ozone and 
1997 PM2.5 NAAQS and did not address the 2006 
PM2.5 NAAQS or any requirements related to that NAAQS. In 
previous actions disapproving SIP revisions for 110(a)(2)(D)(i)(I) that 
relied on CAIR, EPA explained both its rationale for disapproving those 
SIP revisions as well as describing a number of considerations for 
states for providing an adequate demonstration to address interstate 
transport requirements for the 2006 PM2.5 NAAQS. See, e.g., 
76 FR 43128 (July 20, 2011); 76 FR 4588 (January 26, 2011). Among the 
considerations, EPA explained that the state should explain whether or 
not emissions from the state contribute significantly to nonattainment 
or interfere with maintenance of the NAAQS in any other state, and that 
such a conclusion should be supported by a technical analysis. As 
explained in the prior disapprovals, a state may not rely on CAIR to 
satisfy the requirements of Section 110(a)(2)(D)(i)(I) with respect to 
the 2006 PM2.5 NAAQS because CAIR addressed only the 1997 
PM2.5 and ozone NAAQS and did not address the 2006 
PM2.5 NAAQS or any requirements related to that NAAQS. In 
addition, CAIR was found flawed and remanded to EPA by the court. North 
Carolina, 550 F.3d at 1176-1178. Therefore, EPA is proposing to 
disapprove the States' submission to the extent they rely on CAIR to 
meet these requirements.
    Since receiving these submittals, EPA conducted additional 
modeling, as part of the Transport Rule. This modeling supports the 
conclusion that these States' existing implementation plans are 
adequate to satisfy the requirements of section 110(a)(2)(D)(i)(I). 
This modeling is consistent with the types of analyses and 
considerations that EPA recommended states undertake in determining 
whether their SIPs were adequate to satisfy 110(a)(2)(D)(i)(I). Thus, 
EPA is now proposing to determine that the SIPs for Florida, 
Mississippi, and South Carolina are adequate to satisfy the 
requirements of 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS 
based on modeling conducted by EPA for the Transport Rule. The 
Transport Rule air quality modeling technical support document can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-
0553. Today, EPA is also proposing to

[[Page 43022]]

disapprove the States' reliance on CAIR to meet the 110(a)(2)(D)(i)(I) 
requirements for the 2006 24-hour PM2.5 NAAQS, to the extent 
that this rule is relied upon in the infrastructure submissions.
    The air quality modeling conducted for the Transport Rule evaluated 
interstate contributions from emissions in upwind states to projected 
future downwind nonattainment and maintenance receptors for the 2006 
24-hour PM2.5 NAAQS. EPA used air quality thresholds to 
indentify linkages between upwind states and downwind nonattainment and 
maintenance receptors. The air quality threshold was calculated as 1 
percent of the NAAQS, which is 0.35 [mu]g/m\3\ for 2006 24-hour 
PM2.5 NAAQS. EPA found states with emissions projected to 
exceed this air quality threshold at one or more downwind nonattainment 
receptors emissions to be linked to all such receptors. Emissions from 
states with one or more linkages were subject to further evaluation. 
EPA did not conduct further evaluation of emissions from states that 
were not linked to any downwind receptors. The air quality modeling for 
the Transport Rule did not find emissions from either Florida, 
Mississippi, or South Carolina linked to any downwind receptors for the 
2006 24-hour PM2.5 NAAQS. Below is a summary of the air 
quality modeling results for Florida, Mississippi, and South Carolina. 
A technical support document explaining the modeling in much greater 
detail can be found in the docket for this rulemaking.

    Largest Contribution to Downwind 2006 24-Hour PM2.5 ([mu]g/m\3\)
                   Nonattainment and Maintenance Areas
------------------------------------------------------------------------
                                      Largest downwind
                                       contribution to  Largest downwind
                                        nonattainment    contribution to
                State                    for 24-hour     maintenance for
                                        PM2.5 ([mu]g/     24-hour PM2.5
                                            m\3\)         ([mu]g/m\3\)
------------------------------------------------------------------------
Florida.............................              0.07              0.03
Mississippi.........................              0.06              0.07
South Carolina......................              0.29              0.25
------------------------------------------------------------------------

    EPA believes it is appropriate to rely on this modeling even though 
the U.S. Court of Appeals for the D.C. Circuit stayed the Transport 
Rule pending judicial review. The stay of the rule does not, by itself, 
invalidate the modeling and nothing in the court order staying the rule 
suggests that it would be improper for EPA to rely on technical 
modeling conducted during the lengthy rulemaking process. Further, EPA 
is not proposing to rely on any requirements of the Transport Rule or 
emission reductions associated with that rule to support its conclusion 
that these three states have met their 110(a)(2)(D)(i)(I) obligations 
with respect to the 2006 PM2.5 NAAQS.

III. Proposed Action

    EPA is proposing to partially approve and partially disapprove 
revisions to the State Implementation Plans (SIPs) for Florida, 
Mississippi, and South Carolina submitted on September 23, 2009, 
October 6, 2009 and September 18, 2009 respectively. EPA is proposing 
to approve the determinations that the existing SIPs of Florida, 
Mississippi, and South Carolina have adequate provisions to satisfy the 
obligation under section 110(a)(2)(D)(i)(I) of the CAA to address 
interstate transport requirements with regard to the 2006 24-hour 
PM2.5 NAAQS. EPA proposes to base this action on air quality 
modeling, conducted by EPA during the rulemaking process for the 
Transport Rule. Additionally, EPA is proposing to disapprove, the SIP 
submissions from Florida, Mississippi and South Carolina to the extent 
they rely on the Clean Air Interstate Rule to meet the 
110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM2.5 
NAAQS. EPA notes, that once finalized, the partial disapproval will not 
trigger a FIP for these States so long as today's proposed 
determination that the requirements of 110(a)(2)(D)(i)(I) for the 2006 
24-hour PM2.5 NAAQS for the Florida, Mississippi and South 
Carolina SIPs are met, is finalized. No further action will be required 
on the part of Florida, Mississippi or South Carolina as a result of 
the proposed partial disapproval because the SIPs themselves are not 
deficient.

IV. 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).

In addition, this proposed rule does not have tribal implications for 
Florida and Mississippi as specified by Executive Order 13175 (65 FR 
67249, November 9, 2000), because these SIPs are not

[[Page 43023]]

approved to apply in Indian country located in the state, and EPA notes 
that it will not impose substantial direct costs on tribal governments 
or preempt tribal law. With regard to South Carolina, EPA notes that, 
pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 
27-16-120, the Catawba Indian Nation Reservation, which is located 
within the State of South Carolina, is subject to all state and local 
environmental laws and that South Carolina 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. Nonetheless, EPA has 
preliminarily determined that today's proposed rule determining that 
the South Carolina SIP meets the State's obligation under section 
110(a)(2)(D)(i)(I) and disapproving its reliance upon CAIR does not 
have tribal implications as specified by Executive Order 13175 (65 FR 
67249). EPA has also preliminarily determined that these revisions will 
not impose any substantial direct costs on tribal governments or 
preempt tribal law in South Carolina.

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: July 12, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-17885 Filed 7-20-12; 8:45 am]
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