[Federal Register Volume 79, Number 163 (Friday, August 22, 2014)]
[Proposed Rules]
[Pages 49736-49745]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-20039]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2012-0694; FRL-9915-64-Region 4]


Approval and Promulgation of Implementation Plans; South 
Carolina; Infrastructure Requirements for the 2008 8-Hour Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve the July 17, 2012, State Implementation Plan (SIP) submission, 
provided by the South Carolina Department of Health and Environmental 
Control (SC DHEC) for inclusion into the South Carolina SIP. This 
proposal pertains to the Clean Air Act (CAA or the Act) infrastructure 
requirements for the 2008 8-hour ozone 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, which is commonly referred to as an 
``infrastructure'' SIP. SC DHEC certified that the South Carolina SIP 
contains provisions that ensure the 2008 8-hour ozone NAAQS is 
implemented, enforced, and maintained in South Carolina (hereafter 
referred to as an ``infrastructure SIP submission''). With the 
exception of provisions pertaining to prevention of significant 
deterioration (PSD) permitting, interstate transport, and visibility 
protection requirements, EPA is proposing to determine that South 
Carolina's infrastructure SIP submission, provided to EPA on July 17, 
2012, addresses the required infrastructure elements for the 2008 8-
hour ozone NAAQS.

DATES: Written comments must be received on or before September 22, 
2014.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0694, by one of the following methods:
    1. http://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-2012-0694,'' 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 a.m. to 4:30 p.m. excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0694. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information

[[Page 49737]]

claimed to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Do not submit 
through http://www.regulations.gov or email, information that you 
consider to be CBI or otherwise protected. The http://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 http://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 
http://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 http://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 a.m. to 4:30 
p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, 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) 562-9140. Ms. Ward can be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background and Overview
II. What elements are required under sections 110(a)(1) and (2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's analysis of how South Carolina addressed the 
elements of sections 110(a)(1) and (2) ``infrastructure'' 
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On March 27, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. EPA revised the level of the 8-hour 
ozone NAAQS to 0.075 parts per million. See 77 FR 16436. Pursuant to 
section 110(a)(1) of the CAA, states are required to submit SIPs 
meeting the applicable requirements of section 110(a)(2) within three 
years after promulgation of a new or revised NAAQS or within such 
shorter period as EPA may prescribe. Section 110(a)(2) requires states 
to address basic SIP elements such as requirements for monitoring, 
basic program requirements and legal authority that are designed to 
assure attainment and maintenance of the NAAQS. States were required to 
submit such SIPs for the 2008 8-hour ozone NAAQS to EPA no later than 
March 2011.\1\
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    \1\ In these infrastructure SIP submissions States generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``Regulation'' indicates that the cited 
regulation has been approved into South Carolina's federally-
approved SIP. The term ``S.C. Code Ann.'' indicates cited South 
Carolina state statutes, which are not a part of the SIP unless 
otherwise indicated.
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    Today's action is proposing to approve South Carolina's 
infrastructure SIP submission for the applicable requirements of the 
2008 8-hour ozone NAAQS, with the exception of the PSD permitting 
requirements for major sources of section 110(a)(2)(C) and (J), the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II) (prongs 1 through 4), and the visibility requirements of 
110(a)(2)(J). With respect to South Carolina's infrastructure SIP 
submission related to the provisions pertaining to the PSD permitting 
requirements for major sources of section 110(a)(2)(C) and (J), the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II), and the visibility requirements of 110(a)(2)(J), EPA is not 
proposing any action today regarding these requirements. EPA will act 
on these portions of the submission in a separate action. Further, this 
action is not approving any specific rule, but rather proposing that 
South Carolina's already approved SIP meets certain CAA requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide 
for the implementation, maintenance, and enforcement of a new or 
revised NAAQS within three years following the promulgation of such 
NAAQS, or within such shorter period as EPA may prescribe. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances. In particular, the 
data and analytical tools 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 2008 8-hour ozone NAAQS, states typically 
have met the basic program elements required in section 110(a)(2) 
through earlier SIP submissions in connection with the 1997 8-hour 
ozone NAAQS.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for the ``infrastructure'' SIP requirements 
related to a newly established or revised NAAQS. As mentioned above, 
these requirements include basic SIP elements such as requirements for 
monitoring, basic program requirements and legal authority that are 
designed to assure attainment and maintenance of the NAAQS. The 
requirements that are the subject of this proposed rulemaking are 
summarized below and in EPA's September 13, 2013, memorandum entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

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[[Page 49738]]

     110(a)(2)(A): Emission Limits and Other Control Measures
     110(a)(2)(B): Ambient Air Quality Monitoring/Data System
     110(a)(2)(C): Programs for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas.
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     110(a)(2)(D)(i)(I) and (II): Interstate Pollution 
Transport
     110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution
     110(a)(2)(E): Adequate Resources and Authority, Conflict 
of Interest, and Oversight of Local Governments and Regional Agencies
     110(a)(2)(F): Stationary Source Monitoring and Reporting
     110(a)(2)(G): Emergency Powers
     110(a)(2)(H): SIP revisions
     110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to today's 
proposed rulemaking.
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     110(a)(2)(J): Consultation with Government Officials, 
Public Notification, and Prevention of Significant Deterioration (PSD) 
and Visibility Protection
     110(a)(2)(K): Air Quality Modeling and Submission of 
Modeling Data
     110(a)(2)(L): Permitting fees
     110(a)(2)(M): Consultation and Participation by Affected 
Local Entities

III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the SIP submission from South Carolina that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 8-hour ozone NAAQS. The requirement for states 
to make a SIP submission of this type arises out of CAA section 
110(a)(1). Pursuant to section 110(a)(1), states must make SIP 
submissions ``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 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA's 
taking any action other than promulgating a new or revised NAAQS. 
Section 110(a)(2) includes a list of specific elements that ``[e]ach 
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,'' 
70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship 
between timing requirement of section 110(a)(2)(D) versus section 
110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act

[[Page 49739]]

on such submissions either individually or in a larger combined 
action.\8\ Similarly, EPA interprets the CAA to allow it to take action 
on the individual parts of one larger, comprehensive infrastructure SIP 
submission for a given NAAQS without concurrent action on the entire 
submission. For example, EPA has sometimes elected to act at different 
times on various elements and sub-elements of the same infrastructure 
SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have 
intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the DC Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP

[[Page 49740]]

submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gas (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
PM2.5 NAAQS. Accordingly, the latter optional provisions are 
types of provisions EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, among other things, the requirement that states 
have a program to regulate minor new sources. Thus, EPA evaluates 
whether the state has an EPA-approved minor new source review program 
and whether the program addresses the pollutants relevant to that 
NAAQS. In the context of acting on an infrastructure SIP submission, 
however, EPA does not think it is necessary to conduct a review of each 
and every provision of a state's existing minor source program (i.e., 
already in the existing SIP) for compliance with the requirements of 
the CAA and EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are logically applicable to that 
submission. EPA believes that this approach to the review of a 
particular infrastructure SIP submission is appropriate, because it 
would not be reasonable to read the general requirements of section 
110(a)(1) and the list of elements in 110(a)(2) as requiring review of 
each and every provision of a state's existing SIP against all 
requirements in the CAA and EPA regulations merely for purposes of 
assuring that the state in question has the basic structural elements 
for a functioning SIP for a new or revised NAAQS. Because SIPs have 
grown by accretion over the decades as statutory and regulatory 
requirements under the CAA have evolved, they may include some outmoded 
provisions and historical artifacts. These provisions, while not fully 
up to date, nevertheless may not pose a significant problem for the 
purposes of ``implementation, maintenance, and enforcement'' of a new 
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP 
submission. EPA believes that a better approach is for states and EPA 
to focus attention on those elements of section 110(a)(2) of the CAA 
most likely to warrant a specific SIP revision due to the promulgation 
of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's implementation 
plan is substantially inadequate to attain or maintain the NAAQS, to 
mitigate interstate transport, or to otherwise comply with the CAA.\15\ 
Section 110(k)(6) authorizes EPA to correct errors in past actions, 
such as past approvals of SIP submissions.\16\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing

[[Page 49741]]

such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how South Carolina addressed the elements 
of sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    The South Carolina infrastructure SIP submission addresses the 
provisions of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission limits and other control measures: 
Several regulations within South Carolina's SIP are relevant to air 
quality control regulations. The regulations described below have been 
federally approved in the South Carolina SIP and include enforceable 
emission limitations and other control measures. Regulation 61-62.5, 
Standard No. 2, Ambient Air Quality Standards and Regulation 61-62.1, 
Definitions and General Requirements, provide enforceable emission 
limits and other control measures, means, and techniques. Section 48-1-
50(23) of the 1976 South Carolina Code of Laws, as amended, (``S.C. 
Code Ann.'') provides the SC DHEC with the authority to ``[a]dopt 
emission and effluent control regulations standards and limitations 
that are applicable to the entire State, that are applicable only 
within specified areas or zones of the State, or that are applicable 
only when a specified class of pollutant is present.'' EPA has made the 
preliminary determination that the provisions contained in these 
regulations and South Carolina's practices are adequate to protect the 
2008 8-hour ozone NAAQS in the State.
    In this action, EPA is not proposing to approve or disapprove any 
existing State provisions with regard to excess emissions during SSM of 
operations at a facility. EPA believes that a number of states have SSM 
provisions which are contrary to the CAA and existing EPA guidance, 
``State Implementation Plans: Policy Regarding Excess Emissions During 
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the 
Agency plans to address such state regulations in a separate 
action.\18\ In the meantime, EPA encourages any state having a 
deficient SSM provision to take steps to correct it as soon as 
possible.
---------------------------------------------------------------------------

    \18\ On February 22, 2013, EPA published a proposed action in 
the Federal Register entitled, ``State Implementation Plans: 
Response to Petition for Rulemaking; Findings of Substantial 
Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 
Emissions During Periods of Startup, Shutdown, and Malfunction; 
Proposed Rule.''
---------------------------------------------------------------------------

    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient air quality monitoring/data system: South 
Carolina's Air Pollution Control Regulations, Regulation 61-62.5, 
Standard No. 7, Prevention of Significant Deterioration, along with the 
South Carolina Network Description and Ambient Air Network Monitoring 
Plan, provide for an ambient air quality monitoring system in the 
State. S.C. Code Ann. Sec.  48-1-50(14) provides the Department with 
the necessary authority to ``[c]ollect and disseminate information on 
air and water control.'' Annually, States develop and submit to EPA for 
approval statewide ambient monitoring network plans consistent with the 
requirements of 40 CFR Parts 50, 53, and 58. The annual network plan 
involves an evaluation of any proposed changes to the monitoring 
network, includes the annual ambient monitoring network design plan and 
a certified evaluation of the agency's ambient monitors and auxiliary 
support equipment.\19\ On July 3, 2013, South Carolina submitted its 
plan to EPA. On November 6, 2013, EPA approved South Carolina's 
monitoring network plan. South Carolina's approved monitoring network 
plan can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2012-0694. EPA has made the preliminary determination that 
South Carolina's SIP and practices are adequate for the ambient air 
quality monitoring and data system related to the 2008 8-hour ozone 
NAAQS.
---------------------------------------------------------------------------

    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR Part 58.
---------------------------------------------------------------------------

    3. 110(a)(2)(C) Programs for enforcement of control measures and 
for construction or modification of stationary sources: In this action, 
EPA is proposing to approve South Carolina's infrastructure SIP for the 
2008 8-hour ozone NAAQS with respect to the general requirement in 
section 110(a)(2)(C) to include a program in the SIP that regulates new 
and modified sources of emissions that contribute to ozone 
concentrations and the enforcement of nitrogen oxide (NOX) 
and volatile organic compounds (VOCs) emission limits to assist in the 
protection of air quality in nonattainment, attainment or 
unclassifiable areas. Regulation 61-62.5, Standard No. 7, Prevention of 
Significant Deterioration, and Regulation 61-62.5, Standard No. 7.1, 
Nonattainment New Source Review, of South Carolina's SIP pertains to 
the construction of any new major stationary source or any modification 
at an existing major stationary source in an area designated as 
nonattainment, attainment or unclassifiable.
    Enforcement: SC DHEC's above-described, SIP-approved regulations 
provide for enforcement of VOC and NOX emission limits and 
control measures and construction permitting for new or modified 
stationary sources.
    Preconstruction PSD permitting for major sources: With respect to 
South Carolina's infrastructure SIP submission related to the 
preconstruction PSD permitting requirements for major sources of 
section 110(a)(2)(C), EPA is not proposing any action today regarding 
these requirements and instead will act on this portion of the 
submission in a separate action.
    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source pre-construction program that regulates emissions of the 2008 8-
hour ozone NAAQS. Regulation 61-62.1, Section II, Permit Requirements 
governs the preconstruction permitting of modifications and 
construction of minor stationary sources.
    EPA has made the preliminary determination that South Carolina's 
SIP and practices are adequate for program enforcement of control 
measures and regulation of minor sources and modifications related to 
the 2008 8-hour ozone NAAQS.
    4. 110(a)(2)(D)(i)(I) and (II) Interstate pollution transport: 
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(II). Each of these components have two subparts resulting 
in four distinct components, commonly referred to as ``prongs,'' that 
must be addressed in infrastructure 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

[[Page 49742]]

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''). With respect to 
South Carolina's infrastructure SIP submission related to the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II) (prongs 1 through 4), EPA is not proposing any 
action today regarding these requirements and instead will act on these 
portions of the submission in a separate action.
    5. 110(a)(2)(D)(ii) Interstate pollution abatement and 
international air pollution: 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. With 
regard to the requirements of section 110(a)(2)(D)(ii), South Carolina 
does not have any pending obligation under sections 115 and 126 of the 
CAA. Additionally, Regulation 61-62.5, Standards 7 and 7.1 (q)(2)(iv), 
Public Participation, requires SC DHEC to notify air agencies ``whose 
lands may be affected by emissions'' from each new or modified major 
source if such emissions may significantly contribute to levels of 
pollution in excess of a NAAQS in any air quality control region 
outside of the South Carolina. EPA has made the preliminary 
determination that South Carolina's SIP and practices are adequate for 
insuring compliance with the applicable requirements relating to 
interstate and international pollution abatement for the 2008 8-hour 
ozone NAAQS.
    6. 110(a)(2)(E) Adequate personnel, funding, and authority: Section 
110(a)(2)(E) requires that each implementation plan provide (i) 
necessary assurances that the State will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the State comply with the requirements respecting State 
Boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the State has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the State has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
South Carolina's SIP as meeting the requirements of section 
110(a)(2)(E). EPA's rationale for today's proposal respecting each 
requirement of section 110(a)(2)(E) is described in turn below.
    With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC 
develops, implements and enforces EPA-approved SIP provisions in the 
State. S.C. Code Ann. Section 48, Title 1, as referenced in SC DHEC's 
infrastructure SIP submission, provides the Department's general legal 
authority to establish a SIP and implement related plans. Specifically, 
S.C. Code Ann. Sec.  48-1-50(12) grants SC DHEC the statutory authority 
to ``[a]ccept, receive and administer grants or other funds or gifts 
for the purpose of carrying out any of the purposes of this chapter; 
[and to] accept, receive and receipt for Federal money given by the 
Federal government under any Federal law to the State of South Carolina 
for air or water control activities, surveys or programs.'' S.C. Code 
Ann. Section 48, Title 2 grants SC DHEC statutory authority to 
establish environmental protection funds, which provide resources for 
SC DHEC to carry out its obligations under the CAA. Additionally, 
Regulation 61-30, Environmental Protection Fees, provides SC DHEC with 
the ability to access fees for environmental permitting programs. SC 
DHEC implements the SIP in accordance with the provisions of S.C. Code 
Ann Sec.  1-23-40 (the Administrative Procedures Act) and S.C. Code 
Ann. Section 48, Title 1.
    The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed 
when EPA performs a completeness determination for each SIP submittal. 
This provides additional assurances that each submittal provides 
evidence that adequate personnel, funding, and legal authority under 
State Law has been used to carry out the State's implementation plan 
and related issues. This information is included in all prehearings and 
final SIP submittal packages for approval by EPA.
    EPA also notes that annually, states update grant commitments based 
on current SIP requirements, air quality planning, and applicable 
requirements related to the NAAQS, including the ozone NAAQS. On March 
11, 2014, EPA submitted a letter to South Carolina outlining 105 grant 
commitments and current status of these commitments for fiscal year 
2013. The letter EPA submitted to South Carolina can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0694. There 
were no outstanding issues, therefore South Carolina's grants were 
finalized and closed out.
    With respect to 110(a)(2)(E)(ii), South Carolina satisfies the 
requirements of CAA section 128(a)(1) for the SC Board of Health and 
Environmental Control, which is the ``board or body which approves 
permits and enforcement orders'' under the CAA in South Carolina, 
through S.C. Code Ann. Section 8-13-730. S.C. Code Ann. Section 8-13-
730 provides that ``[u]nless otherwise provided by law, no person may 
serve as a member of a governmental regulatory agency that regulates 
business with which that person is associated,'' and S.C. Code Ann. 
Section 8-13-700(A) which provides in part that ``[n]o public official, 
public member, or public employee may knowingly use his official 
office, membership, or employment to obtain an economic interest for 
himself, a member of his immediate family, an individual with whom he 
is associated, or a business with which he is associated.'' S.C. Code 
Ann. Section 8-13-700(B)(1)-(5) provides for disclosure of any 
conflicts of interest by public official, public member or public 
employee, which meets the requirement of CAA Section 128(a)(2) that 
``any potential conflicts of interest . . . be adequately disclosed.'' 
These state statutes--S.C. Code Ann. Sections 8-13-730, 8-13-700(A), 
and 8-13-700(B)(1)-(5)--have been approved into the South Carolina SIP 
as required by CAA section 128. EPA has made the preliminary 
determination that South Carolina has adequate resources for 
implementation of the 2008 8-hour ozone NAAQS.
    7. 110(a)(2)(F) Stationary source monitoring system: SC DHEC's 
infrastructure SIP submission describes the establishment of 
requirements for compliance testing by emissions sampling and analysis, 
and for emissions and operation monitoring to ensure the quality of 
data in the State. SC DHEC uses these data to track progress towards 
maintaining the NAAQS, develop control and maintenance strategies, 
identify sources and general emission levels, and determine compliance 
with emission regulations and additional EPA requirements. These SIP 
requirements are codified at Regulation 61-62.1, Definitions and 
General Requirements, which provides for an emission inventory plan 
that establishes reporting requirements of the South Carolina SIP. SC 
DHEC's SIP requires owners or operators of stationary sources to 
monitor emissions, submit periodic reports of such emissions and 
maintain records as specified by various regulations and permits, and 
to evaluate reports and records for consistency with the applicable 
emission limitation or standard on a continuing basis over

[[Page 49743]]

time. The monitoring data collected and records of operations serve as 
the basis for a source to certify compliance, and can be used by SC 
DHEC as direct evidence of an enforceable violation of the underlying 
emission limitation or standard. Accordingly, EPA is unaware of any 
provision preventing the use of credible evidence in the South Carolina 
SIP.
    Additionally, South Carolina is required to submit emissions data 
to EPA for purposes of the National Emissions Inventory (NEI). The NEI 
is EPA's central repository for air emissions data. EPA published the 
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified 
the requirements for collecting and reporting air emissions data (73 FR 
76539). The AERR shortened the time states had to report emissions data 
from 17 to 12 months, giving states one calendar year to submit 
emissions data. All states are required to submit a comprehensive 
emissions inventory every three years and report emissions for certain 
larger sources annually through EPA's online Emissions Inventory 
System. States report emissions data for the six criteria pollutants 
and their associated precursors--NOx, sulfur dioxide, ammonia, lead, 
carbon monoxide, particulate matter, and VOC. Many states also 
voluntarily report emissions of hazardous air pollutants. South 
Carolina made its latest update to the 2011 NEI on April 8, 2014. EPA 
compiles the emissions data, supplementing it where necessary, and 
releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary 
determination that South Carolina's SIP and practices are adequate for 
the stationary source monitoring systems related to the 2008 8-hour 
ozone NAAQS. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submission with respect to section 110(a)(2)(F).
    8. 110(a)(2)(G) Emergency powers: This section requires that states 
demonstrate authority comparable with section 303 of the CAA and 
adequate contingency plans to implement such authority. Regulation 61-
62.3, Air Pollution Episodes, provides for contingency measures when an 
air pollution episode or exceedance may lead to a substantial threat to 
the health or persons in the state or region. S.C. Code Ann. Section 
48-1-290 provides SC DHEC, with concurrent notice to the Governor, the 
authority to issue an order recognizing the existence of an emergency 
requiring immediate action as deemed necessary by SC DHEC to protect 
the public health or property. Any person subject to this order is 
required to comply immediately. Additionally, S.C. Code Ann. Section 1-
23-130 provides the Department with the authority to establish 
emergency regulations. EPA has made the preliminary determination that 
South Carolina's SIP, state laws and practices are adequate for 
emergency powers related to the 2008 8-hour ozone NAAQS. Accordingly, 
EPA is proposing to approve South Carolina's infrastructure SIP 
submission with respect to section 110(a)(2)(G).
    9. 110(a)(2)(H) Future SIP revisions: As previously discussed, SC 
DHEC is responsible for adopting air quality rules and revising SIPs as 
needed to attain or maintain the NAAQS. South Carolina has the ability 
and authority to respond to calls for SIP revisions, and has provided a 
number of SIP revisions over the years for implementation of the NAAQS. 
Additionally, S.C. Code Ann. Section 48, Title 1, provides SC DHEC with 
the necessary authority to revise the SIP to accommodate changes in the 
NAAQS and thus revise the SIP as appropriate. EPA has made the 
preliminary determination that South Carolina adequately demonstrates a 
commitment to provide future SIP revisions related to the 2008 8-hour 
ozone NAAQS when necessary. Accordingly, EPA is proposing to approve 
South Carolina's infrastructure SIP submission with respect to section 
110(a)(2)(H).
    10. 110(a)(2)(J) Consultation with government officials, public 
notification, and PSD and visibility protection: EPA is proposing to 
approve South Carolina's infrastructure SIP submission for the 2008 8-
hour ozone NAAQS with respect to the general requirement in section 
110(a)(2)(J) to include a program in the SIP that provides for meeting 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127. With respect to South 
Carolina's infrastructure SIP submission related to the preconstruction 
PSD permitting and visibility protection requirements, EPA is not 
proposing any action today regarding these requirements and instead 
will act on these portions of the submission in a separate action. 
EPA's rationale for applicable consultation requirements of section 121 
and the public notification requirements of section 127 is described 
below.
    110(a)(2)(J) (121 consultation) Consultation with government 
officials: Regulation 61-62.5, Standard No. 7, Prevention of 
Significant Deterioration, as well as the State's Regional Haze 
Implementation Plan (which allows for consultation between appropriate 
state, local, and tribal air pollution control agencies as well as the 
corresponding Federal Land Managers), provide for consultation with 
government officials whose jurisdictions might be affected by SIP 
development activities. South Carolina adopted state-wide consultation 
procedures for the implementation of transportation conformity. These 
consultation procedures were developed in coordination with the 
transportation partners in the State and are consistent with the 
approaches used for development of mobile inventories for SIPs. 
Implementation of transportation conformity as outlined in the 
consultation procedures requires SC DHEC to consult with federal, state 
and local transportation and air quality agency officials on the 
development of motor vehicle emissions budgets. EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate consultation with government officials related 
to the 2008 8-hour ozone NAAQS when necessary. Accordingly, EPA is 
proposing to approve South Carolina's infrastructure SIP submission 
with respect to section 110(a)(2)(J) consultation with government 
officials.
    110(a)(2)(J) (127 public notification) Public notification: 61-
62.3, Air Pollution Episodes, requires that SC DHEC notify the public 
of any air pollution episode or NAAQS violation. Regulation 61-62.5, 
Standard 7.1 (q), Public Participation, notifies the public by 
advertisement in a newspaper of general circulation in each region in 
which a proposed plant or modifications will be constructed of the 
degree of increment consumption that is expected from the plant or 
modification, and the opportunity for comment at a public hearing as 
well as written public comment. An opportunity for a public hearing for 
interested persons to appear and submit written or oral comments on the 
air quality impact of the plant or modification, alternatives to the 
plant or modification, the control technology required, and other 
appropriate considerations is also offered.
    EPA also notes that SC DHEC maintains a Web site that provides the 
public with notice of the health hazards associated with ozone NAAQS 
exceedances, measures the public can take to help prevent such 
exceedances, and the ways in which the public can participate in the 
regulatory process. See http://www.scdhec.gov/HomeAndEnvironment/Air/MostCommonPollutants/Ozone/. EPA has made the preliminary determination

[[Page 49744]]

that South Carolina's SIP and practices adequately demonstrate the 
State's ability to provide public notification related to the 2008 8-
hour ozone NAAQS when necessary. Accordingly, EPA is proposing to 
approve South Carolina's infrastructure SIP submission with respect to 
section 110(a)(2)(J) public notification.
    11. 110(a)(2)(K) Air quality and modeling/data: Regulations 61-
62.5, Standards No. 2, Ambient Air Quality Standards, and Regulation 
61-62.5, Standard No. 7, Prevention of Significant Deterioration, of 
the South Carolina SIP specify that required air modeling be conducted 
in accordance with 40 CFR Part 51, Appendix W ``Guideline on Air 
Quality Models,'' as incorporated into the South Carolina SIP. These 
standards demonstrate that South Carolina has the authority to provide 
relevant data for the purpose of predicting the effect on ambient air 
quality of the 2008 8-hour ozone NAAQS. Additionally, South Carolina 
supports a regional effort to coordinate the development of emissions 
inventories and conduct regional modeling for several NAAQS, including 
the 2008 8-hour ozone NAAQS, for the southeastern states. Taken as a 
whole, South Carolina's air quality regulations and practices 
demonstrate that SC DHEC has the authority to provide relevant data for 
the purpose of predicting the effect on ambient air quality of any 
emissions of any pollutant for which a NAAQS had been promulgated, and 
to provide such information to the EPA Administrator upon request. EPA 
has made the preliminary determination that South Carolina's SIP and 
practices adequately demonstrate the State's ability to provide for air 
quality and modeling, along with analysis of the associated data, 
related to the 2008 8-hour ozone NAAQS. Accordingly, EPA is proposing 
to approve South Carolina's infrastructure SIP submission with respect 
to section 110(a)(2)(K).
    12. 110(a)(2)(L) Permitting fees: This section requires the SIP to 
direct the owner or operator of each major stationary source to pay to 
the permitting authority, as a condition of any permit required under 
the CAA, a fee sufficient to cover (i) the reasonable costs of 
reviewing and acting upon any application for such a permit, and (ii) 
if the owner or operator receives a permit for such source, the 
reasonable costs of implementing and enforcing the terms and conditions 
of any such permit (not including any court costs or other costs 
associated with any enforcement action), until such fee requirement is 
superseded with respect to such sources by the Administrator's approval 
of a fee program under title V.
    Section 48-2-50 of the South Carolina Code prescribes that SC DHEC 
charge fees for environmental programs it administers pursuant to 
federal and state law and regulations including those that govern the 
costs to review, implement and enforce PSD and NNSR permits. Regulation 
61-30, Environmental Protection Fees \20\ prescribes fees applicable to 
applicants and holders of permits, licenses, certificates, 
certifications, and registrations, establishes procedures for the 
payment of fees, provides for the assessment of penalties for 
nonpayment, and establishes an appeals process for refuting fees. This 
regulation may be amended as needed to meet the funding requirements of 
the state's permitting program. Additionally, South Carolina has a 
federally-approved title V program, Regulation 61-62.70, Title V 
Operating Permit Program \21\, which implements and enforces the 
requirements of PSD and nonattainment NSR for facilities once they 
begin operating. EPA has made the preliminary determination that South 
Carolina's SIP and practices adequately provide for permitting fees 
related to the 2008 8-hour NAAQS when necessary. Accordingly, EPA is 
proposing to approve South Carolina's infrastructure SIP submission 
with respect to section 110(a)(2)(L).
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    \20\ This regulation has not been incorporated into the 
federally-approved SIP.
    \21\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
---------------------------------------------------------------------------

    13. 110(a)(2)(M) Consultation/participation by affected local 
entities: Regulation 61-62.5, Standard No. 7, Prevention of Significant 
Deterioration, of the South Carolina SIP requires that SC DHEC notify 
the public of an application, preliminary determination, the activity 
or activities involved in the permit action, any emissions change 
associated with any permit modification, and the opportunity for 
comment prior to making a final permitting decision. By way of example, 
SC DHEC has recently worked closely with local political subdivisions 
during the development of its Transportation Conformity SIP, Regional 
Haze Implementation Plan, and Early Action Compacts. EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate consultation with affected local entities 
related to the 2008 8-hour ozone NAAQS. Accordingly, EPA is proposing 
to approve South Carolina's infrastructure SIP submission with respect 
to section 110(a)(2)(M).

V. Proposed Action

    As described above, with the exception of the PSD permitting 
requirements for major sources of section 110(a)(2)(C) and (J), the 
interstate transport requirements of section 110(a)(2)(D)(i)(I) and 
(II) (prongs 1 through 4), and the visibility requirements of 
110(a)(2)(J), EPA is proposing to approve South Carolina's July 12, 
2012, SIP submission to incorporate provisions into the South Carolina 
SIP to address infrastructure requirements for the 2008 8-hour ozone 
NAAQS. EPA is proposing to approve these portions of South Carolina's 
infrastructure submission for the 2008 8-hour ozone NAAQS because this 
submission is consistent with section 110 of the CAA.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);

[[Page 49745]]

     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 action for the state of South Carolina 
does not have Tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation 
is located within the State of South Carolina. 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.'' However, EPA has determined that 
because this proposed rule does not have substantial direct effects on 
an Indian Tribe because, as noted above, this action is not approving 
any specific rule, but rather proposing that South Carolina's already 
approved SIP meets certain CAA requirements. EPA notes today's action 
will not impose 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, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: August 11, 2014.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2014-20039 Filed 8-21-14; 8:45 am]
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