[Federal Register Volume 60, Number 15 (Tuesday, January 24, 1995)]
[Proposed Rules]
[Pages 4583-4586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1738]



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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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