Approval and Promulgation of Implementation Plans; Region 4 States; 2008 Lead, 2008 Ozone and 2010 Nitrogen Dioxide Prevention of Significant Deterioration Infrastructure Plans

AGENCY:

Environmental Protection Agency.

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to approve portions of submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee for inclusion into each State's implementation plan. This proposal pertains to the Clean Air Act (CAA or Act) infrastructure requirements for the 2008 Lead, 2008 Ozone and 2010 Nitrogen Dioxide (NO₂) National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a state implementation plan (SIP) for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA. These plans are commonly referred to as “infrastructure” SIPs (hereafter referred to as “infrastructure SIP submissions”). Specifically, EPA is proposing to approve the portions of the submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee that relate to the infrastructure SIP prevention of significant deterioration (PSD) requirements. All other applicable infrastructure requirements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS associated with these States are being addressed in separate rulemakings.

DATES:

Written comments must be received on or before December 15, 2014.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2014-0610, by one of the following methods:

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

2. Email: R4-RDS@epa.gov.

3. Fax: (404) 562-9019.

4. Mail: “EPA-R04-OAR-2014-0610,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

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

Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2014-0610. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov,, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

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

FOR FURTHER INFORMATION CONTACT:

Sean Lakeman, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can be reached via electronic mail at lakeman.sean@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for the “infrastructure” SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

Through this action, EPA is proposing approval of the PSD requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) (hereafter “PSD Elements”) for various infrastructure SIP submissions from the states of Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee. As described further below, for some of these states, EPA is proposing approval of the PSD Elements in the infrastructure SIP submissions for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS; whereas for other states, EPA is only proposing approval of the PSD Elements of the infrastructure SIP submissions for a subset of these NAAQS. All other applicable infrastructure requirements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS associated with these States are being addressed in separate rulemakings.

A brief background regarding the NAAQS relevant to today's proposal is provided below. For comprehensive information on these NAAQS, please refer to the Federal Register rulemakings cited below.

a. 2008 Lead NAAQS

On October 5, 1978, EPA promulgated a revised NAAQS for Lead under section 109 of the Act. See 43 FR 46246. The Lead standard was set at a level of 1.5 micrograms per cubic meter (µg/m³), measured as Lead in total suspended particulate matter (Pb-TSP), not to be exceeded by the maximum arithmetic mean concentration averaged over a calendar quarter. This standard was based on the 1977 Air Quality Criteria for Lead. On November 12, 2008 (75 FR 81126), EPA issued a final rule to revise the Lead NAAQS. The Lead NAAQS was revised to 0.15 µg/m³. States were required to submit infrastructure SIP submissions to EPA no later than October 15, 2011, for the 2008 Lead NAAQS.

For the 2008 Lead NAAQS, EPA is only addressing the PSD Elements of the infrastructure SIP submissions from Alabama (received November 4, 2011), Florida (received October 14, 2011), Georgia (received May 14, 2012), Kentucky (received July 17, 2012), Mississippi (received November 17, 2011), and South Carolina's (received September 20, 2011). EPA notes that the Agency approved the PSD Elements of Tennessee's 2008 Lead infrastructure SIP submission on August 12, 2013 (78 FR 48806).

b. 2008 Ozone NAAQS

On March 27, 2008, EPA promulgated a revised NAAQS for ozone based on 8-hour average concentrations. EPA revised the level of the 8-hour Ozone NAAQS to 0.075 parts per million. See 77 FR 16436. States were required to submit infrastructure SIP submissions for the 2008 8-hour Ozone NAAQS to EPA no later than March 2011.

For the 2008 Ozone NAAQS, EPA is only addressing the PSD Elements of the infrastructure SIP submissions from Alabama (received August 20, 2012), Georgia (received March 6, 2012), Mississippi (received May 29, 2012; and resubmitted July 26, 2012), and South Carolina (received on July 17, 2012). EPA notes that the Agency approved the PSD Elements of the Florida, Kentucky and Tennessee infrastructure SIP submissions for the 2008 Ozone NAAQS on May 19, 2014 (79 FR 28607), March 7, 2013 (78 FR 14691), and March 6, 2013 (78 FR 14450), respectively.

c. 2010 NO ₂ NAAQS

On February 9, 2010 (75 FR 6474), EPA established a new 1-hour primary NAAQS for NO₂ at a level of 100 parts per billion (ppb), based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. States were required to submit infrastructure SIP submissions for the 2010 NO₂ NAAQS to EPA no later than January 2013.

For the 2010 NO₂ NAAQS, EPA is addressing the PSD Elements of the infrastructure SIP submissions from Alabama (received April 23, 2013), Florida (received January 22, 2013), Georgia (received March 25, 2013), Kentucky (received April 26, 2013), Mississippi (received February 28, 2013), South Carolina (received April 30, 2014), and Tennessee (received March 13, 2014).

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

EPA is acting upon the PSD Elements portions of SIP submissions that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS for various states in Region 4. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D. Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 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. The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM_2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory 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. Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 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.

III. What are states required to address under Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong 3) and 110(a)(2)(J) related to PSD?

Section 110(a)(2)(C) has three components that must be addressed in infrastructure SIP submissions: Enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources; and PSD permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program).

Section 110(a)(2)(D)(i) has two components; 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components have two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

Section 110(a)(2)(J) has four components that must be addressed in infrastructure SIP submissions: (1) consultation with government officials, (2) public notification, (3) prevention of significant deterioration, and (4) visibility protection.

With respect to the PSD Elements of these sections, EPA interprets the CAA to require each state to make, for each new or revised NAAQS, an infrastructure SIP submission that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of the PSD Elements may also be satisfied by demonstrating that the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants.

IV. What are the PSD program requirements?

In addition to analyzing whether a state has adequate authority to regulate new and modified sources to assist in the protection of air quality, there are also four structural PSD program requirements that are relevant to EPA's review of the PSD Elements of the infrastructure SIP submissions for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS. The EPA regulations that require these SIP revisions are: (1) The Phase II Rule ; (2) the Greenhouse Gas (GHG) Tailoring Rule as consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency; (3) the NSR Fine Particulate Matter (PM_2.5) Rule ; and, (4) the PM_2.5 PSD Increment-Significant Impact Levels (SILs)-Significant Monitoring Concentrations (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.

The Phase II rule established federal NSR permitting requirements for the implementation of the ozone NAAQS including recognizing nitrogen oxide as an ozone precursor. See 70 FR 71612.

The GHG Tailoring Rule established emission thresholds for determining which new stationary sources and modification projects become subject to PSD permitting requirements for their GHG emissions. See 75 FR 31514. EPA notes, that on June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. See Utility Air Regulatory Group v. Environmental Protection Agency, 134 S. Ct. 2427. In that decision, the Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also determined that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States District Court for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

The 2008 NSR PM_2.5 Rule and 2010 PM_2.5 PSD Increment-SILs-SMC Rule (only as it relates to PM_2.5 Increments) established NSR permitting requirements for the implementation of the PM_2.5 NAAQS including increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS. See 73 FR 28321 and 75 FR 64864. On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued a judgment that, among other things , vacated the provisions adding the PM_2.5 SMC to the Federal regulations, at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), that were promulgated as part of the 2010 PM_2.5 PSD Increment-SILs-SMC Rule. See 75 FR 64864; see also, Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013). In its decision, the court held that EPA did not have the authority to use SMCs to exempt permit applicants from the statutory requirement in section 165(e)(2) of the CAA that ambient monitoring data for PM_2.5 be included in all PSD permit applications. Thus, although the PM_2.5 SMC was not a required element of a State's PSD program and thus not a structural requirement for purposes of infrastructure SIPs, were a SIP-approved PSD program that contains such a provision to use that provision to issue new permits without requiring ambient PM_2.5 monitoring data, such application of the SIP would be inconsistent with the court's opinion and the requirements of section 165(e)(2) of the CAA. Of the States that are the subject of today's proposed rulemaking, EPA approved the SMC's into the Alabama, Florida and Mississippi SIP on September 26, 2012 (77 FR 59100), September 19, 2012 (77 FR 58027), and September 26, 2012 (77 FR 59095), respectively. However, given the clarity of the court's decision, it would now be inappropriate for these states to continue to allow applicants for any pending or future PSD permits to rely on the PM_2.5 SMC in order to avoid compiling ambient monitoring data for PM_2.5. Because of the vacatur of the EPA regulations, the SMC provisions, included in these States' SIP-approved PSD programs on the basis of EPA's regulations are unlawful and no longer enforceable by law. Permits issued on the basis of these provisions as they appear in approved SIPs would be inconsistent with the CAA and difficult to defend in administrative and judicial challenges. Thus, the SIP provisions may not be applied even prior to their removal from the SIPs. Alabama, Florida and Mississippi should instead require applicants requesting a PSD permit, including those having already been applied for but for which the permit has not yet been received, to submit ambient PM_2.5 monitoring data in accordance with the CAA requirements whenever either direct PM_2.5 or any PM_2.5 precursor is emitted in a significant amount.

On December 9, 2013, EPA issued a final rulemaking to remove the vacated and remanded PM_2.5 SILs and the vacated PM_2.5 SMC provisions from 40 CFR 51.166 and 52.21. See 79 FR 73698. Because the Court vacated the PM_2.5 SMC provisions in 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c), EPA revised the existing concentration for the PM_2.5 SMC listed in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) to zero micrograms per cubic meter (0 mg/m³). Were EPA to completely remove PM_2.5 from the list of pollutants in sections 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of the PSD regulations, PM_2.5 would no longer be a listed pollutant.

EPA did not entirely remove PM_2.5 as a listed pollutant in the SMC provisions so as to avoid any potential that sections 51.166(i)(5)(iii) and 52.21(i)(5)(iii) could be interpreted as giving reviewing authorities the discretion to exempt permit applicants from the requirement to conduct monitoring for PM_2.5. Such a conclusion would contravene the Court's decision and the CAA.

By continuing to include PM_2.5 as a pollutant in the list contained in sections 51.166(i)(5)(i) and 52.21(i)(5)(i), with the numerical value replaced with 0 mg/m³, we avoid any concern that paragraph (iii) of the two affected sections could be applied to excuse permit applicants from adequately addressing the monitoring requirement for PM_2.5.

EPA also advises states to begin preparations to remove the PM_2.5 provisions from their state PSD regulations and SIPs. As the previously-approved PM_2.5 SMC provisions in the Alabama, Florida and Mississippi SIP are no longer enforceable, EPA does not believe the existence of these provisions in the States' implementation plans precludes today's proposed rulemaking to approve the infrastructure SIP submissions for Alabama, Florida and Mississippi as the submissions relate to the PSD elements of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS.

V. What is EPA's analysis of how Region 4 states addressed sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) related to PSD?

Described below is EPA's analysis of how the Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee infrastructure SIP submissions meet the requirements of the PSD Elements for the NAAQS for which they were submitted. This analysis includes review of the EPA's previous approval of the four structural PSD program requirements with respect to each of the states addressed in this action. Table 1 below summarizes EPA approvals of these structural PSD program requirements into the Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee SIPs. EPA's rationale for today's proposal with respect to each State is provided below. All other applicable infrastructure requirements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS associated with these States are being addressed in separate rulemakings.

a. Alabama

For the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS, Alabama's authority to regulate new and modified sources to assist in the protection of air quality in Alabama is established in the Alabama Administrative Code Chapters 335-3-14-.01 “General Provisions,” 335-3-14-.02 “Permit Procedure,” 334-3-14-.03 “Standards for Granting Permits,” 335-3-14-.04 “Prevention of Significant Deterioration in Permitting,” and 335-3-14-.05 “Air Permits Authorizing Construction in or Near Nonattainment Areas.” Alabama's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that Alabama's SIP and practices are adequate and comply with PSD Elements of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve Alabama's infrastructure SIP submissions as satisfying the infrastructure SIP PSD Elements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS.

b. Florida

For the 2008 Lead and 2010 NO₂ NAAQS, Florida's authority to regulate new and modified sources to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas is established in Florida Administrative Code Chapters 62-210, Stationary Sources—General Requirements, Section 200—Definitions; and 62-212, and Stationary Sources—Preconstruction Review, Section 400—Prevention of Significant Deterioration, of the Florida SIP. Florida's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead and 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that Florida's SIP and practices are adequate and comply with PSD Elements of the 2008 Lead and 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve, Florida's infrastructure SIP submissions as satisfying the infrastructure SIP PSD Elements for the 2008 Lead and the 2010 NO₂ NAAQS.

c. Georgia

For the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS, Georgia's authority to regulate new and modified sources to assist in the protection of air quality in Georgia is established in Georgia Regulation 391-3-1-.02(7), Prevention of Significant Deterioration of Air Quality, which pertains to the construction or modification of any major stationary source in areas designated as attainment or unclassifiable.

Georgia's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that Georgia's SIP and practices are adequate and comply with the PSD Elements of the 2008 Lead, 2008 Ozone, and 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve, Georgia's infrastructure SIP submissions as satisfying the infrastructure SIP PSD Elements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS.

d. Kentucky

For the 2008 Lead and 2010 NO₂ NAAQS, Kentucky's authority to regulate new and modified sources to assist in the protection of air quality in nonattainment, attainment or unclassifiable areas is established in Kentucky Administrative Regulation Chapter 51—Attainment and Maintenance of the National Ambient Air Quality Standards, which describes the permit requirements for new major sources or major modifications of existing sources in areas classified as attainment or unclassifiable under section 107(d)(1)(A)(ii) or (iii) of the CAA. These requirements are designed to ensure that sources in areas attaining the NAAQS at the time of designations prevent any significant deterioration in air quality. Chapter 51 also establishes the permitting requirements for areas in or around nonattainment areas and provides the Commonwealth's statutory authority to enforce regulations relating to attainment and maintenance of the NAAQS.

Kentucky's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead and 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that Kentucky's SIP and practices are adequate and comply with the PSD Elements of the 2008 Lead and 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve Kentucky's infrastructure SIP submissions as satisfying the infrastructure SIP PSD Elements for the 2008 Lead and 2010 NO₂ NAAQS.

e. Mississippi

For the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS, Mississippi's authority to regulate new and modified sources to assist in the protection of air quality in Mississippi is established in Regulations APC-S-5—Mississippi Regulations for the Prevention of Significant Deterioration of Air Quality and APC-S-2—Permit Regulation for the Construction and/or Operation of Air Emissions Equipment. These SIP-approved regulations pertain to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. Mississippi's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS (See Table 1). As such, EPA has made the preliminary determination that Mississippi's SIP and practices are adequate and comply with the PSD Elements requirements of the 2008 Lead, 2008 Ozone, and 2010 NO₂ NAAQS. Accordingly, in this action, EPA is proposing to approve Mississippi's infrastructure SIP submissions as satisfying the infrastructure SIP PSD Elements requirements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS.

f. South Carolina

For the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS, South Carolina's authority to regulate new and modified sources to assist in the protection of air quality in South Carolina is established in Regulations 61-62.1, Section II, Permit Requirements; 61-62.5, Standard No. 7, Prevention of Significant Deterioration; and 61-62.5, Standard No. 7.1, Nonattainment New Source Review of South Carolina's SIP. These regulations pertain to the construction of any new major stationary source or any modification at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. South Carolina's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that South Carolina's SIP and practices are adequate and comply with the PSD Elements requirements of the 2008 Lead, 2008 Ozone, and 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve South Carolina's infrastructure SIP submission as satisfying the infrastructure SIP PSD Elements for the 2008 Lead, 2008 Ozone and 2010 NO₂ NAAQS.

g. Tennessee

For the 2010 NO₂ NAAQS, Tennessee's authority to regulate new and modified sources to assist in the protection of air quality in Tennessee is established in Chapter 1200-3-9, Construction and Operating Permits, of the Tennessee SIP. This Chapter pertains to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. Tennessee's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the state designated attainment or unclassifiable for the NO₂ NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD Elements, including the authority to regulate GHG emitting sources consistent with the holding in Utility Air Regulatory Group v. Environmental Protection Agency, for purposes of the 2010 NO₂ NAAQS (See Table 1).

As such, EPA has made the preliminary determination that Tennessee's SIP and practices are adequate and comply with the PSD Elements requirements of the 2010 NO₂ NAAQS. Accordingly, in this action EPA is proposing to approve Tennessee's infrastructure SIP submission as satisfying the infrastructure SIP PSD Elements requirements for the 2010 NO₂ NAAQS.

VI. Proposed Action

As described above, EPA is proposing to approve the portions of the above-described infrastructure SIP submissions from Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee to address the PSD permitting requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J) of the CAA. As described above, for some of these states, EPA is proposing approval of the PSD Elements of the infrastructure SIP submissions for the 2008 Lead, 2008 Ozone and 2010 Nitrogen NO₂ NAAQS; whereas for other states, EPA is only proposing approval of the PSD Elements of the infrastructure SIP submissions for a subset of these NAAQS. EPA is proposing approval of these portions of these submissions because they are consistent with section 110 of the CAA.

EPA also notes that, at present, the Agency has preliminarily determined that the Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee SIPs are sufficient to satisfy the PSD permitting requirements portion of section 110(a)(2)(C), 110(a)(2)(D)(i)(II), prong 3 and 110(a)(2)(J) with respect to GHGs because the PSD permitting program previously-approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee PSD permitting programs may currently contain provisions that are no longer necessary in light of the Supreme Court's Utility Air Regulatory Group v. Environmental Protection Agency decision, these previous approvals do not render the infrastructure SIP submission inadequate to satisfy sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J). The SIPs contain the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect EPA's proposed approval of Alabama, Florida, Georgia, Kentucky, Mississippi, South Carolina and Tennessee's infrastructure SIPs as to the PSD permitting requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3) and 110(a)(2)(J).

VII. Statutory and Executive Order Reviews

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

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

With the exception of South Carolina, the SIPs involved in this proposal are not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.” With respect to today's proposed action as it relates to South Carolina, EPA notes that the Catawba Indian Nation Reservation is located within South Carolina and pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” Thus, the South Carolina SIP applies to the Catawba Reservation, however, because today's proposed action is not approving any specific rule into the South Carolina SIP, but rather proposing that the State's already approved SIP meets certain CAA requirements, EPA has preliminarily determined that there are no substantial direct effects on the Catawba Indian Nation. EPA has also preliminarily determined that these revisions will not impose any substantial direct costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate Matter
• Reporting and recordkeeping requirements
• Volatile organic compounds

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