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

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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