
[Federal Register Volume 79, Number 219 (Thursday, November 13, 2014)]
[Proposed Rules]
[Pages 67398-67406]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-26737]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2014-0610; FRL-9919-08-Region 4]


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.

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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

[[Page 67399]]

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 ([micro]g/m\3\), 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 [micro]g/
m\3\. 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),\1\ March 7, 2013 
(78 FR 14691), and March 6, 2013 (78 FR 14450), respectively.
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    \1\ On May 19, 2014, EPA took final action to approve Florida's 
December 19, 2013, SIP revision to adopt the Greenhouse Gas (GHG) 
Tailoring Rule into the Florida SIP. See 79 FR 28607. See Section V 
below for more detailed information.
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c. 2010 NO2 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

[[Page 67400]]

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.\2\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\3\ 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.\4\ 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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    \2\ 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.
    \3\ ``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. EPA notes that 
this 2013 Infrastructure SIP Guidance document was not intended to 
apply to infrastructure SIP submissions for the 2008 Lead NAAQS.
    \4\ 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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    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 PM2.5 
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

[[Page 67401]]

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.\5\ Section 110(k)(6) 
authorizes EPA to correct errors in past actions, such as past 
approvals of SIP submissions.\6\ 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.\7\
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    \5\ 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).
    \6\ 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).
    \7\ 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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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 \8\; (2) the Greenhouse Gas (GHG) Tailoring Rule \9\ 
as consistent with the holding in Utility Air Regulatory Group v. 
Environmental Protection Agency; \10\ (3) the NSR Fine Particulate 
Matter (PM2.5) Rule \11\; and, (4) the PM2.5 PSD 
Increment-Significant Impact Levels (SILs)-Significant Monitoring 
Concentrations (SMC) Rule (only as it relates to PM2.5 
Increments).\12\ 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.
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    \8\ ``Final Rule To Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule'' (November 29, 2005, 70 
FR 71612) (hereafter referred to as the ``Phase II Rule'').
    \9\ Prevention of Significant Deterioration and Title V 
Greenhouse Gas (GHG) Tailoring Rule; Final Rule'' (June 3, 2010, 75 
FR 31514) (hereafter referred to as the ``GHG Tailoring Rule'').
    \10\ Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S. Ct. 2427 (2014).
    \11\ Implementation of the New Source Review Program for 
Particulate Matter Less Than 2.5 Micrometers; Final Rule'' (May 16, 
2008, 73 FR 28321) (hereafter referred to as the ``NSR 
PM2.5 Rule'').
    \12\ ``Final Rule on the Prevention of Significant Deterioration 
(PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM2.5)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC); Final Rule'' (October 
20, 2010, 75 FR 64864) (hereafter referred to as the 
``PM2.5 PSD Increment-SILs-SMC Rule (only as it relates 
to PM2.5 Increments)'').
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    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

[[Page 67402]]

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 PM2.5 Rule \13\ and 2010 PM2.5 
PSD Increment-SILs-SMC Rule (only as it relates to PM2.5 
Increments) established NSR permitting requirements for the 
implementation of the PM2.5 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 PM2.5 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 PM2.5 PSD Increment-SILs-SMC 
Rule.\14\ 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 PM2.5 be included in all PSD permit 
applications. Thus, although the PM2.5 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 PM2.5 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 PM2.5 SMC in order to avoid 
compiling ambient monitoring data for PM2.5. 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 PM2.5 monitoring data 
in accordance with the CAA requirements whenever either direct 
PM2.5 or any PM2.5 precursor is emitted in a 
significant amount.\15\
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    \13\ On January 4, 2013, the U.S. Court of Appeals, in Natural 
Resources Defense Council v. EPA, No. 08-1250, 2013 WL 45653 (D.C. 
Cir., filed July 15, 2008) (consolidated with 09-1102, 11-1430), 
issued a judgment that remanded EPA's 2007 and 2008 rules 
implementing the PM2.5 NAAQS. The court concluded that 
since subpart 4 of the CAA generally applies to PM10, EPA 
should have also followed the more prescriptive subpart 4 structure 
for the PM2.5 implementation rules. The court ordered EPA 
to repromulgate the implementation rules pursuant to subpart 4. 
Subpart 4 of Part D, Title 1 of the CAA establishes additional 
provisions for particulate matter nonattainment areas.
    The 2008 implementation rule addressed by the court decision, 
``Implementation of New Source Review (NSR) Program for Particulate 
Matter Less Than 2.5 Micrometers (PM2.5),'' 73 FR 28321 
(May 16, 2008), promulgated NSR requirements for implementation of 
PM2.5 in both nonattainment areas (nonattainment NSR) and 
attainment/unclassifiable areas (PSD). As the requirements of 
Subpart 4 only pertain to nonattainment areas, EPA does not consider 
the portions of the 2008 rule that address requirements for 
PM2.5 attainment and unclassifiable areas to be affected 
by the court's opinion. Moreover, EPA does not anticipate the need 
to revise any PSD requirements promulgated in the 2008 rule in order 
to comply with the court's decision. Accordingly, EPA's approval of 
state's infrastructure SIP related to elements (C), (D)(i) (prong 
3), or (J) with respect to the PSD requirements promulgated in the 
2008 NSR PM2.5 Rule does not conflict with the court's 
opinion.
    The court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does 
not affect EPA's action on the present infrastructure actions. EPA 
interprets the Act to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due 3 years after adoption or 
revision of a NAAQS. Instead, these elements are typically referred 
to as nonattainment SIP or attainment plan elements, which would be 
due by the dates statutorily prescribed under subpart 2 through 5 
under part D, extending as far as 10 years following designations 
for some elements.
    \14\ ``Prevention of Significant Deterioration (PSD) for 
Particulate Matter Less Than 2.5 Micrometers (PM2.5)--
Increments, Significant Impact Levels (SILs) and Significant 
Monitoring Concentration (SMC); Final Rule, 75 FR 64864 (October 20, 
2010).''
    \15\ In lieu of the applicants' need to set out PM2.5 
monitors to collect ambient data, applicants may submit 
PM2.5 ambient data collected from existing monitoring 
networks when the permitting authority deems such data to be 
representative of the air quality in the area of concern for the 
year preceding receipt of the application. EPA believes that 
applicants will generally be able to rely on existing representative 
monitoring data to satisfy the monitoring data requirement.
---------------------------------------------------------------------------

    On December 9, 2013, EPA issued a final rulemaking to remove the 
vacated and remanded PM2.5 SILs \16\ and the vacated 
PM2.5 SMC provisions from 40 CFR 51.166 and 52.21.\17\ See 
79 FR 73698. Because the Court vacated the PM2.5 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 PM2.5 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/m\3\). Were EPA to completely remove 
PM2.5 from the list of pollutants in sections 
51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c) of the PSD regulations, 
PM2.5 would no longer be a listed pollutant.
---------------------------------------------------------------------------

    \16\ The court's January 22, 2013, decision also vacated and 
remanded back to EPA the PM2.5 SILs. EPA's December 9, 
2013 final rule also removed the PM2.5 SILs from the CFR. 
The PM2.5, SILs are not a required element of a State's 
PSD program and thus not a structural requirement for purposes of 
infrastructure SIPs. The PM2.5 SILs are not approved into 
the SIPs that are the subject of this proposed rulemaking.
    \17\ Final Rule entitled ``Prevention of Significant 
Deterioration for Particulate Matter Less Than 2.5 Micrometers--
Significant Impact Levels and Significant Monitoring Concentration: 
Removal of Vacated Elements;'' 79 FR 73698 (December 9, 2013).
---------------------------------------------------------------------------

    EPA did not entirely remove PM2.5 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 PM2.5. Such a

[[Page 67403]]

conclusion would contravene the Court's decision and the CAA.
    By continuing to include PM2.5 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/m\3\, 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 PM2.5.
    EPA also advises states to begin preparations to remove the 
PM2.5 provisions from their state PSD regulations and SIPs. 
As the previously-approved PM2.5 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.

                            Table 1--EPA Approved Structural PSD Program Requirements
----------------------------------------------------------------------------------------------------------------
                                                 Greenhouse gas (GHG)                        PM2.5 PSD increment-
          State                Phase II rule         tailoring rule       NSR PM2.5 rule        SILs-SMC rule
----------------------------------------------------------------------------------------------------------------
Alabama..................  May 1, 2008 (73 FR    December 29, 2010     September 26, 2012    September 26, 2012
                            23957).               (75 FR 81863).        (77 FR 59100).        (77 FR 59100).
Florida..................  June 15, 2012 (77 FR  May 19, 2014 (79 FR   September 19, 2012    September 19, 2012
                            35862).               28607).               (77 FR 58027).        (77 FR 58027).
Georgia..................  November 22, 2010     September 8, 2011     September 8, 2011     April 9, 2013 (78
                            (75 FR 71018).        (76 FR 55572).        (76 FR 55572).        FR 21065).
Kentucky.................  September 15, 2010    December 29, 2010     Refer to Footnote     Refer to
                            (75 FR 55988).        (75 FR 81868).        \18\.                 Footnote.\18\
Mississippi..............  December 20, 2010     December 29, 2010     September 26, 2012    September 26, 2012
                            (75 FR 79300).        (75 FR 81858).        (77 FR 59095).        (77 FR 59095).
South Carolina...........  June 23, 2011 (77 FR  Refer to Footnote     June 23, 2011 (77 FR  April 3, 2013 (78
                            36875).               \19\.                 36875).               FR 19994).
Tennessee................  February 7, 2012 (77  February 28, 2012     July 30, 2012 (77 FR  January 9, 2014 (79
                            FR 6016).             (77 FR 11744).        44481).               FR 1593).
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \18\ Through a final rule signed by the EPA Region 4 
Administrator, on October 22, 2014, EPA is took final action in a 
separate rulemaking to approve Kentucky's January 13, 2013, SIP 
revision which addresses the NSR PM2.5 Rule and the 
PM2.5 PSD Increment-SILs-SMC Rule requirements. EPA 
proposed approval of Kentucky's January 13, 2013, SIP revision on 
July 23, 2014 (79 FR 42745).
    \19\ On June 11, 2010, the South Carolina Governor signed an 
Executive Order to confirm that the State had authority to implement 
appropriate emission thresholds for determining which new stationary 
sources and modification projects become subject to PSD permitting 
requirements for their GHG emissions at the state level. On December 
30, 2010, EPA published a final rulemaking, ``Action To Ensure 
Authority To Implement Title V Permitting Programs Under the 
Greenhouse Gas Tailoring Rule'' (75 FR 82254) to narrow EPA's 
previous approval of State title V operating permit programs that 
apply (or may apply) to GHG-emitting sources; this rule hereafter is 
referred to as the ``Narrowing Rule.'' EPA narrowed its previous 
approval of certain State permitting thresholds, for GHG emissions 
so that only sources that equal or exceed the GHG thresholds, as 
established in the final Tailoring Rule, would be covered as major 
sources by the Federally-approved programs in the affected States. 
South Carolina was included in this rulemaking. On March 4, 2011, 
South Carolina submitted a letter withdrawing from EPA's 
consideration the portion of South Carolina's SIP for which EPA 
withdrew its previous approval in the Narrowing Rule. These 
provisions are no longer intended for inclusion in the SIP, and are 
no longer before EPA for its approval or disapproval. A copy of 
South Carolina's letter can be accessed at www.regulations.gov using 
Docket ID No. EPA-R04-OAR-2014-0610.
---------------------------------------------------------------------------

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--

[[Page 67404]]

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

[[Page 67405]]

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

[[Page 67406]]

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.

    Dated: October 30, 2014.
Anne Heard,
Acting Regional Administrator, Region 4.
[FR Doc. 2014-26737 Filed 11-12-14; 8:45 am]
BILLING CODE 6560-50-P


