2023-18120. Air Plan Approval; South Carolina: New Source Review Updates

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is finalizing approval of a State Implementation Plan (SIP) revision submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (hereinafter referred to as SC DHEC or South Carolina) via a letter dated February 3, 2022. The SIP revision updates portions of South Carolina's Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) regulations, including changes to reflect the regulation of greenhouse gases (GHGs) pursuant to the Tailoring Rule and updates promulgated in the recent NSR Corrections Rule. With the exception of the Project Emissions Accounting provisions, which EPA expects to act on in a separate final rule, EPA is approving these revisions pursuant to the Clean Air Act (CAA or Act) and implementing Federal regulations.

DATES:

This rule is effective September 22, 2023.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2022–0397. 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:

Pearlene Williams-Miles, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. The telephone number is (404) 562–9144. Ms. Williams-Miles can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

I. This Action

In this final rule, EPA is approving into the South Carolina SIP updated PSD and NNSR rules. Specifically, EPA is approving the incorporation by reference of South Carolina's Regulation 61–62.5, Standard No. 7— Prevention of Significant Deterioration, State effective on November 26, 2021, except for paragraphs (A)(2)(d)(vi) and (A)(2)(d)(vii) related to Project Emissions Accounting into South Carolina's SIP. EPA is also finalizing the incorporation by reference of South Carolina's Regulation 61–62.5, Standard No. 7.1— Nonattainment New Source Review, State effective on November 26, 2021, into South Carolina's SIP except for paragraphs (A)(8) and (A)(9) related to Project Emissions Accounting and the portions of paragraphs (A)(11)(t) and (B)(22)(c)(xx) related to the Ethanol Rule Provisions.

II. Background

As described in the notice of proposed rulemaking (NPRM) published on July 26, 2022,^[1] over time, EPA has updated its NNSR and PSD permitting minimum requirements for State implementation plans at 40 CFR 51.165 and 51.166, respectively, and States and localities are required to update their SIP-approved rules to ensure consistency with these Federal rules.^[2] Collectively, EPA commonly refers to its NNSR and PSD permitting programs as the major “new source review,” or NSR, permitting programs.

EPA last approved updates to South Carolina's SIP-approved major NSR regulations on October 28, 2021, by acting on an April 24, 2020, submittal from the State. See86 FR 59646. Since the time of South Carolina's April 24, 2020, submittal, EPA has updated the Federal major NSR regulations to clarify the Project Emissions Accounting provisions and to correct certain errors in the NSR regulations that had accumulated over time.^[3]

On February 3, 2022, SC DHEC submitted SIP revisions to EPA for approval that included changes to South Carolina's major NSR permitting regulations to align them with recent updates to Federal requirements for PSD and NNSR permitting.^[4] Specifically, these changes update South Carolina's Regulation 61–62.5, Standard No. 7— Prevention of Significant Deterioration, and Standard No. 7.1— Nonattainment New Source Review.^[5] The State's February 3, 2022, SIP submittal incorporates into the South Carolina SIP updated PSD provisions related to the regulation of GHGs pursuant to the Tailoring Rule,^[6] which was previously implemented in South Carolina through legislative action (South Carolina Joint Resolution H4888 (2010)). The State's February 3, 2022, SIP submittal also incorporates changes promulgated in EPA's November 24, 2020, Project Emissions Accounting Rule ^[7] and in EPA's July 19, 2021, NSR Corrections Rule.^[8]

Through the July 26, 2022, NPRM, EPA proposed to approve these changes as meeting the requirements of the Federal PSD and NNSR programs and as being consistent with the CAA. However, EPA excluded a portion of paragraphs (A)(11)(t) and (B)(22)(c)(xx) as they relate to the Ethanol Rule Provisions, found in Regulation 61–62.5, Standard No. 7.1, from the proposed approval. Additional details on South Carolina's February 3, 2022, revisions and EPA's analysis of the changes can be found in the July 26, 2022, NPRM. Comments on the July 26, 2022, NPRM were due on or before August 25, 2022.

III. Response to Comments

EPA received comments on the July 26, 2022, NPRM, which are included in the docket of this rulemaking. The comments arrived in a letter dated August 25, 2022, and originate from one Commenter, Center for Biological Diversity. The Commenter provided supplemental documentation to support the comments submitted. The comments generally oppose incorporating the Federal Project Emission Accounting provisions at 40 CFR 51.165 and 51.166 within the February 3, 2022, submission.

EPA is not finalizing adoption of the Project Emissions Accounting provisions into South Carolina's SIP in this action.^[9] Therefore, EPA is not responding to these comments at this time. EPA expects to take final action on the Project Emissions Accounting provisions contained within SC DHEC's submittal in a separate final rule and to respond to these comments in that action.

IV. Incorporation by Reference

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as discussed in sections I and II of this preamble, EPA is finalizing the incorporation by reference of South Carolina's Regulation 61–62.5, Standard No. 7— Prevention of Significant Deterioration, State effective on November 26, 2021, except for paragraphs (A)(2)(d)(vi) and (A)(2)(d)(vii) related to Project Emissions Accounting. EPA is also finalizing the incorporation by reference of South Carolina's Regulation 61–62.5, Standard No. 7.1— Nonattainment New Source Review, State effective on November 26, 2021, except for paragraphs (A)(8) and (A)(9) related to Project Emissions Accounting and the portions of paragraphs (A)(11)(t) and (B)(22)(c)(xx) related to the Ethanol Rule Provisions. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.^[10]

V. Final Action

EPA is approving, with the exceptions noted, the changes to the South Carolina Regulation 61–62.5, Standards No. 7— Prevention of Significant Deterioration, and Standard No. 7.1— Nonattainment New Source Review, both State effective on November 26, 2021. These changes were submitted by South Carolina on February 3, 2022.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See42 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 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);

• 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); and
• 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.

Because this final rule merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law, this final rule 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.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

SC DHEC did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

This action is subject to the Congressional Review Act, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. 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 October 23, 2023. 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: August 17, 2023.

Jeaneanne Gettle,

Acting Regional Administrator, Region 4.

For the reasons stated in the preamble, EPA amends 40 CFR part 52 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. In § 52.2120(c), amend the table under the heading “Regulation No. 62.5” by revising the entries for “Standard No. 7” and “Standard No. 7.1” to read as follows:

§ 52.2120

Identification of plan.

* * * * *

(c) * * *

Table 1 to Paragraph ( c )—EPA-Approved South Carolina Laws and Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanation
*         *         *         *         *         *         *
Regulation No. 62.5	Air Pollution Control Standards
*         *         *         *         *         *         *
Standard No. 7	Prevention of Significant Deterioration	11/26/2021	8/23/2023, [Insert citation of publication]	Except for the project emissions accounting provisions at paragraphs (A)(2)(d)(vi) and (A)(2)(d)(vii).
Standard No. 7.1	Nonattainment New Source Review	11/26/2021	8/23/2023, [Insert citation of publication]	Except for the ethanol production facilities exclusion in paragraphs (A)(11)(t) and (B)(22)(c)(xx) and the project emissions accounting provisions at paragraphs (A)(8) and (A)(9).
*         *         *         *         *         *         *

* * * * *

Footnotes

1.   See87 FR 44314.

2.  Over time, EPA has also updated its corresponding PSD and NNSR rules at 40 CFR 52.21 and 40 CFR part 51, appendix S.

3.  The “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Project Emissions Accounting” rule was finalized on November 24, 2020. See85 FR 74890 (hereinafter “Project Emissions Accounting Rule”).

4.  EPA notes that the February 3, 2022, submittal was received by EPA on February 4, 2022. For clarity, EPA will refer to this submittal based on the date of the letter.

5.  EPA notes that under the February 3, 2022, cover letter, SC DHEC also submitted updates to the following State Regulations: 61–62.60, South Carolina Designated Facility Plan and New Source Performance Standards; Regulation 61–62.63, National Emission Standards for Hazardous Air Pollutants (NESHAP) for Source Categories; and Regulation 61–62.70, Title V Operating Permit Program. However, South Carolina explains in the February 3, 2022, cover letter that these regulations are not part of the SIP, and they are not being requested for approval by EPA into the South Carolina SIP at this time.

6.  “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule.” See75 FR 31514 (June 3, 2010).

7.   See85 FR 74890 (November 24, 2020).

8.   See86 FR 37918 (July 19, 2021).

9.  These provisions are contained in Regulation 61–62.5, Standard 7, section (A)(2)(d)(vi) (revising hybrid test in PSD rules); Regulation 61–62.5, Standard 7, section (A)(2)(d)(vii) (defining “sum of the difference” in PSD rules); Regulation 61–62.5, Standard 7.1, section (A)(8) (setting forth hybrid test in NNSR rules); Regulation 61–62.5, Standard 7.1, section (A)(9) (defining “sum of the difference” in NNSR rules).

10.   See62 FR 27968 (May 22, 1997).