[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Proposed Rules]
[Pages 67398-67406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26737]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2014-0610; FRL-9919-08-Region 4]
Approval and Promulgation of Implementation Plans; Region 4
States; 2008 Lead, 2008 Ozone and 2010 Nitrogen Dioxide Prevention of
Significant Deterioration Infrastructure Plans
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of submissions from Alabama, Florida, Georgia,
Kentucky, Mississippi, South Carolina and Tennessee for inclusion into
each State's implementation plan. This proposal pertains to the Clean
Air Act (CAA or Act) infrastructure requirements for the 2008 Lead,
2008 Ozone and 2010 Nitrogen Dioxide (NO2) National Ambient
Air Quality Standards (NAAQS). The CAA requires that each state adopt
and submit a state implementation plan (SIP) for the implementation,
maintenance, and enforcement of each NAAQS promulgated by EPA. These
plans are commonly referred to as ``infrastructure'' SIPs (hereafter
referred to as ``infrastructure SIP submissions''). Specifically, EPA
is proposing to approve the portions of the submissions from Alabama,
Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee
that relate to the infrastructure SIP prevention of significant
deterioration (PSD) requirements. All other applicable infrastructure
requirements for the 2008 Lead, 2008 Ozone and 2010 NO2
NAAQS associated with these States are being addressed in separate
rulemakings.
DATES: Written comments must be received on or before December 15,
2014.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2014-0610, 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-2014-0610,'' 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-
2014-0610. 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
[[Page 67399]]
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 a.m. to 4:30 p.m.,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development
Section, Air Planning Branch, Air, Pesticides and Toxics Management
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth
Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404)
562-9043. Mr. Lakeman can be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
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 to provide for the implementation,
maintenance, and enforcement of the new or revised NAAQS. 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. Sections 110(a)(1) and (2) require
states to address basic SIP elements such as for monitoring, basic
program requirements and legal authority that are designed to assure
attainment and maintenance of the newly established or revised 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. The contents of an infrastructure
SIP submission may vary depending upon the data and analytical tools
available to the state, as well as the provisions already contained in
the state's implementation plan at the time in which the state develops
and submits the submission for a new or revised NAAQS.
Through this action, EPA is proposing approval of the PSD
requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3)
and 110(a)(2)(J) (hereafter ``PSD Elements'') for various
infrastructure SIP submissions from the states of Alabama, Florida,
Georgia, Kentucky, Mississippi, South Carolina and Tennessee. As
described further below, for some of these states, EPA is proposing
approval of the PSD Elements in the infrastructure SIP submissions for
the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS; whereas for
other states, EPA is only proposing approval of the PSD Elements of the
infrastructure SIP submissions for a subset of these NAAQS. All other
applicable infrastructure requirements for the 2008 Lead, 2008 Ozone
and 2010 NO2 NAAQS associated with these States are being
addressed in separate rulemakings.
A brief background regarding the NAAQS relevant to today's proposal
is provided below. For comprehensive information on these NAAQS, please
refer to the Federal Register rulemakings cited below.
a. 2008 Lead NAAQS
On October 5, 1978, EPA promulgated a revised NAAQS for Lead under
section 109 of the Act. See 43 FR 46246. The Lead standard was set at a
level of 1.5 micrograms per cubic meter ([micro]g/m\3\), measured as
Lead in total suspended particulate matter (Pb-TSP), not to be exceeded
by the maximum arithmetic mean concentration averaged over a calendar
quarter. This standard was based on the 1977 Air Quality Criteria for
Lead. On November 12, 2008 (75 FR 81126), EPA issued a final rule to
revise the Lead NAAQS. The Lead NAAQS was revised to 0.15 [micro]g/
m\3\. States were required to submit infrastructure SIP submissions to
EPA no later than October 15, 2011, for the 2008 Lead NAAQS.
For the 2008 Lead NAAQS, EPA is only addressing the PSD Elements of
the infrastructure SIP submissions from Alabama (received November 4,
2011), Florida (received October 14, 2011), Georgia (received May 14,
2012), Kentucky (received July 17, 2012), Mississippi (received
November 17, 2011), and South Carolina's (received September 20, 2011).
EPA notes that the Agency approved the PSD Elements of Tennessee's 2008
Lead infrastructure SIP submission on August 12, 2013 (78 FR 48806).
b. 2008 Ozone NAAQS
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. States were
required to submit infrastructure SIP submissions for the 2008 8-hour
Ozone NAAQS to EPA no later than March 2011.
For the 2008 Ozone NAAQS, EPA is only addressing the PSD Elements
of the infrastructure SIP submissions from Alabama (received August 20,
2012), Georgia (received March 6, 2012), Mississippi (received May 29,
2012; and resubmitted July 26, 2012), and South Carolina (received on
July 17, 2012). EPA notes that the Agency approved the PSD Elements of
the Florida, Kentucky and Tennessee infrastructure SIP submissions for
the 2008 Ozone NAAQS on May 19, 2014 (79 FR 28607),\1\ March 7, 2013
(78 FR 14691), and March 6, 2013 (78 FR 14450), respectively.
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\1\ On May 19, 2014, EPA took final action to approve Florida's
December 19, 2013, SIP revision to adopt the Greenhouse Gas (GHG)
Tailoring Rule into the Florida SIP. See 79 FR 28607. See Section V
below for more detailed information.
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c. 2010 NO2 NAAQS
On February 9, 2010 (75 FR 6474), EPA established a new 1-hour
primary NAAQS for NO2 at a level of 100 parts per billion
(ppb), based on a 3-year average of the 98th percentile of the yearly
distribution of 1-hour daily maximum concentrations. States were
required to submit infrastructure SIP
[[Page 67400]]
submissions for the 2010 NO2 NAAQS to EPA no later than
January 2013.
For the 2010 NO2 NAAQS, EPA is addressing the PSD
Elements of the infrastructure SIP submissions from Alabama (received
April 23, 2013), Florida (received January 22, 2013), Georgia (received
March 25, 2013), Kentucky (received April 26, 2013), Mississippi
(received February 28, 2013), South Carolina (received April 30, 2014),
and Tennessee (received March 13, 2014).
II. What is EPA's approach to the review of infrastructure SIP
submissions?
EPA is acting upon the PSD Elements portions of SIP submissions
that address the infrastructure requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2008 Lead, 2008 Ozone and 2010 NO2
NAAQS for various states in Region 4. 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.
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.\2\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\3\ 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.\4\ 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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\2\ 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.
\3\ ``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. EPA notes that
this 2013 Infrastructure SIP Guidance document was not intended to
apply to infrastructure SIP submissions for the 2008 Lead NAAQS.
\4\ 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 D.C. 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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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 gases (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.
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.
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
[[Page 67401]]
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.\5\ Section 110(k)(6)
authorizes EPA to correct errors in past actions, such as past
approvals of SIP submissions.\6\ 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 such deficiency in a subsequent action.\7\
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\5\ 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).
\6\ 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).
\7\ 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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III. What are states required to address under Sections 110(a)(2)(C),
110(a)(2)(D)(i)(II) (Prong 3) and 110(a)(2)(J) related to PSD?
Section 110(a)(2)(C) has three components that must be addressed in
infrastructure SIP submissions: Enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources; and PSD permitting of major sources and major modifications in
areas designated attainment or unclassifiable for the subject NAAQS as
required by CAA title I part C (i.e., the major source PSD program).
Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(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 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)(J) has four components that must be addressed in
infrastructure SIP submissions: (1) consultation with government
officials, (2) public notification, (3) prevention of significant
deterioration, and (4) visibility protection.
With respect to the PSD Elements of these sections, EPA interprets
the CAA to require each state to make, for each new or revised NAAQS,
an infrastructure SIP submission that demonstrates that the air agency
has a complete PSD permitting program meeting the current requirements
for all regulated NSR pollutants. The requirements of the PSD Elements
may also be satisfied by demonstrating that the air agency has a
complete PSD permitting program correctly addressing all regulated NSR
pollutants.
IV. What are the PSD program requirements?
In addition to analyzing whether a state has adequate authority to
regulate new and modified sources to assist in the protection of air
quality, there are also four structural PSD program requirements that
are relevant to EPA's review of the PSD Elements of the infrastructure
SIP submissions for the 2008 Lead, 2008 Ozone and 2010 NO2
NAAQS. The EPA regulations that require these SIP revisions are: (1)
The Phase II Rule \8\; (2) the Greenhouse Gas (GHG) Tailoring Rule \9\
as consistent with the holding in Utility Air Regulatory Group v.
Environmental Protection Agency; \10\ (3) the NSR Fine Particulate
Matter (PM2.5) Rule \11\; and, (4) the PM2.5 PSD
Increment-Significant Impact Levels (SILs)-Significant Monitoring
Concentrations (SMC) Rule (only as it relates to PM2.5
Increments).\12\ Specific details on these PSD requirements can be
found in the respective final rules cited above, however, a brief
summary of each rule is provided below.
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\8\ ``Final Rule To Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule'' (November 29, 2005, 70
FR 71612) (hereafter referred to as the ``Phase II Rule'').
\9\ Prevention of Significant Deterioration and Title V
Greenhouse Gas (GHG) Tailoring Rule; Final Rule'' (June 3, 2010, 75
FR 31514) (hereafter referred to as the ``GHG Tailoring Rule'').
\10\ Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S. Ct. 2427 (2014).
\11\ Implementation of the New Source Review Program for
Particulate Matter Less Than 2.5 Micrometers; Final Rule'' (May 16,
2008, 73 FR 28321) (hereafter referred to as the ``NSR
PM2.5 Rule'').
\12\ ``Final Rule on the Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC); Final Rule'' (October
20, 2010, 75 FR 64864) (hereafter referred to as the
``PM2.5 PSD Increment-SILs-SMC Rule (only as it relates
to PM2.5 Increments)'').
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The Phase II rule established federal NSR permitting requirements
for the implementation of the ozone NAAQS including recognizing
nitrogen oxide as an ozone precursor. See 70 FR 71612.
The GHG Tailoring Rule established emission thresholds for
determining which new stationary sources and modification projects
become subject to PSD permitting requirements for their GHG emissions.
See 75 FR 31514. EPA notes, that on June 23, 2014, the United States
Supreme Court issued a decision addressing the application of PSD
permitting requirements to GHG emissions. See Utility Air Regulatory
Group v. Environmental Protection Agency, 134 S. Ct. 2427. In that
decision, the Supreme Court held that the EPA may not treat GHGs as an
air pollutant for purposes of determining whether a source is a major
source required to obtain a PSD permit. The Court also determined that
the EPA could continue to require that PSD permits, otherwise required
based on emissions of pollutants other than GHGs, contain limitations
on GHG emissions based on the application of Best Available Control
Technology (BACT). In order to act consistently with its understanding
of the Court's decision pending further judicial action to effectuate
the decision, the EPA is not continuing to apply EPA regulations that
would require that SIPs include
[[Page 67402]]
permitting requirements that the Supreme Court found impermissible.
Specifically, EPA is not applying the requirement that a state's SIP-
approved PSD program require that sources obtain PSD permits when GHGs
are the only pollutant (i) that the source emits or has the potential
to emit above the major source thresholds, or (ii) for which there is a
significant emissions increase and a significant net emissions increase
from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a
need to revise federal PSD rules in light of the Supreme Court opinion.
In addition, EPA anticipates that many states will revise their
existing SIP-approved PSD programs in light of the Supreme Court's
decision. The timing and content of subsequent EPA actions with respect
to the EPA regulations and state PSD program approvals are expected to
be informed by additional legal process before the United States
District Court for the District of Columbia Circuit. At this juncture,
EPA is not expecting states to have revised their PSD programs for
purposes of infrastructure SIP submissions and is only evaluating such
submissions to assure that the state's program correctly addresses GHGs
consistent with the Supreme Court's decision.
The 2008 NSR PM2.5 Rule \13\ and 2010 PM2.5
PSD Increment-SILs-SMC Rule (only as it relates to PM2.5
Increments) established NSR permitting requirements for the
implementation of the PM2.5 NAAQS including increments
pursuant to section 166(a) of the CAA to prevent significant
deterioration of air quality in areas meeting the NAAQS. See 73 FR
28321 and 75 FR 64864. On January 22, 2013, the U.S. Court of Appeals
for the District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C.
Cir. 2013), issued a judgment that, among other things, vacated the
provisions adding the PM2.5 SMC to the Federal regulations,
at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), that were
promulgated as part of the 2010 PM2.5 PSD Increment-SILs-SMC
Rule.\14\ See 75 FR 64864; see also, Sierra Club v. EPA, 703 F.3d 458
(D.C. Cir. 2013). In its decision, the court held that EPA did not have
the authority to use SMCs to exempt permit applicants from the
statutory requirement in section 165(e)(2) of the CAA that ambient
monitoring data for PM2.5 be included in all PSD permit
applications. Thus, although the PM2.5 SMC was not a
required element of a State's PSD program and thus not a structural
requirement for purposes of infrastructure SIPs, were a SIP-approved
PSD program that contains such a provision to use that provision to
issue new permits without requiring ambient PM2.5 monitoring
data, such application of the SIP would be inconsistent with the
court's opinion and the requirements of section 165(e)(2) of the CAA.
Of the States that are the subject of today's proposed rulemaking, EPA
approved the SMC's into the Alabama, Florida and Mississippi SIP on
September 26, 2012 (77 FR 59100), September 19, 2012 (77 FR 58027), and
September 26, 2012 (77 FR 59095), respectively. However, given the
clarity of the court's decision, it would now be inappropriate for
these states to continue to allow applicants for any pending or future
PSD permits to rely on the PM2.5 SMC in order to avoid
compiling ambient monitoring data for PM2.5. Because of the
vacatur of the EPA regulations, the SMC provisions, included in these
States' SIP-approved PSD programs on the basis of EPA's regulations are
unlawful and no longer enforceable by law. Permits issued on the basis
of these provisions as they appear in approved SIPs would be
inconsistent with the CAA and difficult to defend in administrative and
judicial challenges. Thus, the SIP provisions may not be applied even
prior to their removal from the SIPs. Alabama, Florida and Mississippi
should instead require applicants requesting a PSD permit, including
those having already been applied for but for which the permit has not
yet been received, to submit ambient PM2.5 monitoring data
in accordance with the CAA requirements whenever either direct
PM2.5 or any PM2.5 precursor is emitted in a
significant amount.\15\
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\13\ On January 4, 2013, the U.S. Court of Appeals, in Natural
Resources Defense Council v. EPA, No. 08-1250, 2013 WL 45653 (D.C.
Cir., filed July 15, 2008) (consolidated with 09-1102, 11-1430),
issued a judgment that remanded EPA's 2007 and 2008 rules
implementing the PM2.5 NAAQS. The court concluded that
since subpart 4 of the CAA generally applies to PM10, EPA
should have also followed the more prescriptive subpart 4 structure
for the PM2.5 implementation rules. The court ordered EPA
to repromulgate the implementation rules pursuant to subpart 4.
Subpart 4 of Part D, Title 1 of the CAA establishes additional
provisions for particulate matter nonattainment areas.
The 2008 implementation rule addressed by the court decision,
``Implementation of New Source Review (NSR) Program for Particulate
Matter Less Than 2.5 Micrometers (PM2.5),'' 73 FR 28321
(May 16, 2008), promulgated NSR requirements for implementation of
PM2.5 in both nonattainment areas (nonattainment NSR) and
attainment/unclassifiable areas (PSD). As the requirements of
Subpart 4 only pertain to nonattainment areas, EPA does not consider
the portions of the 2008 rule that address requirements for
PM2.5 attainment and unclassifiable areas to be affected
by the court's opinion. Moreover, EPA does not anticipate the need
to revise any PSD requirements promulgated in the 2008 rule in order
to comply with the court's decision. Accordingly, EPA's approval of
state's infrastructure SIP related to elements (C), (D)(i) (prong
3), or (J) with respect to the PSD requirements promulgated in the
2008 NSR PM2.5 Rule does not conflict with the court's
opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does
not affect EPA's action on the present infrastructure actions. EPA
interprets the Act to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due 3 years after adoption or
revision of a NAAQS. Instead, these elements are typically referred
to as nonattainment SIP or attainment plan elements, which would be
due by the dates statutorily prescribed under subpart 2 through 5
under part D, extending as far as 10 years following designations
for some elements.
\14\ ``Prevention of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant
Monitoring Concentration (SMC); Final Rule, 75 FR 64864 (October 20,
2010).''
\15\ In lieu of the applicants' need to set out PM2.5
monitors to collect ambient data, applicants may submit
PM2.5 ambient data collected from existing monitoring
networks when the permitting authority deems such data to be
representative of the air quality in the area of concern for the
year preceding receipt of the application. EPA believes that
applicants will generally be able to rely on existing representative
monitoring data to satisfy the monitoring data requirement.
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On December 9, 2013, EPA issued a final rulemaking to remove the
vacated and remanded PM2.5 SILs \16\ and the vacated
PM2.5 SMC provisions from 40 CFR 51.166 and 52.21.\17\ See
79 FR 73698. Because the Court vacated the PM2.5 SMC
provisions in 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), EPA
revised the existing concentration for the PM2.5 SMC listed
in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms
per cubic meter (0 mg/m\3\). Were EPA to completely remove
PM2.5 from the list of pollutants in sections
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of the PSD regulations,
PM2.5 would no longer be a listed pollutant.
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\16\ The court's January 22, 2013, decision also vacated and
remanded back to EPA the PM2.5 SILs. EPA's December 9,
2013 final rule also removed the PM2.5 SILs from the CFR.
The PM2.5, SILs are not a required element of a State's
PSD program and thus not a structural requirement for purposes of
infrastructure SIPs. The PM2.5 SILs are not approved into
the SIPs that are the subject of this proposed rulemaking.
\17\ Final Rule entitled ``Prevention of Significant
Deterioration for Particulate Matter Less Than 2.5 Micrometers--
Significant Impact Levels and Significant Monitoring Concentration:
Removal of Vacated Elements;'' 79 FR 73698 (December 9, 2013).
---------------------------------------------------------------------------
EPA did not entirely remove PM2.5 as a listed pollutant
in the SMC provisions so as to avoid any potential that sections
51.166(i)(5)(iii) and 52.21(i)(5)(iii) could be interpreted as giving
reviewing authorities the discretion to exempt permit applicants from
the requirement to conduct monitoring for PM2.5. Such a
[[Page 67403]]
conclusion would contravene the Court's decision and the CAA.
By continuing to include PM2.5 as a pollutant in the
list contained in sections 51.166(i)(5)(i) and 52.21(i)(5)(i), with the
numerical value replaced with 0 mg/m\3\, we avoid any concern that
paragraph (iii) of the two affected sections could be applied to excuse
permit applicants from adequately addressing the monitoring requirement
for PM2.5.
EPA also advises states to begin preparations to remove the
PM2.5 provisions from their state PSD regulations and SIPs.
As the previously-approved PM2.5 SMC provisions in the
Alabama, Florida and Mississippi SIP are no longer enforceable, EPA
does not believe the existence of these provisions in the States'
implementation plans precludes today's proposed rulemaking to approve
the infrastructure SIP submissions for Alabama, Florida and Mississippi
as the submissions relate to the PSD elements of the 2008 Lead, 2008
Ozone and 2010 NO2 NAAQS.
V. What is EPA's analysis of how Region 4 states addressed sections
110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) related to
PSD?
Described below is EPA's analysis of how the Alabama, Florida,
Georgia, Kentucky, Mississippi, South Carolina and Tennessee
infrastructure SIP submissions meet the requirements of the PSD
Elements for the NAAQS for which they were submitted. This analysis
includes review of the EPA's previous approval of the four structural
PSD program requirements with respect to each of the states addressed
in this action. Table 1 below summarizes EPA approvals of these
structural PSD program requirements into the Alabama, Florida, Georgia,
Kentucky, Mississippi, South Carolina and Tennessee SIPs. EPA's
rationale for today's proposal with respect to each State is provided
below. All other applicable infrastructure requirements for the 2008
Lead, 2008 Ozone and 2010 NO2 NAAQS associated with these
States are being addressed in separate rulemakings.
Table 1--EPA Approved Structural PSD Program Requirements
----------------------------------------------------------------------------------------------------------------
Greenhouse gas (GHG) PM2.5 PSD increment-
State Phase II rule tailoring rule NSR PM2.5 rule SILs-SMC rule
----------------------------------------------------------------------------------------------------------------
Alabama.................. May 1, 2008 (73 FR December 29, 2010 September 26, 2012 September 26, 2012
23957). (75 FR 81863). (77 FR 59100). (77 FR 59100).
Florida.................. June 15, 2012 (77 FR May 19, 2014 (79 FR September 19, 2012 September 19, 2012
35862). 28607). (77 FR 58027). (77 FR 58027).
Georgia.................. November 22, 2010 September 8, 2011 September 8, 2011 April 9, 2013 (78
(75 FR 71018). (76 FR 55572). (76 FR 55572). FR 21065).
Kentucky................. September 15, 2010 December 29, 2010 Refer to Footnote Refer to
(75 FR 55988). (75 FR 81868). \18\. Footnote.\18\
Mississippi.............. December 20, 2010 December 29, 2010 September 26, 2012 September 26, 2012
(75 FR 79300). (75 FR 81858). (77 FR 59095). (77 FR 59095).
South Carolina........... June 23, 2011 (77 FR Refer to Footnote June 23, 2011 (77 FR April 3, 2013 (78
36875). \19\. 36875). FR 19994).
Tennessee................ February 7, 2012 (77 February 28, 2012 July 30, 2012 (77 FR January 9, 2014 (79
FR 6016). (77 FR 11744). 44481). FR 1593).
----------------------------------------------------------------------------------------------------------------
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\18\ Through a final rule signed by the EPA Region 4
Administrator, on October 22, 2014, EPA is took final action in a
separate rulemaking to approve Kentucky's January 13, 2013, SIP
revision which addresses the NSR PM2.5 Rule and the
PM2.5 PSD Increment-SILs-SMC Rule requirements. EPA
proposed approval of Kentucky's January 13, 2013, SIP revision on
July 23, 2014 (79 FR 42745).
\19\ On June 11, 2010, the South Carolina Governor signed an
Executive Order to confirm that the State had authority to implement
appropriate emission thresholds for determining which new stationary
sources and modification projects become subject to PSD permitting
requirements for their GHG emissions at the state level. On December
30, 2010, EPA published a final rulemaking, ``Action To Ensure
Authority To Implement Title V Permitting Programs Under the
Greenhouse Gas Tailoring Rule'' (75 FR 82254) to narrow EPA's
previous approval of State title V operating permit programs that
apply (or may apply) to GHG-emitting sources; this rule hereafter is
referred to as the ``Narrowing Rule.'' EPA narrowed its previous
approval of certain State permitting thresholds, for GHG emissions
so that only sources that equal or exceed the GHG thresholds, as
established in the final Tailoring Rule, would be covered as major
sources by the Federally-approved programs in the affected States.
South Carolina was included in this rulemaking. On March 4, 2011,
South Carolina submitted a letter withdrawing from EPA's
consideration the portion of South Carolina's SIP for which EPA
withdrew its previous approval in the Narrowing Rule. These
provisions are no longer intended for inclusion in the SIP, and are
no longer before EPA for its approval or disapproval. A copy of
South Carolina's letter can be accessed at www.regulations.gov using
Docket ID No. EPA-R04-OAR-2014-0610.
---------------------------------------------------------------------------
a. Alabama
For the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS,
Alabama's authority to regulate new and modified sources to assist in
the protection of air quality in Alabama is established in the Alabama
Administrative Code Chapters 335-3-14-.01 ``General Provisions,'' 335-
3-14-.02 ``Permit Procedure,'' 334-3-14-.03 ``Standards for Granting
Permits,'' 335-3-14-.04 ``Prevention of Significant Deterioration in
Permitting,'' and 335-3-14-.05 ``Air Permits Authorizing Construction
in or Near Nonattainment Areas.'' Alabama's infrastructure SIP
submissions demonstrate that new major sources and major modifications
in areas of the state designated attainment or unclassifiable for the
specified NAAQS are subject to a federally-approved PSD permitting
program meeting all the current structural requirements of part C of
title I of the CAA to satisfy the infrastructure SIP PSD Elements,
including the authority to regulate GHG emitting sources consistent
with the holding in Utility Air Regulatory Group v. Environmental
Protection Agency, for purposes of the 2008 Lead, 2008 Ozone and 2010
NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that Alabama's
SIP and practices are adequate and comply with PSD Elements of the 2008
Lead, 2008 Ozone and 2010 NO2 NAAQS. Accordingly, in this
action EPA is proposing to approve Alabama's infrastructure SIP
submissions as satisfying the infrastructure SIP PSD Elements for the
2008 Lead, 2008 Ozone and 2010 NO2 NAAQS.
b. Florida
For the 2008 Lead and 2010 NO2 NAAQS, Florida's
authority to regulate new and modified sources to assist in the
protection of air quality in nonattainment, attainment or
unclassifiable areas is established in Florida Administrative Code
Chapters 62-210, Stationary Sources--General Requirements, Section
200--Definitions; and 62-212, and Stationary Sources--
[[Page 67404]]
Preconstruction Review, Section 400--Prevention of Significant
Deterioration, of the Florida SIP. Florida's infrastructure SIP
submissions demonstrate that new major sources and major modifications
in areas of the state designated attainment or unclassifiable for the
specified NAAQS are subject to a federally-approved PSD permitting
program meeting all the current structural requirements of part C of
title I of the CAA to satisfy the infrastructure SIP PSD Elements,
including the authority to regulate GHG emitting sources consistent
with the holding in Utility Air Regulatory Group v. Environmental
Protection Agency, for purposes of the 2008 Lead and 2010
NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that Florida's
SIP and practices are adequate and comply with PSD Elements of the 2008
Lead and 2010 NO2 NAAQS. Accordingly, in this action EPA is
proposing to approve, Florida's infrastructure SIP submissions as
satisfying the infrastructure SIP PSD Elements for the 2008 Lead and
the 2010 NO2 NAAQS.
c. Georgia
For the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS,
Georgia's authority to regulate new and modified sources to assist in
the protection of air quality in Georgia is established in Georgia
Regulation 391-3-1-.02(7), Prevention of Significant Deterioration of
Air Quality, which pertains to the construction or modification of any
major stationary source in areas designated as attainment or
unclassifiable.
Georgia's infrastructure SIP submissions demonstrate that new major
sources and major modifications in areas of the state designated
attainment or unclassifiable for the specified NAAQS are subject to a
federally-approved PSD permitting program meeting all the current
structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD Elements, including the authority to regulate
GHG emitting sources consistent with the holding in Utility Air
Regulatory Group v. Environmental Protection Agency, for purposes of
the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that Georgia's
SIP and practices are adequate and comply with the PSD Elements of the
2008 Lead, 2008 Ozone, and 2010 NO2 NAAQS. Accordingly, in
this action EPA is proposing to approve, Georgia's infrastructure SIP
submissions as satisfying the infrastructure SIP PSD Elements for the
2008 Lead, 2008 Ozone and 2010 NO2 NAAQS.
d. Kentucky
For the 2008 Lead and 2010 NO2 NAAQS, Kentucky's
authority to regulate new and modified sources to assist in the
protection of air quality in nonattainment, attainment or
unclassifiable areas is established in Kentucky Administrative
Regulation Chapter 51--Attainment and Maintenance of the National
Ambient Air Quality Standards, which describes the permit requirements
for new major sources or major modifications of existing sources in
areas classified as attainment or unclassifiable under section
107(d)(1)(A)(ii) or (iii) of the CAA. These requirements are designed
to ensure that sources in areas attaining the NAAQS at the time of
designations prevent any significant deterioration in air quality.
Chapter 51 also establishes the permitting requirements for areas in or
around nonattainment areas and provides the Commonwealth's statutory
authority to enforce regulations relating to attainment and maintenance
of the NAAQS.
Kentucky's infrastructure SIP submissions demonstrate that new
major sources and major modifications in areas of the state designated
attainment or unclassifiable for the specified NAAQS are subject to a
federally-approved PSD permitting program meeting all the current
structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD Elements, including the authority to regulate
GHG emitting sources consistent with the holding in Utility Air
Regulatory Group v. Environmental Protection Agency, for purposes of
the 2008 Lead and 2010 NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that Kentucky's
SIP and practices are adequate and comply with the PSD Elements of the
2008 Lead and 2010 NO2 NAAQS. Accordingly, in this action
EPA is proposing to approve Kentucky's infrastructure SIP submissions
as satisfying the infrastructure SIP PSD Elements for the 2008 Lead and
2010 NO2 NAAQS.
e. Mississippi
For the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS,
Mississippi's authority to regulate new and modified sources to assist
in the protection of air quality in Mississippi is established in
Regulations APC-S-5--Mississippi Regulations for the Prevention of
Significant Deterioration of Air Quality and APC-S-2--Permit Regulation
for the Construction and/or Operation of Air Emissions Equipment. These
SIP-approved regulations pertain to the construction of any new major
stationary source or any project at an existing major stationary source
in an area designated as nonattainment, attainment or unclassifiable.
Mississippi's infrastructure SIP submissions demonstrate that new major
sources and major modifications in areas of the state designated
attainment or unclassifiable for the specified NAAQS are subject to a
federally-approved PSD permitting program meeting all the current
structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD Elements, including the authority to regulate
GHG emitting sources consistent with the holding in Utility Air
Regulatory Group v. Environmental Protection Agency, for purposes of
the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that Mississippi's
SIP and practices are adequate and comply with the PSD Elements
requirements of the 2008 Lead, 2008 Ozone, and 2010 NO2
NAAQS. Accordingly, in this action, EPA is proposing to approve
Mississippi's infrastructure SIP submissions as satisfying the
infrastructure SIP PSD Elements requirements for the 2008 Lead, 2008
Ozone and 2010 NO2 NAAQS.
f. South Carolina
For the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS, South
Carolina's authority to regulate new and modified sources to assist in
the protection of air quality in South Carolina is established in
Regulations 61-62.1, Section II, Permit Requirements; 61-62.5, Standard
No. 7, Prevention of Significant Deterioration; and 61-62.5, Standard
No. 7.1, Nonattainment New Source Review of South Carolina's SIP. These
regulations pertain 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. South
Carolina's infrastructure SIP submissions demonstrate that new major
sources and major modifications in areas of the state designated
attainment or unclassifiable for the specified NAAQS are subject to a
federally-approved PSD permitting program meeting all the current
structural requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD Elements, including the authority to regulate
GHG emitting sources consistent with the holding in
[[Page 67405]]
Utility Air Regulatory Group v. Environmental Protection Agency, for
purposes of the 2008 Lead, 2008 Ozone and 2010 NO2 NAAQS
(See Table 1).
As such, EPA has made the preliminary determination that South
Carolina's SIP and practices are adequate and comply with the PSD
Elements requirements of the 2008 Lead, 2008 Ozone, and 2010
NO2 NAAQS. Accordingly, in this action EPA is proposing to
approve South Carolina's infrastructure SIP submission as satisfying
the infrastructure SIP PSD Elements for the 2008 Lead, 2008 Ozone and
2010 NO2 NAAQS.
g. Tennessee
For the 2010 NO2 NAAQS, Tennessee's authority to
regulate new and modified sources to assist in the protection of air
quality in Tennessee is established in Chapter 1200-3-9, Construction
and Operating Permits, of the Tennessee SIP. This Chapter pertains to
the construction of any new major stationary source or any project at
an existing major stationary source in an area designated as
nonattainment, attainment or unclassifiable. Tennessee's infrastructure
SIP submission demonstrates that new major sources and major
modifications in areas of the state designated attainment or
unclassifiable for the NO2 NAAQS are subject to a federally-
approved PSD permitting program meeting all the current structural
requirements of part C of title I of the CAA to satisfy the
infrastructure SIP PSD Elements, including the authority to regulate
GHG emitting sources consistent with the holding in Utility Air
Regulatory Group v. Environmental Protection Agency, for purposes of
the 2010 NO2 NAAQS (See Table 1).
As such, EPA has made the preliminary determination that
Tennessee's SIP and practices are adequate and comply with the PSD
Elements requirements of the 2010 NO2 NAAQS. Accordingly, in
this action EPA is proposing to approve Tennessee's infrastructure SIP
submission as satisfying the infrastructure SIP PSD Elements
requirements for the 2010 NO2 NAAQS.
VI. Proposed Action
As described above, EPA is proposing to approve the portions of the
above-described infrastructure SIP submissions from Alabama, Florida,
Georgia, Kentucky, Mississippi, South Carolina and Tennessee to address
the PSD permitting requirements of sections 110(a)(2)(C),
110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA. As described
above, for some of these states, EPA is proposing approval of the PSD
Elements of the infrastructure SIP submissions for the 2008 Lead, 2008
Ozone and 2010 Nitrogen NO2 NAAQS; whereas for other states,
EPA is only proposing approval of the PSD Elements of the
infrastructure SIP submissions for a subset of these NAAQS. EPA is
proposing approval of these portions of these submissions because they
are consistent with section 110 of the CAA.
EPA also notes that, at present, the Agency has preliminarily
determined that the Alabama, Florida, Georgia, Kentucky, Mississippi,
South Carolina and Tennessee SIPs are sufficient to satisfy the PSD
permitting requirements portion of section 110(a)(2)(C),
110(a)(2)(D)(i)(II), prong 3 and 110(a)(2)(J) with respect to GHGs
because the PSD permitting program previously-approved by EPA into the
SIP continues to require that PSD permits (otherwise required based on
emissions of pollutants other than GHGs) contain limitations on GHG
emissions based on the application of BACT. Although the approved
Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and
Tennessee PSD permitting programs may currently contain provisions that
are no longer necessary in light of the Supreme Court's Utility Air
Regulatory Group v. Environmental Protection Agency decision, these
previous approvals do not render the infrastructure SIP submission
inadequate to satisfy sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong
3) and 110(a)(2)(J). The SIPs contain the necessary PSD requirements at
this time, and the application of those requirements is not impeded by
the presence of other previously-approved provisions regarding the
permitting of sources of GHGs that EPA does not consider necessary at
this time in light of the Supreme Court decision. Accordingly, the
Supreme Court decision does not affect EPA's proposed approval of
Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and
Tennessee's infrastructure SIPs as to the PSD permitting requirements
of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and
110(a)(2)(J).
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
With the exception of South Carolina, the SIPs involved in this
proposal are not approved to apply on any Indian reservation land or in
any other area where EPA or an Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of Indian country, the rule does
not have tribal implications as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it impose substantial direct
costs on tribal governments or preempt tribal law.'' With respect to
today's proposed action as it relates to South Carolina, EPA notes that
the Catawba Indian Nation Reservation is located within 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
[[Page 67406]]
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: October 30, 2014.
Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2014-26737 Filed 11-12-14; 8:45 am]
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