33380 Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules 

that South Carolina’s SIP and practices 

adequately provide for permitting fees 

related to the 1997 annual and 2006 24- 

hour PM2.5 NAAQS when necessary. 

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

participation by affected local entities: 

Regulation 61–62.5, Air Pollution 

Control Standards, Standard No. 7, 

Prevention of Significant Deterioration, 

of the South Carolina SIP requires that 

DHEC notify the public of the 

application, preliminary determination, 

degree of incremental consumption, and 

the opportunity for comment prior to 

making a final permitting decision. 

DHEC has worked closely with local 

political subdivisions when developing 

its Transportation Conformity SIP, 

Regional Haze Implementation Plan, 

Early Action Compacts, and the 8-hour 

Ozone Attainment Demonstration for 

York County, South Carolina portion of 

the Charlotte-Gastonia-Rock Hill NC–SC 

nonattainment area. EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices adequately 

demonstrate consultation with affected 

local entities when necessary. 

V. Proposed Action 

As described above, DHEC has 

addressed the elements of the CAA 

110(a)(1) and (2) SIP requirements 

pursuant to EPA’s October 2, 2007, and 

September 25, 2009, guidance to ensure 

that the 1997 annual and 2006 

24-hour PM2.5 NAAQS are 

implemented, enforced, and maintained 

in South Carolina. EPA is proposing to 

approve South Carolina’s infrastructure 

submission for the 1997 annual and 

2006 24-hour PM2.5 NAAQS, 

specifically 1997 annual and 2006 24- 

hour PM2.5 NAAQS for sections 

110(a)(2)(A)–(H), (J)–(M), with the 

exception of 110(a)(2)(C) the 

nonattainment area requirements, 

110(a)(2)(D)(i), sub-element 

110(a)(2)(E)(ii) and 110(a)(2)(G) for 

section because its March 14, 2008, and 

September 18, 2009, submissions are 

consistent with section 110 of the CAA. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive 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). 

EPA has preliminarily determined that 

this proposed rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because there are no ‘‘substantial 

direct effects’’ on an Indian Tribe as a 

result of this action. The Catawba Indian 

Nation Reservation is located within the 

South Carolina portion of the bi-state 

Charlotte nonattainment area. 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.’’ Thus, the South Carolina 

SIP applies to the Catawba Reservation. 

EPA has also preliminarily determined 

that these revisions will not impose any 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Particulate 

Matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: May 24, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–13716 Filed 6–5–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2012–0238; FRL– 9681–9] 

Approval and Promulgation of 

Implementation Plans; South Carolina; 

110(a)(1) and (2)(E) and (G) 

Infrastructure Requirements for the 

1997 and 2006 Fine Particulate Matter 

National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

a revision to the South Carolina State 

Implementation Plan (SIP), submitted 

by the South Carolina Department of 

Health and Environmental Control (SC 

DHEC), on April 3, 2012, pertaining to 

Clean Air Act (CAA) Section 

110(a)(2)(E) and (G) for the 1997 annual 

and 2006 24-hour fine particulate matter 

National Ambient Air Quality Standards 

(NAAQS). EPA is also proposing to 

approve portions of a certification 

submission provided by SC DHEC on 

March 14, 2008, to address CAA section 

110(a)(1) and (2) requirements for the 

1997 annual fine particulate matter 

(PM2.5) NAAQS, as well as portions of 

a certification submission provided on 

September 18, 2009, to address CAA 

section 110(a)(1) and (2) requirements 

for the 2006 24-hour PM2.5 NAAQS. 

Specifically, EPA is proposing action on 

two separate but related requirements 

addressed in South Carolina’s April 3, 

2012, SIP revision, and two previous 

certifications. First, South Carolina’s SIP 

revision addresses the CAA section 128 

requirements. Second, South Carolina’s 

March 14, 2008, and September 18, 

2009, certification submissions (as 

clarified in a letter on November 9, 

2009), and the State’s April 3, 2012, SIP 

revision were submitted to address 

sections 110(a)(2)(E)(ii) and 110(a)(2)(G), 

of the CAA for both the 1997 and 2006 

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Federal Register / Vol. 77, No. 109 / Wednesday, June 6, 2012 / Proposed Rules 33381 

PM2.5 NAAQS. Section 110(a) of 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 1997 and 

2006 PM2.5 NAAQS are implemented, 

enforced, and maintained in South 

Carolina (hereafter referred to as 

‘‘infrastructure submission’’). South 

Carolina’s infrastructure submissions, 

provided to EPA on April 3, 2012, 

March 14, 2008, and September 18, 

2009 (as clarified in a letter on 

November 3, 2009), as a whole, 

addressed the required infrastructure 

elements for the 1997 and 2006 PM2.5

NAAQS, however the subject of this 

notice is limited to infrastructure 

elements 110(a)(2)(E)(ii) and 

110(a)(2)(G). All other applicable South 

Carolina infrastructure elements will be 

addressed in a separate rulemaking. 

DATES: Written comments must be 

received on or before July 6, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2012–0238, by one of the 

following methods: 

1. 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– 

0238,’’ 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 to 4:30, excluding federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2012– 

0238. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit through 

www.regulations.gov or email, 

information that you consider to be CBI 

or otherwise protected. The 

www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through 

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

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

Docket: All documents in the 

electronic docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

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

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 to 4:30, 

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Sean Lakeman, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9043. 

Mr. Lakeman can be reached via 

electronic mail at 

lakeman.sean@epa.gov. 

Table of Contents 

I. Background 

II. What elements are required under sections 

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

III. Scope of Infrastructure SIPs 

IV. What is EPA’s analysis of how South 

Carolina addressed the section 128 

requirements? 

V. What is EPA’s analysis of how South 

Carolina addressed elements (E)(ii) and 

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

‘‘infrastructure’’ provisions? 

VI. Proposed Action 

VII. Statutory and Executive Order Reviews 

I. Background 

On July 18, 1997 (62 FR 36852), EPA 

established an annual PM2.5 NAAQS at 

15.0 micrograms per cubic meter (mg/ 

m3) based on a 3-year average of annual 

mean PM2.5 concentrations. At that time, 

EPA also established a 24-hour NAAQS 

of 65 mg/m3. See 40 CFR 50.7. On 

October 17, 2006 (71 FR 61144), EPA 

retained the 1997 annual PM2.5 NAAQS 

at 15.0 mg/m3 based on a 3-year average 

of annual mean PM2.5 concentrations, 

and promulgated a new 24-hour 

NAAQS of 35 mg/m3 based on a 3-year 

average of the 98th percentile of 24-hour 

concentrations. By statute, SIPs meeting 

the requirements of sections 110(a)(1) 

and (2) are to be submitted by states 

within three years after promulgation of 

a new or revised NAAQS. Sections 

110(a)(1) and (2) require 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 to EPA no later than July 2000 

for the 1997 annual PM2.5 NAAQS, and 

no later than October 2009 for the 2006 

24-hour PM2.5 NAAQS. 

On March 4, 2004, Earthjustice 

submitted a notice of intent to sue 

related to EPA’s failure to issue findings 

of failure to submit related to the 

‘‘infrastructure’’ requirements for the 

1997 annual PM2.5 NAAQS. On March 

10, 2005, EPA entered into a consent 

decree with Earthjustice which required 

EPA, among other things, to complete a 

Federal Register notice announcing 

EPA’s determinations pursuant to 

section 110(k)(1)(B) as to whether each 

state had made complete submissions to 

meet the requirements of section 

110(a)(2) for the 1997 PM2.5 NAAQS by 

October 5, 2008. In accordance with the 

consent decree, EPA made completeness 

findings for each state based upon what 

the Agency received from each state for 

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1Two 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). 

2This element is only addressed in the PM2.5

context as it relates to attainment areas. 

3Today’s proposed rule does not address element 

110(a)(2)(D)(i) (Interstate Transport) for the 1997 8- 

hour ozone NAAQS. Interstate transport 

requirements were formerly addressed by South 

Carolina consistent with the Clean Air Interstate 

Rule (CAIR). On December 23, 2008, CAIR was 

remanded by the D.C. Circuit Court of Appeals, 

without vacatur, back to EPA. See North Carolina 

v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this 

remand, EPA took final action to approve South 

Carolina’s SIP revision, which was submitted to 

comply with CAIR. See 72 FR 46388 (August 20, 

2007). In so doing, South Carolina’s CAIR SIP 

revision addressed the interstate transport 

provisions in section 110(a)(2)(D)(i) for the 1997 8- 

hour ozone NAAQS. In response to the remand of 

CAIR, EPA has promulgated a new rule to address 

the interstate transport. See 76 FR 48208 (August 

8, 2011) (‘‘the Transport Rule’’). That rule was 

recently stayed by the D.C. Circuit Court of 

Appeals. EPA’s action on element 110(a)(2)(D)(i) 

will be addressed in a separate action. 

4This requirement was inadvertently omitted 

from EPA’s October 2, 2007, memorandum entitled 

‘‘Guidance on SIP Elements Required Under 

Section 110(a)(1) and (2) for the 1997 8-Hour Ozone 

and PM2.5 National Ambient Air Quality 

Standards,’’ but as mentioned above is not relevant 

to today’s proposed rulemaking. 

the 1997 PM2.5 NAAQS as of October 3, 

2008. 

On October 22, 2008, EPA published 

a final rulemaking entitled, 

‘‘Completeness Findings for Section 

110(a) State Implementation Plans 

Pertaining to the Fine Particulate Matter 

(PM2.5) NAAQS’’ making a finding that 

each state had submitted or failed to 

submit a complete SIP that provided the 

basic program elements of section 

110(a)(2) necessary to implement the 

1997 PM2.5 NAAQS (See 73 FR 62902). 

For those states that did receive 

findings, the findings of failure to 

submit for all or a portion of a state’s 

implementation plan established a 24- 

month deadline for EPA to promulgate 

a Federal Implementation Plan (FIP) to 

address the outstanding SIP elements 

unless, prior to that time, the affected 

states submitted, and EPA approved, the 

required SIPs. 

The findings that all or portions of a 

state’s submission are complete 

established a 12-month deadline for 

EPA to take action upon the complete 

SIP elements in accordance with section 

110(k). South Carolina’s infrastructure 

submissions were received by EPA on 

March 14, 2008, for the 1997 annual 

PM2.5 NAAQS and on September 18, 

2009, for the 2006 24-hour PM2.5

NAAQS. The submissions were 

determined to be complete on 

September 14, 2008, and March 18, 

2010, respectively. South Carolina was 

among other states that did not receive 

findings of failure to submit because it 

had provided a complete submission to 

EPA to address the infrastructure 

elements for the 1997 PM2.5 NAAQS by 

October 3, 2008. 

On July 6, 2011, WildEarth Guardians 

and Sierra Club filed an amended 

complaint related to EPA’s failure to 

take action on the SIP submittal related 

to the ‘‘infrastructure’’ requirements for 

the 2006 24-hour PM2.5 NAAQS. On 

October 20, 2011, EPA entered into a 

consent decree with WildEarth 

Guardians and Sierra Club which 

required EPA, among other things, to 

complete a Federal Register notice of 

the Agency’s final action either 

approving, disapproving, or approving 

in part and disapproving in part the 

South Carolina 2006 24-hour PM2.5

NAAQS Infrastructure SIP submittal 

addressing the applicable requirements 

of sections 110(a)(2)(A)–(H), (J)–(M), 

except for section 110(a)(2)(C) the 

nonattainment area requirements and 

section 110(a)(2)(D)(i) interstate 

transport requirements, by September 

30, 2012. 

Today’s action is proposing to 

approve South Carolina’s infrastructure 

submissions for the 1997 annual and 

2006 24-hour PM2.5 NAAQS for sections 

110(a)(2)(E)(ii) and 110(a)(2)(G). 

Additionally, EPA is proposing to 

approve the April 3, 2012, SIP revision 

to address section 128 requirements. 

EPA is taking action on South Carolina’s 

infrastructure submissions for the 1997 

and 2006 PM2.5 NAAQS for sections 

110(a)(2)(A)–(D), E(i) and E(iii), (F), (H), 

(J)–(M), except for section 110(a)(2)(C) 

the nonattainment area requirements 

and section 110(a)(2)(D)(i) interstate 

transport requirements in a separate 

action. 

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 1997 and 2006 PM2.5

NAAQS, states typically have met the 

basic program elements required in 

section 110(a)(2) through earlier SIP 

submissions in connection with 

previous PM 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 the infrastructure 

rulemaking process are listed below 1

and in EPA’s October 2, 2007, 

memorandum entitled ‘‘Guidance on 

SIP Elements Required Under Section 

110(a)(1) and (2) for the 1997 8–Hour 

Ozone and PM2.5 National Ambient Air 

Quality Standards,’’ and EPA’s 

September 25, 2009, memorandum 

entitled ‘‘Guidance on SIP Elements 

Required Under Sections 110(a)(1) and 

(2) for the 2006 24–Hour Fine Particle 

(PM2.5) National Ambient Air Quality 

Standards (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): Program for 

enforcement of control measures.2

• 110(a)(2)(D): Interstate transport.3

• 110(a)(2)(E): Adequate resources. 

• 110(a)(2)(F): Stationary source 

monitoring system. 

• 110(a)(2)(G): Emergency power. 

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

• 110(a)(2)(I): Areas designated 

nonattainment and meet the applicable 

requirements of part D.4

• 110(a)(2)(J): Consultation with 

government officials; public 

notification; and PSD and visibility 

protection. 

• 110(a)(2)(K): Air quality modeling/ 

data. 

• 110(a)(2)(L): Permitting fees. 

• 110(a)(2)(M): Consultation/ 

participation by affected local entities. 

In today’s action, EPA is only 

addressing section 110(a)(2) 

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5See Comments of Midwest Environmental 

Defense Center, dated May 31, 2011. Docket # EPA– 

R05–OAR–2007–1179 (adverse comments on 

proposals for three states in Region 5). EPA notes 

that these public comments on another proposal are 

not relevant to this rulemaking and do not have to 

be directly addressed in this rulemaking. EPA will 

respond to these comments in the appropriate 

rulemaking action to which they apply. 

requirements related to sub-elements 

110(a)(2)(E)(ii) and 110(a)(2)(G) for 

South Carolina for both the 1997 and 

2006 PM2.5 NAAQS. EPA is addressing 

the other 1997 and 2006 PM2.5 NAAQS 

infrastructure requirements in a separate 

rulemaking. 

III. Scope of Infrastructure SIPs 

EPA is currently acting upon SIPs that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for 

ozone and PM2.5 NAAQS for various 

states across the country. Commenters 

on EPA’s recent proposals for some 

states raised concerns about EPA 

statements that it was not addressing 

certain substantive issues in the context 

of acting on those infrastructure SIP 

submissions.5 Those Commenters 

specifically raised concerns involving 

provisions in existing SIPs and with 

EPA’s statements in other proposals that 

it would address two issues separately 

and not as part of actions on the 

infrastructure SIP submissions: (i) 

Existing provisions related to excess 

emissions during periods of start-up, 

shutdown, or malfunction at sources, 

that may be contrary to the CAA and 

EPA’s policies addressing such excess 

emissions (SSM); and (ii) existing 

provisions related to ‘‘director’s 

variance’’ or ‘‘director’s discretion’’ that 

purport to permit revisions to SIP 

approved emissions limits with limited 

public process or without requiring 

further approval by EPA, that may be 

contrary to the CAA (director’s 

discretion). EPA notes that there are two 

other substantive issues for which EPA 

likewise stated in other proposals that it 

would address separately: (i) Existing 

provisions for minor source new source 

review programs that may be 

inconsistent with the requirements of 

the CAA and EPA’s regulations that 

pertain to such programs (minor source 

NSR); and (ii) 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). In light of the comments, EPA 

believes that its statements in various 

proposed actions on infrastructure SIPs 

with respect to these four individual 

issues should be explained in greater 

depth. It is important to emphasize that 

EPA is taking the same position with 

respect to these four substantive issues 

in this action on the infrastructure SIPs 

for the 1997 and 2006 PM2.5 NAAQS 

from South Carolina. 

EPA intended the statements in the 

other proposals concerning these four 

issues merely to be informational, and 

to provide general notice of the 

potential existence of provisions within 

the existing SIPs of some states that 

might require future corrective action. 

EPA did not want states, regulated 

entities, or members of the public to be 

under the misconception that the 

Agency’s approval of the infrastructure 

SIP submission of a given state should 

be interpreted as a re-approval of certain 

types of provisions that might exist 

buried in the larger existing SIP for such 

state. Thus, for example, EPA explicitly 

noted that the Agency believes that 

some states may have existing SIP 

approved SSM provisions that are 

contrary to the CAA and EPA policy, 

but that ‘‘in this rulemaking, EPA is not 

proposing to approve or disapprove any 

existing state provisions with regard to 

excess emissions during SSM of 

operations at facilities.’’ EPA further 

explained, for informational purposes, 

that ‘‘EPA plans to address such State 

regulations in the future.’’ EPA made 

similar statements, for similar reasons, 

with respect to the director’s discretion, 

minor source NSR, and NSR Reform 

issues. EPA’s objective was to make 

clear that approval of an infrastructure 

SIP for these ozone and PM2.5 NAAQS 

should not be construed as explicit or 

implicit re-approval of any existing 

provisions that relate to these four 

substantive issues. EPA is reiterating 

that position in this action on the 

infrastructure SIP for South Carolina. 

Unfortunately, the Commenters and 

others evidently interpreted these 

statements to mean that EPA considered 

action upon the SSM provisions and the 

other three substantive issues to be 

integral parts of acting on an 

infrastructure SIP submission, and 

therefore that EPA was merely 

postponing taking final action on the 

issues in the context of the 

infrastructure SIPs. This was not EPA’s 

intention. To the contrary, EPA only 

meant to convey its awareness of the 

potential for certain types of 

deficiencies in existing SIPs, and to 

prevent any misunderstanding that it 

was reapproving any such existing 

provisions. EPA’s intention was to 

convey its position that the statute does 

not require that infrastructure SIPs 

address these specific substantive issues 

in existing SIPs and that these issues 

may be dealt with separately, outside 

the context of acting on the 

infrastructure SIP submission of a state. 

To be clear, EPA did not mean to imply 

that it was not taking a full final agency 

action on the infrastructure SIP 

submission with respect to any 

substantive issue that EPA considers to 

be a required part of acting on such 

submissions under section 110(k) or 

under section 110(c). Given the 

confusion evidently resulting from 

EPA’s statements in those other 

proposals, however, we want to explain 

more fully the Agency’s reasons for 

concluding that these four potential 

substantive issues in existing SIPs may 

be addressed separately from actions on 

infrastructure SIP submissions. 

The requirement for the SIP 

submissions at issue arises out of CAA 

section 110(a)(1). That provision 

requires that states must make a SIP 

submission ‘‘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 

that these SIPs are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. Section 

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

elements that ‘‘[e]ach such plan’’ 

submission must meet. EPA has 

historically referred to these particular 

submissions that states must make after 

the promulgation of a new or revised 

NAAQS as ‘‘infrastructure SIPs.’’ This 

specific term does not appear in the 

statute, but EPA uses the term to 

distinguish this particular type of SIP 

submission designed to address basic 

structural requirements of a SIP from 

other types of SIP submissions designed 

to address other different requirements, 

such as ‘‘nonattainment SIP’’ 

submissions required to address the 

nonattainment planning requirements of 

part D, ‘‘regional haze SIP’’ submissions 

required to address the visibility 

protection requirements of CAA section 

169A, NSR permitting program 

submissions required to address the 

requirements of part D, and a host of 

other specific types of SIP submissions 

that address other specific matters. 

Although section 110(a)(1) addresses 

the timing and general requirements for 

these infrastructure SIPs, and section 

110(a)(2) provides more details 

concerning the required contents of 

these infrastructure SIPs, EPA believes 

that many of the specific statutory 

provisions are facially ambiguous. In 

particular, 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 provisions, and 

some of which pertain to requirements 

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6For example, section 110(a)(2)(E) 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 substantive program to 

address certain sources as required by part C of the 

CAA; section 110(a)(2)(G) provides that states must 

have both legal authority to address emergencies 

and substantive contingency plans in the event of 

such an emergency. 

7For example, section 110(a)(2)(D)(i) requires 

EPA to be sure that each state’s SIP contains 

adequate provisions to prevent significant 

contribution to nonattainment of the NAAQS in 

other states. This provision contains numerous 

terms that require substantial rulemaking by EPA in 

order to determine such basic points as what 

constitutes significant contribution. See ‘‘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 (May 12, 

2005) (defining, among other things, the phrase 

‘‘contribute significantly to nonattainment’’). 

8See Id., 70 FR 25162, at 63–65 (May 12, 2005) 

(explaining relationship between timing 

requirement of section 110(a)(2)(D) versus section 

110(a)(2)(I)). 

9EPA issued separate guidance to states with 

respect to SIP submissions to meet section 

110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5

NAAQS. See ‘‘Guidance for State Implementation 

Plan (SIP) Submissions to Meet Current 

Outstanding Obligations Under Section 

110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5

National Ambient Air Quality Standards,’’ from 

William T. Harnett, Director Air Quality Policy 

Division OAQPS, to Regional Air Division Director, 

Regions I–X, dated August 15, 2006. 

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. 

11See ‘‘Guidance on SIP Elements Required 

Under Section 110(a)(1) and (2) for the 1997 8-hour 

Ozone and PM2.5 National Ambient Air Quality 

Standards,’’ from William T. Harnett, Director Air 

Quality Policy Division, to Air Division Directors, 

Regions I–X, dated October 2, 2007 (the ‘‘2007 

Guidance’’). 

12 Id., at page 2. 

13 Id., at attachment A, page 1. 

14 Id., at page 4. In retrospect, the concerns raised 

by commenters with respect to EPA’s approach to 

some substantive issues indicates that the statute is 

not so ‘‘self explanatory,’’ and indeed is sufficiently 

ambiguous that EPA needs to interpret it in order 

to explain why these substantive issues do not need 

to be addressed in the context of infrastructure SIPs 

and may be addressed at other times and by other 

means. 

for both authority and substantive 

provisions.6 Some of the elements of 

section 110(a)(2) are relatively 

straightforward, but others clearly 

require interpretation by EPA through 

rulemaking, or recommendations 

through guidance, in order to give 

specific meaning for a particular 

NAAQS.7

Notwithstanding that section 110(a)(2) 

provides that ‘‘each’’ SIP submission 

must meet the list of requirements 

therein, EPA has long noted that this 

literal reading of the statute is internally 

inconsistent, insofar as section 

110(a)(2)(I) pertains to nonattainment 

SIP requirements that could not be met 

on the schedule provided for these SIP 

submissions in section 110(a)(1).8 This 

illustrates that EPA must determine 

which provisions of section 110(a)(2) 

may be applicable for a given 

infrastructure SIP submission. 

Similarly, EPA has previously decided 

that it could take action on different 

parts of the larger, general 

‘‘infrastructure SIP’’ for a given NAAQS 

without concurrent action on all 

subsections, such as section 

110(a)(2)(D)(i), because the Agency 

bifurcated the action on these latter 

‘‘interstate transport’’ provisions within 

section 110(a)(2) and worked with states 

to address each of the four prongs of 

section 110(a)(2)(D)(i) with substantive 

administrative actions proceeding on 

different tracks with different 

schedules.9 This illustrates that EPA 

may conclude that subdividing the 

applicable requirements of section 

110(a)(2) into separate SIP actions may 

sometimes be appropriate for a given 

NAAQS where a specific substantive 

action is necessitated, beyond a mere 

submission addressing basic structural 

aspects of the state’s implementation 

plans. Finally, 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 and the attendant infrastructure 

SIP submission for that NAAQS. For 

example, the monitoring requirements 

that might be necessary for purposes of 

section 110(a)(2)(B) for one NAAQS 

could be very different than what might 

be necessary for a different pollutant. 

Thus, the content of an infrastructure 

SIP submission to meet this element 

from a state might be very different for 

an entirely new NAAQS, versus a minor 

revision to an existing NAAQS.10

Similarly, EPA notes that other types 

of SIP submissions required under the 

statute also must meet the requirements 

of section 110(a)(2), and this also 

demonstrates the need to identify the 

applicable elements for other SIP 

submissions. For example, 

nonattainment SIPs required by part D 

likewise have to meet the relevant 

subsections of section 110(a)(2) such as 

section 110(a)(2)(A) or (E). By contrast, 

it is clear that nonattainment SIPs 

would not need to meet the portion of 

section 110(a)(2)(C) that pertains to part 

C, i.e., the PSD requirements applicable 

in attainment areas. Nonattainment SIPs 

required by part D also would not need 

to address the requirements of section 

110(a)(2)(G) with respect to emergency 

episodes, as such requirements would 

not be limited to nonattainment areas. 

As this example illustrates, each type of 

SIP submission may implicate some 

subsections of section 110(a)(2) and not 

others. 

Given the potential for ambiguity of 

the statutory language of section 

110(a)(1) and (2), EPA believes that it is 

appropriate for EPA to interpret that 

language in the context of acting on the 

infrastructure SIPs for a given NAAQS. 

Because of the inherent ambiguity of the 

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

EPA has adopted an approach in which 

it reviews infrastructure SIPs against 

this list of elements ‘‘as applicable.’’ In 

other words, EPA assumes that Congress 

could not have intended that each and 

every SIP submission, regardless of the 

purpose of the submission or the 

NAAQS in question, would meet each 

of the requirements, or meet each of 

them in the same way. EPA elected to 

use guidance to make recommendations 

for infrastructure SIPs for these ozone 

and PM2.5 NAAQS. 

On October 2, 2007, EPA issued 

guidance making recommendations for 

the infrastructure SIP submissions for 

both the 1997 8-hour ozone NAAQS and 

the 1997 PM2.5 NAAQS.11 Within this 

guidance document, EPA described the 

duty of states to make these submissions 

to meet what the Agency characterized 

as the ‘‘infrastructure’’ elements for 

SIPs, which it further described as the 

‘‘basic SIP requirements, including 

emissions inventories, monitoring, and 

modeling to assure attainment and 

maintenance of the standards.’’ 12 As 

further identification of these basic 

structural SIP requirements, 

‘‘attachment A’’ to the guidance 

document included a short description 

of the various elements of section 

110(a)(2) and additional information 

about the types of issues that EPA 

considered germane in the context of 

such infrastructure SIPs. EPA 

emphasized that the description of the 

basic requirements listed on attachment 

A was not intended ‘‘to constitute an 

interpretation of’’ the requirements, and 

was merely a ‘‘brief description of the 

required elements.’’ 13 EPA also stated 

its belief that with one exception, these 

requirements were ‘‘relatively self 

explanatory, and past experience with 

SIPs for other NAAQS should enable 

States to meet these requirements with 

assistance from EPA Regions.’’ 14

However, for the one exception to that 

general assumption (i.e., how states 

should proceed with respect to the 

requirements of section 110(a)(2)(G) for 

the 1997 PM2.5 NAAQS), EPA gave 

much more specific recommendations. 

But for other infrastructure SIP 

submittals, and for certain elements of 

the submittals for the 1997 PM2.5

NAAQS, EPA assumed that each State 

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15See ‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 2006 24- 

Hour Fine Particle (PM2.5) National Ambient Air 

Quality Standards (NAAQS),’’ from William T, 

Harnett, Director Air Quality Policy Division, to 

Regional Air Division Directors, Regions I–X, dated 

September 25, 2009 (the ‘‘2009 Guidance’’). 

16EPA has recently issued a SIP call to rectify a 

specific SIP deficiency related to the SSM issue. 

See, ‘‘Finding of Substantial Inadequacy of 

Implementation Plan; Call for Utah State 

Implementation Plan Revision,’’ 76 FR 21639 (April 

18, 2011). 

17EPA has recently utilized 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 EmittingSources in State Implementation Plans; Final Rule,’’ 

75 FR 82536 (December 30, 2010). EPA has 

previously used its authority under CAA 110(k)(6) 

to remove numerous other SIP provisions that the 

Agency determined it had approved in error. See 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). 

18EPA has recently disapproved 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 75 FR 42342, 42344 (July 

21, 2010) (proposed disapproval of director’s 

discretion provisions); 76 FR 4540 (January 26, 

2011) (final disapproval of such provisions). 

would work with its corresponding EPA 

regional office to refine the scope of a 

State’s submittal based on an 

assessment of how the requirements of 

section 110(a)(2) should reasonably 

apply to the basic structure of the State’s 

implementation plans for the NAAQS in 

question. 

On September 25, 2009, EPA issued 

guidance to make recommendations to 

states with respect to the infrastructure 

SIPs for the 2006 PM2.5 NAAQS.15 In the 

2009 Guidance, EPA addressed a 

number of additional issues that were 

not germane to the infrastructure SIPs 

for the 1997 8-hour ozone and 1997 

PM2.5 NAAQS, but were germane to 

these SIP submissions for the 2006 

PM2.5 NAAQS (e.g., the requirements of 

section 110(a)(2)(D)(i) that EPA had 

bifurcated from the other infrastructure 

elements for those specific 1997 ozone 

and PM2.5 NAAQS). Significantly, 

neither the 2007 Guidance nor the 2009 

Guidance explicitly referred to the SSM, 

director’s discretion, minor source NSR, 

or NSR Reform issues as among specific 

substantive issues EPA expected states 

to address in the context of the 

infrastructure SIPs, nor did EPA give 

any more specific recommendations 

with respect to how states might address 

such issues even if they elected to do so. 

The SSM and director’s discretion 

issues implicate section 110(a)(2)(A), 

and the minor source NSR and NSR 

Reform issues implicate section 

110(a)(2)(C). In the 2007 Guidance and 

the 2009 Guidance, however, EPA did 

not indicate to states that it intended to 

interpret these provisions as requiring a 

substantive submission to address these 

specific issues in existing SIP provisions 

in the context of the infrastructure SIPs 

for these NAAQS. Instead, EPA’s 2007 

Guidance merely indicated its belief 

that the states should make submissions 

in which they established that they have 

the basic SIP structure necessary to 

implement, maintain, and enforce the 

NAAQS. EPA believes that states can 

establish that they have the basic SIP 

structure, notwithstanding that there 

may be potential deficiencies within the 

existing SIP. Thus, EPA’s proposals for 

other states mentioned these issues not 

because the Agency considers them 

issues that must be addressed in the 

context of an infrastructure SIP as 

required by section 110(a)(1) and (2), 

but rather because EPA wanted to be 

clear that it considers these potential 

existing SIP problems as separate from 

the pending infrastructure SIP actions. 

The same holds true for this action on 

the infrastructure SIPs for South 

Carolina. 

EPA believes that this approach to the 

infrastructure SIP requirement is 

reasonable because it would not be 

feasible to read section 110(a)(1) and (2) 

to require a top to bottom, stem to stern, 

review of each and every provision of an 

existing SIP 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 that, 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 considers the overall 

effectiveness of the SIP. To the contrary, 

EPA believes that a better approach is 

for EPA to determine which specific SIP 

elements from section 110(a)(2) are 

applicable to an infrastructure SIP for a 

given NAAQS, and to focus attention on 

those elements that are most likely to 

need a specific SIP revision in light of 

the new or revised NAAQS. Thus, for 

example, EPA’s 2007 Guidance 

specifically directed states to focus on 

the requirements of section 110(a)(2)(G) 

for the 1997 PM2.5 NAAQS because of 

the absence of underlying EPA 

regulations for emergency episodes for 

this NAAQS and an anticipated absence 

of relevant provisions in existing SIPs. 

Finally, EPA believes that its 

approach is a reasonable reading of 

section 110(a)(1) and (2) because the 

statute provides other avenues and 

mechanisms to address specific 

substantive deficiencies in existing SIPs. 

These other statutory tools allow the 

Agency to take appropriate 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 SIP is 

substantially inadequate to attain or 

maintain the NAAQS, to mitigate 

interstate transport, or otherwise to 

comply with the CAA.16 Section 

110(k)(6) authorizes EPA to correct 

errors in past actions, such as past 

approvals of SIP submissions.17

Significantly, EPA’s determination that 

an action on the infrastructure SIP is not 

the appropriate time and place to 

address all potential existing SIP 

problems does not preclude the 

Agency’s subsequent reliance on 

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

the basis for action 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 the infrastructure 

SIP, EPA believes that section 

110(a)(2)(A) may be among the statutory 

bases that the Agency cites in the course 

of addressing the issue in a subsequent 

action.18

IV. What is EPA’s analysis of how 

South Carolina addressed the section 

128 requirements? 

Section 128 of the CAA requires that 

states include provisions in their SIP to 

address conflict interest for state boards 

that oversee CAA permits and 

enforcement orders. Specifically, CAA 

section 128 reads as follows: 

(a) Not later than the date one year 

after August 7, 1977, each applicable 

implementation plan shall contain 

requirements that— 

(1) Any board or body which approves 

permits or enforcement orders under 

this chapter shall have at least a 

majority of members who represent the 

public interest and do not derive any 

significant portion of their income from 

persons subject to permits or 

enforcement orders under this chapter, 

and 

(2) Any potential conflicts of interest 

by members of such board or body or 

the head of an executive agency with 

similar powers be adequately disclosed. 

A State may adopt any requirements 

respecting conflicts of interest for such 

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19On November 12, 1993, South Carolina 

submitted a package addressing the requirements of 

section 507 of the CAA and 40 CFR 70. As provided 

in the Attorney General’s November 5, 1993 

opinion on the title V submission, South Carolina 

included a specific reference to the state laws and 

regulations that addressed CAA section 128 

requirements. Specifically, while EPA approved the 

delegation title V permitting authority, effective 

July 26, 1995 (40 CFR 70 Appendix A), EPA did not 

receive this as a SIP revision and as such has not 

yet approved the state statues that related to CAA 

section 128 into the South Carolina SIP. 20S.C. Code Ann. Section 8–13–700 (2011). 

boards or bodies or heads of executive 

agencies, or any other entities which are 

more stringent than the requirements 

submitted as part of an implementation 

plan. 

During the evaluation of South 

Carolina’s SIP in regards to EPA’s 

pending action on the State’s March 14, 

2008, and September 18, 2009 (as 

clarified on November 3, 2009), 

infrastructure submissions related to the 

section 110(a)(2)(E)(ii) sub-elements for 

the 1997 and 2006 PM2.5 NAAQS, EPA 

noted that the State’s implementation 

plan did not include provisions to 

address CAA 128 requirements. EPA 

alerted the State to this missing 

component of its implementation plan, 

and as a result, South Carolina provided 

the April 3, 2012, SIP revision to 

address the section 128 requirements. 

South Carolina’s April 3, 2012, SIP 

revision, proposes to include existing 

state statues to meet the requirements of 

section 128. Specifically, South Carolina 

is requesting that EPA approve portions 

of South Carolina’s Ethics Reform Act 

into the South Carolina SIP to address 

section 128 requirements.19 The State 

provides that the Ethics Reform Act 

satisfies the requirements of CAA 

section 128 for the SC DHEC Board, 

which is the ‘‘board or body which 

approves permits and enforcement 

orders’’ under the CAA in South 

Carolina. S.C. Code Ann. Section 8–13– 

100(31) defines ‘‘State board, 

commission, or council * * * [as] an 

agency created by legislation which has 

statewide jurisdiction and which 

exercises some of the sovereign power 

of the State.’’ South Carolina proposes 

that the aforementioned definition in 

conjunction with three sections of the 

Ethics Reform Act meet the CAA section 

110(a)(1) requirements. These three 

sections are as follows: 

(1) 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.’’ 

(2) S.C. Code Ann. Section 8–13– 

700(A) 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.’’ 

(3) S.C. Code Ann Section 8–13– 

700(B) provides in part that ‘‘[n]o public 

official, public member, or public 

employee may make, participate in 

making, or in any way attempt to use his 

official office, membership, or 

employment to influence a 

governmental decision in which he, a 

member of his immediate family, an 

individual with whom he is associated, 

or a business with which he is 

associated has an economic interest.’’ 

South Carolina asserts that S.C. Code 

Ann. Section 8–13–700(B)(1)–(5) 

provides for disclosure of any conflicts 

of interest by public official, public 

members or public employee, which 

meets the requirement of CAA section 

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

interest * * * be adequately disclosed.’’ 

As mentioned in South Carolina’s April 

3, 2012, SIP revision, the South Carolina 

Attorney General concluded in an 

Opinion dated November 5, 1993, that 

the South Carolina Ethics, Government 

Accountability and Campaign Reform 

Act of 1991 (‘‘Ethics Reform Act’’) 20 in 

effect met the requirements of CAA 

section 128. This document can be 

accessed at www.regulations.gov using 

Docket ID No. EPA–R04–OAR–2012– 

0238. 

Today, EPA is proposing to approve 

S.C. Code Ann. Sections 8–13–100(31), 

8–13–730, 8–13–700(A) and 8–13– 

700(B)(1)–(5) into the South Carolina’s 

SIP as meeting the requirements of 

section 128 of the CAA. This proposed 

approval supports EPA’s proposed 

approval of the section 110(a)(2)(E)(ii) 

for South Carolina’s infrastructure 

submissions for the 1997 and 2006 

PM2.5 NAAQS as discussed below. 

V. What is EPA’s analysis of how South 

Carolina addressed elements (E)(ii) and 

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

‘‘infrastructure’’ provisions? 

The South Carolina infrastructure 

submissions address the provisions of 

sections 110(a)(1) and (2) with respect to 

elements (E)(ii) and (G), as described 

below. 

1. 110(a)(2)(E) Adequate resources: 

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. In today’s 

action, EPA is proposing to approve 

South Carolina’s SIP as meeting the 

requirements of section 110(a)(2)(E)(ii) 

(which is one of the three sub-elements 

required pursuant to section 

110(a)(2)(E)) as described in South 

Carolina’s certification submissions 

dated March 14, 2008, for the 1997 

PM2.5 NAAQS, and September 18, 2009, 

for the 2006 PM2.5 NAAQS. See Section 

IV of this proposed rulemaking for 

EPA’s analysis of South Carolina’s SIP 

revision to address CAA section 128 

requirements. EPA has made the 

preliminary determination that the 

South Carolina SIP will meet the section 

128 requirements for implementation of 

the 1997 and 2006 PM2.5 NAAQS once 

the proposed revisions discussed above 

in section IV have been adopted into the 

South Carolina SIP. EPA is taking action 

on 110(a)(2)(E)(i) and 110(a)(2)(E)(iii) as 

it relates to South Carolina in 

certification submissions dated March 

14, 2008, for the 1997 PM2.5 NAAQS, 

and September 18, 2009, for the 2006 

PM2.5 NAAQS in a separate rulemaking. 

2. 110(a)(2)(G) Emergency episodes: 

Section 110(a)(2)(G) requires states to 

provide for authority to address 

activities causing imminent and 

substantial endangerment to public 

health, including contingency plans to 

implement the emergency episode 

provisions in their SIPs. The Executive 

Director of the SC DHEC is empowered 

by the South Carolina Code to respond 

to air pollution episodes and other air 

quality and the SC DHEC has 

contingency plans to implement 

emergency episode provisions in the 

SIP. On September 25, 2009, EPA 

released the guidance entitled 

‘‘Guidance on SIP Elements Required 

Under Sections 110(a)(1) and (2) for the 

2006 24-Hour Fine Particulate (PM2.5) 

National Ambient Air Quality Standards 

(NAAQS).’’ This guidance clarified that 

‘‘to address the section 110(a)(2)(G) 

element, states with air quality control 

regions identified as either Priority I, IA, 

or Priority II by the ‘Prevention of Air 

Pollution Emergency Episodes’ rule at 

40 CFR 51.150, must develop emergency 

episode contingency plans.’’ EPA’s 

September 25, 2009, guidance also 

states that ‘‘until the Agency finalized 

changes to the emergency episode 

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21As discussed in section V.1 above, EPA’s 

proposed approval the section 110(a)(2)(E)(ii) subelement is contingent upon the Agency taking final 

action to approve today’s proposed substantive 

revisions to the South Carolina SIP discussed in 

section IV to address the requirements of CAA 

section 128. 

regulation to establish for PM2.5 specific 

levels for classifying areas as Priority I, 

IA, or II for PM2.5, and to establish a 

significant harm level (SHL) * * *,’’ the 

Agency recommends that states with a 

24-Hour PM2.5 concentration above 140 

mg/m3 (using the most recent three years 

of data) develop an emergency episode 

plan. 

On March 14, 2008, and September 

18, 2009, SC DHEC submitted 

certifications that its SIP adequately 

addressed the section 110(a)(2)(G) 

requirements for the 1997 and 2006 

PM2.5 NAAQS. On November 3, 2009, 

following EPA’s release of the 

September 25, 2009, guidance, South 

Carolina submitted a clarification to the 

South Carolina Fine Particulate Matter 

Air Quality Implementation Plan: CAA 

110(a)(2)(G) requirements for the 1997 

PM2.5 and 2006 PM2.5 NAAQS. South 

Carolina had not previously public 

noticed its certification submissions 

with regard to 110(a)(2)(G) for the PM2.5

NAAQS, so on April 3, 2012, South 

Carolina submitted a SIP revision to 

address the 110(a)(2)(G) requirements 

for the PM2.5 NAAQS and provided 

public notice for this element. 

EPA has reviewed South Carolina’s 

April 3, 2012, SIP revision and has 

made the preliminary determination, 

that this SIP revision, and in 

combination with South Carolina’s 

March 14, 2008, and September 8, 2009 

(as clarified on November 3, 2009), 

would meet the requirements of 

110(a)(2)(G). First, EPA has determined 

that the 2008–2010 ambient air quality 

monitoring data for South Carolina do 

not exceed 140.0 mg/m3 (the State’s 

PM2.5 levels have consistently remained 

below the 140.0 mg/m3 level). Second, 

the State has appropriate general 

emergency powers to address PM2.5

related episodes to protect the 

environment and public health. Given 

the State’s monitored PM2.5 levels, EPA 

is proposing that South Carolina is not 

required to submit an emergency 

episode plan and contingency measures 

at this time, for the 1997 and 2006 PM2.5

standards. As a result, EPA is proposing 

to approve South Carolina’s 

infrastructure submissions for the 1997 

and 2006 PM2.5 NAAQS as these 

submissions related to the section 

110(a)(2)(G) requirement. EPA has made 

the preliminary determination that 

South Carolina’s SIP and practices are 

adequate for emergency powers related 

to the 1997 and 2006 PM2.5 NAAQS. 

VI. Proposed Action 

As described above, EPA is proposing 

to approve South Carolina’s April 3, 

2012, SIP revision to incorporate 

provisions into the South Carolina SIP 

to address section 128 requirements of 

the CAA. In today’s rulemaking, EPA is 

also proposing to approve portions of a 

certification submission provided by SC 

DHEC on March 14, 2008, to address 

infrastructure requirements for the 1997 

PM2.5 NAAQS, and to approve portions 

of a certification submission provided 

on September 18, 2009, to address 

infrastructure requirements for the 2006 

PM2.5 NAAQS. Specifically, EPA is 

proposing to approve infrastructure 

elements 110(a)(2)(E)(ii) and 

110(a)(2)(G) of South Carolina’s March 

15, 2008, and September 19, 2009 (as 

clarified on November 3, 2009), 

infrastructure submissions because they 

are consistent with section 110 of the 

CAA.21

VII. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this proposed 

action merely approves state law as 

meeting federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. For 

that reason, this proposed action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

EPA has preliminarily determined that 

this proposed rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), because there are no ‘‘substantial 

direct effects’’ on an Indian Tribe as a 

result of this action. The Catawba Indian 

Nation Reservation is located within the 

South Carolina portion of the bi-state 

Charlotte nonattainment area. 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.’’ Thus, the South Carolina 

SIP applies to the Catawba Reservation. 

EPA has also preliminarily determined 

that these revisions will not impose any 

substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Nitrogen dioxide, Particulate 

Matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: May 24, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–13714 Filed 6–5–12; 8:45 am] 

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