AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is finalizing approval of South Carolina's June 18, 2018, State Implementation Plan (SIP) submission pertaining to the “good neighbor” provision of the Clean Air Act (CAA or Act) for the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS). The good neighbor provision requires each state's implementation plan to address the interstate transport of air pollution in amounts that contribute significantly to nonattainment, or interfere with maintenance, of a NAAQS in any other state. In this action, EPA is finalizing the determination that South Carolina's SIP contains adequate provisions to prohibit emissions within the State from contributing significantly to nonattainment or interfering with maintenance of the 2008 8-hour ozone NAAQS in any other state.

DATES:

This rule is effective February 3, 2020.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2018-0666. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation 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:

Evan Adams, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Mr. Adams can also be reached via telephone at (404) 562-9009 and via electronic mail at adams.evan@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

On March 27, 2008 (73 FR 16436), EPA published an ozone NAAQS that revised the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm. Pursuant to CAA section 110(a)(1), within three years after promulgation of a new or revised NAAQS (or shorter, if EPA prescribes), states must submit SIPs that meet the applicable requirements of section 110(a)(2). EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. One of the structural requirements of section 110(a)(2) is section 110(a)(2)(D)(i), which generally requires SIPs to contain adequate provisions to prohibit in-state emissions activities from having certain adverse air quality effects on neighboring states due to interstate transport of air pollution. There are four sub-elements, or “prongs,” within section 110(a)(2)(D)(i) of the CAA. CAA section 110(a)(2)(D)(i)(I), also known as the “good neighbor” provision, requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state. The two provisions of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4).

On June 18, 2018, the South Carolina Department of Health and Environmental Control (SC DHEC) provided a SIP submittal containing a certification that South Carolina's SIP meets the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. South Carolina's certification is based on available emissions data, air quality monitoring and modeling data, and SIP-approved ^[1] regulations controlling emissions of ozone precursors within the State. In a notice of proposed rulemaking (NPRM) published on May 28, 2019 (84 FR 24420), EPA proposed to approve South Carolina's SIP submission demonstrating that South Carolina's SIP is sufficient to address the CAA requirements of prongs 1 and 2 for the 2008 8-hour ozone NAAQS.^[2] In that NPRM, EPA discussed the final determination made in the update to the Cross-State Air Pollution Rule (CSAPR) ozone season program that addresses good neighbor obligations for the 2008 8-hour ozone NAAQS (known as the “CSAPR Update”) ^[3] that emissions activities within South Carolina will not significantly contribute to nonattainment or interfere with maintenance of that NAAQS in any other state. In the NPRM, EPA stated that it was not reopening for comment final determinations made in the CSAPR Update or the modeling conducted to support that rulemaking. The NPRM provides additional detail regarding the background and rationale for EPA's action. Comments on the NPRM were due on or before June 27, 2019.

II. Response to Comments

EPA received two sets of comments on its May 28, 2019, NPRM. One set of comments is adverse but do not raise issues that would alter the action proposed in EPA's May 28, 2019, NPRM. EPA has summarized these comments below and provided its responses. The second set of comments are not relevant to EPA's May 28, 2019, NPRM because they are focused on greenhouse gases. Accordingly, the EPA is not required to respond to the second set of comments in finalizing this action. Both sets of comments are provided in the docket for this final action.

Comment 1: The Commenter asserts that EPA cannot rely on a Federal implementation program (FIP) in this action, stating that “the agency and the state can't rely on federal implementation programs to meet requirements of plans required under Clean Air Act section 110(a)(2) because the language in the act requires all plans to include provisions in the state's plan.”

Response 1: EPA believes this comment inaccurately characterizes South Carolina's transport obligation status because neither EPA nor the State is relying on a FIP to meet the interstate transport requirements for the 2008 8-hour ozone NAAQS. Although the Commenter does not indicate which FIPs it believes EPA has inappropriately relied on, EPA is providing the following discussion to clarify the history involving South Carolina and CSAPR FIPs.

In 2015, EPA issued findings of failure to submit to 24 states, including South Carolina, for failure to submit complete SIP revisions to address the requirements of section 110(a)(2)(D)(i)(I) related to the interstate transport of pollution as to the 2008 ozone NAAQS. See 80 FR 39961 (July 13, 2015) (effective August 12, 2015). The CSAPR Update was developed to address EPA's obligation under CAA section 110(c) to promulgate FIPs addressing this statutory requirement on behalf of the states for which the findings were made. EPA's modeling in the CSAPR Update showed that emissions from South Carolina would not impact downwind air quality problems at or above the air quality screening threshold used to evaluate good neighbor obligations, and EPA therefore determined that South Carolina would not contribute significantly to nonattainment or interfere with maintenance for any other state with respect to the 2008 ozone NAAQS. Accordingly, EPA concluded that it need not require further emissions reductions from sources in South Carolina and therefore did not promulgate a FIP to address the good neighbor provision as to the 2008 ozone NAAQS. Thus, there is no CSAPR FIP currently in place for South Carolina sources with respect to the 2008 ozone NAAQS, and there is no obligation for South Carolina to implement further emissions reductions from sources in the State to address that obligation. The approval of South Carolina's SIP here merely implements the final determination regarding the State's good neighbor obligation with respect to the 2008 ozone NAAQS already made in the CSAPR Update.

EPA notes that South Carolina is also not subject to any other FIPs under the good neighbor provision. Although South Carolina was originally subject to a CSAPR FIP to address the 1997 ozone NAAQS, the FIP was subsequently removed.^[4] Similarly, the State was originally subject to CSAPR FIPs for the 1997 and 2006 fine particulate matter (PM_2.5) NAAQS regulating annual emissions of NO_X and sulfur dioxide emissions, but the State has since adopted those requirements into its SIP. See 82 FR 47936 (October 13, 2017)

Comment 2: The Commenter questions EPA's modeling for the CSAPR Update and the use of that modeling for this action, stating that EPA “cannot approve South Carolina's action since it is based on EPA's faulty CSAPR Update modeling analysis which uses illegal attainment years to base the state's contribution.” Additionally, the Commenter questions the accuracy of EPA's modeling. The Commenter goes on to suggest that EPA should compare the “modeling results for 2017 and 2018 and 2019 to see how accurate the agency's model performs.”

Response 2: EPA stated in the NPRM that it was not taking comment on the final determinations made in the CSAPR Update or the modeling conducted to support that rulemaking. The Commenter had the opportunity to raise concerns about the model year and accuracy in the CSAPR Update rulemaking.^[5] Issues related to the final determinations made in the CSAPR Update or the modeling conducted to support that rulemaking are thus outside the scope of this rule. Nonetheless, the EPA is providing the following explanation.

The Commenter does not explain why it believes that the analytic year that EPA used in the CSAPR Update modeling is inappropriate. As explained in that action, the 2017 analytic year aligned with the July 2018 Moderate area attainment date, which was the next applicable attainment date at the time that rulemaking was conducted. The Commenter also does not explain why it believes the 2017 air quality modeling is inaccurate or unreliable such that modeling of additional years is necessary.

To the extent the commenter was concerned about EPA verification of the accuracy of the model's performance, in 2016 EPA performed an extensive model performance evaluation that compared the 2011 base year model predictions to the corresponding measured data.^[6] This approach is consistent with recommendations in EPA's air quality modeling guidance.^[7] This evaluation found that the predictions from the 2011 modeling platform correspond closely to observed concentrations in terms of the magnitude, temporal fluctuations, and geographic differences for 8-hour daily maximum ozone. Thus, the model performance results demonstrate the scientific credibility of our 2011 modeling platform. These results provide confidence in the ability of the modeling platform to provide a reasonable projection of expected future year ozone concentrations and contributions.

In addition, EPA has identified all monitoring sites outside of South Carolina that have predicted 2017 contributions from South Carolina that are at or above the 1 percent of the NAAQS threshold used by EPA as a screening threshold in evaluation contributions with respect to the 2008 NAAQS. The outcome of this analysis reveals that there are no monitors currently measuring violations to which South Carolina contributes at or above the 1 percent threshold. The data to support this finding are provided in Table 1.

III. Final Action

EPA is taking final action to approve South Carolina's June 18, 2018, SIP submission demonstrating that South Carolina's SIP is sufficient to address the CAA requirements of prongs 1 and 2 under section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS. EPA is taking final action to approve the SIP submission because it is consistent with section 110 of the CAA.

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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. This 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 action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• 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).

Because this final action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law, this final action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “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.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 2, 2020. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen oxides
• Ozone
• Reporting and recordkeeping requirements
• Volatile organic compounds

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart PP—South Carolina

2. Section 52.2120(e), is amended by adding an entry for “110(a)(1) and (2) Infrastructure Requirements for the 2008 8-Hour Ozone NAAQS” at the end of the table to read as follows:

Footnotes