[Federal Register Volume 60, Number 122 (Monday, June 26, 1995)]
[Rules and Regulations]
[Pages 32913-32916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15574]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 70
[AD-FRL-5226-7]
Clean Air Act Final Full Approval of Operating Permits Program;
State of South Carolina
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final full approval.
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SUMMARY: The EPA is promulgating full approval of the Operating Permits
Program submitted by the State of South Carolina through the South
Carolina Department of Health and Environmental Control (DHEC) 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.
EFFECTIVE DATE: July 26, 1995.
ADDRESSES: Copies of the State's submittal and other supporting
information used in developing the final 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, Georgia 30365, on the 3rd floor of the Tower Building.
Interested persons wanting to examine these documents, contained in EPA
docket number SC-94-01, should make an appointment at least 24 hours
before the visiting day.
FOR FURTHER INFORMATION CONTACT: Kelly Fortin, Title V Program
Development Team, Air Programs Branch, Air Pesticides & Toxics
Management Division, U.S. EPA Region 4, 345 Courtland Street NE,
Atlanta, GA 30365, (404) 347-3555 extension 4223.
SUPPLEMENTARY INFORMATION:
I. Background and Purpose
A. Introduction
Title V of the 1990 Clean Air Act Amendments (sections 501-507 of
the Clean Air Act (``the Act'')), and implementing regulations at 40
Code of Federal Regulations (CFR) part 70 require that States develop
and submit operating permits programs to EPA by November 15, 1993, and
that EPA act to approve or disapprove each program within 1 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 [[Page 32914]] 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 program.
On January 24, 1995, EPA proposed full approval of the operating
permits program for the State of South Carolina. See 60 FR 4583. The
January 24, 1995 notice also proposed approval of South Carolina's
interim mechanism for implementing section 112(g) and for delegation of
section 112 standards as promulgated. Public comment was solicited on
these proposed actions. EPA received five letters commenting on the
proposal, which are summarized and addressed below. In this document
EPA is taking final action to approve the operating permits program and
the 112(g) and 112(l) mechanisms noted above for the State of South
Carolina.
II. Final Action and Implications
A. Analysis of State Submission and Response to Public Comments
On January 24, 1995, EPA proposed full approval of the State of
South Carolina's Title V Operating Permit Program. See 60 FR 4583. The
program elements discussed in the proposed notice are unchanged from
the proposed notice and continue to fully meet the requirements of 40
CFR part 70.
All written comments received during the public comment period were
reviewed and considered by EPA prior to taking final agency action. EPA
received five comment letters that addressed four general issues: (1)
the definition of title I modification; (2) the definition of
insignificant activities; (3) prompt reporting of deviations; and (4)
implementation of section 112(g). EPA's response to the comments and
discussion of these issues is given in this section. The original
comment letters can be found in the docket for this action, which is
available for review at the address given above.
1. Definition of Title I Modification
DHEC regulations contain a definition of the phrase ``title I
modification'' that does not include changes that occur under the
State's minor new source review regulations approved into the South
Carolina State Implementation Plan (SIP). All five commenters stated
that they believed this ``narrower'' definition contained in the
State's rule was the appropriate definition for the implementation of
title V.
This issue is discussed in detail in EPA's January 24, 1995
proposal to approve South Carolina's program. See 60 FR 4583. As
discussed in that notice, EPA has not yet determined that a narrower
definition of ``title I modification'' is incorrect and thus a basis
for disapproval or interim approval. 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 discussed in the proposal, EPA is approving South
Carolina's use of a narrower definition of ``title I modification'' at
this time. However, should EPA make a final determination that such a
narrow definition of ``title I modification'' is incorrect, South
Carolina will be required to revise their regulations so that they are
consistent with the federal definition, and EPA may propose further
action on South Carolina's program so that the State's definition of
``title I modification'' could become grounds for interim approval.\1\
A state program like South Carolina's that receives full approval of
its narrower definition pending completion of EPA's rulemaking must
ultimately be placed on an equal footing with states that receive
interim approval under any revised interim approval criteria because of
the same issue. EPA anticipates that any action to convert the full
approval to an interim approval would be affected through an additional
rulemaking, so as to ensure that there is adequate notice of change in
the approval status and applicability requirements.
\1\State programs with a narrower ``title I modification''
definition that were approved by EPA before the Agency decision that
such a narrower definition is inappropriate, would be considered
deficient, but would be eligible for interim approval under revised
40 CFR 70.4(b).
2. Definition of Insignificant Activities
One commenter stated that South Carolina's exemption list for
insignificant activities is too restrictive and that by proposing
``acceptable'' levels to other states, EPA is improperly directing the
adoption of arbitrarily low emission caps to define insignificant
activities that clearly restricts permitting authority discretion.
In this action, EPA is approving the process established by DHEC to
determine insignificant activities and emissions levels (South
Carolina's Regulation 61-62.70.5(c)). DHEC had discretion to propose
emission levels other than those used by other states and may adopt a
program more stringent than any proposed by EPA. EPA disagrees that it
is inappropriate for the Agency to provide guidance or suggested
emission levels to state and local agencies.
3. ``Prompt'' Reporting of Deviations From Permit Limits
EPA received three comments that argued that state programs need
not define ``prompt'' reporting deviations in their regulations and
disagreed that prompt reporting must be more frequent than semi-
annually. The commenters stated that the 24 hour limitation DHEC has
committed to include as a standard permit condition is too restrictive
and the permits should allow at least two working days for reporting,
consistent with the time period allowed for emergencies under 40 CFR
70.6(g).
As discussed in EPA's proposed approval of South Carolina's
program, part requires prompt reporting of deviations from permit
requirements. Section 70.6(a)(3)(iii)(B) requires the permitting
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, EPA stated in the proposal that
an acceptable alternative is to define prompt in each individual
permit.
EPA also stated that it believes that ``prompt'' should generally
be defined as requiring reporting within two to ten days of the
deviation, but that states could propose alternative time periods that
they considered more appropriate. 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.
The State of South Carolina has not defined prompt in its program
regulations with respect to reporting of deviations, but has committed
to include such a requirement as a standard condition in permits. The
state will require notification to the appropriate district office
within 24 hours and written notification to the DHEC within 30 days.
EPA may veto permits that do not require sufficiently prompt reporting
of deviations.
4. Implementation of Section 112(g)
EPA received several comments regarding the proposed approval of
the use of South Carolina's preconstruction permitting program 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. The commenters argued
[[Page 32915]] that South Carolina should not and cannot implement
section 112(g) until: (1) EPA has promulgated a section 112(g)
regulation, and (2) the State has a section 112(g) program in place.
The commenters also argued that South Carolina's preconstruction review
program can not serve as a means to implement section 112(g) because it
was not designed for that purpose.
EPA's proposal was based in part on an interpretation of the Act
that would require sources to comply with section 112(g) beginning on
the date of approval of the title V program, regardless of whether EPA
had completed its section 112(g) rulemaking. The EPA has since revised
this interpretation of the Act in a Federal Register notice published
on February 14, 1995. See 60 FR 8333. The revised interpretation
postpones the effective date of section 112(g) until after EPA has
promulgated a rule addressing that provision. The rationale for the
revised interpretation is set forth in detail in the above referenced
notice.
The section 112(g) interpretive notice explains that EPA is still
considering whether the effective date of section 112(g) should be
delayed beyond the date of promulgation of the Federal rule so as to
allow states time to adopt rules implementing the Federal rule, and
that EPA will provide for any such additional delay in the final
section 112(g) rulemaking. Unless and until EPA provides for such an
additional postponement of section 112(g), South Carolina must have a
federally enforceable mechanism for implementing section 112(g) during
the period between promulgation of the Federal section 112(g) rule and
State adoption of implementing regulations.
EPA is aware that South Carolina lacks a program designed
specifically to implement section 112(g). However, South Carolina does
have a preconstruction review program that can serve as an adequate
implementation vehicle during the transition period because it would
allow South Carolina to select control measures that would meet maximum
achievable control technology (MACT) and incorporate these measures
into a federally enforceable preconstruction permit. South Carolina
should be able to impose federally enforceable measures reflecting MACT
for most, if not all, changes qualifying as modification, construction,
or reconstruction under section 112(g), because most section 112(b)
pollutants are also criteria pollutants. Moreover, measures designed to
limit criteria pollutant emissions will often have the incidental
effect of limiting non-criteria Hazardous Air Pollutants (HAPs). In the
situation where South Carolina's preconstruction permit program cannot
be used, the State may utilize its title V permitting program to make
any required MACT determinations.
For this reason, EPA is finalizing its approval of the use of South
Carolina's preconstruction review program for the purpose of
implementing section 112(g) during the transition period between
promulgation of the section 112(g) rule and adoption by South Carolina
of rules established to implement section 112(g). 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. This
approval will be without effect if EPA decides in the final section
112(g) rule that sources are not subject to the requirements of the
rule until State regulations are adopted. The duration of this approval
is limited to 18 months following promulgation by EPA of the section
112(g) rule in order to provide adequate time for the State to adopt
regulations consistent with the Federal requirements.
B. Final Action
EPA is promulgating full approval of the operating permits program
submitted to EPA by the State of South Carolina on November 15, 1993.
Among other things, the State of South Carolina has demonstrated that
the program will be adequate to meet the minimum elements of a state
operating permits program as specified in 40 CFR part 70.
The State of South Carolina's part 70 program approved in this
document applies to all part 70 sources (as defined in the approved
program) within the State of South Carolina, except any sources of air
pollution over which an Indian Tribe has jurisdiction. See, e.g., 59 FR
55813, 55815-55818 (Nov. 9, 1994). The term ``Indian Tribe'' is defined
under the Act as ``any Indian tribe, band, nation, or other organized
group or community, including any Alaska Native village, which is
Federally recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.'' See section 302(r) of the CAA; see also 59 FR 43956, 43962
(Aug. 25, 1994); 58 FR 54364 (Oct. 21, 1993).
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 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 also promulgating full approval under section
112(l)(5) and 40 CFR 63.91 of the State's program for receiving
delegation of section 112 standards that are unchanged from Federal
standards as promulgated. This program for delegations applies to
sources covered by the part 70 program as well as nonpart 70 sources.
III. Administrative Requirements
A. Docket
Copies of the State's submittal and other information relied upon
for the final full approval, including the five public comments
received on the proposal and reviewed by EPA, are contained in docket
number SC-94-01 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 final full
approval. The docket is available for public inspection at the location
listed under the ADDRESSES section of this document.
B. Executive Order 12866
The Office of Management and Budget has exempted this 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.
D. Unfunded Mandates
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated today does
not [[Page 32916]] include a Federal mandate that may result in
estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
Federal action approves pre-existing requirements under State or local
law, and imposes no new Federal requirements. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action.
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.
Dated: June 14, 1995.
Patrick M. Tobin,
Acting Regional Administrator.
Part 70, title 40 of the Code of Federal Regulations is amended as
follows:
PART 70--[AMENDED]
1. The authority citation for part 70 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
2. Appendix A to part 70 is amended by adding the entry for South
Carolina in alphabetical order to read as follows:
Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs
* * * * *
South Carolina
(a) Department of Health and Environmental Control: submitted on
November 12, 1993; full approval effective on July 26, 1995.
(b) (Reserved)
* * * * *
[FR Doc. 95-15574 Filed 6-23-95; 8:45 am]
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