Clean Air Act Final Full Approval of Operating Permits Program; State of South Carolina

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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