67398 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

qualified operator may use the tax credit 

to offset payment of or liability for the 

special reclamation tax for the tax year 

or carry it forward for use in future tax 

years until no credit is remaining. 

CSR 110–29–6 contains general 

procedures to claim and administer the 

tax credit. The qualified operator must 

provide complete and accurate forms 

and other information to claim the tax 

credit. In addition, the qualified 

operator must maintain records to verify 

the validity of the tax credit and the 

amount of tax credit claimed. Finally, 

the Tax Commissioner has the authority 

to audit the qualified operator. 

All of the proposed State tax credit 

requirements identified above are 

intended to conform to the Federal 

requirements of 30 CFR 800.50 and 

sections 509 and 519 of SMCRA. 

IV. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the amendment 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the West Virginia program. 

Written Comments 

Send your written comments to 

OSMRE at one of the addresses given 

above. Your written comments should 

be specific, pertain only to the issues 

proposed in this rulemaking, and 

include explanations in support of your 

recommendations. We may not consider 

or respond to your comments when 

developing the final rule if they are 

received after the close of the comment 

period (see DATES) or sent to an address 

other than those listed above (see 

ADDRESSES). 

Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

V. Procedural Determinations 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Other Laws and Executive Orders 

Affecting Rulemaking 

When a State submits a program 

amendment to OSMRE for review, our 

regulations at 30 CFR 732.17(h) require 

us to publish a notice in the Federal 

Register indicating receipt of the 

proposed amendment, its text or a 

summary of its terms, and an 

opportunity for public comment. We 

conclude our review of the proposed 

amendment after the close of the public 

comment period and determine whether 

the amendment should be approved, 

approved in part, or not approved. At 

that time, we will also make the 

determinations and certifications 

required by the various laws and 

executive orders governing the 

rulemaking process and include them in 

the final rule. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: September 12, 2014. 

Thomas D. Shope, 

Regional Director, Appalachian Region. 

[FR Doc. 2014–26659 Filed 11–12–14; 8:45 am] 

BILLING CODE 4310–05–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2014–0610; FRL–9919–08– 

Region 4] 

Approval and Promulgation of 

Implementation Plans; Region 4 

States; 2008 Lead, 2008 Ozone and 

2010 Nitrogen Dioxide Prevention of 

Significant Deterioration Infrastructure 

Plans 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

portions of submissions from Alabama, 

Florida, Georgia, Kentucky, Mississippi, 

South Carolina and Tennessee for 

inclusion into each State’s 

implementation plan. This proposal 

pertains to the Clean Air Act (CAA or 

Act) infrastructure requirements for the 

2008 Lead, 2008 Ozone and 2010 

Nitrogen Dioxide (NO2) National 

Ambient Air Quality Standards 

(NAAQS). The CAA requires that each 

state adopt and submit a state 

implementation plan (SIP) for the 

implementation, maintenance, and 

enforcement of each NAAQS 

promulgated by EPA. These plans are 

commonly referred to as 

‘‘infrastructure’’ SIPs (hereafter referred 

to as ‘‘infrastructure SIP submissions’’). 

Specifically, EPA is proposing to 

approve the portions of the submissions 

from Alabama, Florida, Georgia, 

Kentucky, Mississippi, South Carolina 

and Tennessee that relate to the 

infrastructure SIP prevention of 

significant deterioration (PSD) 

requirements. All other applicable 

infrastructure requirements for the 2008 

Lead, 2008 Ozone and 2010 NO2

NAAQS associated with these States are 

being addressed in separate 

rulemakings. 

DATES: Written comments must be 

received on or before December 15, 

2014. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2014–0610, 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–2014– 

0610,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

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

federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R04–OAR–2014– 

0610. 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 


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1On May 19, 2014, EPA took final action to 

approve Florida’s December 19, 2013, SIP revision 

to adopt the Greenhouse Gas (GHG) Tailoring Rule 

into the Florida SIP. See 79 FR 28607. See Section 

V below for more detailed information. 

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 a.m. to 

4:30 p.m., 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. 

SUPPLEMENTARY INFORMATION: 

I. Background 

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 to provide for the 

implementation, maintenance, and 

enforcement of the new or revised 

NAAQS. 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. 

Sections 110(a)(1) and (2) require states 

to address basic SIP elements such as 

for monitoring, basic program 

requirements and legal authority that 

are designed to assure attainment and 

maintenance of the newly established or 

revised NAAQS. More specifically, 

section 110(a)(1) provides the 

procedural and timing requirements for 

SIPs. Section 110(a)(2) lists specific 

elements that states must meet for the 

‘‘infrastructure’’ SIP requirements 

related to a newly established or revised 

NAAQS. The contents of an 

infrastructure SIP submission may vary 

depending upon the data and analytical 

tools available to the state, as well as the 

provisions already contained in the 

state’s implementation plan at the time 

in which the state develops and submits 

the submission for a new or revised 

NAAQS. 

Through this action, EPA is proposing 

approval of the PSD requirements of 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) 

(prong 3) and 110(a)(2)(J) (hereafter 

‘‘PSD Elements’’) for various 

infrastructure SIP submissions from the 

states of Alabama, Florida, Georgia, 

Kentucky, Mississippi, South Carolina 

and Tennessee. As described further 

below, for some of these states, EPA is 

proposing approval of the PSD Elements 

in the infrastructure SIP submissions for 

the 2008 Lead, 2008 Ozone and 2010 

NO2 NAAQS; whereas for other states, 

EPA is only proposing approval of the 

PSD Elements of the infrastructure SIP 

submissions for a subset of these 

NAAQS. All other applicable 

infrastructure requirements for the 2008 

Lead, 2008 Ozone and 2010 NO2

NAAQS associated with these States are 

being addressed in separate 

rulemakings. 

A brief background regarding the 

NAAQS relevant to today’s proposal is 

provided below. For comprehensive 

information on these NAAQS, please 

refer to the Federal Register 

rulemakings cited below. 

a. 2008 Lead NAAQS 

On October 5, 1978, EPA promulgated 

a revised NAAQS for Lead under 

section 109 of the Act. See 43 FR 46246. 

The Lead standard was set at a level of 

1.5 micrograms per cubic meter (mg/m3), 

measured as Lead in total suspended 

particulate matter (Pb-TSP), not to be 

exceeded by the maximum arithmetic 

mean concentration averaged over a 

calendar quarter. This standard was 

based on the 1977 Air Quality Criteria 

for Lead. On November 12, 2008 (75 FR 

81126), EPA issued a final rule to revise 

the Lead NAAQS. The Lead NAAQS 

was revised to 0.15 mg/m3. States were 

required to submit infrastructure SIP 

submissions to EPA no later than 

October 15, 2011, for the 2008 Lead 

NAAQS. 

For the 2008 Lead NAAQS, EPA is 

only addressing the PSD Elements of the 

infrastructure SIP submissions from 

Alabama (received November 4, 2011), 

Florida (received October 14, 2011), 

Georgia (received May 14, 2012), 

Kentucky (received July 17, 2012), 

Mississippi (received November 17, 

2011), and South Carolina’s (received 

September 20, 2011). EPA notes that the 

Agency approved the PSD Elements of 

Tennessee’s 2008 Lead infrastructure 

SIP submission on August 12, 2013 (78 

FR 48806). 

b. 2008 Ozone NAAQS 

On March 27, 2008, EPA promulgated 

a revised NAAQS for ozone based on 8- 

hour average concentrations. EPA 

revised the level of the 8-hour Ozone 

NAAQS to 0.075 parts per million. See 

77 FR 16436. States were required to 

submit infrastructure SIP submissions 

for the 2008 8-hour Ozone NAAQS to 

EPA no later than March 2011. 

For the 2008 Ozone NAAQS, EPA is 

only addressing the PSD Elements of the 

infrastructure SIP submissions from 

Alabama (received August 20, 2012), 

Georgia (received March 6, 2012), 

Mississippi (received May 29, 2012; and 

resubmitted July 26, 2012), and South 

Carolina (received on July 17, 2012). 

EPA notes that the Agency approved the 

PSD Elements of the Florida, Kentucky 

and Tennessee infrastructure SIP 

submissions for the 2008 Ozone NAAQS 

on May 19, 2014 (79 FR 28607),1 March 

7, 2013 (78 FR 14691), and March 6, 

2013 (78 FR 14450), respectively. 

c. 2010 NO2 NAAQS 

On February 9, 2010 (75 FR 6474), 

EPA established 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. States were 

required to submit infrastructure SIP 


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2EPA 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. 

3 ‘‘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. EPA notes that this 2013 Infrastructure SIP 

Guidance document was not intended to apply to 

infrastructure SIP submissions for the 2008 Lead 

NAAQS. 

4EPA’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. 

submissions for the 2010 NO2 NAAQS 

to EPA no later than January 2013. 

For the 2010 NO2 NAAQS, EPA is 

addressing the PSD Elements of the 

infrastructure SIP submissions from 

Alabama (received April 23, 2013), 

Florida (received January 22, 2013), 

Georgia (received March 25, 2013), 

Kentucky (received April 26, 2013), 

Mississippi (received February 28, 

2013), South Carolina (received April 

30, 2014), and Tennessee (received 

March 13, 2014). 

II. What is EPA’s approach to the 

review of infrastructure SIP 

submissions? 

EPA is acting upon the PSD Elements 

portions of SIP submissions that address 

the infrastructure requirements of CAA 

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

2008 Lead, 2008 Ozone and 2010 NO2

NAAQS for various states in Region 4. 

The requirement for states to make a SIP 

submission of this type arises out of 

CAA section 110(a)(1). Pursuant to 

section 110(a)(1), states must make SIP 

submissions ‘‘within 3 years (or such 

shorter period as the Administrator may 

prescribe) after the promulgation of a 

national primary ambient air quality 

standard (or any revision thereof),’’ and 

these SIP submissions are to provide for 

the ‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review permit program 

submissions to address the permit 

requirements of CAA, title I, part D. 

Section 110(a)(1) addresses the timing 

and general requirements for 

infrastructure SIP submissions, and 

section 110(a)(2) provides more details 

concerning the required contents of 

these submissions. 

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.2 EPA most recently 

issued guidance for infrastructure SIPs 

on September 13, 2013 (2013 

Guidance).3 EPA developed this 

document to provide states with up-todate 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.4 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. 

EPA’s review of infrastructure SIP 

submissions with respect to the PSD 

program requirements in sections 

110(a)(2)(C), (D)(i)(II), and (J) focuses 

upon the structural PSD program 

requirements contained in part C and 

EPA’s PSD regulations. Structural PSD 

program requirements include 

provisions necessary for the PSD 

program to address all regulated sources 

and new source review (NSR) 

pollutants, including greenhouse gases 

(GHGs). By contrast, structural PSD 

program requirements do not include 

provisions that are not required under 

EPA’s regulations at 40 CFR 51.166 but 

are merely available as an option for the 

state, such as the option to provide 

grandfathering of complete permit 

applications with respect to the 2012 

PM2.5 NAAQS. Accordingly, the latter 

optional provisions are types of 

provisions EPA considers irrelevant in 

the context of an infrastructure SIP 

action. 

EPA’s approach to review of 

infrastructure SIP submissions is to 

identify the CAA requirements that are 

logically applicable to that submission. 

EPA believes that this approach to the 

review of a particular infrastructure SIP 

submission is appropriate, because it 

would not be reasonable to read the 

general requirements of section 

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

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

and every provision of a state’s existing 

SIP against all requirements in the CAA 

and EPA regulations merely for 

purposes of assuring that the state in 

question has the basic structural 

elements for a functioning SIP for a new 

or revised NAAQS. Because SIPs have 

grown by accretion over the decades as 

statutory and regulatory requirements 

under the CAA have evolved, they may 

include some outmoded provisions and 

historical artifacts. These provisions, 

while not fully up to date, nevertheless 

may not pose a significant problem for 

the purposes of ‘‘implementation, 

maintenance, and enforcement’’ of a 

new or revised NAAQS when EPA 

evaluates adequacy of the infrastructure 

SIP submission. EPA believes that a 

better approach is for states and EPA to 

focus attention on those elements of 

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

to warrant a specific SIP revision due to 

the promulgation of a new or revised 

NAAQS or other factors. 

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 


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5For 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). 

6EPA 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). 

7See, 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). 

8 ‘‘Final Rule To Implement the 8-Hour Ozone 

National Ambient Air Quality Standard—Phase 2; 

Final Rule’’ (November 29, 2005, 70 FR 71612) 

(hereafter referred to as the ‘‘Phase II Rule’’). 

9Prevention of Significant Deterioration and Title 

V Greenhouse Gas (GHG) Tailoring Rule; Final 

Rule’’ (June 3, 2010, 75 FR 31514) (hereafter 

referred to as the ‘‘GHG Tailoring Rule’’). 

10Utility Air Regulatory Group v. Environmental 

Protection Agency, 134 S. Ct. 2427 (2014). 

11 Implementation of the New Source Review 

Program for Particulate Matter Less Than 2.5 

Micrometers; Final Rule’’ (May 16, 2008, 73 FR 

28321) (hereafter referred to as the ‘‘NSR PM2.5

Rule’’). 

12 ‘‘Final Rule on the Prevention of Significant 

Deterioration (PSD) for Particulate Matter Less Than 

2.5 Micrometers (PM2.5)—Increments, Significant 

Impact Levels (SILs) and Significant Monitoring 

Concentration (SMC); Final Rule’’ (October 20, 

2010, 75 FR 64864) (hereafter referred to as the 

‘‘PM2.5 PSD Increment-SILs-SMC Rule (only as it 

relates to PM2.5 Increments)’’). 

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.5

Section 110(k)(6) authorizes EPA to 

correct errors in past actions, such as 

past approvals of SIP submissions.6

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.7

III. What are states required to address 

under Sections 110(a)(2)(C), 

110(a)(2)(D)(i)(II) (Prong 3) and 

110(a)(2)(J) related to PSD? 

Section 110(a)(2)(C) has three 

components that must be addressed in 

infrastructure SIP submissions: 

Enforcement, state-wide regulation of 

new and modified minor sources and 

minor modifications of major sources; 

and PSD permitting of major sources 

and major modifications in areas 

designated attainment or unclassifiable 

for the subject NAAQS as required by 

CAA title I part C (i.e., the major source 

PSD program). 

Section 110(a)(2)(D)(i) has two 

components; 110(a)(2)(D)(i)(I) and 

110(a)(2)(D)(i)(II). Each of these 

components have two subparts resulting 

in four distinct components, commonly 

referred to as ‘‘prongs,’’ that must be 

addressed in infrastructure SIP 

submissions. The first two prongs, 

which are codified in section 

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

prohibit any source or other 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 

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’’). 

Section 110(a)(2)(J) has four 

components that must be addressed in 

infrastructure SIP submissions: (1) 

consultation with government officials, 

(2) public notification, (3) prevention of 

significant deterioration, and (4) 

visibility protection. 

With respect to the PSD Elements of 

these sections, EPA interprets the CAA 

to require each state to make, for each 

new or revised NAAQS, an 

infrastructure SIP submission that 

demonstrates that the air agency has a 

complete PSD permitting program 

meeting the current requirements for all 

regulated NSR pollutants. The 

requirements of the PSD Elements may 

also be satisfied by demonstrating that 

the air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. 

IV. What are the PSD program 

requirements? 

In addition to analyzing whether a 

state has adequate authority to regulate 

new and modified sources to assist in 

the protection of air quality, there are 

also four structural PSD program 

requirements that are relevant to EPA’s 

review of the PSD Elements of the 

infrastructure SIP submissions for the 

2008 Lead, 2008 Ozone and 2010 NO2

NAAQS. The EPA regulations that 

require these SIP revisions are: (1) The 

Phase II Rule 8; (2) the Greenhouse Gas 

(GHG) Tailoring Rule 9 as consistent 

with the holding in Utility Air 

Regulatory Group v. Environmental 

Protection Agency; 10 (3) the NSR Fine 

Particulate Matter (PM2.5) Rule 11; and, 

(4) the PM2.5 PSD Increment-Significant 

Impact Levels (SILs)-Significant 

Monitoring Concentrations (SMC) Rule 

(only as it relates to PM2.5 Increments).12

Specific details on these PSD 

requirements can be found in the 

respective final rules cited above, 

however, a brief summary of each rule 

is provided below. 

The Phase II rule established federal 

NSR permitting requirements for the 

implementation of the ozone NAAQS 

including recognizing nitrogen oxide as 

an ozone precursor. See 70 FR 71612. 

The GHG Tailoring Rule established 

emission thresholds for determining 

which new stationary sources and 

modification projects become subject to 

PSD permitting requirements for their 

GHG emissions. See 75 FR 31514. EPA 

notes, that on June 23, 2014, the United 

States Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. See Utility Air Regulatory 

Group v. Environmental Protection 

Agency, 134 S. Ct. 2427. In that 

decision, the Supreme Court held that 

the EPA may not treat GHGs as an air 

pollutant for purposes of determining 

whether a source is a major source 

required to obtain a PSD permit. The 

Court also determined that the EPA 

could continue to require that PSD 

permits, otherwise required based on 

emissions of pollutants other than 

GHGs, contain limitations on GHG 

emissions based on the application of 

Best Available Control Technology 

(BACT). In order to act consistently with 

its understanding of the Court’s decision 

pending further judicial action to 

effectuate the decision, the EPA is not 

continuing to apply EPA regulations 

that would require that SIPs include 


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13On January 4, 2013, the U.S. Court of Appeals, 

in Natural Resources Defense Council v. EPA, No. 

08–1250, 2013 WL 45653 (D.C. Cir., filed July 15, 

2008) (consolidated with 09–1102, 11–1430), issued 

a judgment that remanded EPA’s 2007 and 2008 

rules implementing the PM2.5 NAAQS. The court 

concluded that since subpart 4 of the CAA generally 

applies to PM10, EPA should have also followed the 

more prescriptive subpart 4 structure for the PM2.5

implementation rules. The court ordered EPA to 

repromulgate the implementation rules pursuant to 

subpart 4. Subpart 4 of Part D, Title 1 of the CAA 

establishes additional provisions for particulate 

matter nonattainment areas. 

The 2008 implementation rule addressed by the 

court decision, ‘‘Implementation of New Source 

Review (NSR) Program for Particulate Matter Less 

Than 2.5 Micrometers (PM2.5),’’ 73 FR 28321 (May 

16, 2008), promulgated NSR requirements for 

implementation of PM2.5 in both nonattainment 

areas (nonattainment NSR) and attainment/

unclassifiable areas (PSD). As the requirements of 

Subpart 4 only pertain to nonattainment areas, EPA 

does not consider the portions of the 2008 rule that 

address requirements for PM2.5 attainment and 

unclassifiable areas to be affected by the court’s 

opinion. Moreover, EPA does not anticipate the 

need to revise any PSD requirements promulgated 

in the 2008 rule in order to comply with the court’s 

decision. Accordingly, EPA’s approval of state’s 

infrastructure SIP related to elements (C), (D)(i) 

(prong 3), or (J) with respect to the PSD 

requirements promulgated in the 2008 NSR PM2.5

Rule does not conflict with the court’s opinion. 

The court’s decision with respect to the 

nonattainment NSR requirements promulgated by 

the 2008 implementation rule also does not affect 

EPA’s action on the present infrastructure actions. 

EPA interprets the Act to exclude nonattainment 

area requirements, including requirements 

associated with a nonattainment NSR program, 

from infrastructure SIP submissions due 3 years 

after adoption or revision of a NAAQS. Instead, 

these elements are typically referred to as 

nonattainment SIP or attainment plan elements, 

which would be due by the dates statutorily 

prescribed under subpart 2 through 5 under part D, 

extending as far as 10 years following designations 

for some elements. 

14 ‘‘Prevention of Significant Deterioration (PSD) 

for Particulate Matter Less Than 2.5 Micrometers 

(PM2.5)—Increments, Significant Impact Levels 

(SILs) and Significant Monitoring Concentration 

(SMC); Final Rule, 75 FR 64864 (October 20, 

2010).’’ 

15 In lieu of the applicants’ need to set out PM2.5

monitors to collect ambient data, applicants may 

submit PM2.5 ambient data collected from existing 

monitoring networks when the permitting authority 

deems such data to be representative of the air 

quality in the area of concern for the year preceding 

receipt of the application. EPA believes that 

applicants will generally be able to rely on existing 

representative monitoring data to satisfy the 

monitoring data requirement. 

16The court’s January 22, 2013, decision also 

vacated and remanded back to EPA the PM2.5 SILs. 

EPA’s December 9, 2013 final rule also removed the 

PM2.5 SILs from the CFR. The PM2.5, SILs are not 

a required element of a State’s PSD program and 

thus not a structural requirement for purposes of 

infrastructure SIPs. The PM2.5 SILs are not approved 

into the SIPs that are the subject of this proposed 

rulemaking. 

17Final Rule entitled ‘‘Prevention of Significant 

Deterioration for Particulate Matter Less Than 2.5 

Micrometers—Significant Impact Levels and 

Significant Monitoring Concentration: Removal of 

Vacated Elements;’’ 79 FR 73698 (December 9, 

2013). 

permitting requirements that the 

Supreme Court found impermissible. 

Specifically, EPA is not applying the 

requirement that a state’s SIP-approved 

PSD program require that sources obtain 

PSD permits when GHGs are the only 

pollutant (i) that the source emits or has 

the potential to emit above the major 

source thresholds, or (ii) for which there 

is a significant emissions increase and a 

significant net emissions increase from 

a modification (e.g. 40 CFR 

51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

District Court for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

The 2008 NSR PM2.5 Rule 13 and 2010 

PM2.5 PSD Increment-SILs-SMC Rule 

(only as it relates to PM2.5 Increments) 

established NSR permitting 

requirements for the implementation of 

the PM2.5 NAAQS including increments 

pursuant to section 166(a) of the CAA to 

prevent significant deterioration of air 

quality in areas meeting the NAAQS. 

See 73 FR 28321 and 75 FR 64864. On 

January 22, 2013, the U.S. Court of 

Appeals for the District of Columbia, in 

Sierra Club v. EPA, 703 F.3d 458 (D.C. 

Cir. 2013), issued a judgment that, 

among other things, vacated the 

provisions adding the PM2.5 SMC to the 

Federal regulations, at 40 CFR 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), 

that were promulgated as part of the 

2010 PM2.5 PSD Increment-SILs-SMC 

Rule.14 See 75 FR 64864; see also, Sierra 

Club v. EPA, 703 F.3d 458 (D.C. Cir. 

2013). In its decision, the court held that 

EPA did not have the authority to use 

SMCs to exempt permit applicants from 

the statutory requirement in section 

165(e)(2) of the CAA that ambient 

monitoring data for PM2.5 be included in 

all PSD permit applications. Thus, 

although the PM2.5 SMC was not a 

required element of a State’s PSD 

program and thus not a structural 

requirement for purposes of 

infrastructure SIPs, were a SIP-approved 

PSD program that contains such a 

provision to use that provision to issue 

new permits without requiring ambient 

PM2.5 monitoring data, such application 

of the SIP would be inconsistent with 

the court’s opinion and the 

requirements of section 165(e)(2) of the 

CAA. Of the States that are the subject 

of today’s proposed rulemaking, EPA 

approved the SMC’s into the Alabama, 

Florida and Mississippi SIP on 

September 26, 2012 (77 FR 59100), 

September 19, 2012 (77 FR 58027), and 

September 26, 2012 (77 FR 59095), 

respectively. However, given the clarity 

of the court’s decision, it would now be 

inappropriate for these states to 

continue to allow applicants for any 

pending or future PSD permits to rely 

on the PM2.5 SMC in order to avoid 

compiling ambient monitoring data for 

PM2.5. Because of the vacatur of the EPA 

regulations, the SMC provisions, 

included in these States’ SIP-approved 

PSD programs on the basis of EPA’s 

regulations are unlawful and no longer 

enforceable by law. Permits issued on 

the basis of these provisions as they 

appear in approved SIPs would be 

inconsistent with the CAA and difficult 

to defend in administrative and judicial 

challenges. Thus, the SIP provisions 

may not be applied even prior to their 

removal from the SIPs. Alabama, Florida 

and Mississippi should instead require 

applicants requesting a PSD permit, 

including those having already been 

applied for but for which the permit has 

not yet been received, to submit ambient 

PM2.5 monitoring data in accordance 

with the CAA requirements whenever 

either direct PM2.5 or any PM2.5

precursor is emitted in a significant 

amount.15

On December 9, 2013, EPA issued a 

final rulemaking to remove the vacated 

and remanded PM2.5 SILs 16 and the 

vacated PM2.5 SMC provisions from 40 

CFR 51.166 and 52.21.17 See 79 FR 

73698. Because the Court vacated the 

PM2.5 SMC provisions in 40 CFR 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), 

EPA revised the existing concentration 

for the PM2.5 SMC listed in sections 

51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to 

zero micrograms per cubic meter (0 mg/ 

m3). Were EPA to completely remove 

PM2.5 from the list of pollutants in 

sections 51.166(i)(5)(i)(c) and 

52.21(i)(5)(i)(c) of the PSD regulations, 

PM2.5 would no longer be a listed 

pollutant. 

EPA did not entirely remove PM2.5 as 

a listed pollutant in the SMC provisions 

so as to avoid any potential that sections 

51.166(i)(5)(iii) and 52.21(i)(5)(iii) could 

be interpreted as giving reviewing 

authorities the discretion to exempt 

permit applicants from the requirement 

to conduct monitoring for PM2.5. Such a 


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18Through a final rule signed by the EPA Region 

4 Administrator, on October 22, 2014, EPA is took 

final action in a separate rulemaking to approve 

Kentucky’s January 13, 2013, SIP revision which 

addresses the NSR PM2.5 Rule and the PM2.5 PSD 

Increment-SILs-SMC Rule requirements. EPA 

proposed approval of Kentucky’s January 13, 2013, 

SIP revision on July 23, 2014 (79 FR 42745). 

19On June 11, 2010, the South Carolina Governor 

signed an Executive Order to confirm that the State 

had authority to implement appropriate emission 

thresholds for determining which new stationary 

sources and modification projects become subject to 

PSD permitting requirements for their GHG 

emissions at the state level. On December 30, 2010, 

EPA published a final rulemaking, ‘‘Action To 

Ensure Authority To Implement Title V Permitting 

Programs Under the Greenhouse Gas Tailoring 

Rule’’ (75 FR 82254) to narrow EPA’s previous 

approval of State title V operating permit programs 

that apply (or may apply) to GHG-emitting sources; 

this rule hereafter is referred to as the ‘‘Narrowing 

Rule.’’ EPA narrowed its previous approval of 

certain State permitting thresholds, for GHG 

emissions so that only sources that equal or exceed 

the GHG thresholds, as established in the final 

Tailoring Rule, would be covered as major sources 

by the Federally-approved programs in the affected 

States. South Carolina was included in this 

rulemaking. On March 4, 2011, South Carolina 

submitted a letter withdrawing from EPA’s 

consideration the portion of South Carolina’s SIP 

for which EPA withdrew its previous approval in 

the Narrowing Rule. These provisions are no longer 

intended for inclusion in the SIP, and are no longer 

before EPA for its approval or disapproval. A copy 

of South Carolina’s letter can be accessed at 

www.regulations.gov using Docket ID No. EPA– 

R04–OAR–2014–0610. 

conclusion would contravene the 

Court’s decision and the CAA. 

By continuing to include PM2.5 as a 

pollutant in the list contained in 

sections 51.166(i)(5)(i) and 52.21(i)(5)(i), 

with the numerical value replaced with 

0 mg/m3, we avoid any concern that 

paragraph (iii) of the two affected 

sections could be applied to excuse 

permit applicants from adequately 

addressing the monitoring requirement 

for PM2.5. 

EPA also advises states to begin 

preparations to remove the PM2.5

provisions from their state PSD 

regulations and SIPs. As the previouslyapproved PM2.5 SMC provisions in the 

Alabama, Florida and Mississippi SIP 

are no longer enforceable, EPA does not 

believe the existence of these provisions 

in the States’ implementation plans 

precludes today’s proposed rulemaking 

to approve the infrastructure SIP 

submissions for Alabama, Florida and 

Mississippi as the submissions relate to 

the PSD elements of the 2008 Lead, 

2008 Ozone and 2010 NO2 NAAQS. 

V. What is EPA’s analysis of how 

Region 4 states addressed sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) 

and 110(a)(2)(J) related to PSD? 

Described below is EPA’s analysis of 

how the Alabama, Florida, Georgia, 

Kentucky, Mississippi, South Carolina 

and Tennessee infrastructure SIP 

submissions meet the requirements of 

the PSD Elements for the NAAQS for 

which they were submitted. This 

analysis includes review of the EPA’s 

previous approval of the four structural 

PSD program requirements with respect 

to each of the states addressed in this 

action. Table 1 below summarizes EPA 

approvals of these structural PSD 

program requirements into the Alabama, 

Florida, Georgia, Kentucky, Mississippi, 

South Carolina and Tennessee SIPs. 

EPA’s rationale for today’s proposal 

with respect to each State is provided 

below. All other applicable 

infrastructure requirements for the 2008 

Lead, 2008 Ozone and 2010 NO2

NAAQS associated with these States are 

being addressed in separate 

rulemakings. 

TABLE 1—EPA APPROVED STRUCTURAL PSD PROGRAM REQUIREMENTS

State Phase II rule Greenhouse gas (GHG) 

tailoring rule NSR PM2.5 rule PM2.5 PSD increment-SILsSMC rule 

Alabama ............ May 1, 2008 (73 FR 23957) December 29, 2010 (75 FR 

81863).

September 26, 2012 (77 FR 

59100).

September 26, 2012 (77 FR 

59100). 

Florida ............... June 15, 2012 (77 FR 35862) May 19, 2014 (79 FR 28607) September 19, 2012 (77 FR 

58027).

September 19, 2012 (77 FR 

58027). 

Georgia ............. November 22, 2010 (75 FR 

71018).

September 8, 2011 (76 FR 

55572).

September 8, 2011 (76 FR 

55572).

April 9, 2013 (78 FR 21065). 

Kentucky ........... September 15, 2010 (75 FR 

55988).

December 29, 2010 (75 FR 

81868).

Refer to Footnote 18 .............. Refer to Footnote.18

Mississippi ......... December 20, 2010 (75 FR 

79300).

December 29, 2010 (75 FR 

81858).

September 26, 2012 (77 FR 

59095).

September 26, 2012 (77 FR 

59095). 

South Carolina .. June 23, 2011 (77 FR 36875) Refer to Footnote 19 .............. June 23, 2011 (77 FR 36875) April 3, 2013 (78 FR 19994). 

Tennessee ........ February 7, 2012 (77 FR 

6016).

February 28, 2012 (77 FR 

11744).

July 30, 2012 (77 FR 44481) January 9, 2014 (79 FR 

1593). 

a. Alabama 

For the 2008 Lead, 2008 Ozone and 

2010 NO2 NAAQS, Alabama’s authority 

to regulate new and modified sources to 

assist in the protection of air quality in 

Alabama is established in the Alabama 

Administrative Code Chapters 335–3– 

14–.01 ‘‘General Provisions,’’ 335–3–14– 

.02 ‘‘Permit Procedure,’’ 334–3–14–.03 

‘‘Standards for Granting Permits,’’ 335– 

3–14–.04 ‘‘Prevention of Significant 

Deterioration in Permitting,’’ and 335– 

3–14–.05 ‘‘Air Permits Authorizing 

Construction in or Near Nonattainment 

Areas.’’ Alabama’s infrastructure SIP 

submissions demonstrate that new 

major sources and major modifications 

in areas of the state designated 

attainment or unclassifiable for the 

specified NAAQS are subject to a 

federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 

Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that 

Alabama’s SIP and practices are 

adequate and comply with PSD 

Elements of the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS. Accordingly, in 

this action EPA is proposing to approve 

Alabama’s infrastructure SIP 

submissions as satisfying the 

infrastructure SIP PSD Elements for the 

2008 Lead, 2008 Ozone and 2010 NO2

NAAQS. 

b. Florida 

For the 2008 Lead and 2010 NO2

NAAQS, Florida’s authority to regulate 

new and modified sources to assist in 

the protection of air quality in 

nonattainment, attainment or 

unclassifiable areas is established in 

Florida Administrative Code Chapters 

62–210, Stationary Sources—General 

Requirements, Section 200—Definitions; 

and 62–212, and Stationary Sources— 


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Preconstruction Review, Section 400— 

Prevention of Significant Deterioration, 

of the Florida SIP. Florida’s 

infrastructure SIP submissions 

demonstrate that new major sources and 

major modifications in areas of the state 

designated attainment or unclassifiable 

for the specified NAAQS are subject to 

a federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 

Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead and 2010 

NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that Florida’s 

SIP and practices are adequate and 

comply with PSD Elements of the 2008 

Lead and 2010 NO2 NAAQS. 

Accordingly, in this action EPA is 

proposing to approve, Florida’s 

infrastructure SIP submissions as 

satisfying the infrastructure SIP PSD 

Elements for the 2008 Lead and the 

2010 NO2 NAAQS. 

c. Georgia 

For the 2008 Lead, 2008 Ozone and 

2010 NO2 NAAQS, Georgia’s authority 

to regulate new and modified sources to 

assist in the protection of air quality in 

Georgia is established in Georgia 

Regulation 391–3–1–.02(7), Prevention 

of Significant Deterioration of Air 

Quality, which pertains to the 

construction or modification of any 

major stationary source in areas 

designated as attainment or 

unclassifiable. 

Georgia’s infrastructure SIP 

submissions demonstrate that new 

major sources and major modifications 

in areas of the state designated 

attainment or unclassifiable for the 

specified NAAQS are subject to a 

federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 

Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that 

Georgia’s SIP and practices are adequate 

and comply with the PSD Elements of 

the 2008 Lead, 2008 Ozone, and 2010 

NO2 NAAQS. Accordingly, in this 

action EPA is proposing to approve, 

Georgia’s infrastructure SIP submissions 

as satisfying the infrastructure SIP PSD 

Elements for the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS. 

d. Kentucky 

For the 2008 Lead and 2010 NO2

NAAQS, Kentucky’s authority to 

regulate new and modified sources to 

assist in the protection of air quality in 

nonattainment, attainment or 

unclassifiable areas is established in 

Kentucky Administrative Regulation 

Chapter 51—Attainment and 

Maintenance of the National Ambient 

Air Quality Standards, which describes 

the permit requirements for new major 

sources or major modifications of 

existing sources in areas classified as 

attainment or unclassifiable under 

section 107(d)(1)(A)(ii) or (iii) of the 

CAA. These requirements are designed 

to ensure that sources in areas attaining 

the NAAQS at the time of designations 

prevent any significant deterioration in 

air quality. Chapter 51 also establishes 

the permitting requirements for areas in 

or around nonattainment areas and 

provides the Commonwealth’s statutory 

authority to enforce regulations relating 

to attainment and maintenance of the 

NAAQS. 

Kentucky’s infrastructure SIP 

submissions demonstrate that new 

major sources and major modifications 

in areas of the state designated 

attainment or unclassifiable for the 

specified NAAQS are subject to a 

federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 

Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead and 2010 

NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that 

Kentucky’s SIP and practices are 

adequate and comply with the PSD 

Elements of the 2008 Lead and 2010 

NO2 NAAQS. Accordingly, in this 

action EPA is proposing to approve 

Kentucky’s infrastructure SIP 

submissions as satisfying the 

infrastructure SIP PSD Elements for the 

2008 Lead and 2010 NO2 NAAQS. 

e. Mississippi 

For the 2008 Lead, 2008 Ozone and 

2010 NO2 NAAQS, Mississippi’s 

authority to regulate new and modified 

sources to assist in the protection of air 

quality in Mississippi is established in 

Regulations APC–S–5—Mississippi 

Regulations for the Prevention of 

Significant Deterioration of Air Quality 

and APC–S–2—Permit Regulation for 

the Construction and/or Operation of 

Air Emissions Equipment. These SIPapproved regulations pertain to the 

construction of any new major 

stationary source or any project at an 

existing major stationary source in an 

area designated as nonattainment, 

attainment or unclassifiable. 

Mississippi’s infrastructure SIP 

submissions demonstrate that new 

major sources and major modifications 

in areas of the state designated 

attainment or unclassifiable for the 

specified NAAQS are subject to a 

federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 

Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS (See Table 1). As 

such, EPA has made the preliminary 

determination that Mississippi’s SIP and 

practices are adequate and comply with 

the PSD Elements requirements of the 

2008 Lead, 2008 Ozone, and 2010 NO2

NAAQS. Accordingly, in this action, 

EPA is proposing to approve 

Mississippi’s infrastructure SIP 

submissions as satisfying the 

infrastructure SIP PSD Elements 

requirements for the 2008 Lead, 2008 

Ozone and 2010 NO2 NAAQS. 

f. South Carolina 

For the 2008 Lead, 2008 Ozone and 

2010 NO2 NAAQS, South Carolina’s 

authority to regulate new and modified 

sources to assist in the protection of air 

quality in South Carolina is established 

in Regulations 61–62.1, Section II, 

Permit Requirements; 61–62.5, Standard 

No. 7, Prevention of Significant 

Deterioration; and 61–62.5, Standard 

No. 7.1, Nonattainment New Source 

Review of South Carolina’s SIP. These 

regulations pertain to the construction 

of any new major stationary source or 

any modification at an existing major 

stationary source in an area designated 

as nonattainment, attainment or 

unclassifiable. South Carolina’s 

infrastructure SIP submissions 

demonstrate that new major sources and 

major modifications in areas of the state 

designated attainment or unclassifiable 

for the specified NAAQS are subject to 

a federally-approved PSD permitting 

program meeting all the current 

structural requirements of part C of title 

I of the CAA to satisfy the infrastructure 

SIP PSD Elements, including the 

authority to regulate GHG emitting 

sources consistent with the holding in 


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Utility Air Regulatory Group v. 

Environmental Protection Agency, for 

purposes of the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that South 

Carolina’s SIP and practices are 

adequate and comply with the PSD 

Elements requirements of the 2008 

Lead, 2008 Ozone, and 2010 NO2

NAAQS. Accordingly, in this action 

EPA is proposing to approve South 

Carolina’s infrastructure SIP submission 

as satisfying the infrastructure SIP PSD 

Elements for the 2008 Lead, 2008 Ozone 

and 2010 NO2 NAAQS. 

g. Tennessee 

For the 2010 NO2 NAAQS, 

Tennessee’s authority to regulate new 

and modified sources to assist in the 

protection of air quality in Tennessee is 

established in Chapter 1200–3–9, 

Construction and Operating Permits, of 

the Tennessee SIP. This Chapter 

pertains to the construction of any new 

major stationary source or any project at 

an existing major stationary source in an 

area designated as nonattainment, 

attainment or unclassifiable. 

Tennessee’s infrastructure SIP 

submission demonstrates that new 

major sources and major modifications 

in areas of the state designated 

attainment or unclassifiable for the NO2

NAAQS are subject to a federallyapproved PSD permitting program 

meeting all the current structural 

requirements of part C of title I of the 

CAA to satisfy the infrastructure SIP 

PSD Elements, including the authority 

to regulate GHG emitting sources 

consistent with the holding in Utility 

Air Regulatory Group v. Environmental 

Protection Agency, for purposes of the 

2010 NO2 NAAQS (See Table 1). 

As such, EPA has made the 

preliminary determination that 

Tennessee’s SIP and practices are 

adequate and comply with the PSD 

Elements requirements of the 2010 NO2

NAAQS. Accordingly, in this action 

EPA is proposing to approve 

Tennessee’s infrastructure SIP 

submission as satisfying the 

infrastructure SIP PSD Elements 

requirements for the 2010 NO2 NAAQS. 

VI. Proposed Action 

As described above, EPA is proposing 

to approve the portions of the abovedescribed infrastructure SIP 

submissions from Alabama, Florida, 

Georgia, Kentucky, Mississippi, South 

Carolina and Tennessee to address the 

PSD permitting requirements of sections 

110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) 

and 110(a)(2)(J) of the CAA. As 

described above, for some of these 

states, EPA is proposing approval of the 

PSD Elements of the infrastructure SIP 

submissions for the 2008 Lead, 2008 

Ozone and 2010 Nitrogen NO2 NAAQS; 

whereas for other states, EPA is only 

proposing approval of the PSD Elements 

of the infrastructure SIP submissions for 

a subset of these NAAQS. EPA is 

proposing approval of these portions of 

these submissions because they are 

consistent with section 110 of the CAA. 

EPA also notes that, at present, the 

Agency has preliminarily determined 

that the Alabama, Florida, Georgia, 

Kentucky, Mississippi, South Carolina 

and Tennessee SIPs are sufficient to 

satisfy the PSD permitting requirements 

portion of section 110(a)(2)(C), 

110(a)(2)(D)(i)(II), prong 3 and 

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

because the PSD permitting program 

previously-approved by EPA into the 

SIP continues to require that PSD 

permits (otherwise required based on 

emissions of pollutants other than 

GHGs) contain limitations on GHG 

emissions based on the application of 

BACT. Although the approved Alabama, 

Florida, Georgia, Kentucky, Mississippi, 

South Carolina and Tennessee PSD 

permitting programs may currently 

contain provisions that are no longer 

necessary in light of the Supreme 

Court’s Utility Air Regulatory Group v. 

Environmental Protection Agency 

decision, these previous approvals do 

not render the infrastructure SIP 

submission inadequate to satisfy 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) 

(prong 3) and 110(a)(2)(J). The SIPs 

contain the necessary PSD requirements 

at this time, and the application of those 

requirements is not impeded by the 

presence of other previously-approved 

provisions regarding the permitting of 

sources of GHGs that EPA does not 

consider necessary at this time in light 

of the Supreme Court decision. 

Accordingly, the Supreme Court 

decision does not affect EPA’s proposed 

approval of Alabama, Florida, Georgia, 

Kentucky, Mississippi, South Carolina 

and Tennessee’s infrastructure SIPs as 

to the PSD permitting requirements of 

sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) 

(prong 3) and 110(a)(2)(J). 

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). 

With the exception of South Carolina, 

the SIPs involved in this proposal are 

not approved to apply on any Indian 

reservation land or in any other area 

where EPA or an Indian tribe has 

demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law.’’ With respect to 

today’s proposed action as it relates to 

South Carolina, EPA notes that the 

Catawba Indian Nation Reservation is 

located within South Carolina and 

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 


tkelley on DSK3SPTVN1PROD with PROPOSALS
67406 Federal Register / Vol. 79, No. 219 / Thursday, November 13, 2014 / Proposed Rules 

and are fully enforceable by all relevant 

state and local agencies and 

authorities.’’ Thus, the South Carolina 

SIP applies to the Catawba Reservation, 

however, because today’s proposed 

action is not approving any specific rule 

into the South Carolina SIP, but rather 

proposing that the State’s already 

approved SIP meets certain CAA 

requirements, EPA has preliminarily 

determined that there are no substantial 

direct effects on the Catawba Indian 

Nation. 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, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate Matter, 

Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: October 30, 2014. 

Anne Heard, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2014–26737 Filed 11–12–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2013–0602; FRL–9919–07– 

OAR] 

RIN 2060–AR33 

Carbon Pollution Emission Guidelines 

for Existing Stationary Sources: 

Electric Utility Generating Units 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice; additional information 

regarding the translation of emission 

rate-based CO2 goals to mass-based 

equivalents. 

SUMMARY: The Environmental Protection 

Agency (EPA) is issuing this notice in 

support of the proposed rule, ‘‘Carbon 

Pollution Emission Guidelines for 

Existing Stationary Sources: Electric 

Utility Generating Units,’’ published on 

June 18, 2014 and the supplemental 

proposal, ‘‘Carbon Pollution Emission 

Guidelines: Existing Stationary Sources 

in Indian Country and U.S. Territories; 

Multi-jurisdictional Partnerships,’’ 

issued on October 28, 2014, to provide 

further discussion of potential 

approaches for translating the emission 

rate-based carbon dioxide (CO2) goals 

that the EPA has proposed for each 

affected jurisdiction to an equivalent 

mass-based metric. 

DATES: Comments on the proposed rule 

published on June 18, 2014, along with 

the additional information presented in 

this notice, must be received on or 

before December 1, 2014. 

ADDRESSES: Comments. Submit your 

comments, identified by Docket ID No. 

EPA–HQ–OAR–2013–0602, by one of 

the following methods: 

Federal eRulemaking portal: http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Email: A-and-R-Docket@epa.gov. 

Include Docket ID No. EPA–HQ–OAR– 

2013–0602 in the subject line of the 

message. 

Facsimile: (202) 566–9744. Include 

Docket ID No. EPA–HQ–OAR–2013– 

0602 on the cover page. 

Mail: Environmental Protection 

Agency, EPA Docket Center (EPA/DC), 

Mail code 28221T, Attn: Docket ID No. 

EPA–HQ–OAR–2013–0602, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460. 

Hand/Courier Delivery: EPA Docket 

Center, Room 3334, EPA WJC West 

Building, 1301 Constitution Ave. NW., 

Washington, DC 20004, Attn: Docket ID 

No. EPA–HQ–OAR–2013–0602. Such 

deliveries are accepted only during the 

Docket Center’s normal hours of 

operation (8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding 

federal holidays), and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: All submissions must 

include the agency name and Docket ID 

No. (EPA–HQ–OAR–2013–0602). The 

EPA’s policy is to include all comments 

received without change, including any 

personal information provided, in the 

public docket, available online at 

http://www.regulations.gov, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through http://

www.regulations.gov or email. Send or 

deliver information identified as CBI 

only to the following address: Mr. 

Roberto Morales, OAQPS Document 

Control Officer (C404–02), Office of Air 

Quality Planning and Standards, U.S. 

EPA, Research Triangle Park, North 

Carolina 27711, Attention Docket ID No. 

EPA–HQ–OAR–2013–0602. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information on a disk or CD–ROM that 

you mail to the EPA, mark the outside 

of the disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information you 

claim as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, 

you must submit a copy of the comment 

that does not contain the information 

claimed as CBI for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

The EPA requests that you also 

submit a separate copy of your 

comments to the contact person 

identified below (see FOR FURTHER

INFORMATION CONTACT). If the comment 

includes information you consider to be 

CBI or otherwise protected, you should 

send a copy of the comment that does 

not contain the information claimed as 

CBI or otherwise protected. 

The http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means the 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 the EPA without 

going through http://

www.regulations.gov, your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, the 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 the EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, the 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. 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available (e.g., CBI or other 

information whose disclosure is 

restricted by statute). Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the EPA Docket Center, EPA WJC West 

Building, Room 3334, 1301 Constitution 

Ave. NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding federal holidays. The 

telephone number for the Public 


tkelley on DSK3SPTVN1PROD with PROPOSALS