[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Rules and Regulations]
[Pages 40046-40049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19934]


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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

[[Page 40047]]

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.

[[Page 40049]]

    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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