2013-08266. Approval and Promulgation of Implementation Plans; Region 4 States; Prong 3 Infrastructure Requirement for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to approve submissions from Alabama, Georgia, Mississippi and South Carolina for inclusion into each states' State Implementation Plans (SIP). This action pertains to the Clean Air Act (CAA) requirements regarding prevention of significant deterioration (PSD) for the 1997 annual and 2006 24-hour fine particulate matter (PM_2.5) National Ambient Air Quality Standards (NAAQS) infrastructure SIPs. The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure” SIP. EPA is taking final action to approve the submissions for Alabama, Georgia, Mississippi and South Carolina that relate to adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality. All other applicable infrastructure requirements for the 1997 annual and 2006 24-hour PM_2.5 NAAQS associated with these States are being addressed in separate rulemakings. EPA is also providing clarification for a footnote that was included in the proposed rulemaking for this action.

DATES:

This rule is effective May 13, 2013.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2012-0814. 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 to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30 excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Mr. Lakeman can be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

II. This Action

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM_2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On December 5, 2012, EPA proposed to approve Alabama, Georgia, Mississippi and South Carolina's submissions addressing section 110(a)(2) (D)(i)(II) related to PSD. A summary of the background for today's final action is provided below. See EPA's December 5, 2012, proposed rulemaking at 77 FR 72284 for more detail.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM_2.5 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous PM NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. However, EPA is only addressing element 110(a)(2)(D)(i)(II) related to PSD in this action.

Section 110(a)(2)(D) has two components; 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that generally must be addressed in 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)(D)(ii) requires SIPs to include provisions insuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

In previous actions, EPA has already taken action to address Alabama, Georgia, Mississippi and South Carolina's SIP submissions related to sections 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(ii) for the 1997 annual and 2006 24-hour PM_2.5 NAAQS. Today's final rulemaking action relates only to requirements related to prong 3 of section 110(a)(2)(D)(i), which as previously described, requires that the SIP contain adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality. More information on this requirement and EPA's rationale for today's proposal that each state is meeting this requirement for purposes of the 1997 annual and 2006 24-hour PM_2.5 NAAQS is provided below.

II. This Action

EPA is taking final action to approve Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions as demonstrating that the States meet the applicable requirements of prong 3 of section 110(a)(2)(D)(i) of the CAA, that relate to adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality for the 1997 annual and 2006 24-hour PM_2.5 NAAQS. Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP.

On December 5, 2012, EPA proposed to approve Alabama, Georgia, Mississippi and South Carolina's July 25, 2008, July 23, 2008, December 7, 2007, and March 14, 2008, (respectively, for the 1997 annual PM_2.5 NAAQS) and September 23, 2009, October 21, 2009, October 6, 2009, and September 18, 2009, (respectively, for the 2006 24-hour PM_2.5 NAAQS) infrastructure SIP submissions addressing prong 3 of section 110(a)(2)(D)(i).

Regarding final approval of Georgia and South Carolina's prong 3 of section 110(a)(2)(D)(i), EPA's December 5, 2012 (77 FR 72284), proposed action required EPA to first take final action to approve Georgia's July 26, 2012, and South Carolina's May 1, 2012, SIP revisions regarding PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments) into each State's implementation plan. Final approval of Georgia's July 26, 2012, PSD SIP revision was signed on March 27, 2013, and final approval of South Carolina's May 1, 2012, PSD SIP revision was signed on March 21, 2013.

EPA notes that on September 26, 2012, the Agency approved the Significant Monitoring Concentration (SMC) portion of the PM_2.5 PSD Increment-SILs-SMC Rule into the SIPs for Alabama and Mississippi. See 77 FR 59100 and 77 FR 59095. Since that time, 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, inter alia, vacated the provisions adding the PM_2.5 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 PM_2.5 PSD Increment-SILs-SMC Rule. 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 PM_2.5 be included in all PSD permit applications. Thus, although the PM_2.5 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 PM_2.5 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.

Given the clarity of the court's decision, it would now be inappropriate for Mississippi or Alabama to continue to allow applicants for any pending or future PSD permits to rely on the PM_2.5 SMC in order to avoid compiling ambient monitoring data for PM_2.5. 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. Mississippi and Alabama 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 PM_2.5 monitoring data in accordance with the CAA requirements whenever either direct PM_2.5 or any PM_2.5 precursor is emitted in a significant amount.^[1] As the previously-approved PM_2.5 SMC provisions in the Mississippi and Alabama SIPs are no longer enforceable, EPA does not believe the existence of the provisions in the States' SIPs precludes today's approval of the infrastructure SIP submissions for these States as the submissions relate to prong 3 of the 1997 annual and 2006 24-hour PM_2.5 NAAQS.

EPA intends to initiate a rulemaking to correct SIPs that were approved with regard to the PM_2.5 SMCs prior to the court's decision. EPA also advises the States to begin preparations to remove the PM_2.5 provisions from their state PSD regulations and SIPs. However, EPA has not yet set a deadline requiring States to take action to revise their existing PSD programs to address the court's decision.

EPA also notes that on 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 1997 PM_2.5 NAAQS. The court ordered EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at *8. 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 (PM_2.5),” 73 FR 28321 (May 16, 2008), promulgated NSR requirements for implementation of PM_2.5 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 PM_2.5 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 actions for the Florida infrastructure SIPs as related to element (D)(i)(II) with respect to the PSD requirements promulgated by the 2008 implementation 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 action. 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.

Additionally, it should be noted that in the December 5, 2012, proposed rule, on page 72286, in footnote #2, EPA stated that “[o]n 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.” It should have read “[o]n June 11, 2010, the South Carolina Governor signed a Joint Resolution 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.”

EPA received one comment in support of EPA's action and one off-topic comment on its December 5, 2012, proposed rulemaking to approve Alabama, Georgia, Mississippi and South Carolina's SIP submissions as meeting the prong 3 requirements of section 110(a)(2)(D)(i) of the CAA for the 1997 annual and 2006 24-hour PM_2.5 NAAQS. The off-topic Commenter wanted “to congratulate EPA workers for trying to decrease particles and increase the public's health.” This comment does not appear to be related to the issues presented in the proposed rulemaking, and instead, appears related to a wholly separate topic—promulgation of the new 2012 PM_2.5 NAAQS. EPA does not interpret this comment as relevant to the topic of EPA's December 5, 2012, proposed action. Instead, EPA interprets this comment as being off-topic and outside of the scope of today's final rulemaking.

Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions addressed the prong 3 requirements of section 110(a)(2)(D)(i) of the CAA for the 1997 annual and 2006 24-hour PM_2.5 NAAQS. Accordingly, EPA has determined that Alabama, Georgia, Mississippi and South Carolina's submissions are consistent with section 110 of the CAA.

III. Final Action

As described above, EPA is approving SIP submissions for Alabama, Georgia, Mississippi and South Carolina to incorporate provisions into the States' implementation plans to address the prong 3 requirements of section 110(a)(2)(D)(i) of the CAA for both the 1997 and 2006 PM_2.5 NAAQS. Specifically, EPA is proposing to approve the States' prong 3 of section 110(a)(2)(D)(i) submissions because they are consistent with section 110 of the CAA. Today's action is not approving any specific rule, but rather making a determination that Alabama, Georgia, Mississippi and South Carolina's already-approved SIPs meet certain CAA requirements.

IV. 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. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by Commonwealth law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L.104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

EPA has determined that this final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because there are no “substantial direct effects” on an Indian Tribe as a result of this action. EPA notes that the Catawba Indian Nation Reservation is located within South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” Thus, while the South Carolina SIP applies to the Catawba Reservation, because today's action is not a substantive revision to the South Carolina SIP, and is instead proposing that the existing SIP will satisfy the prong 3 requirements of section 110(a)(2)(D)(i), EPA has determined that today's action will have no “substantial direct effects” on the Catawba Indian Nation. EPA has also determined that these revisions will not impose any substantial direct costs on tribal governments or preempt tribal law.

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 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 action 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).

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 June 11, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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
• Volatile organic compounds

Dated: March 28, 2013.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

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

Subpart B—Alabama

2. In § 52.50, paragraph (e) is amended by adding two new entries for “110(a)(1) and (2) Infrastructure Requirements for the 1997 Fine Particulate Matter National Ambient Air Quality Standards” and “110(a)(1) and (2) Infrastructure Requirements for the 2006 Fine Particulate Matter National Ambient Air Quality Standards” at the end of the table to read as follows:

§ 52.50

Identification of plan.

* * * * *

(e) * * *

EPA-Approved Alabama Non-Regulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA Approval date	Explanation
*         *         *         *         *         *         *
110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter National Ambient Air Quality Standards	Alabama	7/25/2008	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only
110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter National Ambient Air Quality Standards	Alabama	9/23/2009	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only

Subpart L—Georgia

3. In § 52.570, paragraph (e) is amended by adding two new entries for “110(a)(1) and (2) Infrastructure Requirements for the 1997 Fine Particulate Matter National Ambient Air Quality Standards” and “110(a)(1) and (2) Infrastructure Requirements for the 2006 Fine Particulate Matter National Ambient Air Quality Standards” at the end of the table 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	Explanation
*         *         *         *         *         *         *
42. 110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter National Ambient Air Quality Standards	Georgia	7/23/2008	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only
43. 110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter National Ambient Air Quality Standards	Georgia	10/21/2009	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only

Subpart Z—Mississippi

4. In § 52.1270, paragraph (e) is amended by adding two new entries for “110(a)(1) and (2) Infrastructure Requirements for the 1997 Fine Particulate Matter National Ambient Air Quality Standards” and “110(a)(1) and (2) Infrastructure Requirements for the 2006 Fine Particulate Matter National Ambient Air Quality Standards” at the end of the table to read as follows:

§ 52.1270

Identification of plan.

* * * * *

(e) * * *

EPA-Approved Mississippi Non-Regulatory Provisions

Name of nonregulatory SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter National Ambient Air Quality Standards	Mississippi	12/7/2007	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only
110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter National Ambient Air Quality Standards	Mississippi	10/6/2009	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only

Subpart PP—South Carolina

5. In § 52.2120, paragraph (e) is amended by adding three new entries for “110(a)(1) and (2) Infrastructure Requirements for the 1997 Fine Particulate Matter National Ambient Air Quality Standards” and “110(a)(1) and (2) Infrastructure Requirements for the 2006 Fine Particulate Matter National Ambient Air Quality Standards.” 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
*         *         *         *         *         *         *
110(a)(1) and (2) Infrastructure Requirements for 1997 Fine Particulate Matter National Ambient Air Quality Standards	4/14/2008	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only
110(a)(1) and (2) Infrastructure Requirements for 2006 Fine Particulate Matter National Ambient Air Quality Standards	9/18/2009	4/12/2013 [Insert citation of publication]	Addressing element 110(a)(2)(D)(i)(II) prong 3 only

Footnotes

1.  In lieu of the applicants' need to set out PM_2.5 monitors to collect ambient data, applicants may submit PM_2.5 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.