2012-29367. Approval and Promulgation of Implementation Plans; Region 4 States; Section 110(a)(2)(D)(i)(II) Infrastructure Requirement for the 1997 and 2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to approve submissions from Alabama, Georgia, Mississippi and South Carolina for inclusion into each states' State Implementation Plans (SIP). This proposal 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 proposing 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.

DATES:

Written comments must be received on or before January 4, 2013.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0814, by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: [e-mail].

3. Fax: [phone].

4. Mail: “EPA-R04-OAR-2012-0814,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.

5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2012-0814. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

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

Table of Contents

I. Background

II. What are States required to address under Sections 110(a)(2)(D)?

III. What is EPA's analysis of how Region 4 States addressed element (D)(i)(II) related to PSD?

IV. Proposed Action

V. Statutory and Executive Order Reviews

I. Background

On July 18, 1997 (62 FR 38652), EPA established an annual PM_2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m³) based on a 3-year average of annual mean PM_2.5 concentrations. At that time, EPA also established a 24-hour NAAQS of 65 μg/m³. See 40 CFR 50.7. On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM_2.5 NAAQS at 15.0 μg/m³ based on a 3-year average of annual mean PM_2.5 concentrations, and promulgated a new 24-hour NAAQS of 35 μg/m³ based on a 3-year average of the 98th percentile of 24-hour concentrations. By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs to EPA no later than July 2000 for the 1997 annual PM_2.5 NAAQS, and no later than October 2009 for the 2006 24-hour PM_2.5 NAAQS.

States were required to submit such SIPs to EPA no later than July 2000 for the 1997 annual PM_2.5 NAAQS, and no later than Octoer 2009 for the 2006 24-hour PM_2.5 NAAQS.

On March 4, 2004, Earthjustice submitted a notice of intent to sue related to EPA's failure to issue findings of failure to submit related to the “infrastructure” requirements for the 1997 annual PM_2.5 NAAQS. On March 10, 2005, EPA entered into a consent decree with Earthjustice which required EPA, among other things, to complete a Federal Register notice announcing EPA's determinations pursuant to section 110(k)(1)(B) as to whether each state had made complete submissions to meet the requirements of section 110(a)(2) for the 1997 PM_2.5 NAAQS by October 5, 2008. In accordance with the consent decree, EPA made completeness findings for each state based upon what the Agency received from each state for the 1997 PM_2.5 NAAQS as of October 3, 2008.

On October 22, 2008, EPA published a final rulemaking entitled “Completeness Findings for Section 110(a) State Implementation Plans Pertaining to the Fine Particulate Matter (PM_2.5) NAAQS” making a finding that each state had submitted or failed to submit a complete SIP that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 PM_2.5 NAAQS. See 73 FR 62902. For those states that did receive findings, the findings of failure to submit for all or a portion of a state's implementation plan established a 24-month deadline for EPA to promulgate a Federal Implementation Plan (FIP) to address the outstanding SIP elements unless, prior to that time, the affected states submitted, and EPA approved, the required SIPs.

The findings that all or portions of a state's submission are complete established a 12-month deadline for EPA to take action upon the complete SIP elements in accordance with section 110(k). Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions were received by EPA on July 25, 2008, July 23, 2008, December 7, 2007, and March 14, 2008, respectively, for the 1997 annual PM_2.5 NAAQS and on September 23, 2009, October 21, 2009, October 6, 2009, and September 18, 2009, respectively, for the 2006 24-hour PM_2.5 NAAQS. Alabama, Georgia, Mississippi and South Carolina were among other states that did not receive findings of failure to submit because they had provided a complete submission to EPA to address the infrastructure elements for the 1997 PM_2.5 NAAQS by October 3, 2008.

On July 6, 2011, WildEarth Guardians and Sierra Club filed an amended complaint related to EPA's failure to take action on the SIP submittal related to the “infrastructure” requirements for the 2006 24-hour PM_2.5 NAAQS. On October 20, 2011, EPA entered into a consent decree with WildEarth Guardians and Sierra Club which required EPA, among other things, to complete a Federal Register notice of the Agency's final action either approving, disapproving, or approving in part and disapproving in part the Alabama, Georgia, Mississippi and South Carolina 2006 24-hour PM_2.5 NAAQS Infrastructure SIP submittals addressing the applicable requirements of sections 110(a)(2)(A)-(H), (J)-(M), except for section 110(a)(2)(C) nonattainment area requirements and section 110(a)(2)(D)(i) visibility requirements. The rulemaking proposed through today's action is consistent with the terms of this consent decree.

Today's action is proposing to approve Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions for the 1997 annual and 2006 24-hour PM_2.5 NAAQS addressing CAA section 110(a)(2)(D)(i)(II) related to adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality (referred to as “prong 3”). EPA has taken previous action on Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions for the 1997 and 2006 PM_2.5 NAAQS for sections 110(a)(2)(A)-(F), (H), (J)-(M), including other portions of section 110(a)(2)(D)(i) in separate actions from today's rulemaking.

II. What are States required to address under Sections 110(a)(2)(D)?

Section 110(a)(2)(D) has two components, 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Specifically, section 110(a)(2)(D)(i) has four components that require SIPs to include provisions prohibiting any source or other type of emissions activity in one state from: 1) contributing significantly to nonattainment of the NAAQS in any other State, and 2) interfering with maintenance of the NAAQS by any other State (collectively referred to as 110(a)(2)(D)(i)(I)); or interfering with measures required to 3) prevent significant deterioration of air quality in any other State, or 4) protect visibility in any other State (collectively referred to as 110(a)(2)(D)(i)(II)). 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 proposed rulemaking 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.

III. What is EPA's analysis of how Region 4 States addressed element (D)(i)(II) related to PSD?

EPA's September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM_2.5) National Ambient Air Quality Standards” provided guidance on addressing the infrastructure requirements required under sections 110(a)(1) and 110(a)(2) of the CAA with respect to the 2006 24-hour PM_2.5 NAAQS. The 2009 Guidance describes that a state's PSD permitting program is the primary measure that such state must include in its SIP to prevent significant deterioration of air quality in accordance with prong 3 of section 110(a)(2)(D)(i). EPA believes that Alabama, Georgia, Mississippi and South Carolina's infrastructure submissions are consistent with the 2009 Guidance, when considered in conjunction with each State's PSD program.

At present, there are four regulations that are required to be adopted into the SIP to meet PSD-related infrastructure requirements. See Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) of the CAA. These regulations are: (1) “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”); (2) “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 PM_2.5 Rule”); (3) “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule” (June 3, 2010, 75 FR 31514) (hereafter referred to as the “GHG Tailoring Rule”); and, (4) “Final Rule on the Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM_2.5)—Increments, Significant Impact Levels (SILs) and Significant monitoring Concentration (SMC); Final Rule” (October 20, 2010, 75 FR 64864) (hereafter referred to as “PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments)”). 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.

First, as part of the framework to implement the 1997 8-hour ozone NAAQS, EPA promulgated an implementation rule in two phases.^[1] The Phase 2 Rule is relevant to today's action. Among other changes, the rule revised the PSD regulations to recognize nitrogen oxide (NOx) as an ozone precursor.

Second, the NSR PM_2.5 Rule revised the NSR program to establish the framework for implementing preconstruction permit review for the PM_2.5 NAAQS in both attainment areas and nonattainment areas. These PSD requirements included: (1) A provision that NSR permits address directly emitted PM_2.5 and precursor pollutants; (2) a requirement establishing significant emission rates for direct PM_2.5 and precursor pollutants (including sulfur dioxide (SO₂) and NOx); 3) exceptions to the grandfathering policy for permits being reviewed under the PM₁₀ surrogate program; and, (4) a revision that states account for gases that condense to form particles (condensables) in PM_2.5 and PM₁₀ emission limits in PSD permits.

Third, in the GHG Tailoring Rule, EPA tailored the applicability criteria that determine which GHG emission sources become subject to the PSD program of the CAA. See 75 FR 31514.

Lastly, the PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 increments) provided additional regulatory requirements under the PSD program regarding the implementation of the PM_2.5 NAAQS for NSR by specifically establishing PM_2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS.

The PSD requirements promulgated in the aforementioned regulations establish the framework for a comprehensive SIP PSD program which EPA has determined are necessary to comply with prong 3 of section 110(a)(2)(D)(i). The following table shows when EPA approved the incorporation of the aforementioned regulations in each of the States' implementation plan:

State	Phase II rule	GHG tailoring rule	NSR PM2.5 rule	PM2.5 PSD increment-SILs-SMC rule (as it relates to PM2.5 increments)
Alabama	5/1/2008	12/29/2010	9/26/2012	9/26/2012.
	73 FR 23957	75 FR 81863	77 FR 59100	77 FR 59100.
Georgia	11/22/2010	9/8/2011	9/8/2011	See Below.
	75 FR 71018	76 FR 55572	76 FR 55572
Mississippi	12/20/2010	12/29/2010	9/26/2012	9/26/2012.
	75 FR 79300	75 FR 81858	77 FR 59095	77 FR 59095.
South Carolina	6/23/2011	Refer to Footnote 2	6/23/2011	See Below.
	76 FR 36875		76 FR 36875

1. Alabama: As noted in the table above, Alabama has addressed, and EPA has approved, the underlying PSD regulations to support the State's program. In this action, EPA is proposing to approve Alabama's infrastructure submissions for the 1997 annual and 2006 24-hour PM_2.5 NAAQS with regard to the PSD requirements for prong 3 of 110(a)(2)(D)(i).

2. Georgia: In this action, EPA is proposing to approve Georgia's infrastructure submissions for the 1997 annual and 2006 24-hour PM_2.5 NAAQS with regard to the prong 3 requirement of section 110(a)(2)(D)(i). Today's proposed approval of Georgia's implementation plan respecting the prong 3 infrastructure element of 110(a)(2)(D)(i) is contingent upon EPA first taking final action to approve Georgia's July 26, 2012, SIP revision regarding PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments) revision into the State's implementation plan. EPA will consider action on Georgia's July 26, 2012, submission in a rulemaking separate from today's action.

3. Mississippi: As noted in the table above, Mississippi has addressed, and EPA has approved, the underlying PSD regulations to support the State's program. In this action, EPA is proposing to approve Mississippi's infrastructure submissions for the 1997 annual and 2006 24-hour PM_2.5 NAAQS with regard to the PSD requirements for prong 3 of section 110(a)(2)(D)(i).

4. South Carolina: In this action, EPA is proposing to approve South Carolina's infrastructure submissions for the 1997 annual and 2006 24-hour PM_2.5 NAAQS with regard to prong 3 of section 110(a)(2)(D)(i). Today's proposed approval of South Carolina's implementation plan respecting prong 3 of section 110(a)(2)(D)(i)(II) is contingent upon EPA first taking final action to approve South Carolina's May 1, 2012, SIP revision regarding the PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments) revision into the State's implementation plan. EPA will consider action on South Carolina's May 1, 2012, submission in a rulemaking separate from today's action.

Pending final approval of the above-described contingent SIP revisions, Alabama, Georgia, Mississippi and South Carolina have demonstrated that major sources in each state are subject to PSD permitting programs to comply with prong 3 of section 110(a)(2)(D)(i) of the CAA for the PM_2.5 NAAQS. Therefore, EPA has made the preliminary determination that, pending these contingent revisions, Alabama, Georgia, Mississippi and South Carolina's SIP and practices will be adequate for insuring compliance with the applicable PSD requirements relating to interstate transport pollution for the 1997 and 2006 PM_2.5 NAAQS.

IV. Proposed Action

As described above, EPA is proposing to approve SIP revisions for Alabama, Georgia, Mississippi and South Carolina to incorporate provisions into the States' implementation plans to address prong 3 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. As noted above, the proposed approval of Georgia's and South Carolina's implementation plan respecting prong 3 of section 110(a)(2)(D)(i) is contingent upon EPA first taking final action to approve the States' July 26, 2012, and May 1, 2012, SIP revisions, respectively, for the PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments).

V. Statutory and Executive Order Reviews

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

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

EPA has preliminarily determined that this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because there are no “substantial direct effects” on an Indian Tribe as a result of this action. EPA notes that the Catawba Indian Nation Reservation is located within the 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 proposing 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)(II), EPA has preliminarily determined that today's action will have 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: November 21, 2012.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

Footnotes

1.  EPA promulgated the Phase I Rule on April 30, 2004 entitled “Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 1.” See 69 FR 23951.

2.  On 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-2010-0721.