[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Rules and Regulations]
[Pages 40046-40049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19934]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[SC-34-1-9816a: FRL-6129-9]
Approval and Promulgation of State Plans for Designated
Facilities and Pollutants: South Carolina
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving the Sections 111(d)/129 State Plan submitted
by the State of South Carolina through the South Carolina Department of
Health and Environmental Control (DHEC) on January 14, 1998. The plan
provides for implementation and enforcement of the Emissions Guidelines
(EG) applicable to existing Municipal Waste Combustors (MWCs) with
capacity to combust more than 250 tons per day of municipal solid waste
(MSW). (See 40 CFR Part 60, Subpart Cb.)
DATES: This direct final rule is effective on September 25, 1998
without further notice, unless EPA receives adverse comment by August
26, 1998. If adverse comment is received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.
ADDRESSES: Written comments should be addressed to: Gregory Crawford,
EPA Region 4, Air Planning Branch, 61 Forsyth Street, SW, Atlanta,
Georgia 30303. Copies of documents relative to this action are
available for public inspection during normal business hours at the
following locations. The interested persons wanting to examine these
documents should make an appointment with the appropriate office at
least 24 hours before the visiting day. Reference file SC-34-9816. The
Region 4 office may have additional background documents not available
at the other locations.
Air Radiation Docket and Information Center (Air Docket 6102), U.S.
Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460.
Environmental Protection Agency, Region 4, Air Planning Branch, 61
Forsyth Street, SW, Atlanta, Georgia 30303, Gregory O. Crawford, 404/
562-9046.
South Carolina Department of Health and Environmental Control, Bureau
of Air Quality Control, 2600 Bull Street, Columbia, South Carolina
29201, 803/734-4750.
FOR FURTHER INFORMATION CONTACT: Gregory O. Crawford, Regulatory
Planning Section, Air Planning Branch, Air, Pesticides & Toxics
Management Division, Region 4 Environmental Protection Agency, 61
Forsyth Street, Atlanta, Georgia, 30303.
SUPPLEMENTARY INFORMATION:
I. Background
On December 19, 1995, pursuant to sections 111 and 129 of the Clean
Air Act (the Act), EPA promulgated new source performance standards
(NSPS) applicable to new MWCs and EG applicable to existing MWCs. The
NSPS and EG are codified at 40 CFR Part 60, Subparts Eb and Cb,
respectively. (See 60 FR 65387.) Subparts Cb and Eb regulate the
following: particulate matter, opacity, sulfur dioxide, hydrogen
chloride, oxides of nitrogen, carbon monoxide, lead, cadmium, mercury,
and dioxins and dibenzofurans.
On April 8, 1997, the United States Court of Appeals for the
District of Columbia Circuit vacated subparts Cb
[[Page 40047]]
and Eb as they apply to MWC units with capacity to combust less than or
equal to 250 tons per day of MSW (small MWCs), consistent with their
opinion in Davis County Solid Waste Management and Recovery District v.
EPA, 101 F.3d 1395 (D.C. Cir. 1996), as amended, 108 F.3d 1454 (D.C.
Cir. 1997). As a result, subparts Eb and Cb apply only to MWC units
with individual capacity to combust more than 250 tons per day of MSW
(large MWC units).
Under section 129 of the Act, EG are not Federally enforceable.
Section 129(b)(2) of the Act requires states to submit to EPA for
approval, plans that implement and enforce the EG. State plans must be
at least as protective as the EG, and become Federally enforceable upon
approval by EPA. The procedures for adoption and submittal of state
plans are codified in 40 CFR Part 60, Subpart B. EPA originally
promulgated the Subpart B provisions on November 17, 1975. EPA amended
Subpart B on December 19, 1995, to allow the subparts developed under
section 129 to include specifications that supersede the general
provisions in Subpart B regarding the schedule for submittal of state
plans, the stringency of the emission limitations, and the compliance
schedules. (See 60 FR 65414.)
This action approves the plan submitted by South Carolina to
implement and enforce Subpart Cb, as it applies to large MWC units.
II. Discussion
South Carolina submitted to EPA on January 14, 1998, February 5,
1998, and March 6, 1998, the following in their 111(d)/129 plan for
implementation and enforcement of the EG for existing MWCs under their
direct jurisdiction in the State of South Carolina: Legal Authority;
Enforceable Mechanism; Inventory of MWC Plants/Units; MWC Emissions
Inventory; Emission Limits; Compliance Schedule; Testing, Monitoring,
Recordkeeping and Reporting Requirements; Demonstration that the Public
had Adequate Notice and Opportunity to Submit Written Comments;
Submittal of Progress Reports to EPA; and applicable State of South
Carolina statutes and rules of the South Carolina DHEC. South Carolina
submitted its plan after the Court of Appeals vacated Subpart Cb as it
applies to small MWC units. Thus, the South Carolina plan covers only
large MWC units. As a result of the Davis decision and subsequent
vacatur order, there are no EG promulgated under sections 111 and 129
that apply to small MWC units. Accordingly, EPA's review and approval
of the South Carolina State plan for MWCs addresses only those parts of
the plan which affect large MWC units. Until EPA again promulgates EG
for small MWC units, EPA has no authority under section 129(b)(2) of
the Act to review and approve state plans applying state rules to small
MWC units.
The approval of the South Carolina State plan is based on finding
that: (1) the South Carolina DHEC provided adequate public notice of
public hearings for the proposed rulemaking and plan which allow the
South Carolina DHEC to implement and enforce the EG for large MWCs, and
(2) the South Carolina DHEC also demonstrated legal authority to adopt
emission standards and compliance schedules applicable to the
designated facility; enforce applicable laws, regulations, standards
and compliance schedules; seek injunctive relief; obtain information
necessary to determine compliance; require recordkeeping; conduct
inspections and tests; require the use of monitors; require emission
reports of owners and operators; and make emission data publicly
available.
In the plan submittal, and as enclosed in supplemental information,
the South Carolina DHEC cites the following references for the legal
authority: State of South Carolina Attorney General's Opinion Regarding
State Authority to Operate the Title V Operating Permit Program; the
South Carolina Pollution Control Act (South Carolina Code Sections 48-
1-10 through 48-1-350); and Regulation 61-62.5, Standard 3 (Waste
Combustion and Reduction), of the South Carolina DHEC Air Pollution
Control Regulations and Standards. On the basis of the Attorney
General's Opinion, the statutes, and rules of the State of South
Carolina, the State plan is approved as being at least as protective as
the Federal requirements for existing large MWC units.
In the State plan, the South Carolina DHEC cites all emission
standards and limitations for the major pollutant categories related to
the only designated facility in the State of South Carolina subject to
these standards and limitations, the Foster Wheeler Charleston Resource
Recovery Facility (RRF). These standards and limitations in the State
plan are approved as being at least as protective as the Federal
requirements contained in Subpart Cb for existing large MWC units.
The South Carolina DHEC submitted the compliance schedule and
legally enforceable increments of progress for Foster Wheeler
Charleston RRF. (This portion of the plan has been reviewed and
approved as being at least as protective as Federal requirements for
existing large MWC units.)
In the plan, South Carolina submitted an emissions inventory of all
designated pollutants for Foster Wheeler Charleston RRF. (This portion
of the plan has been reviewed and approved as meeting the Federal
requirements for existing large MWC units.)
The South Carolina State plan includes its legal authority to
require owners and operators of designated facilities to maintain
records and report to their agency the nature and amount of emissions
and any other information that may be necessary to enable their agency
to judge the compliance status of the facility in the State plan. The
South Carolina DHEC also cites its legal authority to provide for
periodic inspection and testing and provisions for making reports of
MWC emissions data, correlated with emission standards that apply,
available to the general public. The South Carolina DHEC submitted the
regulations to support the requirements of monitoring, recordkeeping,
reporting, and compliance assurance in the plan submittal. (This
portion of the plan has been reviewed and approved as being at least as
protective as the Federal requirements for existing large MWC units.)
As stated in the plan, South Carolina will provide progress reports
of plan implementation updates to the EPA on an annual basis in
conjunction with reports required under Sec. 51.321. These progress
reports will include the required items pursuant to 40 CFR part 60,
subpart B. (This portion of the plan has been reviewed and approved as
meeting the Federal requirement for State Plan reporting.)
Final Action
EPA is approving the above referenced state plan because it meets
the Agency requirements. EPA is publishing this rule without prior
proposal because the Agency views this as a noncontroversial amendment
and anticipates no adverse comments. However, in the proposed rules
section of this Federal Register publication, EPA is publishing a
separate document that will serve as the proposal to approve the
revision should significant, material, and adverse comments be filed.
This action will be effective September 25, 1998 without further notice
unless the Agency receives adverse comments by August 26, 1998.
If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments
[[Page 40048]]
received will be addressed in a subsequent final rule based on the
proposed rule. The EPA will not institute a second comment period. Only
parties interested in commenting on the direct final rule should do so
at this time. If no such comments are received, the public is advised
that this rule will be effective on September 25, 1998 and no further
action will be taken.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
revision to any State Implementation Plan (SIP). Each request for
revision to the SIP shall be considered separately in light of specific
technical, economic, and environmental factors and in relation to
relevant statutory and regulatory requirements.
Nothing in this action should be construed as making any
determination or expressing any position regarding South Carolina's
audit privilege and penalty immunity law S.C. Code Ann. Sections 4857-
57-10 et. seq. (Supp. 1996) or its impact upon any approved provision
in the SIP, including the revision at issue here. The action taken
herein does not express or imply any viewpoint on the question of
whether there are legal deficiencies in this or any other Clean Air Act
program resulting from the effect of South Carolina's audit privilege
and immunity law. A state audit privilege and immunity law can affect
only state enforcement and cannot have any impact on federal
enforcement authorities. EPA may at any time invoke its authority under
the Clean Air Act, including, for example, sections 113, 167, 205, 211
or 213, to enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the Clean Air Act is likewise
unaffected by a state audit privilege or immunity law.
I. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled Regulatory
Planning and Review.
B. Executive Order 13045
The final rule is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety
Risks, because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
Pursuant to section 605(b) of the Regulatory Flexibility Act, I
certify that this rule will not have a significant economic impact on a
substantial number of small entities. This Federal action approves pre-
existing requirements under Federal, State or local law, and imposes no
new requirements on any entity affected by this rule, including small
entities. Therefore, these amendments will 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 does not
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
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
E. Submission to Congress and the Comptroller General
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 rule 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. This rule is not a
``major rule'' as defined by 5 U.S.C. 804(2).
F. Petitions for Judicial Review
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 25, 1998. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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 62
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Municipal waste
combustors, Reporting and recordkeeping requirements.
Dated: July 7, 1998.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
40 CFR Part 62 of the Code of Federal Regulations is amended as
follows:
PART 62--[AMENDED]
1. The authority citation for part 62 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart PP--South Carolina
2. Section 62.10100 is amended by adding paragraphs (b)(3) and
(c)(3) as follows:
Sec. 62.10100 Identification of plan.
* * * * *
(b) * * *
(3) South Carolina Implementation Plan for Existing Large Municipal
Waste Combustors, submitted on January 14, 1998, by the South Carolina
Department of Health and Environmental Control.
(c) * * *
(3) Existing municipal waste combustors.
[[Page 40049]]
3. Subpart PP is amended by adding a new Sec. 62.10150 and a new
undesignated center heading to read as follows: Metals, acid gases,
organic compounds and nitrogen oxide emissions from existing municipal
waste combustors with the capacity to combust greater than 250 tons per
day of municipal solid waste.
Sec. 62.10150 Identification of sources.
The plan applies to existing facilities with a municipal waste
combustor (MWC) unit capacity greater than 250 tons per day of
municipal solid waste (MSW) at the following MWC sites:
(a) Foster Wheeler Charleston Resource Recovery Facility,
Charleston, South Carolina.
(b) [Reserved]
[FR Doc. 98-19934 Filed 7-24-98; 8:45 am]
BILLING CODE 6560-50-P
