49736 Federal Register / Vol. 79, No. 163 / Friday, August 22, 2014 / Proposed Rules 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.’’ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities, EPA may at 

any time invoke its authority under the 

CAA, including, for example, Sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under Section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

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 

CAA and applicable Federal regulations. 

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 action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed rule, which 

satisfies certain infrastructure 

requirements of Section 110(a)(2) of the 

CAA for the 2010 SO2 NAAQS for the 

Commonwealth of Virginia, does not 

have tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it 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, Reporting and recordkeeping 

requirements, Sulfur oxides. 

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

Dated: August 5, 2014. 

William C. Early, 

Acting, Regional Administrator, Region III. 

[FR Doc. 2014–20032 Filed 8–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0694; FRL–9915–64– 

Region 4] 

Approval and Promulgation of 

Implementation Plans; South Carolina; 

Infrastructure Requirements for the 

2008 8-Hour Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

the July 17, 2012, State Implementation 

Plan (SIP) submission, provided by the 

South Carolina Department of Health 

and Environmental Control (SC DHEC) 

for inclusion into the South Carolina 

SIP. This proposal pertains to the Clean 

Air Act (CAA or the Act) infrastructure 

requirements for the 2008 8-hour ozone 

national ambient air quality standards 

(NAAQS). The CAA requires that each 

state adopt and submit a SIP for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA, which is 

commonly referred to as an 

‘‘infrastructure’’ SIP. SC DHEC certified 

that the South Carolina SIP contains 

provisions that ensure the 2008 8-hour 

ozone NAAQS is implemented, 

enforced, and maintained in South 

Carolina (hereafter referred to as an 

‘‘infrastructure SIP submission’’). With 

the exception of provisions pertaining to 

prevention of significant deterioration 

(PSD) permitting, interstate transport, 

and visibility protection requirements, 

EPA is proposing to determine that 

South Carolina’s infrastructure SIP 

submission, provided to EPA on July 17, 

2012, addresses the required 

infrastructure elements for the 2008 8- 

hour ozone NAAQS. 

DATES: Written comments must be 

received on or before September 22, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0694, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. Email: R4–RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2012– 

0694,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 a.m. to 4:30 p.m. excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2012– 

0694. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 


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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 federallyapproved SIP. In addition, certain federallyapproved, 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 federallyapproved SIP. The term ‘‘S.C. Code Ann.’’ indicates 

cited South Carolina state statutes, which are not 

a part of the SIP unless otherwise indicated. 

2Two elements identified in section 110(a)(2) are 

not governed by the three year submission deadline 

of section 110(a)(1) because SIPs incorporating 

Continued 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through http:// 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The http:// 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through http:// 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the 

electronic docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background and Overview 

II. What elements are required under sections 

110(a)(1) and (2)? 

III. What is EPA’s approach to the review of 

infrastructure SIP submissions? 

IV. What is EPA’s analysis of how South 

Carolina addressed the elements of 

sections 110(a)(1) and (2) 

‘‘infrastructure’’ provisions? 

V. Proposed Action 

VI. Statutory and Executive Order Reviews 

I. Background and Overview 

On March 27, 2008, EPA promulgated 

a revised NAAQS for ozone based on 8- 

hour average concentrations. EPA 

revised the level of the 8-hour ozone 

NAAQS to 0.075 parts per million. See 

77 FR 16436. Pursuant to section 

110(a)(1) of the CAA, states are required 

to submit SIPs meeting the applicable 

requirements of section 110(a)(2) within 

three years after promulgation of a new 

or revised NAAQS or within such 

shorter period as EPA may prescribe. 

Section 110(a)(2) requires states to 

address basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. States were required to submit 

such SIPs for the 2008 8-hour ozone 

NAAQS to EPA no later than March 

2011.1

Today’s action is proposing to 

approve South Carolina’s infrastructure 

SIP submission for the applicable 

requirements of the 2008 8-hour ozone 

NAAQS, with the exception of the PSD 

permitting requirements for major 

sources of section 110(a)(2)(C) and (J), 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), and the visibility 

requirements of 110(a)(2)(J). With 

respect to South Carolina’s 

infrastructure SIP submission related to 

the provisions pertaining to the PSD 

permitting requirements for major 

sources of section 110(a)(2)(C) and (J), 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II), and the 

visibility requirements of 110(a)(2)(J), 

EPA is not proposing any action today 

regarding these requirements. EPA will 

act on these portions of the submission 

in a separate action. Further, this action 

is not approving any specific rule, but 

rather proposing that South Carolina’s 

already approved SIP meets certain 

CAA requirements. 

II. What elements are required under 

sections 110(a)(1) and (2)? 

Section 110(a) of the CAA requires 

states to submit SIPs to provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

NAAQS within three years following 

the promulgation of such NAAQS, or 

within such shorter period as EPA may 

prescribe. Section 110(a) imposes the 

obligation upon states to make a SIP 

submission to EPA for a new or revised 

NAAQS, but the contents of that 

submission may vary depending upon 

the facts and circumstances. In 

particular, the data and analytical tools 

available at the time the state develops 

and submits the SIP for a new or revised 

NAAQS affects the content of the 

submission. The contents of such SIP 

submissions may also vary depending 

upon what provisions the state’s 

existing SIP already contains. In the 

case of the 2008 8-hour ozone NAAQS, 

states typically have met the basic 

program elements required in section 

110(a)(2) through earlier SIP 

submissions in connection with the 

1997 8-hour ozone NAAQS. 

More specifically, section 110(a)(1) 

provides the procedural and timing 

requirements for SIPs. Section 110(a)(2) 

lists specific elements that states must 

meet for the ‘‘infrastructure’’ SIP 

requirements related to a newly 

established or revised NAAQS. As 

mentioned above, these requirements 

include basic SIP elements such as 

requirements for monitoring, basic 

program requirements and legal 

authority that are designed to assure 

attainment and maintenance of the 

NAAQS. The requirements that are the 

subject of this proposed rulemaking are 

summarized below and in EPA’s 

September 13, 2013, memorandum 

entitled ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and 110(a)(2).’’ 2


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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). 

3This rulemaking only addresses requirements 

for this element as they relate to attainment areas. 

4As mentioned above, this element is not 

relevant to today’s proposed rulemaking. 

5For 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. 

6See, 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)). 

7EPA 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. 

• 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

• 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

• 110(a)(2)(J): Consultation with 

Government Officials, Public 

Notification, and Prevention of 

Significant Deterioration (PSD) and 

Visibility Protection 

• 110(a)(2)(K): Air Quality Modeling 

and Submission of Modeling Data 

• 110(a)(2)(L): Permitting fees 

• 110(a)(2)(M): Consultation and 

Participation by Affected Local Entities 

III. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the SIP 

submission from South Carolina that 

addresses the infrastructure 

requirements of CAA sections 110(a)(1) 

and 110(a)(2) for the 2008 8-hour ozone 

NAAQS. The requirement for states to 

make a SIP submission of this type 

arises out of CAA section 110(a)(1). 

Pursuant to section 110(a)(1), states 

must make SIP submissions ‘‘within 3 

years (or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a national primary 

ambient air quality standard (or any 

revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

sections 110(a)(1) and 110(a)(2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. The list of required 

elements provided in section 110(a)(2) 

contains a wide variety of disparate 

provisions, some of which pertain to 

required legal authority, some of which 

pertain to required substantive program 

provisions, and some of which pertain 

to requirements for both authority and 

substantive program provisions.5 EPA 

therefore believes that while the timing 

requirement in section 110(a)(1) is 

unambiguous, some of the other 

statutory provisions are ambiguous. In 

particular, EPA believes that the list of 

required elements for infrastructure SIP 

submissions provided in section 

110(a)(2) contains ambiguities 

concerning what is required for 

inclusion in an infrastructure SIP 

submission. 

The following examples of 

ambiguities illustrate the need for EPA 

to interpret some section 110(a)(1) and 

section 110(a)(2) requirements with 

respect to infrastructure SIP 

submissions for a given new or revised 

NAAQS. One example of ambiguity is 

that section 110(a)(2) requires that 

‘‘each’’ SIP submission must meet the 

list of requirements therein, while EPA 

has long noted that this literal reading 

of the statute is internally inconsistent 

and would create a conflict with the 

nonattainment provisions in part D of 

title I of the Act, which specifically 

address nonattainment SIP 

requirements.6 Section 110(a)(2)(I) 

pertains to nonattainment SIP 

requirements and part D addresses 

when attainment plan SIP submissions 

to address nonattainment area 

requirements are due. For example, 

section 172(b) requires EPA to establish 

a schedule for submission of such plans 

for certain pollutants when the 

Administrator promulgates the 

designation of an area as nonattainment, 

and section 107(d)(1)(B) allows up to 

two years, or in some cases three years, 

for such designations to be 

promulgated.7 This ambiguity illustrates 

that rather than apply all the stated 

requirements of section 110(a)(2) in a 

strict literal sense, EPA must determine 

which provisions of section 110(a)(2) 

are applicable for a particular 

infrastructure SIP submission. 

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 


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8See, 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). 

9On 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. 

10For example, implementation of the 1997 PM2.5

NAAQS required the deployment of a system of 

new monitors to measure ambient levels of that new 

indicator species for the new NAAQS. 

11EPA 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. 

13EPA’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. 

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

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

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 upto-date guidance for infrastructure SIPs 

for any new or revised NAAQS. Within 

this guidance, EPA describes the duty of 

states to make infrastructure SIP 

submissions to meet basic structural SIP 

requirements within three years of 

promulgation of a new or revised 

NAAQS. EPA also made 

recommendations about many specific 

subsections of section 110(a)(2) that are 

relevant in the context of infrastructure 

SIP submissions.13 The guidance also 

discusses the substantively important 

issues that are germane to certain 

subsections of section 110(a)(2). 

Significantly, EPA interprets sections 

110(a)(1) and 110(a)(2) such that 

infrastructure SIP submissions need to 

address certain issues and need not 

address others. Accordingly, EPA 

reviews each infrastructure SIP 

submission for compliance with the 

applicable statutory provisions of 

section 110(a)(2), as appropriate. 

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 


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14By 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. 

15For 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). 

16EPA 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). 

submissions because section 

110(a)(2)(E)(ii) explicitly requires that 

the state satisfy the provisions of section 

128. 

As another example, EPA’s review of 

infrastructure SIP submissions with 

respect to the PSD program 

requirements in sections 110(a)(2)(C), 

(D)(i)(II), and (J) focuses upon the 

structural PSD program requirements 

contained in part C and EPA’s PSD 

regulations. Structural PSD program 

requirements include provisions 

necessary for the PSD program to 

address all regulated sources and new 

source review (NSR) pollutants, 

including greenhouse gas (GHGs). By 

contrast, structural PSD program 

requirements do not include provisions 

that are not required under EPA’s 

regulations at 40 CFR 51.166 but are 

merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

For other section 110(a)(2) elements, 

however, EPA’s review of a state’s 

infrastructure SIP submission focuses 

on assuring that the state’s SIP meets 

basic structural requirements. For 

example, section 110(a)(2)(C) includes, 

among other things, the requirement 

that states have a program to regulate 

minor new sources. Thus, EPA 

evaluates whether the state has an EPAapproved minor new source review 

program and whether the program 

addresses the pollutants relevant to that 

NAAQS. In the context of acting on an 

infrastructure SIP submission, however, 

EPA does not think it is necessary to 

conduct a review of each and every 

provision of a state’s existing minor 

source program (i.e., already in the 

existing SIP) for compliance with the 

requirements of the CAA and EPA’s 

regulations that pertain to such 

programs. 

With respect to certain other issues, 

EPA does not believe that an action on 

a state’s infrastructure SIP submission is 

necessarily the appropriate type of 

action in which to address possible 

deficiencies in a state’s existing SIP. 

These issues include: (i) existing 

provisions related to excess emissions 

from sources during periods of startup, 

shutdown, or malfunction that may be 

contrary to the CAA and EPA’s policies 

addressing such excess emissions 

(‘‘SSM’’); (ii) existing provisions related 

to ‘‘director’s variance’’ or ‘‘director’s 

discretion’’ that may be contrary to the 

CAA because they purport to allow 

revisions to SIP-approved emissions 

limits while limiting public process or 

not requiring further approval by EPA; 

and (iii) existing provisions for PSD 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Thus, EPA believes it may 

approve an infrastructure SIP 

submission without scrutinizing the 

totality of the existing SIP for such 

potentially deficient provisions and may 

approve the submission even if it is 

aware of such existing provisions.14 It is 

important to note that EPA’s approval of 

a state’s infrastructure SIP submission 

should not be construed as explicit or 

implicit re-approval of any existing 

potentially deficient provisions that 

relate to the three specific issues just 

described. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

110(a)(1) and the list of elements in 

110(a)(2) as requiring review of each 

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

section 110(a)(2) of the CAA most likely 

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

For example, EPA’s 2013 Guidance 

gives simpler recommendations with 

respect to carbon monoxide than other 

NAAQS pollutants to meet the visibility 

requirements of section 

110(a)(2)(D)(i)(II), because carbon 

monoxide does not affect visibility. As 

a result, an infrastructure SIP 

submission for any future new or 

revised NAAQS for carbon monoxide 

need only state this fact in order to 

address the visibility prong of section 

110(a)(2)(D)(i)(II). 

Finally, EPA believes that its 

approach with respect to infrastructure 

SIP requirements is based on a 

reasonable reading of sections 110(a)(1) 

and 110(a)(2) because the CAA provides 

other avenues and mechanisms to 

address specific substantive deficiencies 

in existing SIPs. These other statutory 

tools allow EPA to take appropriately 

tailored action, depending upon the 

nature and severity of the alleged SIP 

deficiency. Section 110(k)(5) authorizes 

EPA to issue a ‘‘SIP call’’ whenever the 

Agency determines that a state’s 

implementation plan is substantially 

inadequate to attain or maintain the 

NAAQS, to mitigate interstate transport, 

or to otherwise comply with the CAA.15

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.16

Significantly, EPA’s determination that 

an action on a state’s infrastructure SIP 

submission is not the appropriate time 

and place to address all potential 

existing SIP deficiencies does not 

preclude EPA’s subsequent reliance on 

provisions in section 110(a)(2) as part of 

the basis for action to correct those 

deficiencies at a later time. For example, 

although it may not be appropriate to 

require a state to eliminate all existing 

inappropriate director’s discretion 

provisions in the course of acting on an 

infrastructure SIP submission, EPA 

believes that section 110(a)(2)(A) may be 

among the statutory bases that EPA 

relies upon in the course of addressing 


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17See, 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). 

18On February 22, 2013, EPA published a 

proposed action in the Federal Register entitled, 

‘‘State Implementation Plans: Response to Petition 

for Rulemaking; Findings of Substantial 

Inadequacy; and SIP Calls to Amend Provisions 

Applying to Excess Emissions During Periods of 

Startup, Shutdown, and Malfunction; Proposed 

Rule.’’ 

19On occasion, proposed changes to the 

monitoring network are evaluated outside of the 

network plan approval process in accordance with 

40 CFR Part 58. 

such deficiency in a subsequent 

action.17

IV. What is EPA’s analysis of how 

South Carolina addressed the elements 

of sections 110(a)(1) and (2) 

‘‘Infrastructure’’ provisions? 

The South Carolina infrastructure SIP 

submission addresses the provisions of 

sections 110(a)(1) and (2) as described 

below. 

1. 110(a)(2)(A): Emission limits and 

other control measures: Several 

regulations within South Carolina’s SIP 

are relevant to air quality control 

regulations. The regulations described 

below have been federally approved in 

the South Carolina SIP and include 

enforceable emission limitations and 

other control measures. Regulation 61– 

62.5, Standard No. 2, Ambient Air 

Quality Standards and Regulation 61– 

62.1, Definitions and General 

Requirements, provide enforceable 

emission limits and other control 

measures, means, and techniques. 

Section 48–1–50(23) of the 1976 South 

Carolina Code of Laws, as amended, 

(‘‘S.C. Code Ann.’’) provides the SC 

DHEC with the authority to ‘‘[a]dopt 

emission and effluent control 

regulations standards and limitations 

that are applicable to the entire State, 

that are applicable only within specified 

areas or zones of the State, or that are 

applicable only when a specified class 

of pollutant is present.’’ EPA has made 

the preliminary determination that the 

provisions contained in these 

regulations and South Carolina’s 

practices are adequate to protect the 

2008 8-hour ozone NAAQS in the State. 

In this action, EPA is not proposing to 

approve or disapprove any existing 

State provisions with regard to excess 

emissions during SSM of operations at 

a facility. EPA believes that a number of 

states have SSM provisions which are 

contrary to the CAA and existing EPA 

guidance, ‘‘State Implementation Plans: 

Policy Regarding Excess Emissions 

During Malfunctions, Startup, and 

Shutdown’’ (September 20, 1999), and 

the Agency plans to address such state 

regulations in a separate action.18 In the 

meantime, EPA encourages any state 

having a deficient SSM provision to take 

steps to correct it as soon as possible. 

Additionally, in this action, EPA is 

not proposing to approve or disapprove 

any existing State rules with regard to 

director’s discretion or variance 

provisions. EPA believes that a number 

of states have such provisions which are 

contrary to the CAA and existing EPA 

guidance (52 FR 45109 (November 24, 

1987)), and the Agency plans to take 

action in the future to address such state 

regulations. In the meantime, EPA 

encourages any state having a director’s 

discretion or variance provision which 

is contrary to the CAA and EPA 

guidance to take steps to correct the 

deficiency as soon as possible. 

2. 110(a)(2)(B) Ambient air quality 

monitoring/data system: South 

Carolina’s Air Pollution Control 

Regulations, Regulation 61–62.5, 

Standard No. 7, Prevention of 

Significant Deterioration, along with the 

South Carolina Network Description 

and Ambient Air Network Monitoring 

Plan, provide for an ambient air quality 

monitoring system in the State. S.C. 

Code Ann. § 48–1–50(14) provides the 

Department with the necessary 

authority to ‘‘[c]ollect and disseminate 

information on air and water control.’’ 

Annually, States develop and submit to 

EPA for approval statewide ambient 

monitoring network plans consistent 

with the requirements of 40 CFR Parts 

50, 53, and 58. The annual network plan 

involves an evaluation of any proposed 

changes to the monitoring network, 

includes the annual ambient monitoring 

network design plan and a certified 

evaluation of the agency’s ambient 

monitors and auxiliary support 

equipment.19 On July 3, 2013, South 

Carolina submitted its plan to EPA. On 

November 6, 2013, EPA approved South 

Carolina’s monitoring network plan. 

South Carolina’s approved monitoring 

network plan can be accessed at 

www.regulations.gov using Docket ID 

No. EPA–R04–OAR–2012–0694. EPA 

has made the preliminary determination 

that South Carolina’s SIP and practices 

are adequate for the ambient air quality 

monitoring and data system related to 

the 2008 8-hour ozone NAAQS. 

3. 110(a)(2)(C) Programs for 

enforcement of control measures and for 

construction or modification of 

stationary sources: In this action, EPA is 

proposing to approve South Carolina’s 

infrastructure SIP for the 2008 8-hour 

ozone NAAQS with respect to the 

general requirement in section 

110(a)(2)(C) to include a program in the 

SIP that regulates new and modified 

sources of emissions that contribute to 

ozone concentrations and the 

enforcement of nitrogen oxide (NOX) 

and volatile organic compounds (VOCs) 

emission limits to assist in the 

protection of air quality in 

nonattainment, attainment or 

unclassifiable areas. Regulation 61–62.5, 

Standard No. 7, Prevention of 

Significant Deterioration, and 

Regulation 61–62.5, Standard No. 7.1, 

Nonattainment New Source Review, of 

South Carolina’s SIP pertains to the 

construction of any new major 

stationary source or any modification at 

an existing major stationary source in an 

area designated as nonattainment, 

attainment or unclassifiable. 

Enforcement: SC DHEC’s abovedescribed, SIP-approved regulations 

provide for enforcement of VOC and 

NOX emission limits and control 

measures and construction permitting 

for new or modified stationary sources. 

Preconstruction PSD permitting for 

major sources: With respect to South 

Carolina’s infrastructure SIP submission 

related to the preconstruction PSD 

permitting requirements for major 

sources of section 110(a)(2)(C), EPA is 

not proposing any action today 

regarding these requirements and 

instead will act on this portion of the 

submission in a separate action. 

Regulation of minor sources and 

modifications: Section 110(a)(2)(C) also 

requires the SIP to include provisions 

that govern the minor source preconstruction program that regulates 

emissions of the 2008 8-hour ozone 

NAAQS. Regulation 61–62.1, Section II, 

Permit Requirements governs the 

preconstruction permitting of 

modifications and construction of minor 

stationary sources. 

EPA has made the preliminary 

determination that South Carolina’s SIP 

and practices are adequate for program 

enforcement of control measures and 

regulation of minor sources and 

modifications related to the 2008 8-hour 

ozone NAAQS. 

4. 110(a)(2)(D)(i)(I) and (II) Interstate 

pollution transport: Section 

110(a)(2)(D)(i) has two components; 

110(a)(2)(D)(i)(I) and 110(a)(2)(D)(II). 

Each of these components have two 

subparts resulting in four distinct 

components, commonly referred to as 

‘‘prongs,’’ that must be addressed in 

infrastructure SIP submissions. The first 

two prongs, which are codified in 

section 110(a)(2)(D)(i)(I), are provisions 

that prohibit any source or other type of 

emissions activity in one state from 

contributing significantly to 


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nonattainment of the NAAQS in another 

state (‘‘prong 1’’), and interfering with 

maintenance of the NAAQS in another 

state (‘‘prong 2’’). The third and fourth 

prongs, which are codified in section 

110(a)(2)(D)(i)(II), are provisions that 

prohibit emissions activity in one state 

interfering with measures required to 

prevent significant deterioration of air 

quality in another state (‘‘prong 3’’), or 

to protect visibility in another state 

(‘‘prong 4’’). With respect to South 

Carolina’s infrastructure SIP submission 

related to the interstate transport 

requirements of section 110(a)(2)(D)(i)(I) 

and 110(a)(2)(D)(i)(II) (prongs 1 through 

4), EPA is not proposing any action 

today regarding these requirements and 

instead will act on these portions of the 

submission in a separate action. 

5. 110(a)(2)(D)(ii) Interstate pollution 

abatement and international air 

pollution: Section 110(a)(2)(D)(ii) 

requires SIPs to include provisions 

insuring compliance with sections 115 

and 126 of the Act, relating to interstate 

and international pollution abatement. 

With regard to the requirements of 

section 110(a)(2)(D)(ii), South Carolina 

does not have any pending obligation 

under sections 115 and 126 of the CAA. 

Additionally, Regulation 61–62.5, 

Standards 7 and 7.1 (q)(2)(iv), Public 

Participation, requires SC DHEC to 

notify air agencies ‘‘whose lands may be 

affected by emissions’’ from each new or 

modified major source if such emissions 

may significantly contribute to levels of 

pollution in excess of a NAAQS in any 

air quality control region outside of the 

South Carolina. EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices are 

adequate for insuring compliance with 

the applicable requirements relating to 

interstate and international pollution 

abatement for the 2008 8-hour ozone 

NAAQS. 

6. 110(a)(2)(E) Adequate personnel, 

funding, and authority: Section 

110(a)(2)(E) requires that each 

implementation plan provide (i) 

necessary assurances that the State will 

have adequate personnel, funding, and 

authority under state law to carry out its 

implementation plan, (ii) that the State 

comply with the requirements 

respecting State Boards pursuant to 

section 128 of the Act, and (iii) 

necessary assurances that, where the 

State has relied on a local or regional 

government, agency, or instrumentality 

for the implementation of any plan 

provision, the State has responsibility 

for ensuring adequate implementation 

of such plan provisions. EPA is 

proposing to approve South Carolina’s 

SIP as meeting the requirements of 

section 110(a)(2)(E). EPA’s rationale for 

today’s proposal respecting each 

requirement of section 110(a)(2)(E) is 

described in turn below. 

With respect to section 110(a)(2)(E)(i) 

and (iii), SC DHEC develops, 

implements and enforces EPA-approved 

SIP provisions in the State. S.C. Code 

Ann. Section 48, Title 1, as referenced 

in SC DHEC’s infrastructure SIP 

submission, provides the Department’s 

general legal authority to establish a SIP 

and implement related plans. 

Specifically, S.C. Code Ann. § 48–1– 

50(12) grants SC DHEC the statutory 

authority to ‘‘[a]ccept, receive and 

administer grants or other funds or gifts 

for the purpose of carrying out any of 

the purposes of this chapter; [and to] 

accept, receive and receipt for Federal 

money given by the Federal government 

under any Federal law to the State of 

South Carolina for air or water control 

activities, surveys or programs.’’ S.C. 

Code Ann. Section 48, Title 2 grants SC 

DHEC statutory authority to establish 

environmental protection funds, which 

provide resources for SC DHEC to carry 

out its obligations under the CAA. 

Additionally, Regulation 61–30, 

Environmental Protection Fees, provides 

SC DHEC with the ability to access fees 

for environmental permitting programs. 

SC DHEC implements the SIP in 

accordance with the provisions of S.C. 

Code Ann § 1–23–40 (the 

Administrative Procedures Act) and S.C. 

Code Ann. Section 48, Title 1. 

The requirements of 110(a)(2)(E)(i) 

and (iii) are further confirmed when 

EPA performs a completeness 

determination for each SIP submittal. 

This provides additional assurances that 

each submittal provides evidence that 

adequate personnel, funding, and legal 

authority under State Law has been 

used to carry out the State’s 

implementation plan and related issues. 

This information is included in all 

prehearings and final SIP submittal 

packages for approval by EPA. 

EPA also notes that annually, states 

update grant commitments based on 

current SIP requirements, air quality 

planning, and applicable requirements 

related to the NAAQS, including the 

ozone NAAQS. On March 11, 2014, EPA 

submitted a letter to South Carolina 

outlining 105 grant commitments and 

current status of these commitments for 

fiscal year 2013. The letter EPA 

submitted to South Carolina can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2012– 

0694. There were no outstanding issues, 

therefore South Carolina’s grants were 

finalized and closed out. 

With respect to 110(a)(2)(E)(ii), South 

Carolina satisfies the requirements of 

CAA section 128(a)(1) for the SC Board 

of Health and Environmental Control, 

which is the ‘‘board or body which 

approves permits and enforcement 

orders’’ under the CAA in South 

Carolina, through S.C. Code Ann. 

Section 8–13–730. S.C. Code Ann. 

Section 8–13–730 provides that 

‘‘[u]nless otherwise provided by law, no 

person may serve as a member of a 

governmental regulatory agency that 

regulates business with which that 

person is associated,’’ and S.C. Code 

Ann. Section 8–13–700(A) which 

provides in part that ‘‘[n]o public 

official, public member, or public 

employee may knowingly use his 

official office, membership, or 

employment to obtain an economic 

interest for himself, a member of his 

immediate family, an individual with 

whom he is associated, or a business 

with which he is associated.’’ S.C. Code 

Ann. Section 8–13–700(B)(1)–(5) 

provides for disclosure of any conflicts 

of interest by public official, public 

member or public employee, which 

meets the requirement of CAA Section 

128(a)(2) that ‘‘any potential conflicts of 

interest . . . be adequately disclosed.’’ 

These state statutes—S.C. Code Ann. 

Sections 8–13–730, 8–13–700(A), and 

8–13–700(B)(1)–(5)—have been 

approved into the South Carolina SIP as 

required by CAA section 128. EPA has 

made the preliminary determination 

that South Carolina has adequate 

resources for implementation of the 

2008 8-hour ozone NAAQS. 

7. 110(a)(2)(F) Stationary source 

monitoring system: SC DHEC’s 

infrastructure SIP submission describes 

the establishment of requirements for 

compliance testing by emissions 

sampling and analysis, and for 

emissions and operation monitoring to 

ensure the quality of data in the State. 

SC DHEC uses these data to track 

progress towards maintaining the 

NAAQS, develop control and 

maintenance strategies, identify sources 

and general emission levels, and 

determine compliance with emission 

regulations and additional EPA 

requirements. These SIP requirements 

are codified at Regulation 61–62.1, 

Definitions and General Requirements, 

which provides for an emission 

inventory plan that establishes reporting 

requirements of the South Carolina SIP. 

SC DHEC’s SIP requires owners or 

operators of stationary sources to 

monitor emissions, submit periodic 

reports of such emissions and maintain 

records as specified by various 

regulations and permits, and to evaluate 

reports and records for consistency with 

the applicable emission limitation or 

standard on a continuing basis over 


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time. The monitoring data collected and 

records of operations serve as the basis 

for a source to certify compliance, and 

can be used by SC DHEC as direct 

evidence of an enforceable violation of 

the underlying emission limitation or 

standard. Accordingly, EPA is unaware 

of any provision preventing the use of 

credible evidence in the South Carolina 

SIP. 

Additionally, South Carolina is 

required to submit emissions data to 

EPA for purposes of the National 

Emissions Inventory (NEI). The NEI is 

EPA’s central repository for air 

emissions data. EPA published the Air 

Emissions Reporting Rule (AERR) on 

December 5, 2008, which modified the 

requirements for collecting and 

reporting air emissions data (73 FR 

76539). The AERR shortened the time 

states had to report emissions data from 

17 to 12 months, giving states one 

calendar year to submit emissions data. 

All states are required to submit a 

comprehensive emissions inventory 

every three years and report emissions 

for certain larger sources annually 

through EPA’s online Emissions 

Inventory System. States report 

emissions data for the six criteria 

pollutants and their associated 

precursors—NOx, sulfur dioxide, 

ammonia, lead, carbon monoxide, 

particulate matter, and VOC. Many 

states also voluntarily report emissions 

of hazardous air pollutants. South 

Carolina made its latest update to the 

2011 NEI on April 8, 2014. EPA 

compiles the emissions data, 

supplementing it where necessary, and 

releases it to the general public through 

the Web site http://www.epa.gov/ttn/

chief/eiinformation.html. EPA has made 

the preliminary determination that 

South Carolina’s SIP and practices are 

adequate for the stationary source 

monitoring systems related to the 2008 

8-hour ozone NAAQS. Accordingly, 

EPA is proposing to approve South 

Carolina’s infrastructure SIP submission 

with respect to section 110(a)(2)(F). 

8. 110(a)(2)(G) Emergency powers: 

This section requires that states 

demonstrate authority comparable with 

section 303 of the CAA and adequate 

contingency plans to implement such 

authority. Regulation 61–62.3, Air 

Pollution Episodes, provides for 

contingency measures when an air 

pollution episode or exceedance may 

lead to a substantial threat to the health 

or persons in the state or region. S.C. 

Code Ann. Section 48–1–290 provides 

SC DHEC, with concurrent notice to the 

Governor, the authority to issue an order 

recognizing the existence of an 

emergency requiring immediate action 

as deemed necessary by SC DHEC to 

protect the public health or property. 

Any person subject to this order is 

required to comply immediately. 

Additionally, S.C. Code Ann. Section 1– 

23–130 provides the Department with 

the authority to establish emergency 

regulations. EPA has made the 

preliminary determination that South 

Carolina’s SIP, state laws and practices 

are adequate for emergency powers 

related to the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is proposing 

to approve South Carolina’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(G). 

9. 110(a)(2)(H) Future SIP revisions: 

As previously discussed, SC DHEC is 

responsible for adopting air quality 

rules and revising SIPs as needed to 

attain or maintain the NAAQS. South 

Carolina has the ability and authority to 

respond to calls for SIP revisions, and 

has provided a number of SIP revisions 

over the years for implementation of the 

NAAQS. Additionally, S.C. Code Ann. 

Section 48, Title 1, provides SC DHEC 

with the necessary authority to revise 

the SIP to accommodate changes in the 

NAAQS and thus revise the SIP as 

appropriate. EPA has made the 

preliminary determination that South 

Carolina adequately demonstrates a 

commitment to provide future SIP 

revisions related to the 2008 8-hour 

ozone NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve South Carolina’s infrastructure 

SIP submission with respect to section 

110(a)(2)(H). 

10. 110(a)(2)(J) Consultation with 

government officials, public 

notification, and PSD and visibility 

protection: EPA is proposing to approve 

South Carolina’s infrastructure SIP 

submission for the 2008 8-hour ozone 

NAAQS with respect to the general 

requirement in section 110(a)(2)(J) to 

include a program in the SIP that 

provides for meeting the applicable 

consultation requirements of section 

121, the public notification 

requirements of section 127. With 

respect to South Carolina’s 

infrastructure SIP submission related to 

the preconstruction PSD permitting and 

visibility protection requirements, EPA 

is not proposing any action today 

regarding these requirements and 

instead will act on these portions of the 

submission in a separate action. EPA’s 

rationale for applicable consultation 

requirements of section 121 and the 

public notification requirements of 

section 127 is described below. 

110(a)(2)(J) (121 consultation) 

Consultation with government officials: 

Regulation 61–62.5, Standard No. 7, 

Prevention of Significant Deterioration, 

as well as the State’s Regional Haze 

Implementation Plan (which allows for 

consultation between appropriate state, 

local, and tribal air pollution control 

agencies as well as the corresponding 

Federal Land Managers), provide for 

consultation with government officials 

whose jurisdictions might be affected by 

SIP development activities. South 

Carolina adopted state-wide 

consultation procedures for the 

implementation of transportation 

conformity. These consultation 

procedures were developed in 

coordination with the transportation 

partners in the State and are consistent 

with the approaches used for 

development of mobile inventories for 

SIPs. Implementation of transportation 

conformity as outlined in the 

consultation procedures requires SC 

DHEC to consult with federal, state and 

local transportation and air quality 

agency officials on the development of 

motor vehicle emissions budgets. EPA 

has made the preliminary determination 

that South Carolina’s SIP and practices 

adequately demonstrate consultation 

with government officials related to the 

2008 8-hour ozone NAAQS when 

necessary. Accordingly, EPA is 

proposing to approve South Carolina’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(J) 

consultation with government officials. 

110(a)(2)(J) (127 public notification) 

Public notification: 61–62.3, Air 

Pollution Episodes, requires that SC 

DHEC notify the public of any air 

pollution episode or NAAQS violation. 

Regulation 61–62.5, Standard 7.1 (q), 

Public Participation, notifies the public 

by advertisement in a newspaper of 

general circulation in each region in 

which a proposed plant or 

modifications will be constructed of the 

degree of increment consumption that is 

expected from the plant or modification, 

and the opportunity for comment at a 

public hearing as well as written public 

comment. An opportunity for a public 

hearing for interested persons to appear 

and submit written or oral comments on 

the air quality impact of the plant or 

modification, alternatives to the plant or 

modification, the control technology 

required, and other appropriate 

considerations is also offered. 

EPA also notes that SC DHEC 

maintains a Web site that provides the 

public with notice of the health hazards 

associated with ozone NAAQS 

exceedances, measures the public can 

take to help prevent such exceedances, 

and the ways in which the public can 

participate in the regulatory process. 

See http://www.scdhec.gov/

HomeAndEnvironment/Air/

MostCommonPollutants/Ozone/. EPA 

has made the preliminary determination 


tkelley on DSK3SPTVN1PROD with PROPOSALS
49744 Federal Register / Vol. 79, No. 163 / Friday, August 22, 2014 / Proposed Rules 

20This regulation has not been incorporated into 

the federally-approved SIP. 

21Title V program regulations are federallyapproved but not incorporated into the federallyapproved SIP. 

that South Carolina’s SIP and practices 

adequately demonstrate the State’s 

ability to provide public notification 

related to the 2008 8-hour ozone 

NAAQS when necessary. Accordingly, 

EPA is proposing to approve South 

Carolina’s infrastructure SIP submission 

with respect to section 110(a)(2)(J) 

public notification. 

11. 110(a)(2)(K) Air quality and 

modeling/data: Regulations 61–62.5, 

Standards No. 2, Ambient Air Quality 

Standards, and Regulation 61–62.5, 

Standard No. 7, Prevention of 

Significant Deterioration, of the South 

Carolina SIP specify that required air 

modeling be conducted in accordance 

with 40 CFR Part 51, Appendix W 

‘‘Guideline on Air Quality Models,’’ as 

incorporated into the South Carolina 

SIP. These standards demonstrate that 

South Carolina has the authority to 

provide relevant data for the purpose of 

predicting the effect on ambient air 

quality of the 2008 8-hour ozone 

NAAQS. Additionally, South Carolina 

supports a regional effort to coordinate 

the development of emissions 

inventories and conduct regional 

modeling for several NAAQS, including 

the 2008 8-hour ozone NAAQS, for the 

southeastern states. Taken as a whole, 

South Carolina’s air quality regulations 

and practices demonstrate that SC 

DHEC has the authority to provide 

relevant data for the purpose of 

predicting the effect on ambient air 

quality of any emissions of any 

pollutant for which a NAAQS had been 

promulgated, and to provide such 

information to the EPA Administrator 

upon request. EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices adequately 

demonstrate the State’s ability to 

provide for air quality and modeling, 

along with analysis of the associated 

data, related to the 2008 8-hour ozone 

NAAQS. Accordingly, EPA is proposing 

to approve South Carolina’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(K). 

12. 110(a)(2)(L) Permitting fees: This 

section requires the SIP to direct the 

owner or operator of each major 

stationary source to pay to the 

permitting authority, as a condition of 

any permit required under the CAA, a 

fee sufficient to cover (i) the reasonable 

costs of reviewing and acting upon any 

application for such a permit, and (ii) if 

the owner or operator receives a permit 

for such source, the reasonable costs of 

implementing and enforcing the terms 

and conditions of any such permit (not 

including any court costs or other costs 

associated with any enforcement 

action), until such fee requirement is 

superseded with respect to such sources 

by the Administrator’s approval of a fee 

program under title V. 

Section 48–2–50 of the South Carolina 

Code prescribes that SC DHEC charge 

fees for environmental programs it 

administers pursuant to federal and 

state law and regulations including 

those that govern the costs to review, 

implement and enforce PSD and NNSR 

permits. Regulation 61–30, 

Environmental Protection Fees 20

prescribes fees applicable to applicants 

and holders of permits, licenses, 

certificates, certifications, and 

registrations, establishes procedures for 

the payment of fees, provides for the 

assessment of penalties for nonpayment, 

and establishes an appeals process for 

refuting fees. This regulation may be 

amended as needed to meet the funding 

requirements of the state’s permitting 

program. Additionally, South Carolina 

has a federally-approved title V 

program, Regulation 61–62.70, Title V 

Operating Permit Program 21, which 

implements and enforces the 

requirements of PSD and nonattainment 

NSR for facilities once they begin 

operating. EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices adequately 

provide for permitting fees related to the 

2008 8-hour NAAQS when necessary. 

Accordingly, EPA is proposing to 

approve South Carolina’s infrastructure 

SIP submission with respect to section 

110(a)(2)(L). 

13. 110(a)(2)(M) Consultation/

participation by affected local entities: 

Regulation 61–62.5, Standard No. 7, 

Prevention of Significant Deterioration, 

of the South Carolina SIP requires that 

SC DHEC notify the public of an 

application, preliminary determination, 

the activity or activities involved in the 

permit action, any emissions change 

associated with any permit 

modification, and the opportunity for 

comment prior to making a final 

permitting decision. By way of example, 

SC DHEC has recently worked closely 

with local political subdivisions during 

the development of its Transportation 

Conformity SIP, Regional Haze 

Implementation Plan, and Early Action 

Compacts. EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices adequately 

demonstrate consultation with affected 

local entities related to the 2008 8-hour 

ozone NAAQS. Accordingly, EPA is 

proposing to approve South Carolina’s 

infrastructure SIP submission with 

respect to section 110(a)(2)(M). 

V. Proposed Action 

As described above, with the 

exception of the PSD permitting 

requirements for major sources of 

section 110(a)(2)(C) and (J), the 

interstate transport requirements of 

section 110(a)(2)(D)(i)(I) and (II) (prongs 

1 through 4), and the visibility 

requirements of 110(a)(2)(J), EPA is 

proposing to approve South Carolina’s 

July 12, 2012, SIP submission to 

incorporate provisions into the South 

Carolina SIP to address infrastructure 

requirements for the 2008 8-hour ozone 

NAAQS. EPA is proposing to approve 

these portions of South Carolina’s 

infrastructure submission for the 2008 

8-hour ozone NAAQS because this 

submission is consistent with section 

110 of the CAA. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

See 42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 163 / Friday, August 22, 2014 / Proposed Rules 49745 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this proposed action for 

the state of South Carolina does not 

have Tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). The Catawba Indian 

Nation Reservation is located within the 

State of South Carolina. Pursuant to the 

Catawba Indian Claims Settlement Act, 

S.C. Code Ann. 27–16–120, ‘‘all state 

and local environmental laws and 

regulations apply to the [Catawba Indian 

Nation] and Reservation and are fully 

enforceable by all relevant state and 

local agencies and authorities.’’ 

However, EPA has determined that 

because this proposed rule does not 

have substantial direct effects on an 

Indian Tribe because, as noted above, 

this action is not approving any specific 

rule, but rather proposing that South 

Carolina’s already approved SIP meets 

certain CAA requirements. EPA notes 

today’s action will not impose 

substantial direct costs on Tribal 

governments or preempt Tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

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

Dated: August 11, 2014. 

Heather McTeer Toney, 

Regional Administrator, Region 4. 

[FR Doc. 2014–20039 Filed 8–21–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 130703588–4658–01] 

RIN 0648–BD44 

International Fisheries; Western and 

Central Pacific Fisheries for Highly 

Migratory Species; Fishing 

Restrictions regarding the Oceanic 

Whitetip Shark, the Whale Shark, and 

the Silky Shark 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations 

under authority of the Western and 

Central Pacific Fisheries Convention 

Implementation Act (WCPFC 

Implementation Act) to implement 

decisions of the Commission for the 

Conservation and Management of 

Highly Migratory Fish Stocks in the 

Western and Central Pacific Ocean 

(Commission or WCPFC) on fishing 

restrictions related to the oceanic 

whitetip shark (Carcharhinus 

longimanus), the whale shark 

(Rhincodon typus), and the silky shark 

(Carcharhinus falciformis). The 

regulations would apply to owners and 

operators of U.S. fishing vessels used for 

commercial fishing for highly migratory 

species (HMS) in the area of application 

of the Convention on the Conservation 

and Management of Highly Migratory 

Fish Stocks in the Western and Central 

Pacific Ocean (Convention). The 

regulations for oceanic whitetip sharks 

and silky sharks would prohibit the 

retention, transshipment, storage, or 

landing of oceanic whitetip sharks or 

silky sharks and would require the 

release of any oceanic whitetip shark or 

silky shark as soon as possible after it 

is caught, with as little harm to the 

shark as possible. The regulations for 

whale sharks would prohibit setting a 

purse seine on a whale shark and would 

specify certain measures to be taken and 

reporting requirements in the event a 

whale shark is encircled in a purse seine 

net. This action is necessary for the 

United States to satisfy its obligations 

under the Convention, to which it is a 

Contracting Party. 

DATES: Comments must be submitted in 

writing by October 6, 2014. 

ADDRESSES: You may submit comments 

on this proposed rule, identified by 

NOAA–NMFS–2014–0086, and the 

regulatory impact review (RIR) prepared 

for this proposed rule, by either of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/

#!docketDetail;D=NOAA-NMFS-2014- 

0086, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Michael D. Tosatto, Regional 

Administrator, Pacific Islands Regional 

Office, NOAA Inouye Regional Center, 

1845 Wasp Blvd., Building 176, 

Honolulu, HI 96818. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, might not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name and address), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

An initial regulatory flexibility 

analysis (IRFA) prepared under 

authority of the Regulatory Flexibility 

Act is included in the Classification 

section of the SUPPLEMENTARY

INFORMATION section of this proposed 

rule. 

Copies of the RIR and the 

Environmental Assessment (EA) are 

available at www.regulations.gov or may 

be obtained from Michael D. Tosatto, 

NMFS PIRO (see address above). 

Written comments regarding the 

burden-hour estimates or other aspects 

of the collection-of-information 

requirements contained in this proposed 

rule may be submitted to Michael D. 

Tosatto, Regional Administrator, NMFS 

PIRO (see address above) and by email 

to OIRA_Submission@omb.eop.gov or 

fax to 202–395–7285. 

FOR FURTHER INFORMATION CONTACT: Rini 

Ghosh, NMFS PIRO, 808–725–5033. 

SUPPLEMENTARY INFORMATION: 

Background on the Convention 

A map showing the boundaries of the 

area of application of the Convention 

(Convention Area), which comprises the 

majority of the western and central 


tkelley on DSK3SPTVN1PROD with PROPOSALS