[Federal Register Volume 81, Number 44 (Monday, March 7, 2016)]
[Proposed Rules]
[Pages 11717-11726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04728]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0151; FRL-9943-34-Region 4]


Approval and Promulgation of Implementation Plans; South 
Carolina; Infrastructure Requirements for the 2010 Sulfur Dioxide 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the State of South Carolina, through the South Carolina 
Department of Health and Environmental Control (SC DHEC), on May 8, 
2014, to demonstrate that the State meets the infrastructure 
requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour 
sulfur dioxide (SO2) national ambient air quality standard 
(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 2010 1-hour SO2 NAAQS is 
implemented, enforced, and maintained in South Carolina. EPA is 
proposing to determine that portions of South Carolina's infrastructure 
submission, submitted to EPA on May 8, 2014, satisfy certain required 
infrastructure elements for the 2010 1-hour SO2 NAAQS.

DATES: Written comments must be received on or before April 6, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0151 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Michele Notarianni, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Ms. Notarianni can be reached via electronic mail at 
[email protected] or the telephone number (404) 562-9031.

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 the Sections 110(a)(1) and (2) ``Infrastructure'' 
provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background and Overview

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary 
SO2 NAAQS to an hourly standard of 75 parts per billion 
based on a 3-year average of the annual 99th percentile of 1-hour daily 
maximum concentrations. 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 2010 1-hour 
SO2 NAAQS to EPA no later than June 22, 2013.\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 
2010 1-hour SO2 NAAQS, with the exception of the interstate 
transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 
1, 2, and 4). With respect to the interstate transport requirements of 
section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is not 
proposing any action today regarding these requirements. For the 
aspects of South Carolina's submittal proposed for approval today, EPA 
notes that the Agency is not approving any specific rule, but rather 
proposing that South Carolina's already approved SIP meets certain CAA 
requirements.

[[Page 11718]]

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.
    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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     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 2010 1-hour SO2 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 (NNSR) 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

[[Page 11719]]

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 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 fine particulate 
matter (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

[[Page 11720]]

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 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 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.
    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 implementation plan 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 NSR 
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

[[Page 11721]]

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 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 the sections 110(a)(1) and (2) ``Infrastructure'' provisions?

    South Carolina's May 8, 2014, 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: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. 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 SC DHEC 
with the authority to ``Adopt 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.'' Collectively these regulations establish enforceable 
emissions limitations and other control measures, means or techniques, 
for activities that contribute to SO2 concentrations in the 
ambient air and provide authority for SC DHEC to establish such limits 
and measures as well as schedules for compliance to meet the applicable 
requirements of the CAA. EPA has made the preliminary determination 
that the provisions contained in these State regulations and State 
statute are adequate for enforceable emission limitations and other 
control measures, means, or techniques, as well as schedules and 
timetables for compliance to satisfy the requirements of Section 
110(a)(2(A) for the 2010 1-hour SO2 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 start 
up, shut down and malfunction (SSM) 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 is addressing such 
state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    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: Section 
110(a)(2)(B) requires SIPs to provide for establishment and operation 
of appropriate devices, methods, systems, and procedures necessary to: 
(i) Monitor, compile, and analyze data on ambient air quality, and (ii) 
upon request, make such data available to the Administrator. 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 20, 2015, South Carolina submitted its 
plan to EPA. On November 19, 2015, EPA approved South Carolina's 
monitoring network plan. South Carolina's approved monitoring network

[[Page 11722]]

plan can be accessed at www.regulations.gov using Docket ID No. EPA-
R04-OAR-2015-0151. EPA has made the preliminary determination that 
South Carolina's SIP and practices are adequate for the ambient air 
quality monitoring and data system requirements related to the 2010 1-
hour SO2 NAAQS.
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    \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.
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    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and 
for Construction or Modification of Stationary Sources: This element 
consists of three sub-elements: Enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources, and preconstruction 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). These requirements are met through 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, which pertain to the construction of any new major 
stationary source or any modification at an existing major stationary 
source in an area designated as attainment or unclassifiable. These 
regulations enable SC DHEC to regulate sources contributing to the 2010 
1-hour SO2 NAAQS.
    Enforcement: SC DHEC's above-described, SIP-approved regulations 
provide for enforcement of SO2 emission limits and control 
measures through construction permitting for new or modified stationary 
sources. Also note that SC DHEC has powers to pursue injunctive relief 
and civil penalties under Section 48 of the S.C. Code Ann.
    PSD Permitting for Major Sources: EPA interprets the PSD sub-
element to require that a state's infrastructure SIP submission for a 
particular NAAQS demonstrate that the state has a complete PSD 
permitting program in place covering the structural PSD requirements 
for all regulated NSR pollutants. A state's PSD permitting program is 
complete for this sub-element (and prong 3 of D(i) and J related to 
PSD) if EPA has already approved or is simultaneously approving the 
state's implementation plan with respect to all structural PSD 
requirements that are due under the EPA regulations or the CAA on or 
before the date of the EPA's proposed action on the infrastructure SIP 
submission.
    For the 2010 1-hour SO2 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 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 attainment or unclassifiable. South 
Carolina also cites to 61-62.5, Standard No. 7.1, Nonattainment New 
Source Review. South Carolina's infrastructure SIP submission 
demonstrates 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.\20\
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    \20\ More information concerning how the South Carolina 
infrastructure SIP submission currently meets applicable 
requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; 
and (J)) can be found in the technical support document in the 
docket for today's rulemaking.
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    Regulation of minor sources and modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source preconstruction program that regulates emissions of the 2010 1-
hour SO2 NAAQS. Regulation 61-62.1, Section II, Permit 
Requirements governs the preconstruction permitting of modifications 
and construction of minor stationary sources in South Carolina.
    EPA has made the preliminary determination that South Carolina's 
SIP and practices are adequate for enforcement of control measures, PSD 
permitting for major sources, and regulation of minor sources and 
modifications related to the 2010 1-hour SO2 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)(i)(II). Each of these components has 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 from 
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'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because South Carolina's 2010 1-hour SO2 NAAQS 
infrastructure submissions did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With regard to section 
110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to: A PSD program meeting all the current structural 
requirements of part C of title I of the CAA, or (if the state contains 
a nonattainment area that has the potential to impact PSD in another 
state) a NNSR program. As discussed in more detail above under section 
110(a)(2)(C), South Carolina's SIP contains provisions for the State's 
PSD program that reflect the required structural PSD requirements to 
satisfy the requirement of prong 3 and a NNSR program at 61-62.5, 
Standard No. 7.1, Nonattainment New Source Review. EPA has made the 
preliminary determination that South Carolina's SIP is adequate for 
interstate transport for PSD permitting of major sources and major 
modifications related to the 2010 1-hour SO2 NAAQS for 
section 110(a)(2)(D)(i)(II) (prong 3).
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(II) (prong 4) 
and will consider these requirements in relation to South Carolina's 
2010 1-hour SO2 NAAQS infrastructure submission in a 
separate rulemaking.
    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
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

[[Page 11723]]

contribute to levels of pollution in excess of a NAAQS in any air 
quality control region outside of South Carolina. Additionally, South 
Carolina does not have any pending obligation under section 115 and 126 
of the CAA. EPA has made the preliminary determination that South 
Carolina's SIP and practices are adequate for ensuring compliance with 
the applicable requirements relating to interstate and international 
pollution abatement for the 2010 1-hour SO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
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 South 
Carolina's infrastructure SIP submission, provides the SC DHEC's 
general legal authority to establish a SIP and implement related plans. 
In particular, S.C. Code Ann. Section 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. Specifically, in Regulation 61-30, Environmental Protection 
Fees, SC DHEC established fees for sources subject to air 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. For Section 110(a)(2)(E)(iii), the 
submission states that South Carolina does not rely on localities for 
specific SIP implementation.
    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.
    As evidence of the adequacy of SC DHEC's resources with respect to 
sub-elements (i) and (iii), EPA submitted a letter to South Carolina on 
March 9, 2015, outlining 105 grant commitments and the current status 
of these commitments for fiscal year 2014. The letter EPA submitted to 
South Carolina can be accessed at www.regulations.gov using Docket ID 
No. EPA-R04-OAR-2015-0151. Annually, states update these grant 
commitments based on current SIP requirements, air quality planning, 
and applicable requirements related to the NAAQS. There were no 
outstanding issues in relation to the SIP for fiscal year 2014, 
therefore, SC DHEC's grants were finalized and closed out.
    Section 110(a)(2)(E)(ii) requires that states comply with section 
128 of the CAA. Section 128 of the CAA requires that states include 
provisions in their SIP to address conflicts of interest for state 
boards or bodies that oversee CAA permits and enforcement orders and 
disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements.
    With respect to 110(a)(2)(E)(ii), South Carolina satisfies the 
requirements of CAA section 128(a)(1) for the South Carolina 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 2010 1-hour SO2 NAAQS.
    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. 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

[[Page 11724]]

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 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, SO2, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. 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 1-hour SO2 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 of the Act 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 of 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 SC DHEC with the 
authority to establish emergency regulations to address an imminent 
peril to public health, or welfare, and authorizes emergency 
regulations to protect natural resources if any natural resource 
related agency in the State finds that abnormal or unusual conditions, 
immediate need, or the State's best interest require such emergency 
action. EPA has made the preliminary determination that South 
Carolina's SIP, State laws, and practices are adequate for emergency 
powers related to the 2010 1-hour SO2 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) SIP Revisions: Section 110(a)(2)(H), in summary, 
requires each SIP to provide for revisions of such plan: (i) As may be 
necessary to take account of revisions of such national primary or 
secondary ambient air quality standard or the availability of improved 
or more expeditious methods of attaining such standard, and (ii) 
whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. SC DHEC is responsible for adopting 
air quality rules and revising SIPs as needed to attain or maintain the 
NAAQS in South Carolina. The State 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 2010 1-hour 
SO2 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 2010 1-
hour SO2 NAAQS with respect to the general requirement in 
section 110(a)(2)(J) to include a program in the SIP that complies with 
the applicable consultation requirements of section 121, the public 
notification requirements of section 127, PSD and visibility 
protection. EPA's rationale for each sub-element is described below.
    Consultation with government officials (121 consultation): Section 
110(a)(2)(J) of the CAA requires states to provide a process for 
consultation with local governments, designated organizations and 
Federal Land Managers carrying out NAAQS implementation requirements 
pursuant to section 121 relative to consultation. 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 has 
SIP-approved state-wide consultation procedures for the implementation 
of transportation conformity (see 69 FR 4245). 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. Additionally, S.C. Code Section 48-1-
50(8) provides SC DHEC with the necessary authority to ``Cooperate with 
the governments of the United States or other states or state agencies 
or organizations, officials, or unofficial, in respect to pollution 
control matters or for the formulation of interstate pollution control 
compacts or agreements.'' EPA has made the preliminary determination 
that South Carolina's SIP and practices adequately demonstrate 
consultation with government officials related to the 2010 1-hour 
SO2 NAAQS when necessary. Accordingly, EPA is proposing to

[[Page 11725]]

approve South Carolina's infrastructure SIP submission with respect to 
section 110(a)(2)(J) consultation with government officials.
    Public notification (127 public notification): Regulation 61-62.3, 
Air Pollution Episodes, requires that SC DHEC notify the public of any 
air pollution episode or NAAQS violation. S.C. Code Ann. Sec.  48-1-60 
establishes that ``Classification and standards of quality and purity 
of the environment [are] authorized after notice and hearing.'' 
Additionally, 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 SO2 
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/SulfurDioxide/. EPA has made the preliminary 
determination that South Carolina's SIP and practices adequately 
demonstrate the State's ability to provide public notification related 
to the 2010 1-hour SO2 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.
    PSD: With regard to the PSD element of section 110(a)(2)(J), this 
requirement may be met by a state's confirmation in an infrastructure 
SIP submission that new major sources and major modifications in the 
state are subject to a PSD program meeting all the current structural 
requirements of part C of title I of the CAA. As discussed in more 
detail above under the section discussing 110(a)(2)(C), South 
Carolina's SIP contains provisions for the State's PSD program that 
reflect the relevant SIP revisions pertaining to the required 
structural PSD requirements to satisfy the requirement of the PSD 
element of section 110(a)(2)(J). EPA has made the preliminary 
determination that South Carolina's SIP is adequate for PSD permitting 
of major sources and major modifications for the PSD element of section 
110(a)(2)(J).
    Visibility protection: EPA's 2013 Guidance notes that it does not 
treat the visibility protection aspects of section 110(a)(2)(J) as 
applicable for purposes of the infrastructure SIP approval process. SC 
DHEC referenced its regional haze program as germane to the visibility 
component of section 110(a)(2)(J). EPA recognizes that states are 
subject to visibility protection and regional haze program requirements 
under part C of the Act (which includes sections 169A and 169B). 
However, there are no newly applicable visibility protection 
obligations after the promulgation of a new or revised NAAQS. Thus, EPA 
has determined that states do not need to address the visibility 
component of 110(a)(2)(J) in infrastructure SIP submittals so SC DHEC 
does not need to rely on its regional haze program to fulfill its 
obligations under section 110(a)(2)(J). As such, EPA has made the 
preliminary determination that South Carolina's infrastructure SIP 
submission related to the 2010 1-hour SO2 NAAQS is 
approvable for the visibility protection element of section 
110(a)(2)(J) and that South Carolina does not need to rely on its 
regional haze program.
    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling 
Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for 
performing air quality modeling so that effects on air quality of 
emissions from NAAQS pollutants can be predicted and submission of such 
data to the EPA can be made. Regulations 61-62.5, Standard 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. Also, S.C. Code Ann. section 
48-1-50(14) provides SC DHEC with the necessary authority to ``Collect 
and disseminate information on air and water control.'' Additionally, 
South Carolina participates in a regional effort to coordinate the 
development of emissions inventories and conduct regional modeling for 
several NAAQS, including the 2010 1-hour SO2 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 2010 1-hour 
SO2 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: Section 110(a)(2)(L) requires 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.
    S.C. Code Ann. Section 48-2-50 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\21\ 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,\22\ which implements and enforces the 
requirements of PSD and NNSR for facilities once they begin operating. 
EPA has made the preliminary determination that South Carolina's SIP 
and practices

[[Page 11726]]

adequately provide for permitting fees related to the 2010 1-hour 
SO2 NAAQS when necessary. Accordingly, EPA is proposing to 
approve South Carolina's infrastructure SIP submission with respect to 
section 110(a)(2)(L).
---------------------------------------------------------------------------

    \21\ This regulation has not been incorporated into the 
federally-approved SIP.
    \22\ 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: Section 110(a)(2)(M) of the Act requires states to provide 
for consultation and participation in SIP development by local 
political subdivisions affected by the SIP. Regulation 61-62.5, 
Standard No. 7, Prevention of Significant Deterioration, of the South 
Carolina SIP requires that SC DHEC notify the public, which includes 
local entities, 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. Also, as noted 
above, S.C. Code Ann. Section 48-1-50(8) allows SC DHEC to ``Cooperate 
with the governments of the United States or other states or state 
agencies or organizations, officials, or unofficial, in respect to 
pollution control matters or for the formulation of interstate 
pollution control compacts or agreements.'' 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 Ozone 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 2010 1-hour SO2 NAAQS. Accordingly, EPA is 
proposing to approve South Carolina's infrastructure SIP submission 
with respect to section 110(a)(2)(M).

V. Proposed Action

    With the exception of interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility protection requirements of section 
110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4), EPA is proposing to 
approve South Carolina's May 8, 2014, SIP submission for the 2010 1-
hour SO2 NAAQS for the above described infrastructure SIP 
requirements. EPA is proposing to approve these portions of South 
Carolina's infrastructure SIP submission for the 2010 1-hour 
SO2 NAAQS because these aspects of the submission are 
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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
 does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
 is certified as not having a significant economic impact on 
a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
 does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
 does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
 is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
 is not a significant regulatory action subject to Executive 
Order 13211 (66 FR 28355, May 22, 2001);
 is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) because application of those requirements would be 
inconsistent with the CAA; and
 does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 
1994).

    In addition, this proposed 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, South Carolina statute 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: February 19, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-04728 Filed 3-4-16; 8:45 am]
 BILLING CODE 6560-50-P