[Federal Register Volume 60, Number 122 (Monday, June 26, 1995)]
[Rules and Regulations]
[Pages 32913-32916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15574]



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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)
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[FR Doc. 95-15574 Filed 6-23-95; 8:45 am]
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