Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Rules and Regulations 38509 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

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, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 15, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart L—Georgia 

■ 2. Section 52.570, the table in 

paragraph (e) is amended by adding 

entries 34. and 35. in numerical order to 

read as follows: 

§ 52.570 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED GEORGIA NON-REGULATORY PROVISIONS

Name of nonregulatory SIP provision Applicable geographic or nonattainment area 

State submittal 

date/effective date EPA approval date 

*******

34. Regional Haze Plan .................................................................. Statewide ................................... 2/11/10 6/28/12 [Insert citation of publication] 

35. Regional Haze Plan Supplement (including BART and Reasonable Progress emissions limits).Statewide ................................... 11/19/10 6/28/12 [Insert citation of publication] 

[FR Doc. 2012–15691 Filed 6–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0785; FRL–9691–7] 

Approval and Promulgation of 

Implementation Plans; South Carolina; 

Regional Haze State Implementation 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval of a revision to the South 

Carolina State Implementation Plan 

(SIP) submitted by the State of South 

Carolina through the South Carolina 

Department of Health and 

Environmental Control (SC DHEC) on 

December 17, 2007. South Carolina’s 

December 17, 2007, SIP revision 

addresses regional haze for the first 

implementation period. Specifically, 

this SIP revision addresses the 

requirements of the Clean Air Act (CAA 

or Act) and EPA’s rules that require 

states to prevent any future and remedy 

any existing anthropogenic impairment 

of visibility in mandatory Class I areas 

(national parks and wilderness areas) 

caused by emissions of air pollutants 

from numerous sources located over a 

wide geographic area (also referred to as 

the ‘‘regional haze program’’). States are 

required to assure reasonable progress 

toward the national goal of achieving 

natural visibility conditions in Class I 

areas. EPA is finalizing a limited 

approval of South Carolina’s December 

17, 2007, SIP revision to implement the 

regional haze requirements for South 

Carolina on the basis that this SIP 

revision, as a whole, strengthens the 

South Carolina SIP. Additionally, EPA 

is rescinding the Federal regulations 

previously approved into the South 

Carolina SIP on July 12, 1985, and 

November 24, 1987, and is approving 

the provisions in South Carolina’s 

December 17, 2007, SIP submittal to 

meet the monitoring and long-term 

strategy (LTS) requirements for 

reasonably attributable visibility 

impairment (RAVI). In a separate action 

published on June 7, 2012, EPA 

finalized a limited disapproval of this 

same SIP revision because of the 

deficiencies in the State’s regional haze 

SIP revision arising from the remand by 

the U.S. Court of Appeals for the District 

of Columbia Circuit (DC Circuit) to EPA 

of the Clean Air Interstate Rule (CAIR). 

DATES: Effective Date: This rule will be 

effective July 30, 2012, except for the 

amendment to § 52.2132, which is 

effective on August 7, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0785. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information 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 through 

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 

for further information. The Regional 

Office’s official hours of business are 

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

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, 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. Michele 

Notarianni can be reached at telephone 

number (404) 562–9031 and by 

electronic mail at 

notarianni.michele@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is EPA’s response to comments 

received on this action? 

III. What is the effect of this final action? 

IV. Final Action 

V. Statutory and Executive Order Reviews 


wreier-aviles on DSK5TPTVN1PROD with RULES
38510 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Rules and Regulations 

1 In a separate action, published on June 7, 2012 

(77 FR 33642), EPA finalized a limited disapproval 

of the South Carolina regional haze SIP because of 

deficiencies in the State’s regional haze SIP 

submittal arising from the State’s reliance on CAIR 

to meet certain regional haze requirements. Also, in 

that June 7, 2012, action, EPA finalized a Federal 

Implementation Plan (FIP) for South Carolina to 

address the deficiencies that resulted from the 

State’s reliance on CAIR for their regional haze SIP. 

I. What is the background for this final 

action? 

Regional haze is visibility impairment 

that is produced by a multitude of 

sources and activities which are located 

across a broad geographic area and emit 

fine particles (e.g., sulfates, nitrates, 

organic carbon, elemental carbon, and 

soil dust), and their precursors (e.g., 

sulfur dioxide (SO2), nitrogen oxides 

(NOX), and in some cases, ammonia and 

volatile organic compounds. Fine 

particle precursors react in the 

atmosphere to form fine particulate 

matter (PM2.5) which impairs visibility 

by scattering and absorbing light. 

Visibility impairment reduces the 

clarity, color, and visible distance that 

one can see. PM2.5 can also cause 

serious health effects and mortality in 

humans and contributes to 

environmental effects such as acid 

deposition and eutrophication. 

In section 169A of the 1977 

Amendments to the CAA, Congress 

created a program for protecting 

visibility in the nation’s national parks 

and wilderness areas. This section of the 

CAA establishes as a national goal the 

‘‘prevention of any future, and the 

remedying of any existing, impairment 

of visibility in mandatory Class I areas 

which impairment results from 

manmade air pollution.’’ On December 

2, 1980, EPA promulgated regulations to 

address visibility impairment in Class I 

areas that is ‘‘reasonably attributable’’ to 

a single source or small group of 

sources, i.e., ‘‘reasonably attributable 

visibility impairment.’’ See 45 FR 

80084. These regulations represented 

the first phase in addressing visibility 

impairment. EPA deferred action on 

regional haze that emanates from a 

variety of sources until monitoring, 

modeling, and scientific knowledge 

about the relationships between 

pollutants and visibility impairment 

were improved. 

Congress added section 169B to the 

CAA in 1990 to address regional haze 

issues. EPA promulgated a rule to 

address regional haze on July 1, 1999 

(64 FR 35714), the Regional Haze Rule 

(RHR). The RHR revised the existing 

visibility regulations to integrate into 

the regulation provisions addressing 

regional haze impairment and 

established a comprehensive visibility 

protection program for Class I areas. The 

requirements for regional haze, found at 

40 CFR 51.308 and 51.309, are included 

in EPA’s visibility protection 

regulations at 40 CFR 51.300 through 

.309. The requirement to submit a 

regional haze SIP applies to all 50 states, 

the District of Columbia, and the Virgin 

Islands. 40 CFR 51.308(b) requires states 

to submit the first implementation plan 

addressing regional haze visibility 

impairment no later than December 17, 

2007. 

On December 17, 2007, SC DHEC 

submitted a revision to South Carolina’s 

SIP to address regional haze in the 

State’s and other states’ Class I areas. On 

February 28, 2012, EPA published an 

action proposing a limited approval of 

South Carolina’s December 17, 2007, 

SIP revision to address the first 

implementation period for regional 

haze.1 See 77 FR 11894. EPA proposed a 

limited approval of South Carolina’s 

December 17, 2007, SIP revision to 

implement the regional haze 

requirements for South Carolina on the 

basis that this revision, as a whole, 

strengthens the South Carolina SIP. See 

section II of this rulemaking for a 

summary of the comments received on 

the proposed actions and EPA’s 

responses to these comments. Detailed 

background information and EPA’s 

rationale for the proposed action is 

provided in EPA’s February 28, 2012, 

proposed rulemaking. 

Following the remand of CAIR, EPA 

issued a new rule in 2011 to address the 

interstate transport of NOX and SO2 in 

the eastern United States. See 76 FR 

48208 (August 8, 2011) (‘‘the Transport 

Rule,’’ also known as the Cross-State Air 

Pollution Rule (CSAPR)). On December 

30, 2011, EPA proposed to find that the 

trading programs in the Transport Rule 

would achieve greater reasonable 

progress towards the national goal of 

achieving natural visibility conditions 

than would best available retrofit 

technology (BART) in the states in 

which the Transport Rule applies 

(including South Carolina). See 76 FR 

82219. Based on this proposed finding, 

EPA also proposed to revise the RHR to 

allow states to substitute participation 

in the trading programs under the 

Transport Rule for source-specific 

BART. EPA finalized this finding and 

RHR revision on June 7, 2012 (77 FR 

33642). 

Also on December 30, 2011, the DC 

Circuit stayed the Transport Rule 

(including the provisions that would 

have sunset CAIR and the CAIR FIPs) 

and instructed the EPA to continue to 

administer CAIR pending the outcome 

of the court’s decision on the petitions 

for review challenging the Transport 

Rule. EME Homer City v. EPA, No. 11– 

1302. 

II. What is EPA’s response to comments 

received on this action? 

EPA received one set of comments on 

the February 28, 2012, rulemaking 

proposing a limited approval of South 

Carolina’s December 17, 2007, regional 

haze SIP revision. Specifically, the 

comments were received from the 

Southern Environmental Law Center on 

behalf of the South Carolina Coastal 

Conservation League. A full set of the 

comments provided by the 

aforementioned entity (hereinafter 

referred to as ‘‘the Commenter’’) is 

provided in the docket for today’s final 

action. A summary of the comments and 

EPA’s responses are provided below. 

Comment 1: The Commenter 

incorporates by reference comments 

submitted to EPA on February 28, 2012, 

by the ‘‘Sierra Club, Earthjustice, and 

other organizations’’ regarding the 

Agency’s December 30, 2011, proposed 

rulemaking to find that the Transport 

Rule is ‘‘better than BART’’ and to use 

the Transport Rule as an alternative to 

BART for South Carolina and other 

states subject to the Transport Rule. See 

76 FR 82219. The Commenter also 

restates several of these comments, 

including the following: the Transport 

Rule does not comply with EPA’s 

criteria for an alternative to BART; the 

State cannot rely on the proposed 

‘‘better than BART’’ rulemaking given 

the DC Circuit’s action staying 

implementation of the Transport Rule; 

concluding that the Transport Rule 

achieves greater reasonable progress 

toward national visibility conditions 

than BART, without regard to defined 

reasonable progress goals (RPGs), is 

arbitrary and contrary to the CAA; EPA 

has not accounted for the differences in 

averaging time under BART, the 

Transport Rule, and in measuring 

visibility impacts; EPA’s modeling 

assumed nitrate levels that are often 

lower than real-world conditions; in 

some instances, EPA relied on a single 

monitor to assess visibility conditions in 

multiple Class I areas; EPA uses a 

simple arithmetic mean to conclude that 

visibility improvements will be greater 

under the Transport Rule than BART; 

and EPA’s proposed ‘‘Better than 

BART’’ determination relies on a 2014 

base case that does not account for 

permanent emissions reductions at nonBART eligible sources. 

Response 1: These comments are 

beyond the scope of this rulemaking. In 

today’s action, EPA is finalizing a 

limited approval of South Carolina’s 

regional haze SIP. EPA did not propose 

to find that participation in the 


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2 In a final action published on July 6, 2005, EPA 

addressed similar comments related to CAIR and 

determined that CAIR makes greater reasonable 

progress than BART for certain EGUs and pollutants 

(70 FR 39138–39143). EPA did not reopen comment 

on that issue through this rulemaking. 

3See EPA, Response to Comments Document, 

Regional Haze: Revisions to Provisions Governing 

Alternatives to Source-Specific Best Available 

Retrofit Technology (BART) Determinations, 

Limited SIP Disapprovals, and Federal 

Implementation Plans (76 FR 82219; December 30, 

2011), Docket Number EPA–HQ–OAR–2011–0729 

(May 30, 2012), pages 49–51 (noting that EPA 

‘‘disagree[s] with comments that we cannot evaluate 

the BART requirements in isolation from the 

reasonable progress requirements. We have on 

several occasions undertaken evaluations of a 

state’s BART determination or promulgated a FIP 

separately from our evaluation of whether the SIP 

as a whole will ensure reasonable progress.’’). 

4Processing of State Implementation Plan (SIP) 

Revisions, EPA Memorandum from John Calcagni, 

Director, Air Quality Management Division, 

OAQPS, to Air Division Directors, EPA Regional 

Offices I–X, September 7, 1992, (‘‘1992 Calcagni 

Memorandum’’) located at http://www.epa.gov/ttn/ 

caaa/t1/memoranda/siproc.pdf. 

Transport Rule is an alternative to 

BART in this action nor did EPA reopen 

discussions on the CAIR provisions as 

they relate to BART.2 As noted above, 

EPA proposed to find that the Transport 

Rule is ‘‘Better than BART’’ and to use 

the Transport Rule as an alternative to 

BART for South Carolina in a separate 

action on December 30, 2011, and the 

Commenter is merely reiterating and 

incorporating comments submitted on 

that separate action. EPA addressed 

these February 28, 2012, comments 

concerning the Transport Rule as a 

BART alternative in a final action that 

was published on June 7, 2012, and has 

determined that they do not affect the 

Agency’s ability to finalize a limited 

approval of South Carolina’s regional 

haze SIP. EPA’s responses to these 

comments can be found in Docket ID 

No. EPA–HQ–OAR–2011–0729 at 

www.regulations.gov. 

Comment 2: The Commenter asserts 

that the proposed limited approval 

violates the CAA and RHR because a 

regional haze plan’s BART requirements 

and long-term strategy to achieve 

reasonable progress cannot be evaluated 

in isolation from one another. The 

Commenter supports its position by 

repeating statements made in the 

aforementioned February 28, 2012, 

comments on the Agency’s proposed 

December 30, 2011, rulemaking to find 

that the Transport Rule is ‘‘better than 

BART’’ and to use the Transport Rule as 

an alternative to BART for South 

Carolina and other states subject to the 

Transport Rule. For example, the 

Commenter states that ‘‘[b]ecause BART 

is a critical component to achieving 

reasonable progress, neither the states 

nor EPA are authorized to exempt 

sources from the RHR’s BART 

requirements without considering how 

doing so will affect the overarching 

reasonable progress mandate. * * * 

Concluding that CSAPR achieves greater 

reasonable progress toward achieving 

natural visibility conditions than BART, 

without regard to defined reasonable 

progress goals, is arbitrary and contrary 

to law under the Clean Air Act and the 

RHR.’’ 

Response 2: As discussed in the 

response to Comment 1, today’s action 

does not address reliance on CAIR or 

CSAPR to satisfy BART requirements. 

Comments related to the approvability 

of CAIR or CSAPR for the South 

Carolina regional haze SIP are therefore 

beyond the scope of this rulemaking and 

were addressed by EPA in a separate 

action published on June 7, 2012 (77 FR 

33642). EPA addressed the Commenter’s 

repeated statements regarding the 

interrelatedness of BART, the LTS, and 

RPGs in that final rulemaking action 

and those responses support this limited 

approval action.3

Comment 3: The Commenter asserts 

that EPA does not have the authority 

under the CAA to issue a limited 

approval of South Carolina’s regional 

haze SIP. The Commenter contends that 

section 110(k) of the Act only allows 

EPA to fully approve, partially approve 

and partially disapprove, conditionally 

approve, or fully disapprove a SIP. 

Response 3: As discussed in the 

September 7, 1992, EPA memorandum 

cited in the notice of proposed 

rulemaking,4 although section 110(k) of 

the CAA may not expressly provide 

authority for limited approvals, the 

plain language of section 301(a) does 

provide ‘‘gap-filling’’ authority 

authorizing the Agency to ‘‘prescribe 

such regulations as are necessary to 

carry out’’ EPA’s CAA functions. EPA 

may rely on section 301(a) in 

conjunction with the Agency’s SIP 

approval authority in section 110(k)(3) 

to issue limited approvals where it has 

determined that a submittal strengthens 

a given state’s implementation plan, and 

that the provisions meeting the 

applicable requirements of the Act are 

not separable from the provisions that 

do not meet the Act’s requirements. EPA 

has adopted the limited approval 

approach numerous times in SIP actions 

across the nation over the last 20 years. 

A limited approval action is appropriate 

here because EPA has determined that 

South Carolina’s SIP revision addressing 

regional haze, as a whole, strengthens 

the State’s implementation plan and 

because the provisions in the SIP 

revision are not separable. 

The Commenter states that EPA’s 

action ‘‘conflicts with the plain 

language of the [CAA]’’ and cites several 

Federal appellate court decisions to 

support its contention that section 

110(k) of the Act limits EPA to a full 

approval, ‘‘a conditional approval, a 

partial approval and disapproval, or a 

full disapproval.’’ However, adopting 

the Commenter’s position would ignore 

section 301 and violate the 

‘‘ ‘fundamental canon of statutory 

construction that the words of a statute 

must be read in their context and with 

a view to their place in the overall 

statutory scheme’ * * * A court must 

therefore interpret the statute ‘as a 

symmetrical and coherent regulatory 

scheme,’ * * * and ‘fit, if possible, all 

parts into an harmonious whole.’ ’’ FDA 

v. Brown & Williamson Tobacco Corp., 

529 U.S. 120, 133 (2000) (quoting Davis 

v. Michigan Dept. of Treasury, 489 U.S. 

803, 809 (1989), Gustafson v. Alloyd 

Co., 513 U.S. 561, 569 (1995), and FTC 

v. Mandel Brothers, Inc., 359 U.S. 385, 

389 (1959)). Furthermore, the cases 

cited by the Commenter did not involve 

challenges to a limited approval 

approach, and one of the cases, 

Abramowitz v. EPA, 832 F.2d 1071 (9th 

Cir. 1988), predates the 1990 CAA 

amendments enacting section 110(k). 

Comment 4: The Commenter contends 

that it was inappropriate for the State to 

‘‘rel[y] on CAIR (and now CSAPR)’’ in 

determining RPGs and that due, in part, 

to this reliance, the State ‘‘failed to 

evaluate numerous sources that 

contribute significantly to visibility 

impairment at the State’s Class I areas’’ 

and that it ‘‘cast doubts on the validity 

of DHEC’s modeling.’’ The Commenter 

therefore believes that EPA should not 

approve the SIP unless the State 

considers additional reasonable progress 

from the 10 electric generating units 

(EGUs) excluded from the reasonable 

progress analyses and the State 

conducts further analyses in setting its 

RPGs (or EPA ‘‘ensure[s] that DHEC 

follows through on its commitment to 

re-evaluate its ability to meet its RPGs 

in the 5-year progress review, pursuant 

to 40 CFR. 52.308(g)’’). The Commenter 

also states that ‘‘even when the uniform 

rate of progress [URP] is predicted to be 

met, the state still has an obligation ‘to 

go beyond the URP analysis in 

establishing RPGs * * * to determine 

whether additional progress would be 

reasonable based on the statutory 

factors.’’’ 

Response 4: The State took into 

account emissions reductions expected 

from CAIR to determine the 2018 RPGs 

for its Class I area, and this approach 

was fully consistent with EPA guidance 

at the time of SIP development. In the 

regional haze program, uncertainties 

associated with modeled emissions 


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38512 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Rules and Regulations 

5Regional Haze Regulations and Guidelines for 

Best Available Retrofit Technology (BART) 

Determinations, EPA Memorandum from Joseph 

Paisie, Group Leader, Geographic Strategies Group, 

OAQPS, to Kay Prince, Branch Chief, EPA Region 

4, July 19, 2006, located at: http://www.epa.gov/ 

visibility/pdfs/memo_2006_07_19.pdf. 

projections into the future are addressed 

through the requirement under the RHR 

to submit periodic progress reports in 

the form of a SIP revision. Specifically, 

40 CFR 51.308(g) requires each state to 

submit a report every five years 

evaluating progress toward the RPGs for 

each mandatory Class I area located in 

the state and for each Class I area 

outside the state that may be affected by 

emissions from the state. Since this 5- 

year progress re-evaluation is a 

mandatory requirement, it is 

unnecessary for EPA to take additional 

measures to ‘‘ensure’’ that the State 

meets its reporting obligation. 

Regarding the need to go beyond the 

URP analysis when establishing RPGs, 

EPA affirmed in the RHR that the URP 

is not a ‘‘presumptive target;’’ rather, it 

is an analytical requirement for setting 

RPGs. See 64 FR 35731 and 35732, July 

1, 1999. In determining RPGs for the 

South Carolina Class I area, the State 

identified sources through its area of 

influence methodology for reasonable 

progress control evaluation and 

described those evaluations in its SIP. 

For its EGUs subject to CAIR, SC DHEC 

reviewed the statutory factors (i.e., the 

costs of compliance, the time necessary 

for compliance, the energy and non-air 

quality environmental impacts of 

compliance, and the remaining useful 

life of any potentially affected sources) 

as evaluated by EPA for CAIR. 

Comment 5: The Commenter contends 

that the emissions reductions from some 

of the significant CAA emissions control 

programs and consent decrees identified 

in the 2018 emissions inventory are 

speculative and uncertain. The 

Commenter therefore believes that EPA 

should require South Carolina to 

address any discrepancies, prior to 

approval of the State’s regional haze 

SIP. 

Response 5: The technical 

information provided in the record 

demonstrates that the emissions 

inventory in the SIP adequately reflects 

projected 2018 conditions and that the 

LTS meets the requirements of the RHR 

and is approvable. South Carolina’s 

2018 projections are based on the State’s 

technical analysis of the anticipated 

emissions rates and level of activity for 

EGUs, other point sources, nonpoint 

sources, on-road sources, and off-road 

sources based on their emissions in the 

2002 base year, considering growth and 

additional emissions controls to be in 

place and federally enforceable by 2018. 

The emissions inventory used in the 

regional haze technical analyses was 

developed by the Visibility 

Improvement State and Tribal 

Association of the Southeast (VISTAS) 

with assistance from South Carolina. 

The 2018 emissions inventory was 

developed by projecting 2002 emissions 

(the latest region-wide inventory 

available at the time the submittal was 

being developed) and applying 

reductions expected from Federal and 

state regulations affecting the emissions 

of VOC and the visibility impairing 

pollutants NOX, particulate matter (PM), 

and SO2. To minimize the differences 

between the 2018 projected emissions 

used in the South Carolina regional haze 

submittal and what actually occurs in 

2018, the RHR requires that the 5-year 

review address any expected significant 

differences due to changed 

circumstances from the initial 2018 

projected emissions, provide updated 

expectations regarding emissions for the 

implementation period, and evaluate 

the impact of these differences on RPGs. 

It is expected that individual projections 

within a statewide inventory will vary 

from actual emissions over a 16-year 

period. For example, some facilities 

shut down whereas others expand 

operations. Furthermore, economic 

projections and population changes 

used to estimate growth often differ 

from actual events; new rules are 

modified, changing their expected 

effectiveness; and methodologies to 

estimate emissions improve, modifying 

emissions estimates. The 5-year review 

is a mechanism to assure that these 

expected differences from projected 

emissions are considered and their 

impact on the 2018 RPGs is evaluated. 

EPA finds that these inventories provide 

a reasonable assessment of future 

emissions from South Carolina sources. 

Comment 6: The Commenter states 

that in exempting EGUs from a BART 

analysis ‘‘on the basis that their 

contribution to visibility impairment 

modeled less than 0.5 deciview, it does 

not appear that DHEC considered the 

cumulative impact of those sources that 

did not individually exceed the 0.5 dv 

threshold, but collectively may cause or 

contribute to impairment.’’ The 

Commenter cites to EPA guidelines in 

70 FR 39161 and39162, July 6, 2005, to 

support its belief that this exemption 

threshold ‘‘applies when all visibility 

impairing pollutants are modeled 

together, not one pollutant at a time, as 

used by DHEC.’’ According to the 

Commenter, when considering the 

modeling impacts from coarse 

particulate matter (PM10) alone for the 

exempted sources, their combined 

‘‘contribution to visibility impairment 

greatly exceeds the 0.5 dv contribution 

threshold,’’ calling into question the 

‘‘validity of DHEC’s exemptions of 

multiple sources from BART.’’ 

Response 6: As discussed in the 

proposal, (see section IV.C.6.B.2, 

February 28, 2012, 77 FR 11908), South 

Carolina adequately justified its 

contribution threshold of 0.5 deciview. 

While states have the discretion to set 

an appropriate contribution threshold 

considering the number of emissions 

sources affecting the Class I area at issue 

and the magnitude of the individual 

sources’ impacts, the states’ analysis 

must be consistent with the CAA, the 

RHR, and EPA’s Guidelines for BART 

Determinations Under the Regional 

Haze Rule at Appendix Y to 40 CFR part 

51 (BART Guidelines). Consistent with 

the regulations and EPA’s guidance, 

‘‘the contribution threshold should be 

used to determine whether an 

individual source is reasonably 

anticipated to contribute to visibility 

impairment. You should not aggregate 

the visibility effects of multiple sources 

and compare their collective effects 

against your contribution threshold 

because this would inappropriately 

create a ‘contribution to contribution’ 

test.’’ See also 70 FR 39121, Note 34, 

July 6, 2005. South Carolina’s analysis 

in the regional haze SIP revision was 

consistent with EPA’s regulations and 

guidance on the issue of cumulative 

analyses. 

Regarding modeling in South 

Carolina’s submittal that uses PM only 

for its BART-eligible EGUs, EPA 

previously determined that this 

approach is appropriate for EGUs where 

the State proposed to rely on CAIR to 

satisfy the BART requirements for SO2

and NOX.5

Comment 7: The Commenter believes 

that the PM BART determinations for 

South Carolina Electric & Gas’ 

(‘‘SCE&G’s’’) Wateree and Williams 

stations are flawed because ‘‘it appears 

that DHEC did not evaluate BART for all 

particulate matter. BART requires an 

evaluation of technology for filterable 

PM10 and PM2.5 as well as condensable 

particulate matter * * *. DHEC’s BART 

determinations * * * appear to have 

been based [on] cost analyses that were 

conducted for condensable PM10. The 

finer fractions of particulate matter 

(PM2.5) make a relatively larger 

contribution to visibility impacts. This 

has an impact in estimating emission 

reductions and selecting the most 

effective controls. EPA must require 

DHEC to conduct new BART 

determinations that correct this flaw.’’ 

Response 7: It is unclear from the 

comment what PM control strategies 


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6 Guidance for Setting Reasonable Progress Goals 

Under the Regional Haze Program, July 1, 2007, 

memorandum from William L.Wehrum, Acting 

Assistant Administrator for Air and Radiation, to 

EPA Regional Administrators, EPA Regions 1–10 

(‘‘EPA’s Reasonable Progress Guidance’’), page 4–2. 7 1992 Calcagni Memorandum. 

were allegedly ignored by the State in 

the BART analyses for these two 

stations. Each of the control options 

evaluated for these facilities in South 

Carolina’s regional haze SIP submittal 

considered the contribution of total 

PM10 and PM2.5 (as a subset of the total 

PM10) as well as condensables 

(primarily sulfuric acid mist) (see 

Appendix H.6 of South Carolina’s 

December 17, 2007, SIP submittal). The 

installed controls on both facilities are 

effective at reducing filterable and 

condensable particulates, and as a 

result, the State determined that 

additional reductions were not cost 

effective. The Commenter did not 

identify any alternative control 

technology for fine particles not 

considered by the State that could affect 

the BART determination. 

Comment 8: According to the 

Commenter, it was ‘‘inappropriate and 

arbitrary for DHEC to use the CAIR cost 

per ton of SO2 removed as the cost 

threshold for evaluating reasonable 

progress controls. The only rationale 

DHEC offered in support of this decision 

was that DHEC ‘believes it is not 

equitable to require non-EGUs to bear a 

greater economic burden than EGUs for 

a given control strategy’ * * *. EPA, 

likewise, acknowledges that ‘the use of 

a specific threshold for assessing costs 

means that a state may not fully 

consider available emissions reduction 

measures above its threshold that would 

result in meaningful visibility 

improvement,’ but proposes to approve 

South Carolina’s reasonable progress 

analysis anyway * * * EPA should reevaluate this decision in its final action 

on this proposal, especially in light of 

the fact that DHEC determined that no 

additional reasonable controls were 

required at any of the sources affecting 

visibility in South Carolina’s Class I 

area.’’ 

Response 8: As noted in EPA’s 

Reasonable Progress Guidance 6 and 

discussed further in EPA’s February 28, 

2012, proposal action on the South 

Carolina regional haze SIP submittal (77 

FR 11906), the states have wide latitude 

to determine appropriate additional 

control requirements for ensuring 

reasonable progress, and there are many 

ways for a state to approach 

identification of additional reasonable 

measures. States must consider, at a 

minimum, the four statutory factors in 

determining reasonable progress, but 

states have flexibility in how to take 

these factors into consideration. 

After reviewing DHEC’s methodology 

and analyses and the record prepared by 

DHEC, EPA finds South Carolina’s 

conclusion that no further controls are 

necessary at this time acceptable and 

that the State adequately evaluated the 

control technologies available at the 

time of its analysis and applicable to 

this type of facility and consistently 

applied its criteria for reasonable 

compliance costs. See 77 FR 11906, 

February 28, 2012. The State also 

included appropriate documentation in 

its SIP of the technical analysis it used 

to assess the need for and 

implementation of reasonable progress 

controls. Although the use of a specific 

threshold for assessing costs means that 

a state may not fully consider available 

emissions reduction measures above its 

threshold that would result in 

meaningful visibility improvement, EPA 

believes that the South Carolina SIP 

ensures reasonable progress. 

In approving South Carolina’s 

reasonable progress analysis, EPA is 

placing great weight on the fact that 

there is no indication in the SIP revision 

that South Carolina, as a result of using 

a specific cost effectiveness threshold, 

rejected potential reasonable progress 

measures that would have had a 

meaningful impact on visibility in its 

Class I areas. 

III. What is the effect of this final 

action? 

Under CAA sections 301(a) and 

110(k)(6) and EPA’s long-standing 

guidance, a limited approval results in 

approval of the entire SIP revision, even 

of those parts that are deficient and 

prevent EPA from granting a full 

approval of the SIP revision.7 Today, 

EPA is finalizing a limited approval of 

South Carolina’s December 17, 2007, 

regional haze SIP revision. This limited 

approval results in approval of South 

Carolina’s entire regional haze 

submission and all its elements. EPA is 

taking this approach because South 

Carolina’s SIP will be stronger and more 

protective of the environment with the 

implementation of those measures by 

the State and having Federal approval 

and enforceability than it would 

without those measures being included 

in its SIP. 

IV. Final Action 

EPA is finalizing a limited approval of 

a revision to the South Carolina SIP 

submitted by the State of South Carolina 

on December 17, 2007, as meeting some 

of the applicable regional haze 

requirements as set forth in sections 

169A and 169B of the CAA and in 40 

CFR 51.300–308. Also in this action, 

EPA is rescinding the Federal 

regulations in 40 CFR 52.2132 that were 

approved into the South Carolina SIP on 

July 12, 1985, and November 24, 1987, 

and is approving the provisions in 

South Carolina’s December 17, 2007, 

SIP submittal to meet the monitoring 

and LTS requirements for RAVI at 40 

CFR 51.305 and 40 CFR 51.306, 

respectively. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866, Regulatory 

Planning and Review 

The Office of Management and Budget 

(OMB) has exempted this regulatory 

action from Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review.’’ 

B. Paperwork Reduction Act 

Under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq., OMB must 

approve all ‘‘collections of information’’ 

by EPA. The Act defines ‘‘collection of 

information’’ as a requirement for 

answers to * * * identical reporting or 

recordkeeping requirements imposed on 

ten or more persons * * * 44 U.S.C. 

3502(3)(A). The Paperwork Reduction 

Act does not apply to this action. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to conduct a regulatory flexibility 

analysis of any rule subject to notice 

and comment rulemaking requirements 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Small entities include small 

businesses, small not-for-profit 

enterprises, and small governmental 

jurisdictions. 

This rule will not have a significant 

impact on a substantial number of small 

entities because SIP approvals under 

section 110 and subchapter I, part D of 

the CAA do not create any new 

requirements but simply approve 

requirements that the State is already 

imposing. Therefore, because the 

Federal SIP approval does not create 

any new requirements, I certify that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. 

Moreover, due to the nature of the 

Federal-state relationship under the 

CAA, preparation of flexibility analysis 

would constitute Federal inquiry into 

the economic reasonableness of state 

action. The CAA forbids EPA to base its 

actions concerning SIPs on such 


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38514 Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Rules and Regulations 

8The Catawba Indian Nation Reservation is 

located within the South Carolina. Generally, SIPs 

do not apply in Indian country throughout the 

United States, however, for purposes of the Catawba 

Indian Nation Reservation in Rock Hill, the South 

Carolina SIP does apply within the Reservation 

pursuant to the Catawba Indian Claims Settlement 

Act, S.C. Code Ann. 27–16–120 (providing that ‘‘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.’’) 

grounds. Union Electric Co., v. EPA, 427 

U.S. 246, 255–66 (1976); 42 U.S.C. 

7410(a)(2). 

D. Unfunded Mandates Reform Act 

(UMRA) 

Under sections 202 of the UMRA of 

1995 (‘‘Unfunded Mandates Act’’), 

signed into law on March 22, 1995, EPA 

must prepare a budgetary impact 

statement to accompany any proposed 

or final rule that includes a Federal 

mandate that may result in estimated 

costs to state, local, or tribal 

governments in the aggregate; or to the 

private sector, of $100 million or more. 

Under section 205, EPA must select the 

most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule and is 

consistent with statutory requirements. 

Section 203 requires EPA to establish a 

plan for informing and advising any 

small governments that may be 

significantly or uniquely impacted by 

the rule. 

EPA has determined that today’s 

action does not include a Federal 

mandate that may result in estimated 

costs of $100 million or more to either 

state, local, or tribal governments in the 

aggregate, or to the private sector. This 

Federal action approves pre-existing 

requirements under state or local law, 

and imposes no new requirements. 

Accordingly, no additional costs to 

state, local, or tribal governments, or to 

the private sector, result from this 

action. 

E. Executive Order 13132, Federalism 

Federalism (64 FR 43255, August 10, 

1999) revokes and replaces Executive 

Orders 12612 (Federalism) and 12875 

(Enhancing the Intergovernmental 

Partnership). Executive Order 13132 

requires EPA to develop an accountable 

process to ensure ‘‘meaningful and 

timely input by State and local officials 

in the development of regulatory 

policies that have Federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the states, on the relationship 

between the national government and 

the states, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ Under 

Executive Order 13132, EPA may not 

issue a regulation that has Federalism 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by state and local 

governments, or EPA consults with state 

and local officials early in the process 

of developing the proposed regulation. 

EPA also may not issue a regulation that 

has Federalism implications and that 

preempts state law unless the Agency 

consults with state and local officials 

early in the process of developing the 

proposed regulation. 

This rule will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132, because it 

merely approves a state rule 

implementing a Federal standard, and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Thus, the requirements of section 6 of 

the Executive Order do not apply to this 

rule. 

F. Executive Order 13175, Coordination 

With Indian Tribal Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ Consistent with the EPA 

Policy on Consultation and 

Coordination with Indian Tribes, EPA 

complies with this Executive Order 

through the process of tribal 

consultation. With respect to today’s 

action, EPA has offered the Catawba 

Indian Nation two opportunities to 

consult.8 First, in an email dated 

October 21, 2010, EPA extended the 

Catawba Indian Nation an opportunity 

to consult, however, the Tribe declined 

to consult with EPA at that time. Due to 

the passage of time between the initial 

offer of consultation and today’s 

proposed action, EPA provided the 

Catawba Indian Nation a second 

opportunity to consult on the South 

Carolina Regional Haze SIP revision on 

February 1, 2012. In an email dated 

February 8, 2012, the Catawba Indian 

Nation stated that no consultation on 

this pending action was needed by the 

Tribe. Further, EPA has no information 

to suggest that today’s action will 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

G. Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks 

Protection of Children from 

Environmental Health Risks and Safety 

Risks (62 FR 19885, April 23, 1997), 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

This rule is not subject to Executive 

Order 13045 because it does not involve 

decisions intended to mitigate 

environmental health or safety risks. 

H. Executive Order 13211, Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not subject to Executive 

Order 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355, May 22, 2001) because it is 

not a significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12 of the NTTAA of 1995 

requires Federal agencies to evaluate 

existing technical standards when 

developing a new regulation. To comply 

with NTTAA, EPA must consider and 

use ‘‘voluntary consensus standards’’ 

(VCS) if available and applicable when 

developing programs and policies 

unless doing so would be inconsistent 

with applicable law or otherwise 

impractical. 

EPA believes that VCS are 

inapplicable to this action. Today’s 

action does not require the public to 

perform activities conducive to the use 

of VCS. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 


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Federal Register / Vol. 77, No. 125 / Thursday, June 28, 2012 / Rules and Regulations 38515 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

K. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by August 27, 2012. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this rule for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. See section 

307(b)(2). 

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, Sulfur oxides, Volatile 

organic compounds. 

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

Dated: June 13, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

Therefore, 40 CFR part 52 is amended 

as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.2120 (e) is amended by 

adding an entry for ‘‘Regional Haze 

Plan’’ at the end of the table to read as 

follows: 

§ 52.2120 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED SOUTH CAROLINA NON-REGULATORY PROVISIONS

Provision State effective date EPA approval date Explanation 

*******

Regional haze plan .................................................................... 12/17/2007 6/28/2012 [Insert citation of publication]. 

■ 3. Section 52.2132 is amended by 

removing and reserving paragraph (a) to 

read as follows: 

§ 52.2132 Visibility protection. 

(a) [Reserved] 

* * * * * 

[FR Doc. 2012–15465 Filed 6–27–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0782; FRL–9691–8] 

Approval and Promulgation of 

Implementation Plans; State of 

Alabama; Regional Haze State 

Implementation Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing a limited 

approval of a revision to the Alabama 

State Implementation Plan (SIP) 

submitted by the State of Alabama 

through the Alabama Department of 

Environmental Management (ADEM) on 

July 15, 2008. Alabama’s July 15, 2008, 

SIP revision addresses regional haze for 

the first implementation period. 

Specifically, this SIP revision addresses 

the requirements of the Clean Air Act 

(CAA or Act) and EPA’s rules that 

require states to prevent any future and 

remedy any existing anthropogenic 

impairment of visibility in mandatory 

Class I areas (national parks and 

wilderness areas) caused by emissions 

of air pollutants from numerous sources 

located over a wide geographic area 

(also referred to as the ‘‘regional haze 

program’’). States are required to assure 

reasonable progress toward the national 

goal of achieving natural visibility 

conditions in Class I areas. EPA is 

finalizing a limited approval of 

Alabama’s July 15, 2008, SIP revision to 

implement the regional haze 

requirements for Alabama on the basis 

that this SIP revision, as a whole, 

strengthens the Alabama SIP. 

Additionally, EPA is rescinding the 

federal regulations previously approved 

into the Alabama SIP on November 24, 

1987, and approving the provisions in 

Alabama’s July 15, 2008, SIP submittal 

to meet the long-term strategy (LTS) 

requirements for reasonably attributable 

visibility impairment (RAVI). In a 

separate action published on June 7, 

2012, EPA finalized a limited 

disapproval of this same SIP revision 

because of the deficiencies in the State’s 

regional haze SIP revision arising from 

the remand by the U.S. Court of Appeals 

for the District of Columbia Circuit (DC 

Circuit) to EPA of the Clean Air 

Interstate Rule (CAIR). 

DATES: Effective Date: This rule will be 

effective July 30, 2012, except for the 

amendment to § 52.61, which is 

effective on August 7, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0782. All documents in the docket 

are listed on the www.regulations.gov 

Web site. Although listed in the index, 

some information is not publicly 

available, i.e., Confidential Business 

Information 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 through 

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 

for further information. The Regional 

Office’s official hours of business are 

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

excluding federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 


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