[Federal Register Volume 78, Number 34 (Wednesday, February 20, 2013)]
[Proposed Rules]
[Pages 11805-11808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03841]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0814; FRL-9782-6]


Approval and Promulgation of Implementation Plans; Region 4 
States; 110(a)(2)(D)(i)(II) Infrastructure Requirement for the 1997 and 
2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve submissions from Alabama, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina and Tennessee for 
inclusion into each state's implementation plan. This proposal pertains 
to the infrastructure state implementation plans (SIPs) for these 
States as they relate to certain Clean Air Act (CAA or Act) 
requirements for the 1997 annual and 2006 24-hour fine particulate 
matter (PM2.5) National Ambient Air Quality Standards 
(NAAQS). The CAA requires that each state adopt and submit a SIP for 
the implementation, maintenance, and enforcement of each NAAQS 
promulgated by EPA. These plans are commonly referred to as an 
``infrastructure'' SIPs. Specifically, EPA is proposing to approve the 
submissions for Alabama, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina and Tennessee that relate to the 
infrastructure SIP requirement to protect visibility in another state. 
All other applicable infrastructure requirements for the 1997 annual 
and 2006 24-hour PM2.5 NAAQS associated with these States 
are being addressed in separate rulemakings.

DATES: Written comments must be received on or before March 22, 2013.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0814, 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-2012-0814,'' 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-
2012-0814. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
federal holidays.

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

Table of Contents

I. Background
II. What are States required to address under sections 110(a)(2)(D)?
III. What is EPA's analysis of how Region 4 States addressed element 
(D)(i)(II) related to visibility?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997 (62 FR 38652), EPA established an annual 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/

[[Page 11806]]

m\3\) based on a 3-year average of annual mean PM2.5 
concentrations. At that time, EPA also established a 24-hour NAAQS of 
65 [mu]g/m\3\. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA 
retained the 1997 annual PM2.5 NAAQS at 15.0 [mu]g/m\3\ 
based on a 3-year average of annual mean PM2.5 
concentrations, and promulgated a new 24-hour NAAQS of 35 [mu]g/m\3\ 
based on a 3-year average of the 98th percentile of 24-hour 
concentrations. By statute, SIPs meeting the requirements of sections 
110(a)(1) and (2) are to be submitted by states within three years 
after promulgation of a new or revised NAAQS. Sections 110(a)(1) and 
(2) require states to address basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the NAAQS. States were required to submit such SIPs 
to EPA no later than July 2000 for the 1997 annual PM2.5 
NAAQS, and no later than October 2009 for the 2006 24-hour 
PM2.5 NAAQS.
    Alabama, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina and Tennessee's infrastructure submissions were received by 
EPA on July 25, 2008, July 23, 2008, August 26, 2008, December 7, 2007, 
April 1, 2008, March 14, 2008, and December 14, 2007, respectively, for 
the 1997 annual PM2.5 NAAQS; and on September 23, 2009, 
October 21, 2009, July 17, 2012,\1\ October 6, 2009, September 21, 
2009, September 18, 2009, and October 19, 2009, respectively, for the 
2006 24-hour PM2.5 NAAQS. Alabama, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina and Tennessee were among 
other states that did not receive findings of failure to submit because 
they had provided a complete submission to EPA to address the 
infrastructure elements for the 1997 PM2.5 NAAQS by October 
3, 2008.
---------------------------------------------------------------------------

    \1\ On July 17, 2012, Kentucky withdrew its September 8, 2009, 
110(a)(1) and (2) infrastructure submission addressing the 2008 8-
hour ozone, 2006 PM2.5 and 2008 Lead NAAQS. Kentucky 
replaced its September 8, 2009, section 110(a)(1) and (2) 
infrastructure submission with a submission provided on July 17, 
2012.
---------------------------------------------------------------------------

    The rulemaking proposed through today's action only addresses 
section 110(a)(2)(D)(i)(II) visibility requirements.

II. What are States required to address under sections 110(a)(2)(D)?

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct 
components, commonly referred to as ``prongs,'' that must be addressed 
in SIP submissions. The first two prongs, which are codified in section 
110(a)(2)(D)(i)(I), are provisions that prohibit any source or other 
type of emissions activity in one state from contributing significantly 
to nonattainment of the NAAQS in another state (prong 1), and 
interfering with maintenance of the NAAQS in another state (prong 2). 
The third and fourth prongs, which are codified in section 
110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in 
one state interfering with measures required to prevent significant 
deterioration of air quality in another state (prong 3), or to protect 
visibility in another state (prong 4). Section 110(a)(2)(D)(ii) 
requires SIPs to include provisions insuring compliance with sections 
115 and 126 of the Act, relating to interstate and international 
pollution abatement.
    EPA has previously taken action to address Alabama, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina and Tennessee's 
SIP submissions related to prongs 1 through 3 of section 
110(a)(2)(D)(i) and the requirements of section 110(a)(2)(D)(ii) for 
the 1997 annual and 2006 24-hour PM2.5 NAAQS. Today's 
proposed rulemaking relates only to requirements of section 
110(a)(2)(D)(i)(II) (prong 4), which as previously described, requires 
that the SIP contain adequate provisions to protect visibility in any 
other State. More information on this requirement and EPA's rationale 
for today's proposal that each state is meeting this requirement for 
purposes of the 1997 annual and 2006 24-hour PM2.5 NAAQS is 
provided below.

III. What is EPA's analysis of how Region 4 States addressed element 
(D)(i)(II) related to visibility?

    Prong 4 of section 110(a)(2)(D)(i) requires that SIPs include 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures to protect visibility in 
another state. In describing how its submission meets this requirement, 
Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina 
and Tennessee each referred to EPA-approved state provisions requiring 
electric generating units (EGUs) to comply with the Clean Air 
Interstate Rule (CAIR) and to the limited approval and limited 
disapproval of Alabama, Georgia, Kentucky, Mississippi, North Carolina, 
South Carolina and Tennessee's regional haze SIPs. Although Alabama, 
Georgia, Kentucky, Mississippi, North Carolina, South Carolina and 
Tennessee's regional haze SIPs have not been fully approved, EPA 
believes that the infrastructure SIP submission together with 
previously approved SIP provisions, specifically those provisions that 
require EGUs to comply with CAIR and the additional measures in the 
regional haze SIP addressing best available retrofit technology (BART) 
and reasonable progress requirements for other sources or pollutants, 
are adequate to demonstrate compliance with prong 4, thus, EPA is 
proposing to fully approve this aspect of the submission.
    Alabama, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina and Tennessee's regional haze SIPs relied on previous 
incorporations of the CAIR into the EPA-approved SIPs as an alternative 
to the requirement that the regional haze SIPs provide for source-
specific BART emission limits for sulfur dioxide (SO2) and 
nitrogen oxides (NOX) emissions from EGUs. CAIR, as 
originally promulgated, requires significant reductions in emissions of 
SO2 and NOX to limit the interstate transport of 
these pollutants, and EPA's determination that states could rely on 
CAIR as an alternative to requiring BART for CAIR-subject EGUs had 
specifically been upheld in Utility Air Regulatory Group v. EPA, 471 
F.3d 1333 (D.C. Cir. 2006). Moreover, the states with Class I areas 
affected by emissions from sources in Alabama, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina and Tennessee had adopted 
reasonable progress goals for visibility protection that were 
consistent with the EGU emission limits resulting from CAIR.
    In 2008, however, the D.C. Circuit remanded CAIR back to EPA. See 
North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008). The court found 
CAIR to be inconsistent with the requirements of the CAA, see North 
Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately 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, 550 F.3d at 1178.
    After the remand of CAIR by the D.C. Circuit and the promulgation 
by EPA of a new rule--the Cross State Air Pollution Rule (CSAPR) or 
``Transport Rule''--to replace CAIR, EPA issued a limited disapproval 
of Alabama, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina and Tennessee's regional haze SIPs (and other states' regional 
haze SIPs that relied similarly on CAIR) because EPA believed that full 
approval of the SIP was not appropriate in light of the court's remand 
of CAIR and the uncertain but limited remaining period of operation of 
CAIR. EPA finalized a

[[Page 11807]]

limited approval of Alabama, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina and Tennessee regional haze SIPs, indicating 
that except for its reliance on CAIR, the SIP met CAA requirements for 
the first planning period of the regional haze program. See Alabama: 
July 28, 2012 (77 FR 38515); Georgia: July 28, 2012 (77 FR 38501); 
Kentucky: March 30, 2012 (77 FR 19098); Mississippi: July 27, 2012 (77 
FR 38191); North Carolina: July 27, 2012 (77 FR 38185); South Carolina: 
July 28, 2012 (77 FR 38509) Tennessee: April 24, 2012 (77 FR 243392), 
and November 27, 2012 (77 FR 70689).\2\ EPA also finalized a limited 
Federal Implementation Plan for Georgia, Kentucky, South Carolina and 
Tennessee, which merely substituted reliance on EPA's more recent 
CSAPR's NOX and SO2 trading programs for EGUs for 
the SIP's reliance on CAIR. See 77 FR 33642, June 7, 2012.
---------------------------------------------------------------------------

    \2\ 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 submittal, even of those parts that are deficient and 
prevent EPA from granting a full approval of the SIP revision. 
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.
---------------------------------------------------------------------------

    Since the above-described developments with regard to Alabama, 
Georgia, Kentucky, Mississippi, North Carolina, South Carolina and 
Tennessee's regional haze SIPs, the situation has changed. In August 
2012, the D.C. Circuit issued a decision to vacate CSAPR. EME Homer 
City Generation, 696 F.3d7 (D.C. Cir. 2012). In this decision, the 
court ordered EPA to ``continue administering CAIR pending the 
promulgation of a valid replacement.'' Thus, EPA has been ordered by 
the court to develop a new rule, and to continue implementing CAIR in 
the meantime, and the opinion makes clear that after promulgating that 
new rule EPA must provide states an opportunity to draft and submit 
SIPs to implement that rule. Implementation of CAIR thus cannot be 
replaced until EPA has promulgated a final rule through a notice-and-
comment rulemaking process; states have had an opportunity to draft and 
submit SIPs; EPA has reviewed the SIPs to determine if they can be 
approved; and EPA has taken action on the SIPs, including promulgating 
a Federal Implementation Plan, if appropriate.
    At this time, the deadline for asking the Supreme Court to review 
this decision has not passed, and the United States has made no 
decision regarding whether to seek further appeal. Nonetheless, the EPA 
intends to act in accordance with the holdings in the EME Homer City 
Generation opinion. Based upon the direction provided in that opinion 
for EPA to continue administering CAIR, the Agency believes that it is 
appropriate to rely on CAIR emission reductions for now for purposes of 
assessing the adequacy of Alabama, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina and Tennessee's infrastructure SIPs with 
respect to prong 4 while a valid replacement rule is developed and 
until implementation plans complying with any new rule are submitted by 
the states and acted upon by EPA or until the court case is resolved in 
a way that provides different direction regarding CAIR and CSAPR. In 
addition, EPA believes that based on the court's decision on CSAPR it 
would be appropriate to propose to rescind its limited disapproval of 
Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina 
and Tennessee's regional haze SIPs and propose a full approval, 
however, EPA is not at this time proposing to change the limited 
approval and limited disapproval of these states' regional haze SIPs. 
EPA expects to propose an appropriate action regarding Alabama, 
Georgia, Kentucky, Mississippi, North Carolina, South Carolina and 
Tennessee's regional haze SIPs in a separate rulemaking.
    As neither Alabama, Georgia, Kentucky, Mississippi, North Carolina, 
South Carolina and Tennessee nor EPA has taken any action to remove 
CAIR from the Alabama, Georgia, Kentucky, Mississippi, North Carolina, 
South Carolina and Tennessee SIPs, CAIR remains part of the EPA-
approved SIP and can be considered in determining whether the SIP as a 
whole meets the requirement of prong 4 of 110(a)(2)(D)(i). EPA is 
proposing to approve the infrastructure SIP submission with respect to 
prong 4 because Alabama, Georgia, Kentucky, Mississippi, North 
Carolina, South Carolina and Tennessee's regional haze SIPs which EPA 
has given a limited approval in combination with its SIP provisions to 
implement CAIR adequately prevent sources in Alabama, Georgia, 
Kentucky, Mississippi, North Carolina, South Carolina and Tennessee 
from interfering with measures adopted by other states to protect 
visibility during the first planning period. While EPA is not at this 
time proposing to change the limited approval and limited disapproval 
of Alabama, Georgia, Kentucky, Mississippi, North Carolina, South 
Carolina and Tennessee's regional haze SIPs, EPA expects to propose an 
appropriate action regarding Alabama, Georgia, Kentucky, Mississippi, 
North Carolina, South Carolina and Tennessee's regional haze SIPs upon 
final resolution of EME Homer City Generation v. EPA.

IV. Proposed Action

    As described above, EPA is proposing to approve submissions from 
Alabama, Georgia, Kentucky, Mississippi, North Carolina, South Carolina 
and Tennessee to incorporate provisions into the States' implementation 
plans to address prong 4 of section 110(a)(2)(D)(i) of the CAA for both 
the 1997 and 2006 PM2.5 NAAQS. Specifically, EPA is 
proposing to approve the States' prong 4 of section 110(a)(2)(D)(i) 
submissions because they are consistent with section 110 of the CAA.

V. 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);

[[Page 11808]]

     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 the determination does not have 
``substantial direct effects'' on an Indian Tribe as a result of this 
action. With respect to today's proposed action as it relates to South 
Carolina, EPA notes that the Catawba Indian Nation Reservation is 
located within the South Carolina and 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, however, because today's proposed action is 
not approving any specific rule into the South Carolina SIP, but rather 
proposing that the State's already approved SIP meets certain CAA 
requirements, EPA has preliminarily determined that there are no 
substantial direct effects on the Catawba Indian Nation. 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping requirements, Volatile organic 
compounds.

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

    Dated: February 7, 2013.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2013-03841 Filed 2-19-13; 8:45 am]
BILLING CODE 6560-50-P