[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)]
[Proposed Rules]
[Pages 41498-41507]
[FR Doc No: 2016-15145]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2015-0251; FRL-9948-43-Region 4]

Air Plan Approval; SC Infrastructure Requirements for the 2010
Nitrogen Dioxide National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve portions of the State Implementation Plan (SIP) submission,
submitted by the State of South Carolina, through the South Carolina
Department of Health and Environmental Control (SC DHEC) on April 30,
2014, to demonstrate that the State meets the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2010 nitrogen
dioxide (NO2) national ambient air quality standard (NAAQS).
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
submission. SC DHEC certified that the South Carolina SIP contains
provisions that ensure the 2010 NO2 NAAQS is implemented,
enforced, and maintained in South Carolina. With the exception of
provisions pertaining to prevention of significant deterioration (PSD)
permitting, and interstate transport provisions pertaining to the
contribution to nonattainment or interference with maintenance and
visibility in other states, for which EPA is proposing no action
through this rulemaking, EPA is proposing to find that South Carolina's
infrastructure SIP submission, provided to EPA on April 30, 2014,
satisfies the required infrastructure elements for the 2010
NO2 NAAQS.

DATES: Written comments must be received on or before July 27, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2015-0251 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Richard Wong, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Wong can be reached via telephone at<PHONE_NUMBER> or
electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background and Overview

    On February 9, 2010, EPA published a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion (ppb), based on a 3-
year average of the 98th percentile of the yearly distribution of 1-
hour daily maximum concentrations. See 75 FR 6474. Pursuant to section
110(a)(1) of the CAA, states are required to submit SIPs meeting the
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe. Section 110(a)(2) requires 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 for the 2010 1-hour

NO2 NAAQS to EPA no later than January 22, 2013.\1\
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    \1\ In these infrastructure SIP submissions states generally
certify evidence of compliance with sections 110(a)(1) and (2) of
the CAA through a combination of state regulations and statutes,
some of which have been incorporated into the federally-approved
SIP. In addition, certain federally-approved, non-SIP regulations
may also be appropriate for demonstrating compliance with sections
110(a)(1) and (2). Throughout this rulemaking, unless otherwise
indicated, the term ``South Carolina Air Pollution Control
Regulation'' or ``Regulation'' indicates that the cited regulation
has been approved into South Carolina's federally-approved SIP. The
term ``South Carolina statute'' indicates cited South Carolina state
statutes, which are not a part of the SIP unless otherwise
indicated.
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    Today's action is proposing to approve South Carolina's
infrastructure SIP submission for the applicable requirements of the
2010 1-hour NO2 NAAQS, with the exception of the PSD
permitting requirements for major sources of sections 110(a)(2)(C),
prong 3 of D(i), and (J) and the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states and visibility (i.e., prongs 1, 2, and 4 of
section 110(a)(2)(D)(i)). On March 18, 2015, EPA approved South
Carolina's April 30, 2014, infrastructure SIP submission regarding the
PSD permitting requirements for major sources of sections 110(a)(2)(C),
prong 3 of D(i), and (J) for the 2010 1-hour NO2 NAAQS. See
80 FR 14019. Therefore, EPA is not proposing any action pertaining to
these requirements. With respect to South Carolina's infrastructure SIP
submission related to interstate transport provisions pertaining to the
contribution to nonattainment or interference with maintenance in other
states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i),
EPA is not proposing any action today. EPA will act on these provisions
in a separate action. For the aspects of South Carolina's submittal
proposed for approval today, EPA notes that the Agency is not approving
any specific rule, but rather proposing that South Carolina's already
approved SIP meets certain CAA requirements.

II. What elements are required under sections 110(a)(1) and (2)?

    Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP submissions may also vary
depending upon what provisions the state's existing SIP already
contains. In the case of the 2010 1-hour NO2 NAAQS, states
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
NAAQS.
    More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below and in EPA's
September 13, 2013, memorandum entitled ``Guidance on Infrastructure
State Implementation Plan (SIP) Elements under Clean Air Act sections
110(a)(1) and (2).'' \2\
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    \2\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).

 110(a)(2)(A): Emission Limits and Other Control Measures
 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
 110(a)(2)(C): Programs for Enforcement of Control Measures and
for Construction or Modification of Stationary Sources \3\
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    \3\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport
 110(a)(2)(D)(ii): Interstate Pollution Abatement and
International Air Pollution
 110(a)(2)(E): Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies
 110(a)(2)(F): Stationary Source Monitoring and Reporting
 110(a)(2)(G): Emergency Powers
 110(a)(2)(H): SIP revisions
 110(a)(2)(I): Plan Revisions for Nonattainment Areas \4\
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    \4\ As mentioned above, this element is not relevant to today's
proposed rulemaking.
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 110(a)(2)(J): Consultation with Government Officials, Public
Notification, and PSD and Visibility Protection
 110(a)(2)(K): Air Quality Modeling and Submission of Modeling
Data
 110(a)(2)(L): Permitting fees
 110(a)(2)(M): Consultation and Participation by Affected Local
Entities

III. What is EPA's approach to the review of infrastructure SIP
submissions?

    EPA is acting upon the SIP submission from South Carolina that
addresses the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2010 NO2 NAAQS. The requirement for states
to make a SIP submission of this type arises out of CAA section
110(a)(1). Pursuant to section 110(a)(1), states must make SIP
submissions ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``[e]ach
such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review permit program

submissions to address the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions, and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\5\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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    \5\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of title I of the
Act, which specifically address nonattainment SIP requirements.\6\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years, or in some cases three years, for such designations to be
promulgated.\7\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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    \6\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \7\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and
110(a)(2) with respect to infrastructure SIPs pertains to whether
states must meet all of the infrastructure SIP requirements in a single
SIP submission, and whether EPA must act upon such SIP submission in a
single action. Although section 110(a)(1) directs states to submit ``a
plan'' to meet these requirements, EPA interprets the CAA to allow
states to make multiple SIP submissions separately addressing
infrastructure SIP elements for the same NAAQS. If states elect to make
such multiple SIP submissions to meet the infrastructure SIP
requirements, EPA can elect to act on such submissions either
individually or in a larger combined action.\8\ Similarly, EPA
interprets the CAA to allow it to take action on the individual parts
of one larger, comprehensive infrastructure SIP submission for a given
NAAQS without concurrent action on the entire submission. For example,
EPA has sometimes elected to act at different times on various elements
and sub-elements of the same infrastructure SIP submission.\9\
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    \8\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
    \9\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise
with respect to infrastructure SIP submission requirements for
different NAAQS. Thus, EPA notes that not every element of section
110(a)(2) would be relevant, or as relevant, or relevant in the same
way, for each new or revised NAAQS. The states' attendant
infrastructure SIP submissions for each NAAQS therefore could be
different. For example, the monitoring requirements that a state might
need to meet in its infrastructure SIP submission for purposes of
section 110(a)(2)(B) could be very different for different pollutants
because the content and scope of a state's infrastructure SIP
submission to meet this element might be very different for an entirely
new NAAQS than for a minor revision to an existing NAAQS.\10\
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    \10\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires that attainment plan SIP
submissions required by part D have to meet the ``applicable
requirements'' of section 110(a)(2). Thus, for example, attainment plan
SIP submissions must meet the requirements of section 110(a)(2)(A)
regarding enforceable emission limits and control measures and section
110(a)(2)(E)(i) regarding air agency resources and authority. By
contrast, it is clear that attainment plan SIP submissions required by
part D would not need to meet the portion of section 110(a)(2)(C) that
pertains to the PSD program required in part C of title I of the CAA,
because PSD does not apply to a pollutant for which an area is
designated nonattainment and thus subject to part D planning
requirements. As this example illustrates, each type of SIP submission
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular

SIP submission. In other words, EPA assumes that Congress could not
have intended that each and every SIP submission, regardless of the
NAAQS in question or the history of SIP development for the relevant
pollutant, would meet each of the requirements, or meet each of them in
the same way. Therefore, EPA has adopted an approach under which it
reviews infrastructure SIP submissions against the list of elements in
section 110(a)(2), but only to the extent each element applies for that
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\11\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\12\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\13\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). Significantly, EPA interprets sections 110(a)(1) and
110(a)(2) such that infrastructure SIP submissions need to address
certain issues and need not address others. Accordingly, EPA reviews
each infrastructure SIP submission for compliance with the applicable
statutory provisions of section 110(a)(2), as appropriate.
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    \11\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
    \12\ ``Guidance on Infrastructure State Implementation Plan
(SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2),'' Memorandum from Stephen D. Page, September 13, 2013.
    \13\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
    As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in sections 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including greenhouse gases. By contrast, structural PSD
program requirements do not include provisions that are not required
under EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the 2012 PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, EPA
evaluates whether the state has an EPA-approved minor NSR program and
whether the program addresses the pollutants relevant to that NAAQS. In
the context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction that may be contrary to the CAA and EPA's
policies addressing such excess emissions (``SSM''); (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Thus, EPA believes it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\14\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
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    \14\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption for excess emissions
during SSM events, then EPA would need to evaluate that provision
for compliance against the rubric of applicable CAA requirements in
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are

logically applicable to that submission. EPA believes that this
approach to the review of a particular infrastructure SIP submission is
appropriate, because it would not be reasonable to read the general
requirements of section 110(a)(1) and the list of elements in 110(a)(2)
as requiring review of each and every provision of a state's existing
SIP against all requirements in the CAA and EPA regulations merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts. These provisions,
while not fully up to date, nevertheless may not pose a significant
problem for the purposes of ``implementation, maintenance, and
enforcement'' of a new or revised NAAQS when EPA evaluates adequacy of
the infrastructure SIP submission. EPA believes that a better approach
is for states and EPA to focus attention on those elements of section
110(a)(2) of the CAA most likely to warrant a specific SIP revision due
to the promulgation of a new or revised NAAQS or other factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or to otherwise comply with the CAA.\15\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\16\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\17\
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    \15\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \16\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \17\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's analysis of how South Carolina addressed the elements
of the sections 110(a)(1) and (2) ``infrastructure'' provisions?

    South Carolina's infrastructure submission addresses the provisions
of sections 110(a)(1) and (2) as described below.
    1. 110(a)(2)(A): Emission Limits and Other Control Measures:
Section 110(a)(2)(A) requires that each implementation plan include
enforceable emission limitations and other control measures, means, or
techniques (including economic incentives such as fees, marketable
permits, and auctions of emissions rights), as well as schedules and
timetables for compliance, as may be necessary or appropriate to meet
the applicable requirements. Regulation 61-62.1, Definitions and
General Requirements, and 61-62.5 (1), Ambient Air Quality Standards
have been federally approved in the South Carolina SIP and include
enforceable emission limitations and other control measures for
activities that contribute to NO2 concentrations in the
ambient air. South Carolina statute 48-1-50(23) authorizes SC DHEC to
adopt rules for the control of air pollution in order to comply with
NAAQS. EPA has made the preliminary determination that the cited
provisions are adequate for enforceable emission limitations and other
control measures, means, or techniques, as well as schedules and
timetables for compliance for the 2010 1-hour NO2 NAAQS in
the State.
    In this action, EPA is not proposing to approve or disapprove any
existing State provisions with regard to excess emissions during SSM of
operations at a facility. EPA believes that a number of states have SSM
provisions which are contrary to the CAA and existing EPA guidance,
``State Implementation Plans: Policy Regarding Excess Emissions During
Malfunctions, Startup, and Shutdown'' (September 20, 1999), and the
Agency is addressing such state regulations in a separate action.\18\
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    \18\ On June 12, 2015, EPA published a final action entitled,
``State Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls to Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown, and Malfunction.'' See 80 FR 33840.
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    Additionally, in this action, EPA is not proposing to approve or
disapprove any existing State rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
have such provisions which are contrary to the CAA and existing EPA
guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to
take action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision which is contrary to the CAA and EPA guidance to
take steps to correct the deficiency as soon as possible.
    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: SIPs
are required to provide for the establishment and operation of ambient
air quality monitors, the compilation and analysis of ambient air
quality data, and the submission of these data to EPA upon request.
Regulation 61-62.5(7), Prevention of Significant Deterioration, and
South Carolina statute 48-1-50(14), Powers of department, provide SC
DHEC with the authority to collect and disseminate information relating
to air quality and pollution and the prevention, control, supervision,
and

abatement thereof. Annually, states develop and submit to EPA for
approval statewide ambient monitoring network plans consistent with the
requirements of 40 CFR parts 50, 53, and 58. The annual network plan
involves an evaluation of any proposed changes to the monitoring
network, includes the annual ambient monitoring network design plan and
a certified evaluation of the state's ambient monitors and auxiliary
support equipment.\19\ On July 20, 2015, South Carolina submitted its
monitoring network plan to EPA, and on November 19, 2015, EPA approved
this plan. South Carolina's approved monitoring network plan can be
accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-
0251. EPA has made the preliminary determination that South Carolina's
SIP and practices are adequate for the ambient air quality monitoring
and data system related to the 2010 1-hour NO2 NAAQS.
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    \19\ On occasion, proposed changes to the monitoring network are
evaluated outside of the network plan approval process in accordance
with 40 CFR part 58.
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    3. 110(a)(2)(C) Program for Enforcement of Control Measures and for
Construction or Modification of Stationary Sources: This element
consists of three sub-elements; enforcement, state-wide regulation of
new and modified minor sources and minor modifications of major
sources; and preconstruction permitting of major sources and major
modifications in areas designated attainment or unclassifiable for the
subject NAAQS as required by CAA title I part C (i.e., the major source
PSD program). As discussed further below, in this action EPA is only
proposing to approve the enforcement, and the regulation of minor
sources and minor modifications aspects of South Carolina's section
110(a)(2)(C) infrastructure SIP submission.
    Enforcement: SC DHEC cites to its SIP approved permit regulations
for enforcement of NO2 emission limits and control measures
and construction permitting for new or modified stationary
NO2 sources (Regulations 61-62.5(7), Prevention of
Significant Deterioration, and 61-62.5(7)(1), Nonattainment New Source
Review, and Regulation 61-62.1, Section II, Permit Requirements). South
Carolina cites to statute 48-1-50(11), which provides SC DHEC the
authority to administer penalties for violations of any order, permit,
regulation or standards. Additionally, SCDHEC is authorized under 48-1-
50(3) and (4) to issue orders requiring the discontinuance of the
discharge of air contaminants into the ambient air that create an
undesirable level, and seek an injunction to compel compliance with the
Pollution Control Act and permits, permit conditions and orders.
    Preconstruction PSD Permitting for Major Sources: With respect to
South Carolina's April 30, 2014, infrastructure SIP submission related
to the PSD permitting requirements for major sources of section
110(a)(2)(C), EPA took final action to approve these provisions for the
2010 1-hour NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    Regulation of Minor Sources and Modifications: Section 110(a)(2)(C)
also requires the SIP to include provisions that govern the minor
source program that regulates emissions of the 2010 1-hour
NO2 NAAQS. South Carolina has a SIP-approved minor NSR
permitting program at Regulation 61-62.1, Section II, Permit
Requirements, that regulates the preconstruction permitting of minor
modifications and construction of minor stationary sources.
    EPA has made the preliminary determination that South Carolina's
SIP and practices are adequate for program enforcement of control
measures and regulation of minor sources and modifications related to
the 2010 1-hour NO2 NAAQS.
    4. 110(a)(2)(D)(i) Interstate Pollution Transport: Section
110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and
110(a)(2)(D)(i)(II). Each of these components have two subparts
resulting in four distinct components, commonly referred to as
``prongs,'' that must be addressed in infrastructure SIP submissions.
The first two prongs, which are codified in section 110(a)(2)(D)(i)(I),
are provisions that prohibit any source or other type of emissions
activity in one state from contributing significantly to nonattainment
of the NAAQS in another state (``prong 1''), and interfering with
maintenance of the NAAQS in another state (``prong 2''). The third and
fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are
provisions that prohibit emissions activity in one state from
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'').
    110(a)(2)(D)(i)(I)--prongs 1 and 2: EPA is not proposing any action
in this rulemaking related to the interstate transport provisions
pertaining to the contribution to nonattainment or interference with
maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and
2) because South Carolina's 2010 1-hour NO2 NAAQS
infrastructure submission did not address prongs 1 and 2.
    110(a)(2)(D)(i)(II)--prong 3: With respect to South Carolina's
infrastructure SIP submission related to the interstate transport
requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took
final action to approve South Carolina's April 30, 2014, infrastructure
SIP submission regarding prong 3 of D(i) for the 2010 1-hour
NO2 NAAQS on March 18, 2015. See 80 FR 14019.
    110(a)(2)(D)(i)(II)--prong 4: EPA is not proposing any action in
this rulemaking related to the interstate transport provisions
pertaining to visibility protection in other states of section
110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in
relation South Carolina's 2010 1-hour NO2 NAAQS
infrastructure submission in a separate rulemaking.
    5. 110(a)(2)(D)(ii) Interstate Pollution Abatement and
International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Regulation 61-62.5, Standards 7 and 7.1 (q)(2)(iv), Public
Participation, outlines how South Carolina will notify neighboring
states of potential impacts from new or modified sources. EPA is
unaware of any pending obligations for the State of South Carolina
pursuant to sections 115 or 126 of the CAA. EPA has made the
preliminary determination that South Carolina's SIP and practices are
adequate for insuring compliance with the applicable requirements
relating to interstate and international pollution abatement for the
2010 1-hour NO2 NAAQS.
    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of
Interest, and Oversight of Local Governments and Regional Agencies:
Section 110(a)(2)(E) requires that each implementation plan provide:
(i) Necessary assurances that the state will have adequate personnel,
funding, and authority under state law to carry out its implementation
plan, (ii) that the state comply with the requirements respecting state
boards pursuant to section 128 of the Act, and (iii) necessary
assurances that, where the state has relied on a local or regional
government, agency, or instrumentality for the implementation of any
plan provision, the state has responsibility for ensuring adequate
implementation of such plan provisions. EPA is proposing to approve
South Carolina's SIP as meeting the requirements of sections
110(a)(2)(E). EPA's rationale for today's proposals respecting each

section of 110(a)(2)(E) is described in turn below.
    With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC
develops, implements and enforces EPA-approved SIP provisions in the
State. S.C. Code Ann. Section 48, Title 1 and S.C. Code Ann Sec.  1-23-
40 (the Administrative Procedures Act), as referenced in South
Carolina's infrastructure SIP submission, provides the SC DHEC's
general legal authority to establish a SIP and implement related plans.
In particular, S.C. Code Ann. Section 48-1-50(12) grants SC DHEC the
statutory authority to ``[a]ccept, receive and administer grants or
other funds or gifts for the purpose of carrying out any of the
purposes of this chapter; [and to] accept, receive and receipt for
Federal money given by the Federal government under any Federal law to
the State of South Carolina for air or water control activities,
surveys or programs.'' S.C. Code Ann. Section 48, Title 2 grants SC
DHEC statutory authority to establish environmental protection funds,
which provide resources for SC DHEC to carry out its obligations under
the CAA. Specifically, in Regulation 61-30, Environmental Protection
Fees, SC DHEC established fees for sources subject to air permitting
programs. For Section 110(a)(2)(E)(iii), the submission states that
South Carolina does not rely on localities for specific SIP
implementation.
    The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed
when EPA performs a completeness determination for each SIP submittal.
This provides additional assurances that each submittal provides
evidence that adequate personnel, funding, and legal authority under
State law has been used to carry out the State's implementation plan
and related issues. This information is included in all prehearings and
final SIP submittal packages for approval by EPA.
    As evidence of the adequacy of SC DHEC's resources, EPA submitted a
letter to South Carolina on April 19, 2016, outlining section 105 grant
commitments and the current status of these commitments for fiscal year
2015. The letter EPA submitted to South Carolina can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2015-0251.
Annually, states update these grant commitments based on current SIP
requirements, air quality planning, and applicable requirements related
to the NAAQS. South Carolina satisfactorily met all commitments agreed
to in the Air Planning Agreement for fiscal year 2015, therefore South
Carolina's grants were finalized.
    Section 110(a)(2)(E)(ii) requires that states comply with section
128 of the CAA. Section 128 of the CAA requires that states include
provisions in their SIP to address conflicts of interest for state
boards or bodies that oversee CAA permits and enforcement orders and
disclosure of conflict of interest requirements. Specifically, CAA
section 128(a)(1) necessitates that each SIP shall require that at
least a majority of any board or body which approves permits or
enforcement orders shall be subject to the described public interest
service and income restrictions therein. Subsection 128(a)(2) requires
that the members of any board or body, or the head of an executive
agency with similar power to approve permits or enforcement orders
under the CAA, shall also be subject to conflict of interest disclosure
requirements.
    With respect to 110(a)(2)(E)(ii), South Carolina satisfies the
requirements of CAA section 128(a)(1) for the SC Board of Health and
Environmental Control, which is the ``board or body which approves
permits and enforcement orders'' under the CAA in South Carolina,
through South Carolina statute 8-13-730. This statute provides that
``[u]nless otherwise provided by law, no person may serve as a member
of a governmental regulatory agency that regulates business with which
that person is associated,'' and statute 8-13-700(A) states in part
that ``[n]o public official, public member, or public employee may
knowingly use his official office, membership, or employment to obtain
an economic interest for himself, a member of his immediate family, an
individual with whom he is associated, or a business with which he is
associated.'' South Carolina statute 8-13-700(B)(1)-(5) provides for
disclosure of any conflicts of interest by public official, public
member or public employee, which meets the requirement of CAA Section
128(a)(2) that ``any potential conflicts of interest . . . be
adequately disclosed.'' State statutes 8-13-730, 8-13-700(A), and 8-13-
700(B)(1)-(5) have been approved into the South Carolina SIP as
required by CAA section 128. Thus, EPA has made the preliminary
determination that South Carolina's SIP and practices are adequate for
insuring compliance with the applicable requirements of section
110(a)(2)(E)(ii) relating to state boards for the 2010 NO2
NAAQS.
    7. 110(a)(2)(F) Stationary Source Monitoring System: Section
110(a)(2)(F) requires SIPs to meet applicable requirements addressing
(i) the installation, maintenance, and replacement of equipment, and
the implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources, (ii)
periodic reports on the nature and amounts of emissions and emissions
related data from such sources, and (iii) correlation of such reports
by the state agency with any emission limitations or standards
established pursuant to this section, which reports shall be available
at reasonable times for public inspection. South Carolina's
infrastructure SIP submission describes how the State establishes
requirements for emissions compliance testing and utilizes emissions
sampling and analysis. It further describes how the State ensures the
quality of its data through observing emissions and monitoring
operations. These infrastructure SIP requirements are codified at
Section III, Regulation 61-62.1, Emissions Inventory. South Carolina
statute 48-1-22 requires owners or operators of stationary sources to
compute emissions, submit periodic reports of such emissions and
maintain records as specified by various regulations and permits, and
to evaluate reports and records for consistency with the applicable
emission limitation or standard on a continuing basis over time. The
monitoring data collected and records of operations serve as the basis
for a source to certify compliance, and can be used by South Carolina
as direct evidence of an enforceable violation of the underlying
emission limitation or standard. Accordingly, EPA is unaware of any
provision preventing the use of credible evidence in the South Carolina
SIP.
    Additionally, South Carolina is required to submit emissions data
to EPA for purposes of the National Emissions Inventory (NEI). The NEI
is EPA's central repository for air emissions data. EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and the precursors that form them--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter, and volatile
organic compounds. Many states also

voluntarily report emissions of hazardous air pollutants. South
Carolina made its latest update to the 2011 NEI on April 1, 2014. EPA
compiles the emissions data, supplementing it where necessary, and
releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary
determination that South Carolina's SIP and practices are adequate for
the stationary source monitoring systems related to the 2010 1-hour
NO2 NAAQS. Accordingly, EPA is proposing to approve South
Carolina's infrastructure SIP submission with respect to section
110(a)(2)(F).
    8. 110(a)(2)(G) Emergency Powers: This section requires that states
demonstrate authority comparable with section 303 of the CAA and
adequate contingency plans to implement such authority. South
Carolina's infrastructure SIP submission identifies air pollution
emergency episodes and preplanned abatement strategies as outlined in
Regulation 61-62.3, Air Pollution Episodes. S.C. Code Ann. Section 1-
23-130 provides SC DHEC with the authority to immediately promulgate
emergency regulations if it finds an imminent peril to public health,
safety, or welfare, or to protect or manage natural resources if it
finds abnormal or unusual conditions, immediate need, or the state's
best interest requires immediate promulgation of emergency regulations.
S.C. Code Ann. Section 48-1-50(3) provides SCDHEC with the authority to
issue orders requiring the discontinuance of the discharge of air
contaminants into the ambient air that create an undesirable level,
resulting in pollution in excess of applicable standards, and S.C. Code
Ann. Section 48-1-50(4) authorizes SCDHEC to file an action in court to
seek injunctive relief to compel compliance with the Pollution Control
Act. EPA has made the preliminary determination that South Carolina's
SIP and practices are adequate for emergency powers related to the 2010
1-hour NO2 NAAQS. Accordingly, EPA is proposing to approve
South Carolina's infrastructure SIP submissions with respect to section
110(a)(2)(G).
    9. 110(a)(2)(H) Future SIP Revisions: Section 110(a)(2)(H), in
summary, requires each SIP to provide for revisions of such plan: (i)
As may be necessary to take account of revisions of such national
primary or secondary ambient air quality standard or the availability
of improved or more expeditious methods of attaining such standard, and
(ii) whenever the Administrator finds that the plan is substantially
inadequate to attain the NAAQS or to otherwise comply with any
additional applicable requirements. SC DHEC has the authority for
adopting air quality rules and revising SIPs as needed to attain or
maintain the NAAQS in South Carolina as indicated in South Carolina
statute 48-1. This Section provides SC DHEC with the ability and
authority to respond to calls for SIP revisions, and South Carolina has
provided a number of SIP revisions over the years for implementation of
the NAAQS. EPA has made the preliminary determination that South
Carolina's SIP and practices adequately demonstrate a commitment to
provide future SIP revisions related to the 2010 1-hour NO2
NAAQS when necessary.
    10. 110(a)(2)(J) Consultation With Government Officials, Public
Notification, and PSD and Visibility Protection: EPA is proposing to
approve South Carolina's infrastructure SIP submission for the 2010 1-
hour NO2 NAAQS with respect to the general requirement in
section 110(a)(2)(J) to include a program in the SIP that provides for
meeting the applicable consultation requirements of section 121, the
public notification requirements of section 127, and visibility
protection requirements of part C of the Act. With respect to South
Carolina's infrastructure SIP submission related to the preconstruction
PSD permitting requirements of section 110(a)(2)(J), EPA took final
action to approve South Carolina's April 30, 2014, 2010 1-hour
NO2 NAAQS infrastructure SIP for these requirements on March
18, 2015. See 80 FR 14019. EPA's rationale for its proposed action
regarding applicable consultation requirements of section 121, the
public notification requirements of section 127, and visibility
protection requirements is described below.
    110(a)(2)(J) (121 Consultation)--Consultation With Government
Officials: Section 110(a)(2)(J) of the CAA requires states to provide a
process for consultation with local governments, designated
organizations and federal land managers (FLMs) carrying out NAAQS
implementation requirements pursuant to section 121 relative to
consultation. Regulation 61-62.5(7), Prevention of Significant
Deterioration, South Carolina statute 48-1-50(8), Powers of department,
as well as South Carolina's Regional Haze Implementation Plan (which
allows for consultation between appropriate state, local, and tribal
air pollution control agencies as well as the corresponding FLMs),
provide for consultation with government officials whose jurisdictions
might be affected by SIP development activities. S.C. Code Section 48-
1-50(8) provides SC DHEC with the necessary authority to ``Cooperate
with the governments of the United States or other states or state
agencies or organizations, officials, or unofficial, in respect to
pollution control matters or for the formulation of interstate
pollution control compacts or agreements.'' South Carolina adopted
state-wide consultation procedures for the implementation of
transportation conformity. These consultation procedures include
considerations associated with the development of mobile inventories
for SIPs. Implementation of transportation conformity as outlined in
the consultation procedures requires SC DHEC to consult with Federal,
state and local transportation and air quality agency officials on the
development of motor vehicle emissions budgets. EPA has made the
preliminary determination that South Carolina's SIP and practices
adequately demonstrate consultation with government officials related
to the 2010 1-hour NO2 NAAQS when necessary.
    110(a)(2)(J) (127 Public Notification)--Public Notification: These
requirements are met through Regulation 61-62.3, Air Pollution
Episodes, which requires that SC DHEC notify the public of any air
pollution alert, warning, or emergency. The SC DHEC Web site also
provides air quality summary data, air quality index reports and links
to more information regarding public awareness of measures that can
prevent such exceedances and of ways in which the public can
participate in regulatory and other efforts to improve air quality. EPA
has made the preliminary determination that South Carolina's SIP and
practices adequately demonstrate the State's ability to provide public
notification related to the 2010 1-hour NO2 NAAQS when
necessary. Accordingly, EPA is proposing to approve South Carolina's
infrastructure SIP submissions with respect to section 110(a)(2)(J)
public notification.
    110(a)(2)(J)--Visibility Protection: EPA's 2013 Guidance notes that
it does not treat the visibility protection aspects of section
110(a)(2)(J) as applicable for purposes of the infrastructure SIP
approval process. SC DHEC referenced its regional haze program as
germane to the visibility component of section 110(a)(2)(J). EPA
recognizes that states are subject to visibility protection and
regional haze program requirements under Part C of the Act (which
includes sections 169A and 169B). However, there are no newly
applicable visibility protection obligations after the promulgation of
a new or revised

NAAQS. Thus, EPA has determined that states do not need to address the
visibility component of 110(a)(2)(J) in infrastructure SIP submittals
so SC DHEC does not need to rely on its regional haze program to
fulfill its obligations under section 110(a)(2)(J). As such, EPA has
made the preliminary determination that South Carolina's SIP submission
is approvable for the visibility protection element of section
110(a)(2)(J) and that South Carolina does not need to rely on its
regional haze program.
    11. 110(a)(2)(K) Air Quality and Modeling/Data: Section
110(a)(2)(K) of the CAA requires that SIPs provide for performing air
quality modeling so that effects on air quality of emissions from NAAQS
pollutants can be predicted and submission of such data to the EPA can
be made. Regulation 61-62.1, Definitions and General Requirements, 61-
62-5(2), Ambient Air Quality Standards, and 61-62-5(7), Prevention of
Significant Deterioration, specify that required air modeling be
conducted in accordance with 40 CFR part 51, Appendix W ``Guideline on
Air Quality Models.'' The state's permitting and reporting requirements
provide the necessary tools to conduct, evaluate, and provide air
quality modeling data if necessary. Also, S.C. Code Ann. Sec.  48-1-
50(14) provides SC DHEC with the necessary authority to ``Collect and
disseminate information on air and water control.'' These standards
demonstrate that South Carolina has the authority to perform air
quality monitoring and provide relevant data for the purpose of
predicting the effect on ambient air quality of the 2010 1-hour
NO2 NAAQS. Additionally, South Carolina supports a regional
effort to coordinate the development of emissions inventories and
conduct regional modeling for NOX, which includes
NO2. Taken as a whole, South Carolina's air quality
regulations demonstrate that SC DHEC has the authority to provide
relevant data for the purpose of predicting the effect on ambient air
quality of the 1-hour NO2 NAAQS. EPA has made the
preliminary determination that South Carolina's SIP and practices
adequately demonstrate the State's ability to provide for air quality
and modeling, along with analysis of the associated data, related to
the 2010 1-hour NO2 NAAQS when necessary.
    12. 110(a)(2)(L) Permitting Fees: This element requires the owner
or operator of each major stationary source to pay to the permitting
authority, as a condition of any permit required under the CAA, a fee
sufficient to cover: (i) The reasonable costs of reviewing and acting
upon any application for such a permit, and (ii) if the owner or
operator receives a permit for such source, the reasonable costs of
implementing and enforcing the terms and conditions of any such permit
(not including any court costs or other costs associated with any
enforcement action), until such fee requirement is superseded with
respect to such sources by the Administrator's approval of a fee
program under title V.
    Funding for the South Carolina air permit program comes from a fees
submitted by permit applicants under Regulation 61-30, Environmental
Protection Fees, which prescribes fees applicable to applicants and
holders of permits, licenses, certificates, certifications, and
registrations, establishes procedures for the payment of fees, provides
for the assessment of penalties for nonpayment, and establishes an
appeals process for refuting fees. Also, South Carolina statute 48-2-
50, Fees, which prescribes that SC DHEC charge fees for environmental
programs it administers pursuant to Federal and State law and
regulations including those that govern the costs to review, implement
and enforce PSD and NNSR permits. Additionally, South Carolina has a
fully approved title V operating permit program at Regulation 61-62.70,
Title V Operation Permit Program,\20\ that covers the cost of
implementation and enforcement of PSD and NNSR permits after they have
been issued. EPA has made the preliminary determination that South
Carolina's SIP and practices adequately provide for permitting fees
related to the 2010 NO2 NAAQS, when necessary. Accordingly,
EPA is proposing to approve South Carolina's infrastructure SIP
submission with respect to section 110(a)(2)(L).
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    \20\ Title V program regulations are federally-approved but not
incorporated into the federally-approved SIP.
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    13. 110(a)(2)(M) Consultation/Participation by Affected Local
Entities: This element requires states to provide for consultation and
participation in SIP development by local political subdivisions
affected by the SIP. Regulation 61-62.5(7), Prevention of Significant
Deterioration, and South Carolina statutes 48-1-50(8) and 1-23-40
authorize SC DHEC to cooperate, consult, and enter into agreements with
other agencies of the state, the Federal government, other states,
interstate agencies, groups, political subdivisions, and industries
affected by the provisions of this act, rules, or policies of the
department.'' Furthermore, SC DHEC has demonstrated consultation with,
and participation by, affected local entities through its work with
local political subdivisions during the development of its
Transportation Conformity SIP and Regional Haze Implementation Plan.
EPA has made the preliminary determination that South Carolina's SIP
and practices adequately demonstrate consultation with affected local
entities related to the 2010 1-hour NO2 NAAQS when
necessary.

V. Proposed Action

    With the exception of the preconstruction PSD permitting
requirements for major sources of section 110(a)(2)(C), prong 3 of
(D)(i), and (J) and the interstate transport provisions pertaining to
the contribution to nonattainment or interference with maintenance in
other states and visibility of prongs 1, 2, and 4 of section
110(a)(2)(D)(i), EPA is proposing to approve that South Carolina's
April 30, 2014, infrastructure SIP submission for the 2010 1-hour
NO2 NAAQS has met the above-described infrastructure SIP
requirements.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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).
    In addition, this proposed action for the state of South Carolina
does not have Tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation
is located within the State of South Carolina. Pursuant to the Catawba
Indian Claims Settlement Act, South Carolina statute 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.'' However, EPA
has determined that because this proposed rule does not have
substantial direct effects on an Indian Tribe because, as noted above,
this action is not approving any specific rule, but rather proposing
that South Carolina's already approved SIP meets certain CAA
requirements. EPA notes this action will not impose 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, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: June 10, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-15145 Filed 6-24-16; 8:45 am]
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