E8-12091. Approval and Promulgation of Implementation Plans; South Carolina; Prevention of Significant Deterioration and Nonattainment New Source Review Rules

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to partially approve, disapprove, and conditionally approve revisions to the South Carolina State Implementation Plan (SIP) submitted by the State of South Carolina on July 1, 2005. The SIP revisions modify the South Carolina Prevention of Significant Deterioration (PSD) program to address changes to the federal New Source Review (NSR) regulations, which were promulgated by EPA on December 31, 2002, and reconsidered with minor changes on November 7, 2003 (commonly referred to as the “2002 NSR Reform Rules”). The revisions also provide for new Nonattainment New Source Review (NNSR) regulations in the South Carolina SIP. EPA proposed action on these revisions on September 12, 2007; no comments were received on that proposal.

DATES:

Effective Date: This rule will be effective July 2, 2008.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2005-SC-0004. All documents in the docket are listed on the http://www.regulations.gov Web site. 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 http://www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management 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 to 4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT:

For information regarding the South Carolina State Implementation Plan, contact Ms. Nacosta Ward, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is [phone]. Ms. Ward can also be reached via electronic mail at [e-mail]. For information regarding New Source Review, contact Ms. Kelly Fortin, Air Permits Section, at the same address above. The telephone number is [phone]. Ms. Fortin can also be reached via electronic mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?

II. What Is the Background for This Action?

III. Final Action

IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

EPA is taking final action to partially approve, disapprove, and conditionally approve revisions to the South Carolina SIP (Regulation 61-62.1, Regulation 61-62.5 Standard No. 7, and Regulation 61-62.5 Standard No. 7.1) as submitted by South Carolina Department of Health and Environmental Control (DHEC) on July 1, 2005, which include changes to South Carolina's PSD and NNSR programs. EPA is now taking the following related actions:

—Approving the entirety of South Carolina's PSD program with the exception of any references to Pollution Control Projects (PCPs) and clean units, those provisions are disapproved;

—Approving Regulation 61-61.2, regarding synthetic minor sources, which is part of the State's minor source preconstruction permitting program;

—Disapproving all rules referencing clean units and PCPs in South Carolina's NNSR program; and

—Conditionally approving South Carolina's NNSR program. As part of the current conditional approval, South Carolina has agreed to: (a) Revise the State NNSR program to include a provision that emission reductions must be surplus and are not to be used as offsets if they are otherwise required by the SIP, New Source Performance Standards (NSPS), National Emissions Standards for Hazardous Air Pollutants (NESHAP), including Maximum Achievable Control Technology (MACT) standards, or other federal requirements; (b) revise the State NNSR program to include a methodology for calculating offsets; (c) submit the required SIP revisions to EPA within twelve months; and (d) utilize the provisions of 40 CFR part 51, Appendix S to supplement the State NNSR program as necessary until the NNSR program is approved by EPA.

On September 12, 2007 (72 FR 52037), EPA published a notice of proposed rulemaking (NPR) in the Federal Register, proposing to partially approve, disapprove, and conditionally approve revisions to the South Carolina SIP submitted by the State of South Carolina on July 1, 2005. The September 12, 2007, NPR provides additional information about the proposed South Carolina SIP revisions and the rationale for this final action. The public comment period for the proposed action ended on October 12, 2007. No comments were received on EPA's proposed action. Consistent with section 110(k) of the Clean Air Act (CAA), EPA is now taking final action to partially approve, disapprove and conditionally approve the July 1, 2005, SIP revision from South Carolina.

II. What Is the Background for This Action?

On December 31, 2002 (67 FR 80186), EPA published final rule changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, regarding the CAA PSD and NNSR programs. On November 7, 2003 (68 FR 63021), EPA published a notice of final action on its reconsideration of the December 31, 2002, final rule changes. In that November 7, 2003, final action, EPA added the definition of “replacement unit,” and clarified an issue regarding plant-wide applicability limitations. Collectively, these EPA final actions are referred to as the “2002 NSR Reform Rules.” On June 13, 2007 (72 FR 32526), EPA took final action to revise the 2002 NSR Reform Rules to exclude the clean units and PCP provisions that were vacated by the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court) on June 24, 2005. Further, on December 21, 2007, EPA took final action on the portion of the 2002 NSR Reform Rules remanded by the DC Circuit Court, regarding the reasonable possibility and recordkeeping provision. The “reasonable possibility” provision identifies, for sources and reviewing authorities, the circumstances under which a major stationary source undergoing a modification that does not trigger major NSR must keep records. On December 21, 2007, EPA established that “reasonable possibility” exists where source emissions equal or exceed 50 percent of the CAA NSR significance levels for any pollutant (72 FR 72607). These changes became effective on January 22, 2008, and the final action on that provision explains the process that states should follow if a SIP revision is necessary.^[1]

The July 1, 2005, submittal consists of changes to the South Carolina Air Pollution Control Regulations and Standards (South Carolina Regulations). Specifically, the proposed SIP revisions include changes to South Carolina Regulation 61-62.1 entitled “Definitions and General Standards;” Regulation 61-62.5, Standard No. 7 entitled “Prevention of Significant Deterioration;” and Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review.” DHEC submitted this SIP revision in response to EPA's December 31, 2002, changes to the federal NSR program. EPA is now partially approving and disapproving certain portions of the July 1, 2005, SIP submittal, consistent with section 110(k)(3) of the CAA. EPA is also conditionally approving provisions of the July 1, 2005, SIP submittal consistent with section 110(k)(4) of the CAA. As part of the conditional approval, South Carolina will have twelve months from the date of EPA's final conditional approval of the SIP revisions in which to further revise its NNSR rules, as described herein, to be consistent with existing federal law.

More specifically, pursuant to section 110(k)(3), EPA is taking final action to: (1) Approve Section II of South Carolina Regulation 61-62.1 to allow for synthetic minor permits to be issued in nonattainment areas; (2) partially approve South Carolina's PSD program; and (3) disapprove all references to PCPs and clean units in South Carolina's PSD and NNSR programs. The PCP and clean unit references are all severable from the other provisions of South Carolina's PSD and NNSR programs. EPA is not approving any portion of South Carolina's rules regarding PCPs and clean units. Further, any use by South Carolina of the PCP, clean unit, or similar provisions, is, according to a federal appeals court, contrary to the CAA.

Pursuant to section 110(k)(4) of the CAA, EPA may conditionally approve a portion of a SIP revision based on a commitment from the State to adopt specific, enforceable measures no later than twelve months from the approval date of final conditional approval. If the State fails to make the changes within the twelve month period, EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. The necessary revisions to the South Carolina SIP will materially alter the existing SIP-approved rule, and, as a result, the State must also make a new SIP submittal to EPA for approval that includes the rule changes. As with any SIP revision, South Carolina must provide an opportunity for public notice and comment and allow for a public hearing (and any other procedures required by State law) on the proposed rule changes. If South Carolina timely revises its rules and submits the revised SIP submittal, EPA will process that SIP revision consistent with the CAA.

With regard to the conditional approval of the NNSR program, South Carolina must revise its rules to include a methodology for calculating emissions reductions to be used as offsets that includes a baseline for determining credit for emissions offsets that, at a minimum, meets the requirements set out in 40 CFR 51.165(a)(3)(i) and Appendix S section IV.C. The emission offsets provisions must also specify that the reductions must be surplus and cannot be used for offsets if they are otherwise required by the South Carolina SIP or other federal standards, such as the NSPS and NESHAP, including the MACT standards. As part of the conditional approval, South Carolina has committed to make these changes within the twelve month timeframe. Further, in the interim until the required State NNSR program changes are in effect, South Carolina has committed to utilize the requirements of the federal NNSR program outlined in 40 CFR part 51, Appendix S (see, Letter of Commitment from M. Reece, DHEC, to B. Banister, EPA, November 20, 2007, included in the docket for this action).

The September 12, 2007, NPR and the docket for this action provide more details about the SIP revisions being approved and the rationale for EPA's final action. For additional information on EPA's 2002 NSR Reform Rules, see, 67 FR 80186 (December 31, 2002), and http://www.epa.gov/​nsr.

III. Final Action

EPA is taking final action to partially approve, disapprove, and conditionally approve changes to the South Carolina Air Pollution Control Regulation 61-62.1 entitled “Definitions and General Standards;” Regulation 61-62.5, Standard No. 7 entitled “Prevention of Significant Deterioration;” and Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review,” as submitted by the State of South Carolina on July 1, 2005, as revisions to the South Carolina SIP.

IV. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This final rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves state and local rules implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. 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 August 1, 2008. 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 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: May 21, 2008.

J.I. Palmer, Jr.,

Regional Administrator, Region 4.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

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. A new § 52.2119 is added to read as follows:

§ 52.2119

Identification of plan-conditional approval.

EPA is conditionally approving a revision to the South Carolina State Implementation Plan (SIP) consisting of a new Standard (South Carolina Regulation 61-62.5 Standard No. 7.1). Based upon a commitment from the State, South Carolina must:

(a) Revise the Nonattainment New Source Review (NNSR) program to include a provision that emission reductions must be surplus and are not to be used as offsets if they are otherwise required by the SIP, New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants including the Maximum Achievable Control Technology standards, or other federal requirements and submit to EPA a SIP revision with the revised rule;

(b) Revise the State NNSR program to include a methodology for calculating offsets, and submit to EPA a SIP revision with the revised rule; and

(c) Utilize the provisions of 40 CFR part 51, Appendix S to supplement its NNSR program until South Carolina's NNSR program is approved by EPA. If the State fails to meet its commitment by June 2, 2009 the approval is treated as a disapproval. Also, EPA is disapproving two provisions of South Carolina's NNSR program (submitted on July 1, 2005) that relate to provisions that were vacated from the federal program by the United States Court of Appeals for the District of Columbia Circuit on June 24, 2005. The two provisions vacated from the federal rules pertain to Pollution Control Projects (PCPs) and clean units. The PCP and clean unit references are severable from the remainder of the NNSR program. Specifically, the following sections of South Carolina Regulation 61-62.5 Standard No. 7.1 are being disapproved: (b)(5); (b)(6)—Second sentence only; (b)(8); (c)(4); (c)(6)(C)(viii); (c)(8)(C)(iii); (c)(8)(E)(v); (c)(10); (d)(1)(C)(ix); (d)(1)(C)(x); (d)(3)—Only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved; (d)(4)—Only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved; (f); (g) and (h).

3. Section 52.2120 is amended by revising the entries under Regulation No. 62.1 for “Section II” and “Regulation No. 62.5, Standard 7” to read as follows:

§ 52.2120

Identification of plan.

* * * * *

(c) * * *

Air Pollution Control Regulations for South Carolina

State citation	Title/subject	State effective date	EPA approval date	Federal Register notice
Regulation No. 62.1 Definitions and General Requirements
*         *         *         *         *         *         *
Section II	Permit Requirements	06/24/05	06/02/08	[Insert citation of publication].
*         *         *         *         *         *         *
Standard No. 7 Prevention of Significant Deterioration 1
		06/24/05	06/02/08	[Insert citation of publication].
*         *         *         *         *         *         *
1 This regulation (submitted on July 1, 2005) includes two portions of EPA's 2002 NSR Reform Rules that were vacated by the D.C. Circuit Court—Pollution Control Projects (PCPs) and clean units. As a result, EPA is disapproving all rules and/or rule sections in the South Carolina PSD rules referencing clean units or PCPs. Specifically, the following South Carolina rules are being disapproved: (a)(2)(iv)(e); (a)(2)(iv)(f) (second sentence only); (a)(2)(vi); (b)(12); (b)(30)(iii)(h); (b)(34)(iii)(b); (b)(34)(vi)(d); (b)(35); (r)(6) (only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved); (r)(7) (only the reference to the term “clean unit” is being disapproved. The remainder of this regulatory provision is being approved); (x); (y) and (z).

* * * * *

Footnotes

1.  South Carolina's reasonable possibility and recordkeeping requirements, now being included in the SIP, are at least as stringent as those set forth in EPA's December 21, 2007, final rule on reasonable possibility due to language in South Carolina's PSD program requiring all source to maintain records required by federal law.