[Federal Register Volume 60, Number 15 (Tuesday, January 24, 1995)]
[Proposed Rules]
[Pages 4583-4586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1738]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[SC01-FRL-5143-4]
Clean Air Act Proposed Full Approval of Operating Permits
Program; State of South Carolina
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed full approval.
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SUMMARY: EPA proposes to grant full approval to the Operating Permits
Program submitted by the State of South Carolina for the purpose of
complying with Federal requirements for an approvable state program to
issue operating permits to all major stationary sources, and to certain
other sources.
DATES: Comments on this proposed action must be received in writing by
February 23, 1995.
ADDRESSES: Written comments on this action should be addressed to Carla
E. Pierce, Regional Program Manager, Title V Program Development Team,
Air Programs Branch, at the EPA Region 4 office listed.
Copies of the State's submittal and other supporting information
used in developing the proposed full approval are available for
inspection during normal business hours at the following location: U.S.
Environmental Protection Agency, Region 4, 345 Courtland Street, NE.,
Atlanta, GA 30365. Interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day.
FOR FURTHER INFORMATION CONTACT: Scott Miller, Title V Program
Development Team, Air Programs Branch, Air Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 345
Courtland Street, NE., Atlanta, GA 30365, (404) 347-3555 extension
4153.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
As required under title V of the Clean Air Act Amendments of 1990,
(Clean Air Act (``Act'') sections 501-507), EPA has promulgated rules
that define the minimum elements of an approvable State operating
permits program and the corresponding standards and procedures by which
the EPA will approve, oversee, and withdraw approval of state operating
permits programs (see 57 FR 32250 (July 21, 1992)). These rules are
codified at 40 Code of Federal Regulations (CFR) part 70. Title V
requires states to develop, and submit to EPA, programs for issuing
these operating permits to all major stationary sources and to certain
other sources.
The Act requires that states develop and submit these programs to
EPA by November 15, 1993, and that EPA act to approve or disapprove
each program within one year after receiving the submittal. EPA's
program review occurs pursuant to section 502 of the Act and the part
70 regulations, which together outline criteria for approval or
disapproval. Where a program substantially, but not fully, meets the
requirements of part 70, EPA may grant the program interim approval for
a period of up to two years. If EPA has not fully approved a program by
two years after the November 15, 1993 date, or by the end of an interim
program, it must establish and implement a Federal operating permits
program.
II. Proposed Action and Implications
A. Analysis of State Submission
1. Support Materials
Pursuant to section 502(d) of the Act, the governor of each state
must develop and submit to the Administrator an operating permits
program under state or local law or under an interstate compact meeting
the requirements of title V of the Act. The South Carolina Department
of Health and Environmental Control (DHEC) requested, under the
signature of Governor Carroll A. Campbell, Jr., approval of its
operating permits program with full authority to administer the program
submittal in all areas of the State of South Carolina, including the
Catawba Indian Reservation.
The South Carolina submittal, provided as Section II-''Complete
Program Description,'' addresses 40 CFR 70.4(b)(1) by describing how
DHEC intends to carry out its responsibilities under the part 70
regulations. The program description has been deemed to be sufficient
for meeting the requirement of 40 CFR 70.4(b)(1).
Pursuant to 40 CFR 70.4(b)(3), the Governor is required to submit a
legal opinion from the Attorney General (or the attorney for the state
air pollution control agency that has independent legal counsel)
demonstrating adequate authority to carry out all aspects of a title V
operating permits program. The State of South Carolina submitted an
Attorney General's Opinion demonstrating adequate legal authority as
required by Federal law and regulation. [[Page 4584]]
Section 70.4(b)(4) requires the submission of relevant permitting
program documentation not contained in the regulations, such as permit
application forms, permit forms and relevant guidance to assist in the
State's implementation of its permit program. Appendix A of the DHEC
submittal includes the permit application forms and permit forms, and
it has been determined that the application forms and the permit forms
meet the requirements of 40 CFR 70.5(c) and 40 CFR 70.6, respectively.
2. Regulations and Program Implementation
The State of South Carolina has submitted Chapter 61-62.70 ``Title
V Operating Permit Program'' for implementing the State part 70 program
as required by 40 CFR 70.4(b)(2). Sufficient evidence of its
procedurally correct adoption is included in Appendix H of the
submittal. Copies of all applicable State statutes and regulations that
authorize the part 70 program, including those governing State
administrative procedures, were submitted with the State's program.
The South Carolina operating permits regulations follow part 70
very closely. The following requirements, set out in EPA's part 70
operating permits program review, are addressed in Section II of the
State's submittal:
(A) Applicability requirements, (40 CFR 70.3(a)): 61-62.70.3(a);
(B) Permit applications, (40 CFR 70.5): 61-62.70.5;
(C) Provisions for permit content, (40 CFR 70.6): 61-62.70.6;
Standard permit requirements: (40 CFR 70.6(a)): 61-62.70.6(a); Permit
duration: (40 CFR 70.6(a)(2)): 61-62.70.6(a)(2); Monitoring and related
recordkeeping and reporting requirements: (40 CFR 70.6(a)(3)): 61-
62.70.6(a)(3); Compliance requirements: (40 CFR 70.6(c)): 61-
62.70.6(c);
(D) Operational flexibility provisions, (40 CFR 70.4(b)(12)): 61-
62.70.7(e)(5);
(E) Provisions for permit issuance, renewals, reopenings and
revisions, including public participation (40 CFR 70.7): 61-62.70.7;
and
(F) Permit review by EPA and affected State (40 CFR 70.8): 61-
62.70.8. The South Carolina Pollution Control Act, section 48-1-320,
section 48-1-330, and section 48-1-50 satisfy the requirements of 40
CFR 70.11, for enforcement authority.
DHEC regulations contain a definition of the phrase ``title I
modification'' which does not include changes which occur under the
State's minor new source review regulations approved into the South
Carolina State Implementation Plan (SIP). On August 29, 1994, EPA
proposed revisions to the interim approval criteria in 40 CFR 70.4(d)
to, among other things, allow State programs with a more narrow
definition of ``title I modification'' to receive interim approval (59
FR 44572). The Agency also solicited public comment on the proper
interpretation of ``title I modifications'' (59 FR 44573). The Agency
stated that if, after considering the public comments, it continues to
believe that the phrase ``title I modifications'' should be interpreted
as including minor NSR changes, it would revise the interim approval
criteria as needed to grant states that adopted a narrower definition
interim approval. EPA intended to finalize its revisions to the interim
approval criteria under 40 CFR 70.4(d) before taking final action on
part 70 programs. However, this is no longer possible. Until the
revision to the interim approval criteria is promulgated, EPA's choices
are to either fully approve or disapprove the narrower ``title I
modification'' definition in states such as South Carolina. For the
reasons set forth below, EPA believes that proposing disapproval for
such programs at this time solely because of this issue would be
inappropriate.
First, EPA has not yet conclusively determined that a narrower
definition of ``title I modification'' is incorrect and thus a basis
for disapproval or interim approval. Second, EPA believes that the
South Carolina program should not be considered for disapproval because
EPA itself has not yet been able resolve this issue through rulemaking
and is solely responsible for the confusion on what constitutes a
``title I modification'' for part 70 purposes. Moreover, proposing
disapproval for programs from states such as South Carolina that
submitted their programs to EPA on or before the November 15, 1993,
statutory deadline could lead to the perverse result that these states
would receive disapprovals, while states which were late in submitting
programs could take advantage of revised interim approval criteria if
and when these criteria become final. In effect, states would be
severely penalized for having made timely program submissions to EPA.
Finally, proposing disapproval of a State program for a potential
problem that primarily affects permit revision procedures would delay
the issuance of part 70 permits, hampering state/Federal efforts to
improve environmental protection through the operating permits system.
For further rationale on EPA's position on the determination of what
constitutes a ``title I modification,'' see EPA's final interim
approval of the State of Washington's part 70 operating permits program
(59 FR 55813, November 9, 1994).
For the reasons mentioned above, EPA is proposing approval of the
South Carolina program's use of a narrower definition of ``title I
modification'' at this time. DHEC has issued a commitment to
expeditiously revise the State's definition of ``title I modification''
if it is found at a later date to be inconsistent with EPA's revised
definition in the rulemaking listed above.
DHEC established a process subject to EPA approval to determine
insignificant activities and emissions levels in Regulation 61-
62.70.5(c). Regulation 61-62.70.5(c) includes activities/emissions
sources that are not required to be included in the permit application.
Regulation 61-62.70.5(c) includes activities/emissions sources that
must be listed in the permit application, but whose emissions do not
have to be quantified. Notwithstanding Regulation 61-62.70.5(c),
applicants are required to include all emission sources and quantify
emissions if needed to determine major source compliance with an
applicable requirement, or to collect any permit fee.
Part 70 of the operating permits regulations requires prompt
reporting of deviations from the permit requirements. Section
70.6(a)(3)(iii)(B) requires the permitting authority to define prompt
in relation to the degree and type of deviation likely to occur and the
applicable requirements. Although the permit program regulations should
define prompt for purposes of administrative efficiency and clarity, an
acceptable alternative is to define prompt in each individual permit.
EPA believes that prompt should generally be defined as requiring
reporting within two to ten days of the deviation. Two to ten days is
sufficient time in most cases to protect public health and safety as
well as to provide a forewarning of potential problems. For sources
with a low level of excess emissions, a longer time period may be
acceptable. However, prompt reporting must be more frequent than the
semiannual reporting requirement under 40 CFR 70.6(a)(3)(iii)(A) which
is a distinct reporting obligation. Where ``prompt'' is defined in the
individual permit, but not in the program regulations, EPA may veto
permits that do not require sufficiently prompt reporting of
deviations. The State of South Carolina has not defined prompt in its
program regulations with respect to reporting of
[[Page 4585]] deviations. DHEC has committed to include the following
standard permit condition in each title V permit which defines
``prompt'':
Deviations from limits or specific conditions contained in this
permit, including those attributable to upset conditions, shall be
reported promptly (within 24 hours) to the EQC District office. A
written report, including the probable cause of such deviations and
any corrective actions or preventive measures taken, shall be
submitted within thirty days (30) to the Department.
South Carolina has the authority to issue a variance from
requirements imposed by State law. Sections 48-1-50(5) and 48-1-100 of
the Pollution Control Act allow the permitting board discretion to
grant relief from compliance with State rules and regulations. EPA
regards this provision as wholly external to the program submitted for
approval under part 70, and consequently is proposing to take no action
on this provision of State law. EPA has no authority to approve
provisions of State law, such as the variance provision referred to,
that are inconsistent with the Clean Air Act. EPA does not recognize
the ability of a permitting authority to grant relief from the duty to
comply with a federally enforceable part 70 permit, except where such
relief is granted through procedures allowed by part 70. EPA reserves
the right to enforce the terms of the part 70 permit where the
permitting authority purports to grant relief from the duty to comply
with those terms in a manner inconsistent with part 70 procedures.
The complete DHEC program submittal and the Technical Support
Document are available for review for more detailed information.
3. Permit Fee Demonstration
The DHEC has opted to charge the presumptive minimum fee ($25/ton +
Consumer Price Index (CPI) from 1989). The fees will be based on a
stationary source's actual emissions using actual operating hours,
production rates, in-place control equipment, and types of material
processed, stored, or combusted during the period of calculation. EPA
has determined that South Carolina's fee demonstration is adequate and
meets the requirements of 40 CFR 70.9.
4. Provisions Implementing the Requirements of Other Titles of the Act
a. Authority and/or commitments for section 112 implementation.
South Carolina has identified in its title V program submittal broad
legal authority to incorporate into permits and enforce all applicable
requirements; however, South Carolina has also indicated that
additional regulatory authority may be necessary to carry out specific
section 112 activities. South Carolina has therefore supplemented its
broad legal authority with a commitment to ``expeditiously seek
additional authority as necessary to incorporate into title V permits
any future applicable requirements promulgated by EPA to enable title
III implementation through permit issuance.'' EPA has determined that
this commitment, in conjunction with South Carolina's broad statutory
and regulatory authority, adequately assures compliance with all
section 112 requirements. EPA regards this commitment as an
acknowledgement by South Carolina of its obligation to obtain further
regulatory authority as needed to issue permits that assure compliance
with section 112 applicable requirements. This commitment does not
substitute for compliance with part 70 requirements that must be met at
the time of program approval.
EPA interprets the above legal authority and commitment to mean
that South Carolina is able to carry out all section 112 activities.
For further rationale on this interpretation, please refer to the
Technical Support Document accompanying this proposed full approval and
the April 13, 1993, guidance memorandum titled ``Title V Program
Approval Criteria for Section 112 Activities,'' signed by John Seitz.
b. Implementation of section 112(g) upon program approval. As a
condition of approval of the part 70 program, South Carolina is
required to implement section 112(g) of the Act from the effective date
of the part 70 program. Imposition of case-by-case determinations of
maximum achievable control technology (MACT) or offsets under section
112(g) will require the use of a mechanism for establishing federally
enforceable restrictions on a source-specific basis. EPA is proposing
to approve South Carolina's preconstruction permitting program found in
Regulation 62.1, Section II of the South Carolina State Implementation
Plan (SIP) under the authority of title V and part 70 solely for the
purpose of implementing section 112(g) during the transition period
between title V approval and adoption of a State rule implementing
EPA's section 112(g) regulations. EPA believes this approval is
necessary so that South Carolina has a mechanism in place to establish
federally enforceable restrictions for section 112(g) purposes from the
date of part 70 approval. The scope of this approval is narrowly
limited to section 112(g), and does not confer or imply approval for
purposes of any other provision under the Act. If South Carolina does
not wish to implement section 112(g) through its preconstruction permit
program and can demonstrate that an alternative means of implementing
section 112(g) exists, the EPA may, in the final action approving South
Carolina's part 70 program, approve the alternative instead. Overall,
section 112(l) provides the authority for approval for the use of State
air programs to implement 112(g), and title V and section 112(g)
provide authority for this limited approval because of the direct
linkage between implementation of section 112(g) and title V.
This use of the preconstruction program for this approval only
extends until such time as the State is able to adopt regulations
consistent with any regulations promulgated by EPA to implement section
112(g). Accordingly, EPA is proposing to limit the duration of this
approval to a reasonable time following promulgation of section 112(g)
regulations so that South Carolina, acting expeditiously, will be able
to adopt regulations consistent with the section 112(g) regulations.
EPA proposes here to limit the duration of this approval to 12 months
following promulgation by EPA of section 112(g) regulations.
c. Program for straight delegation of section 112 standards as
promulgated. Requirements for approval, specified in 40 CFR 70.4(b),
encompass section 112(l)(5) requirements for approval of a program for
delegation of section 112 General Provisions Subpart A and standards as
promulgated by EPA as they apply to part 70 sources. Section 112(l)(5)
requires that the State's program contain adequate authorities,
adequate resources for implementation, and an expeditious compliance
schedule, which are also requirements under part 70. Therefore, EPA is
proposing to grant approval under section 112(l)(5) and 40 CFR 63.91 to
South Carolina for its program mechanism for receiving delegation of
all existing and future section 112(d) standards for both part 70 and
non-part 70 sources, and section 112 infrastructure programs such as
those programs authorized under sections 112(i)(5), 112(g), 112(j), and
112(r). The proposed approval of South Carolina's delegation mechanism
extends to those standards and infrastructure programs that are
unchanged from Federal rules as promulgated. In addition, EPA is
proposing delegation of all existing standards and programs under 40
CFR parts 61 and 63 for part 70 sources and [[Page 4586]] non-part 70
sources.1 South Carolina has informed EPA that it intends to
accept the delegation of section 112 standards on an automatic basis.
The details of this delegation mechanism are set forth in an addendum
to the South Carolina title V program submittal.
\1\The radionuclide National Emission Standards for Hazardous
Air Pollutant (NESHAP) is a section 112 regulation and therefore,
also an applicable requirement under the State operating permits
program for part 70 sources. There is not yet a Federal definition
of ``major'' for radionuclide sources. Therefore, until a major
source definition for radionuclide is promulgated, no source would
be a major section 112 source solely due to its radionuclide
emissions. However, a radionuclide source may, in the interim, be a
major source under part 70 for another reason, thus requiring a part
70 permit. EPA will work with the State in the development of its
radionuclide program to ensure that permits are issued in a timely
manner.
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d. Commitment to implement title IV of the Act. DHEC has committed
to take action, following promulgation by EPA of regulations
implementing sections 407 and 410 of the Act, or revisions to either
part 72 or the regulations implementing sections 407 or 410, to either
incorporate the revised provisions by reference or submit, for EPA
approval, DHEC regulations implementing these provisions. DHEC
committed to adopt and submit to EPA the above referenced regulations
no later than January 1, 1995.
B. Proposed Actions
1. Full Approval
EPA proposes to fully approve the operating permits program
submitted to EPA from the State of South Carolina on November 15, 1993.
2. Program for Straight Delegation of Section 112 Standards
As discussed above in section II.A. 4.c., EPA is proposing to grant
approval under section 112(l)(5) and 40 CFR 63.91 to South Carolina for
its program mechanism for receiving delegation of all existing and
future section 112(d) standards for both part 70 and non-part 70
sources, and infrastructure programs under section 112 that are
unchanged from Federal rules as promulgated. In addition, EPA proposes
to delegate existing standards under 40 CFR parts 61 and 63 for both
part 70 sources and non-part 70 sources.
III. Administrative Requirements
A. Request for Public Comments
EPA requests comments on all aspects of this proposed full
approval. Copies of the State's submittal and other information relied
upon for the proposal are contained in a docket maintained at the EPA
Regional Office. The docket is an organized and complete file of all
the information submitted to, or otherwise considered by, EPA in the
development of this proposal. The principal purposes of the docket are:
(1) To allow interested parties a means to identify and locate
documents so that they can effectively participate in the approval
process; and
(2) To serve as the record in case of judicial review. EPA will
consider any comments received by February 23, 1995.
B. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from executive order 12866 review.
C. Regulatory Flexibility Act
EPA's actions under section 502 of the Act do not create any new
requirements, but simply address operating permits programs submitted
to satisfy the requirements of 40 CFR part 70. Because this action does
not impose any new requirements, it does not have a significant impact
on a substantial number of small entities.
List of Subjects in 40 CFR Part 70
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: January 9, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
[FR Doc. 95-1738 Filed 1-23-95; 8:45 am]
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