Approval and Promulgation of State Plans for Designated Facilities and Pollutants: South Carolina

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

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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.

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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]

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