**Technical Support Document -**  **Sections 110(a)(2)(C),**  **110(a)(2)(D)(i)(II) (**  **Prong 3 )**  **and**

**110(a)(2)(J) related to P revention of**  **S ignificant**  **D eterioration (PSD)**  **for Georgia,** 

**Kentucky ,**  **South Carolina ,**  **and Tennessee** 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 National Ambient Air Quality Standards (NAAQS ) as required b y the Clean Air Act ( 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 t ype of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“pr ong 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 anothe r 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) c onsultation with government officials , 2) p ublic notification , 3) PSD , and 4)
v isibility protection
.With respect to the PSD e lements of 110(C) and (J) , the United States (U.S.)

Environmental Protection Agency ( 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 new source review (NSR) pollutants. The requirements of e lement 110(D)(i)(II) may also be satisfied b y demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants.
**T he PSD P**  **rogram Requirements for Infrastructure SIPs**  In order for the PSD elements of i nfrastructure SIP submissions to be approvable , a state ’s submission must demonstrate that all structural PSD program elements that are currentl y due under the CAA and EPA regulations are either approved into the SIP or are submitted for approval, in which case EPA must take final action to approve these elements before or simultaneously

with its action on the infrastructure SI P. T here are four more recent structural PSD program requirements that are relevant to EPA’s r eview of the PSD e lements of the infr astructure SIP submissions
. The EPA regulations that require these SIP revisions are: 1) the Phase II Rule 1 ; 2) the Greenhouse Gas (GHG) Tailoring Rule 2 as consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency ; 3 3) the NSR Fine Particulate

1 “ 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”)
. 2 “ 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 ”).
3 Utility Air Regulatory Group v. Environmental Protection Agency , 134 S. Ct. 2427 (2014).Matter ( PM 2.5 ) Rule 4 ; and 4) the PM 2.5 PSD Increment - Significant Impact Levels ( SILs )

-

Significant Monitoring Concentrations ( SMC ) Rule (only as it relates to PM 2.5 In crements)
. 5 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. The Phase II rule established F ederal 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 requ irements for their GHG emissions. See 75 FR 31514
. EPA notes that o n June 23, 2014, the U.S. 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. Inthat decision, the Supreme Court said 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 said that the EPA could continue to require that PSD permits, otherwi se 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 accordance with the Supreme Court decision, o n April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit ( D.C. Circuit ) issued an Amended Judgment

4 Implementation of the Ne w 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 PM 2.5 Rule” ).
5 “Final Rule on the Prevention of Signifi cant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )

– Increments, Significant Impact Levels (SILs) and Significant monitoring Concentration (SMC); Final Rule” (October 20, 2010, 75 FR 64864) (hereafter referred to as the“PM 2.5 PSD Increment
- SILs
- SMC Rule (only as it relates to PM 2.5 Increments)”).( Coalition for Responsible Regulation, Inc. v. EPA, Nos. 09
- 1322, 10
- 073, 10
- 1092 and 10

-

1167), vacating the regulations that implemented Step 2 of EPA’s GHG Ta iloring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the GHG Tailoring Rule covers
s ources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs
. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The Amended Judgment preserves, without the need for additional rulemaking b y the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “an yw ay ” sources. With respect to Step 2 sources, the D.C. Circuit’s Amended Judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v) and 40 CFR 52.21(b)(49)(v), “to the extent they require a stationary

source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modif ication.” The D.C. Circuit simultaneously issued its mandate, which means that the Coalition Amended Judgment became final and effective upon issuance. On August 12, 2015, EPA signed a final rule that removes from the PSD regulations certain regulatory

pr ovisions that require a stationary source to obtain a PSD permit solely on the basis of the source’s GHG emissions (Step 2) and the regulations that require the EPA to consider further phasing

- in GHG permitting requirements into the PSD. The EPA intends t o further revise the PSD regulations to fully implement the Coalition Amended Judgment in a separate rulemaking. States may submit revisions to their PSD SI P program consistent with EPA’s amended regulations whenever feasible. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SI P submissions and is onlyevaluating such submissions to assure that the state’s program correctl y addresses GHGs

consistent with the court de cisions discussed above and EPA’s revised regulations
. At present, the EPA has determined that the Georgia, Kentucky , South Carolina , and Tennessee infrastructure SI P s are sufficient to satisfy the PSD e lements of 110(a)(2) (C), (D)(i)(II), and (J) with respect to GHGs
. This is because the PSD permitting program s previously

approved b y the EPA into the se SIP s continue to require that PSD permits issued to “an ywa y sources” contain limitations on GHG emissions based on the application of BACT. The approved Georgia, Kentucky , South Carolina , and Tennessee PSD permitting program s still contain some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit Amended Judgment. Nevertheles s, the presence of these provisions in the previously

- approved plan does not render the infrastructure SIP submission s inadequate to satisfy the PSD e lements of 110(a)(2) (C), (D)(i)(II), and (J). The SI P contains the PSD requirements for appl yi ng the BACT requirement to GHG emissions from “an ywa y sources” that are necessary at this time. The application of those requirements is not impeded by

the presence of other previousl y - approved provisions regarding the permitting of Step 2 sources. Accordingl y, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA’s approval of the infrastructure SIP s of Georgia, Kentucky , South Carolina , and Tennessee as to the requirements of the PSD e lements.
The 2008 NSR PM 2.5 Rule 6 and 2010 PM 2.5 PSD Increment - SILs
- SMC Rule (only as it relates to PM 2.5 In crements) established NSR permitting requirements for the implementation of

6 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 Ju ly 15, 2008) (consolidated with 09

- 110 2, 11
- 1430), issued a judgment that remanded EPA’s 2007 and 2008 rules implementing the PM 2.5 NAAQS. The court concluded that since subpart 4 of the CAA generally applies to coarse particulate matter ( PM 10 ) , EPA should have also follow ed the more prescriptive subpart 4the PM 2.5 NAAQS including increments pursuant to section 166(a) of the CAA to prevent

significant deterioration of ai r qualit y in areas meeting the NAAQS
. See 73 FR 28321 and 75 FR 64864 . O n January

22, 2013, the D.C. Circuit , in Sierra Club v. EPA, 70 5 F.3d 458 (D.C. Cir. 2013), issued a judgment that, among other things , vacated the provisions adding the PM 2.5 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 PM 2.5 PSD Increment - SI Ls
- SMC Rule. 7 See 75 FR 64864 ; s ee also , Sierra Club v. EPA , 70 5 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 PM 2.5 be included in all PSD permit a

pplications. Thus, al though the PM 2.5 SMC was not a required element of a
s tate'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 PM 2.5 monitoring data, such application of the SI P would
structure for the PM 2.5 im plementation rules. The court ordered EPA to repromulgate the implementation rules pursuant to subpart 4. Subpart 4 of part D, t itle 1 of the CAA establishes additional provisions for particulate matter no nattainment 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 (PM 2.5 ),” 73 FR 28321 (May 16, 2008), promulgated NSR requirements for im plementation of PM 2.5 in both nonattainment areas (NNSR) and attainment/unclassifiable areas (PSD). As the requirements of s ubpart 4 only pertain to nonattainment areas, EPA does not consider the portions of the 2008 rule that address requirements for P M 2.5 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 approv al of a 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 PM 2.5 Rule does not conflict with the court’s opinion. The court’s decision with respect to the NNSR requ irem ents promulgated by the 2008 implementation rule also does not affect EPA’s action on the present infrastructure action. EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a NNSR program, from inf rastructure SIP submissions due three 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
. 7 “ Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )

— Increments, Significant Impact Levels (SILs) and Si gnificant Monitoring Concentration (SMC) ” ; Final Rule, 75 FR 64864 (October 20, 201 0), (hereafter referred to as the “2010 PM 2.5 PSD Increment
- SILs
- SMC Rule”).be inconsistent with the court ’ s opinion and the requirements of section 165(e)(2) of the CAA.

Because of the vacatur of the EPA regulations, the SMC provisions included in s tates’ SIP
approved PSD programs on the basis of EPA ’ s regulations are unlawful and no longer federall y enforceable b y l aw. 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. States should instead require applicants requesting a PSD permit, including those having alread y been applied for but for which the permit has not y et been received, to submit ambient PM 2.5 monitoring data in accordance with the CAA requirements whenever either direct PM 2.5 or any PM 2.5 precursor is emitted in a significant amount. 8 On December 9, 2013, EPA issued a final rulemaking to remove the vacated and remanded PM 2.5 SILs 9 and the vacated PM 2.5 SMC provisions from 40 CFR 51.166 and 52.21. 10 See 79 FR 73698. Because the Court vacated the PM 2.5 SMC provisions in 40 CFR 51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c ) , EP A revised the existing concentration for the PM 2.5 SMC listed in sections 51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c ) to zero micrograms per cubic meter (mg/m 3 ). Were EPA to completely remove PM 2.5 from the list of pollutants in sections

8 In lieu of the applicants’ need to set out PM 2.5 mo nitors to collect ambient data, applicants ma y submit PM 2.5 am bient 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 ap plicants will generally be able to rely on existing representative monitoring data to satisfy the mo nitoring data requirement.
9 The court’s January 22, 2013, decision also vacated and remanded back to EPA the PM 2.5 SILs. EPA’s December 9, 2013 final rul e also removed the PM 2.5 SILs from the CFR. The PM 2.5, SILs are not a required element of a State’ s PSD program and thus not a structural requirement for purposes of infrastructure SIPs . The PM 2.5 SILs are not approved into the SIP revision s that are the subject of this proposed rulemaking. 10 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 Elem ents;” 79 FR 73698 (December 9, 2013)51.166(i)(5)(i)( c ) and 52.21(i)(5)(i)( c ) of the PSD regulations, PM 2.5 would no longer be a listed

pollutant
. EPA did not entirely

remove PM 2.5 as a listed pollutant in the SMC provisions so as to avoid an y 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 PM 2.5 . Such a conclusion would contravene the Court’s decision and the CAA. By

continuing to include PM 2.5 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 zero mg/m 3 , EPA is avoid ing an y concern that paragraph (iii) of the two affected sections could be applied to excuse permit applicants from adequatel y addressing the monitoring requirement for PM 2.5 . EPA also advises s tates to begin preparations to remove the PM 2.5 provisions from their state PSD regulations and SIPs. As the previously

- approved PM 2.5 SMC SIP provisions are no longer enforceable, EPA does not believe the existence of the se provisions in SIPs preclude approv al of the infrastructure SIP submissions
. **EPA’s Analysis of How**  **Georgia, Kentucky ,**  **South Carolina ,**  **and Tennessee 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 analy sis of how the infrastructure SIP submissions from Georgia, Kentuck y South Carolina and Tennessee meet the requirements of the PSD e lements for the NAAQS for which they were submitted. This anal ys is includes review of the EPA’s previous approval of the four structural PSD program requirements which is summarized in Table 1 below
.**Table 1 -**  **EPA -**  **A pproved**  **S tructural PSD**  **P rogram**  **R equirements**  **for Georgia, Kentucky**  **, South Carolina**  **, and Tennessee**  **State Phase II Rule**  **GHG Tailoring**  **Rule NSR PM**  **2.5 Rule**  **PM 2.5**  **PSD Increment**  **- SILs**  **** **SMC Rule** Georgia November 22, 2010

(75 FR 71018) September 8, 2011

(76 FR 55572) September 8, 2011

(76 FR 55572) April 9, 2013 (78

FR 21065) Kentuck y September 15, 2010

(75 FR 55988) December 29, 2010

(75 FR 81868) November 23, 2014

(79 FR 65143) November 23, 2014

(79 FR 65143) South Carolina June 23, 2011

(7 6 FR 36875) Refer to Footnote 11 June 23, 2011 (77 FR 36875) April 3, 2013 (78

FR 19994)
Tennessee February

7, 2012 (77 FR 6016) February 28, 2012 (77 FR 11744) July 30, 2012 (77 FR 44481) January 9, 2014 (79 FR 1593)

11 The South Carolina General Assembly passed a joint resolution, effective June 11, 2010, that makes the provisions of EPA’s Tailoring Rule effective in South Carolina. This resolution provides South Carolina with the authority to im

plement the Tailoring Rule thresholds in SC DHEC’s PSD and t itle V programs, and the SC DHEC is im plementing its PSD and Title V programs as modified by the Tailoring Rule. (H. J. R. 4888, 118th Session (S.C. 2010))
. On December 30, 2010, EPA publishe d 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 s tate 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 s tate permitting thresholds for GHG emissions so that only sources that equal or exceed the GHG thresholds, as established in the f inal Tailoring Rule, w ould be covered as major sources by the f ederally

- approved programs in the affected s tates. 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
.