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[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)]
[Proposed Rules]
[Pages 41498-41507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15145]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0251; FRL-9948-43-Region 4]

Air Plan Approval; SC Infrastructure Requirements for the 2010 
Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve portions of the State Implementation Plan (SIP) submission, 
submitted by the State of South Carolina, through the South Carolina 
Department of Health and Environmental Control (SC DHEC) on April 30, 
2014, to demonstrate that the State meets the infrastructure 
requirements of the Clean Air Act (CAA or Act) for the 2010 nitrogen 
dioxide (NO2) national ambient air quality standard (NAAQS). 
The CAA requires that each state adopt and submit a SIP for the 
implementation, maintenance and enforcement of each NAAQS promulgated 
by EPA, which is commonly referred to as an ``infrastructure'' SIP 
submission. SC DHEC certified that the South Carolina SIP contains 
provisions that ensure the 2010 NO2 NAAQS is implemented, 
enforced, and maintained in South Carolina. With the exception of 
provisions pertaining to prevention of significant deterioration (PSD) 
permitting, and interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance and 
visibility in other states, for which EPA is proposing no action 
through this rulemaking, EPA is proposing to find that South Carolina's 
infrastructure SIP submission, provided to EPA on April 30, 2014, 
satisfies the required infrastructure elements for the 2010 
NO2 NAAQS.

DATES: Written comments must be received on or before July 27, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0251 at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory 
Management Section, Air Planning and Implementation Branch, Air, 
Pesticides and Toxics Management Division, U.S. Environmental 
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 
30303-8960. Mr. Wong can be reached via telephone at (404) 562-8726 or 
electronic mail at wong.richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for 
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section 
110(a)(1) of the CAA, states are required to submit SIPs meeting the 
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 
requirements, including emissions inventories, monitoring, and modeling 
to assure attainment and maintenance of the NAAQS. States were required 
to submit such SIPs for the 2010 1-hour

[[Page 41499]]

NO2 NAAQS to EPA no later than January 22, 2013.\1\
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    \1\ In these infrastructure SIP submissions states generally 
certify evidence of compliance with sections 110(a)(1) and (2) of 
the CAA through a combination of state regulations and statutes, 
some of which have been incorporated into the federally-approved 
SIP. In addition, certain federally-approved, non-SIP regulations 
may also be appropriate for demonstrating compliance with sections 
110(a)(1) and (2). Throughout this rulemaking, unless otherwise 
indicated, the term ``South Carolina Air Pollution Control 
Regulation'' or ``Regulation'' indicates that the cited regulation 
has been approved into South Carolina's federally-approved SIP. The 
term ``South Carolina statute'' indicates cited South Carolina state 
statutes, which are not a part of the SIP unless otherwise 
indicated.
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    Today's action is proposing to approve South Carolina's 
infrastructure SIP submission for the applicable requirements of the 
2010 1-hour NO2 NAAQS, with the exception of the PSD 
permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i), and (J) and the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states and visibility (i.e., prongs 1, 2, and 4 of 
section 110(a)(2)(D)(i)). On March 18, 2015, EPA approved South 
Carolina's April 30, 2014, infrastructure SIP submission regarding the 
PSD permitting requirements for major sources of sections 110(a)(2)(C), 
prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See 
80 FR 14019. Therefore, EPA is not proposing any action pertaining to 
these requirements. With respect to South Carolina's infrastructure SIP 
submission related to interstate transport provisions pertaining to the 
contribution to nonattainment or interference with maintenance in other 
states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), 
EPA is not proposing any action today. EPA will act on these provisions 
in a separate action. For the aspects of South Carolina's submittal 
proposed for approval today, EPA notes that the Agency is not approving 
any specific rule, but rather proposing that South Carolina's already 
approved SIP meets certain CAA requirements.

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 2010 1-hour NO2 NAAQS, states 
typically have met the basic program elements required in section 
110(a)(2) through earlier SIP submissions in connection with previous 
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 ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed 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 (2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's proposed 
rulemaking does not address infrastructure elements related to 
section 110(a)(2)(I) or the nonattainment planning requirements of 
110(a)(2)(C).

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

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

    EPA is acting upon the SIP submission from South Carolina that 
addresses the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2010 NO2 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

[[Page 41500]]

submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for 
infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\5\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\6\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\7\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\8\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants 
because the content and scope of a state's infrastructure SIP 
submission to meet this element might be very different for an entirely 
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular

[[Page 41501]]

SIP submission. In other words, EPA assumes that Congress could not 
have intended that each and every SIP submission, regardless of the 
NAAQS in question or the history of SIP development for the relevant 
pollutant, would meet each of the requirements, or meet each of them in 
the same way. Therefore, EPA has adopted an approach under which it 
reviews infrastructure SIP submissions against the list of elements in 
section 110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\11\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\12\ EPA developed this document to provide states 
with up-to-date guidance for infrastructure SIPs for any new or revised 
NAAQS. Within this guidance, EPA describes the duty of states to make 
infrastructure SIP submissions to meet basic structural SIP 
requirements within three years of promulgation of a new or revised 
NAAQS. EPA also made recommendations about many specific subsections of 
section 110(a)(2) that are relevant in the context of infrastructure 
SIP submissions.\13\ The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 
110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan 
(SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by ongoing litigation, EPA elected not to 
provide additional guidance on the requirements of section 
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding 
nor required by statute, whether EPA elects to provide guidance on a 
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's 
implementation plan appropriately addresses the requirements of section 
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's 
interpretation that there may be a variety of ways by which states can 
appropriately address these substantive statutory requirements, 
depending on the structure of an individual state's permitting or 
enforcement program (e.g., whether permits and enforcement orders are 
approved by a multi-member board or by a head of an executive agency). 
However they are addressed by the state, the substantive requirements 
of section 128 are necessarily included in EPA's evaluation of 
infrastructure SIP submissions because section 110(a)(2)(E)(ii) 
explicitly requires that the state satisfy the provisions of section 
128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and new source review (NSR) 
pollutants, including greenhouse gases. By contrast, structural PSD 
program requirements do not include provisions that are not required 
under EPA's regulations at 40 CFR 51.166 but are merely available as an 
option for the state, such as the option to provide grandfathering of 
complete permit applications with respect to the 2012 PM2.5 
NAAQS. Accordingly, the latter optional provisions are types of 
provisions EPA considers irrelevant in the context of an infrastructure 
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's implementation plan meets basic structural requirements. For 
example, section 110(a)(2)(C) includes, inter alia, the requirement 
that states have a program to regulate minor new sources. Thus, EPA 
evaluates whether the state has an EPA-approved minor NSR program and 
whether the program addresses the pollutants relevant to that NAAQS. In 
the context of acting on an infrastructure SIP submission, however, EPA 
does not think it is necessary to conduct a review of each and every 
provision of a state's existing minor source program (i.e., already in 
the existing SIP) for compliance with the requirements of the CAA and 
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\14\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are

[[Page 41502]]

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

    South Carolina's infrastructure submission addresses the provisions 
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures: 
Section 110(a)(2)(A) requires that each implementation plan include 
enforceable emission limitations and other control measures, means, or 
techniques (including economic incentives such as fees, marketable 
permits, and auctions of emissions rights), as well as schedules and 
timetables for compliance, as may be necessary or appropriate to meet 
the applicable requirements. Regulation 61-62.1, Definitions and 
General Requirements, and 61-62.5 (1), Ambient Air Quality Standards 
have been federally approved in the South Carolina SIP and include 
enforceable emission limitations and other control measures for 
activities that contribute to NO2 concentrations in the 
ambient air. South Carolina statute 48-1-50(23) authorizes SC DHEC to 
adopt rules for the control of air pollution in order to comply with 
NAAQS. EPA has made the preliminary determination that the cited 
provisions are adequate for enforceable emission limitations and other 
control measures, means, or techniques, as well as schedules and 
timetables for compliance for the 2010 1-hour NO2 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 is addressing such state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled, 
``State Implementation Plans: Response to Petition for Rulemaking; 
Restatement and Update of EPA's SSM Policy Applicable to SIPs; 
Findings of Substantial Inadequacy; and SIP Calls to Amend 
Provisions Applying to Excess Emissions During Periods of Startup, 
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or 
disapprove any existing State rules with regard to director's 
discretion or variance provisions. EPA believes that a number of states 
have such provisions which are contrary to the CAA and existing EPA 
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to 
take action in the future to address such state regulations. In the 
meantime, EPA encourages any state having a director's discretion or 
variance provision which is contrary to the CAA and EPA guidance to 
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: SIPs 
are required to provide for the establishment and operation of ambient 
air quality monitors, the compilation and analysis of ambient air 
quality data, and the submission of these data to EPA upon request. 
Regulation 61-62.5(7), Prevention of Significant Deterioration, and 
South Carolina statute 48-1-50(14), Powers of department, provide SC 
DHEC with the authority to collect and disseminate information relating 
to air quality and pollution and the prevention, control, supervision, 
and

[[Page 41503]]

abatement thereof. 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 state's ambient monitors and auxiliary 
support equipment.\19\ On July 20, 2015, South Carolina submitted its 
monitoring network plan to EPA, and on November 19, 2015, EPA approved 
this plan. South Carolina's approved monitoring network plan can be 
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-
0251. 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 2010 1-hour NO2 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are 
evaluated outside of the network plan approval process in accordance 
with 40 CFR part 58.
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    3. 110(a)(2)(C) Program for Enforcement of Control Measures and for 
Construction or Modification of Stationary Sources: This element 
consists of three sub-elements; enforcement, state-wide regulation of 
new and modified minor sources and minor modifications of major 
sources; and preconstruction permitting of major sources and major 
modifications in areas designated attainment or unclassifiable for the 
subject NAAQS as required by CAA title I part C (i.e., the major source 
PSD program). As discussed further below, in this action EPA is only 
proposing to approve the enforcement, and the regulation of minor 
sources and minor modifications aspects of South Carolina's section 
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: SC DHEC cites to its SIP approved permit regulations 
for enforcement of NO2 emission limits and control measures 
and construction permitting for new or modified stationary 
NO2 sources (Regulations 61-62.5(7), Prevention of 
Significant Deterioration, and 61-62.5(7)(1), Nonattainment New Source 
Review, and Regulation 61-62.1, Section II, Permit Requirements). South 
Carolina cites to statute 48-1-50(11), which provides SC DHEC the 
authority to administer penalties for violations of any order, permit, 
regulation or standards. Additionally, SCDHEC is authorized under 48-1-
50(3) and (4) to issue orders requiring the discontinuance of the 
discharge of air contaminants into the ambient air that create an 
undesirable level, and seek an injunction to compel compliance with the 
Pollution Control Act and permits, permit conditions and orders.
    Preconstruction PSD Permitting for Major Sources: With respect to 
South Carolina's April 30, 2014, infrastructure SIP submission related 
to the PSD permitting requirements for major sources of section 
110(a)(2)(C), EPA took final action to approve these provisions for the 
2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) 
also requires the SIP to include provisions that govern the minor 
source program that regulates emissions of the 2010 1-hour 
NO2 NAAQS. South Carolina has a SIP-approved minor NSR 
permitting program at Regulation 61-62.1, Section II, Permit 
Requirements, that regulates the preconstruction permitting of minor 
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 2010 1-hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section 
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 
110(a)(2)(D)(i)(II). Each of these components have two subparts 
resulting in four distinct components, commonly referred to as 
``prongs,'' that must be addressed in infrastructure SIP submissions. 
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), 
are provisions that prohibit any source or other type of emissions 
activity in one state from contributing significantly to nonattainment 
of the NAAQS in another state (``prong 1''), and interfering with 
maintenance of the NAAQS in another state (``prong 2''). The third and 
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are 
provisions that prohibit emissions activity in one state from 
interfering with measures required to prevent significant deterioration 
of air quality in another state (``prong 3''), or to protect visibility 
in another state (``prong 4'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action 
in this rulemaking related to the interstate transport provisions 
pertaining to the contribution to nonattainment or interference with 
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 
2) because South Carolina's 2010 1-hour NO2 NAAQS 
infrastructure submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to South Carolina's 
infrastructure SIP submission related to the interstate transport 
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took 
final action to approve South Carolina's April 30, 2014, infrastructure 
SIP submission regarding prong 3 of D(i) for the 2010 1-hour 
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in 
this rulemaking related to the interstate transport provisions 
pertaining to visibility protection in other states of section 
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in 
relation South Carolina's 2010 1-hour NO2 NAAQS 
infrastructure submission in a separate rulemaking.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and 
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to 
include provisions ensuring compliance with sections 115 and 126 of the 
Act, relating to interstate and international pollution abatement. 
Regulation 61-62.5, Standards 7 and 7.1 (q)(2)(iv), Public 
Participation, outlines how South Carolina will notify neighboring 
states of potential impacts from new or modified sources. EPA is 
unaware of any pending obligations for the State of South Carolina 
pursuant to sections 115 or 126 of the CAA. 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 
2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of 
Interest, and Oversight of Local Governments and Regional Agencies: 
Section 110(a)(2)(E) requires that each implementation plan provide: 
(i) Necessary assurances that the state will have adequate personnel, 
funding, and authority under state law to carry out its implementation 
plan, (ii) that the state comply with the requirements respecting state 
boards pursuant to section 128 of the Act, and (iii) necessary 
assurances that, where the state has relied on a local or regional 
government, agency, or instrumentality for the implementation of any 
plan provision, the state has responsibility for ensuring adequate 
implementation of such plan provisions. EPA is proposing to approve 
South Carolina's SIP as meeting the requirements of sections 
110(a)(2)(E). EPA's rationale for today's proposals respecting each

[[Page 41504]]

section of 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 and S.C. Code Ann Sec.  1-23-
40 (the Administrative Procedures Act), as referenced in South 
Carolina's infrastructure SIP submission, provides the SC DHEC's 
general legal authority to establish a SIP and implement related plans. 
In particular, S.C. Code Ann. Section 48-1-50(12) grants SC DHEC the 
statutory authority to ``[a]ccept, receive and administer grants or 
other funds or gifts for the purpose of carrying out any of the 
purposes of this chapter; [and to] accept, receive and receipt for 
Federal money given by the Federal government under any Federal law to 
the State of South Carolina for air or water control activities, 
surveys or programs.'' S.C. Code Ann. Section 48, Title 2 grants SC 
DHEC statutory authority to establish environmental protection funds, 
which provide resources for SC DHEC to carry out its obligations under 
the CAA. Specifically, in Regulation 61-30, Environmental Protection 
Fees, SC DHEC established fees for sources subject to air permitting 
programs. For Section 110(a)(2)(E)(iii), the submission states that 
South Carolina does not rely on localities for specific SIP 
implementation.
    The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed 
when EPA performs a completeness determination for each SIP submittal. 
This provides additional assurances that each submittal provides 
evidence that adequate personnel, funding, and legal authority under 
State law has been used to carry out the State's implementation plan 
and related issues. This information is included in all prehearings and 
final SIP submittal packages for approval by EPA.
    As evidence of the adequacy of SC DHEC's resources, EPA submitted a 
letter to South Carolina on April 19, 2016, outlining section 105 grant 
commitments and the current status of these commitments for fiscal year 
2015. The letter EPA submitted to South Carolina can be accessed at 
www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0251. 
Annually, states update these grant commitments based on current SIP 
requirements, air quality planning, and applicable requirements related 
to the NAAQS. South Carolina satisfactorily met all commitments agreed 
to in the Air Planning Agreement for fiscal year 2015, therefore South 
Carolina's grants were finalized.
    Section 110(a)(2)(E)(ii) requires that states comply with section 
128 of the CAA. Section 128 of the CAA requires that states include 
provisions in their SIP to address conflicts of interest for state 
boards or bodies that oversee CAA permits and enforcement orders and 
disclosure of conflict of interest requirements. Specifically, CAA 
section 128(a)(1) necessitates that each SIP shall require that at 
least a majority of any board or body which approves permits or 
enforcement orders shall be subject to the described public interest 
service and income restrictions therein. Subsection 128(a)(2) requires 
that the members of any board or body, or the head of an executive 
agency with similar power to approve permits or enforcement orders 
under the CAA, shall also be subject to conflict of interest disclosure 
requirements.
    With respect to 110(a)(2)(E)(ii), South Carolina satisfies the 
requirements of CAA section 128(a)(1) for the 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 South Carolina statute 8-13-730. This statute 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 statute 8-13-700(A) states 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.'' South Carolina statute 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.'' State statutes 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. Thus, EPA has made the preliminary 
determination that South Carolina's SIP and practices are adequate for 
insuring compliance with the applicable requirements of section 
110(a)(2)(E)(ii) relating to state boards for the 2010 NO2 
NAAQS.
    7. 110(a)(2)(F) Stationary Source Monitoring System: Section 
110(a)(2)(F) requires SIPs to meet applicable requirements addressing 
(i) the installation, maintenance, and replacement of equipment, and 
the implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources, (ii) 
periodic reports on the nature and amounts of emissions and emissions 
related data from such sources, and (iii) correlation of such reports 
by the state agency with any emission limitations or standards 
established pursuant to this section, which reports shall be available 
at reasonable times for public inspection. South Carolina's 
infrastructure SIP submission describes how the State establishes 
requirements for emissions compliance testing and utilizes emissions 
sampling and analysis. It further describes how the State ensures the 
quality of its data through observing emissions and monitoring 
operations. These infrastructure SIP requirements are codified at 
Section III, Regulation 61-62.1, Emissions Inventory. South Carolina 
statute 48-1-22 requires owners or operators of stationary sources to 
compute emissions, submit periodic reports of such emissions and 
maintain records as specified by various regulations and permits, and 
to evaluate reports and records for consistency with the applicable 
emission limitation or standard on a continuing basis over time. The 
monitoring data collected and records of operations serve as the basis 
for a source to certify compliance, and can be used by South Carolina 
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 the precursors that form them--nitrogen oxides, sulfur dioxide, 
ammonia, lead, carbon monoxide, particulate matter, and volatile 
organic compounds. Many states also

[[Page 41505]]

voluntarily report emissions of hazardous air pollutants. South 
Carolina made its latest update to the 2011 NEI on April 1, 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 2010 1-hour 
NO2 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. South 
Carolina's infrastructure SIP submission identifies air pollution 
emergency episodes and preplanned abatement strategies as outlined in 
Regulation 61-62.3, Air Pollution Episodes. S.C. Code Ann. Section 1-
23-130 provides SC DHEC with the authority to immediately promulgate 
emergency regulations if it finds an imminent peril to public health, 
safety, or welfare, or to protect or manage natural resources if it 
finds abnormal or unusual conditions, immediate need, or the state's 
best interest requires immediate promulgation of emergency regulations. 
S.C. Code Ann. Section 48-1-50(3) provides SCDHEC with the authority to 
issue orders requiring the discontinuance of the discharge of air 
contaminants into the ambient air that create an undesirable level, 
resulting in pollution in excess of applicable standards, and S.C. Code 
Ann. Section 48-1-50(4) authorizes SCDHEC to file an action in court to 
seek injunctive relief to compel compliance with the Pollution Control 
Act. EPA has made the preliminary determination that South Carolina's 
SIP and practices are adequate for emergency powers related to the 2010 
1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve 
South Carolina's infrastructure SIP submissions with respect to section 
110(a)(2)(G).
    9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in 
summary, requires each SIP to provide for revisions of such plan: (i) 
As may be necessary to take account of revisions of such national 
primary or secondary ambient air quality standard or the availability 
of improved or more expeditious methods of attaining such standard, and 
(ii) whenever the Administrator finds that the plan is substantially 
inadequate to attain the NAAQS or to otherwise comply with any 
additional applicable requirements. SC DHEC has the authority for 
adopting air quality rules and revising SIPs as needed to attain or 
maintain the NAAQS in South Carolina as indicated in South Carolina 
statute 48-1. This Section provides SC DHEC with the ability and 
authority to respond to calls for SIP revisions, and South Carolina has 
provided a number of SIP revisions over the years for implementation of 
the NAAQS. EPA has made the preliminary determination that South 
Carolina's SIP and practices adequately demonstrate a commitment to 
provide future SIP revisions related to the 2010 1-hour NO2 
NAAQS when necessary.
    10. 110(a)(2)(J) Consultation With Government Officials, Public 
Notification, and PSD and Visibility Protection: EPA is proposing to 
approve South Carolina's infrastructure SIP submission for the 2010 1-
hour NO2 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, and visibility 
protection requirements of part C of the Act. With respect to South 
Carolina's infrastructure SIP submission related to the preconstruction 
PSD permitting requirements of section 110(a)(2)(J), EPA took final 
action to approve South Carolina's April 30, 2014, 2010 1-hour 
NO2 NAAQS infrastructure SIP for these requirements on March 
18, 2015. See 80 FR 14019. EPA's rationale for its proposed action 
regarding applicable consultation requirements of section 121, the 
public notification requirements of section 127, and visibility 
protection requirements is described below.
    110(a)(2)(J) (121 Consultation)--Consultation With Government 
Officials: Section 110(a)(2)(J) of the CAA requires states to provide a 
process for consultation with local governments, designated 
organizations and federal land managers (FLMs) carrying out NAAQS 
implementation requirements pursuant to section 121 relative to 
consultation. Regulation 61-62.5(7), Prevention of Significant 
Deterioration, South Carolina statute 48-1-50(8), Powers of department, 
as well as South Carolina's Regional Haze Implementation Plan (which 
allows for consultation between appropriate state, local, and tribal 
air pollution control agencies as well as the corresponding FLMs), 
provide for consultation with government officials whose jurisdictions 
might be affected by SIP development activities. S.C. Code Section 48-
1-50(8) provides SC DHEC with the necessary authority to ``Cooperate 
with the governments of the United States or other states or state 
agencies or organizations, officials, or unofficial, in respect to 
pollution control matters or for the formulation of interstate 
pollution control compacts or agreements.'' South Carolina adopted 
state-wide consultation procedures for the implementation of 
transportation conformity. These consultation procedures include 
considerations associated with the 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 2010 1-hour NO2 NAAQS when necessary.
    110(a)(2)(J) (127 Public Notification)--Public Notification: These 
requirements are met through Regulation 61-62.3, Air Pollution 
Episodes, which requires that SC DHEC notify the public of any air 
pollution alert, warning, or emergency. The SC DHEC Web site also 
provides air quality summary data, air quality index reports and links 
to more information regarding public awareness of measures that can 
prevent such exceedances and of ways in which the public can 
participate in regulatory and other efforts to improve air quality. EPA 
has made the preliminary determination that South Carolina's SIP and 
practices adequately demonstrate the State's ability to provide public 
notification related to the 2010 1-hour NO2 NAAQS when 
necessary. Accordingly, EPA is proposing to approve South Carolina's 
infrastructure SIP submissions with respect to section 110(a)(2)(J) 
public notification.
    110(a)(2)(J)--Visibility Protection: EPA's 2013 Guidance notes that 
it does not treat the visibility protection aspects of section 
110(a)(2)(J) as applicable for purposes of the infrastructure SIP 
approval process. SC DHEC referenced its regional haze program as 
germane to the visibility component of section 110(a)(2)(J). EPA 
recognizes that states are subject to visibility protection and 
regional haze program requirements under Part C of the Act (which 
includes sections 169A and 169B). However, there are no newly 
applicable visibility protection obligations after the promulgation of 
a new or revised

[[Page 41506]]

NAAQS. Thus, EPA has determined that states do not need to address the 
visibility component of 110(a)(2)(J) in infrastructure SIP submittals 
so SC DHEC does not need to rely on its regional haze program to 
fulfill its obligations under section 110(a)(2)(J). As such, EPA has 
made the preliminary determination that South Carolina's SIP submission 
is approvable for the visibility protection element of section 
110(a)(2)(J) and that South Carolina does not need to rely on its 
regional haze program.
    11. 110(a)(2)(K) Air Quality and Modeling/Data: Section 
110(a)(2)(K) of the CAA requires that SIPs provide for performing air 
quality modeling so that effects on air quality of emissions from NAAQS 
pollutants can be predicted and submission of such data to the EPA can 
be made. Regulation 61-62.1, Definitions and General Requirements, 61-
62-5(2), Ambient Air Quality Standards, and 61-62-5(7), Prevention of 
Significant Deterioration, specify that required air modeling be 
conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on 
Air Quality Models.'' The state's permitting and reporting requirements 
provide the necessary tools to conduct, evaluate, and provide air 
quality modeling data if necessary. Also, S.C. Code Ann. Sec.  48-1-
50(14) provides SC DHEC with the necessary authority to ``Collect and 
disseminate information on air and water control.'' These standards 
demonstrate that South Carolina has the authority to perform air 
quality monitoring and provide relevant data for the purpose of 
predicting the effect on ambient air quality of the 2010 1-hour 
NO2 NAAQS. Additionally, South Carolina supports a regional 
effort to coordinate the development of emissions inventories and 
conduct regional modeling for NOX, which includes 
NO2. Taken as a whole, South Carolina's air quality 
regulations demonstrate that SC DHEC has the authority to provide 
relevant data for the purpose of predicting the effect on ambient air 
quality of the 1-hour NO2 NAAQS. EPA has made the 
preliminary determination that South Carolina's SIP and practices 
adequately demonstrate the State's ability to provide for air quality 
and modeling, along with analysis of the associated data, related to 
the 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting Fees: This element requires the owner 
or operator of each major stationary source to pay to the permitting 
authority, as a condition of any permit required under the CAA, a fee 
sufficient to cover: (i) The reasonable costs of reviewing and acting 
upon any application for such a permit, and (ii) if the owner or 
operator receives a permit for such source, the reasonable costs of 
implementing and enforcing the terms and conditions of any such permit 
(not including any court costs or other costs associated with any 
enforcement action), until such fee requirement is superseded with 
respect to such sources by the Administrator's approval of a fee 
program under title V.
    Funding for the South Carolina air permit program comes from a fees 
submitted by permit applicants under Regulation 61-30, Environmental 
Protection Fees, which 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. Also, South Carolina statute 48-2-
50, Fees, which 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. Additionally, South Carolina has a 
fully approved title V operating permit program at Regulation 61-62.70, 
Title V Operation Permit Program,\20\ that covers the cost of 
implementation and enforcement of PSD and NNSR permits after they have 
been issued. EPA has made the preliminary determination that South 
Carolina's SIP and practices adequately provide for permitting fees 
related to the 2010 NO2 NAAQS, when necessary. Accordingly, 
EPA is proposing to approve South Carolina's infrastructure SIP 
submission with respect to section 110(a)(2)(L).
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    \20\ Title V program regulations are federally-approved but not 
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/Participation by Affected Local 
Entities: This element requires states to provide for consultation and 
participation in SIP development by local political subdivisions 
affected by the SIP. Regulation 61-62.5(7), Prevention of Significant 
Deterioration, and South Carolina statutes 48-1-50(8) and 1-23-40 
authorize SC DHEC to cooperate, consult, and enter into agreements with 
other agencies of the state, the Federal government, other states, 
interstate agencies, groups, political subdivisions, and industries 
affected by the provisions of this act, rules, or policies of the 
department.'' Furthermore, SC DHEC has demonstrated consultation with, 
and participation by, affected local entities through its work with 
local political subdivisions during the development of its 
Transportation Conformity SIP and Regional Haze Implementation Plan. 
EPA has made the preliminary determination that South Carolina's SIP 
and practices adequately demonstrate consultation with affected local 
entities related to the 2010 1-hour NO2 NAAQS when 
necessary.

V. Proposed Action

    With the exception of the preconstruction PSD permitting 
requirements for major sources of section 110(a)(2)(C), prong 3 of 
(D)(i), and (J) and the interstate transport provisions pertaining to 
the contribution to nonattainment or interference with maintenance in 
other states and visibility of prongs 1, 2, and 4 of section 
110(a)(2)(D)(i), EPA is proposing to approve that South Carolina's 
April 30, 2014, infrastructure SIP submission for the 2010 1-hour 
NO2 NAAQS has met the above-described infrastructure SIP 
requirements.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
proposed action merely approves state law as meeting federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);

[[Page 41507]]

     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action for the state of South Carolina 
does not have Tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation 
is located within the State of South Carolina. Pursuant to the Catawba 
Indian Claims Settlement Act, South Carolina statute 27-16-120, ``all 
state and local environmental laws and regulations apply to the 
[Catawba Indian Nation] and Reservation and are fully enforceable by 
all relevant state and local agencies and authorities.'' However, EPA 
has determined that because this proposed rule does not have 
substantial direct effects on an Indian Tribe because, as noted above, 
this action is not approving any specific rule, but rather proposing 
that South Carolina's already approved SIP meets certain CAA 
requirements. EPA notes this 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: June 10, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-15145 Filed 6-24-16; 8:45 am]
BILLING CODE 6560-50-P
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