[Federal Register Volume 67, Number 125 (Friday, June 28, 2002)]
[Rules and Regulations]
[Pages 43546-43548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16270]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SC-037; SC-040; SC-044-200226; FRL-7238-6]


Approval and Promulgation of Implementation Plans: South 
Carolina: Nitrogen Oxides Budget and Allowance Trading Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of South Carolina on October 30, 2000, and 
revised on July 30, 2001. This revision was submitted to satisfy EPA's 
regulation entitled, ``Finding of Significant Contribution and 
Rulemaking for Certain States in the Ozone Transport Assessment Group 
Region for Purposes of Reducing Regional Transport of Ozone,'' 
otherwise known as the ``NOX SIP Call.'' This revision 
establishes and requires a nitrogen oxides (NOX) allowance 
trading program for large electric generating units (EGUs) and 
industrial units (non-electric generating units, or non-EGUs), and 
reductions for cement kilns, beginning in 2004. The intended effect of 
this SIP revision is to reduce emissions of NOX in order to 
help attain the national ambient air quality standard for ozone. On 
December 26, 2000, EPA determined that South Carolina had failed to 
submit a SIP in response to the NOX SIP Call, thus starting 
an 18 month clock for the mandatory imposition of sanctions and the 
obligation for EPA to promulgate a Federal Implementation Plan (FIP) 
withing 24 months. On May 28, 2002, South Carolina submitted a 
NOX SIP and EPA found that SIP submission complete on June 
4, 2002, stopping the sanctions clock. Through this Federal Register 
rule, both the sanctions clock and EPA's FIP obligation are terminated.

EFFECTIVE DATE: This final rule is effective on July 29, 2002.

ADDRESSES: Copies of documents relative to this action are available at 
the following addresses for inspection during normal business hours: 
EPA, Region 4, Air Planning Branch, 61 Forsyth Street, SW., Atlanta, 
Georgia 30303-8960. South Carolina Department of Health and 
Environmental Control, Bureau of Air Quality Control, 2600 Bull Street, 
Columbia, South Carolina 29201. The interested persons wanting to 
examine these documents should make an appointment at least 24 hours 
before the visiting day and reference file SC-037.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 
562-9043. Mr. Lakeman can also be reached via electronic mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 30, 2000, the South Carolina Department of Health and 
Environmental Control (DHEC) submitted a draft NOX emission 
control rule to the EPA for pre-adoption review. Also, DHEC requested 
that EPA parallel process the submittal concurrent with the development 
of the final State rule and included a schedule for development and 
adoption of the rule by the State. On July 30, 2001, DHEC submitted 
adopted revisions to its SIP to meet the requirements of the Phase I 
NOX SIP Call. After the rules are adopted by the South 
Carolina Board of Health and Environmental Control, the revisions must 
be reviewed and approved by the South Carolina General Assembly. After 
approval by the General Assembly, the rules become state-effective upon 
publication in the South Carolina State Register. On April 10, 2002, 
(67 FR 17317) EPA published a notice of proposed rulemaking (NPR) to 
approve the July 30, 2001 SIP revision. That NPR provided for a public 
comment period ending on May 10, 2002. A detailed description of this 
SIP revision and EPA's rationale for approving it was provided in the 
proposed notice and will not be restated here. No significant or 
adverse comments were received on EPA's proposal. However, two sections 
require further clarification. First, in the proposed rule (67 FR 
17317, April 10, 2002), EPA referred to section 96.4(b)(iv) of South 
Carolina's rule; the provision referenced is actually section 
96.4(b)(4). Further, EPA stated that it interpreted South Carolina's 
rule to provide that a unit will lose its exemption ``if the unit fails 
to comply with the restrictions on fuel use or NOX 
emissions.'' 67 FR 17319; see also 67 FR 17320 (referring to fuel use 
and ``the emissions limitation'' or ``emissions limitations''). EPA is 
clarifying in today's notice that in this context the phrase 
``NOX emissions'' or ``emissions limitation'' refers to the 
restriction under section 96.4(b)(4) on a unit's

[[Page 43547]]

``hours of operation.'' EPA notes that emissions limitations under this 
provision are implemented through an operating hours limitation. South 
Carolina's rule uses the phrase ``fuel use and unit operating hours'' 
in section 96.4(b)(4)(vi) when that language should read ``fuel use or 
operating hours,'' which is what EPA intended to clarify.
    Second, in section 96.4(a)(1)(i), South Carolina addresses 
applicability of its NOX trading program to existing units, 
and references SIC codes (in the phrase, ``excluding SIC codes 4911 or 
4931''). While the NOX SIP Call does not use SIC codes in 
stating what existing units are subject to the NOX trading 
program, South Carolina has submitted a list of affected large EGUs and 
large and small non-EGUs, explaining how the State interprets section 
96.4(a)(1)(i). EPA is approving South Carolina's rule based on the 
State's interpretation that every source on this list is an affected 
unit under this section.
    On May 24, 2002, DHEC submitted the State-effective rule (no 
changes were made to the July 30, 2001 submittal). South Carolina's SIP 
revision consists of a new rule for the ``NOX Budget Trading 
Program'' (regulation 61-62.96) and a new rule for ``Nitrogen Oxides 
(NOX) Budget Program Requirements for Stationary Sources Not 
in the Trading Program'' (regulation 61-62.99). The requirements under 
61-62.96 affect EGUs and non-EGUs. Regulation 61-62.96 ``NOX 
Budget Trading Program'' adds nine new subparts: Subpart A--
NOX Budget Trading Program General Provisions; Subpart B--
Authorized Account Representative for NOX Budget Sources; 
Subpart C--Permits; Subpart D--Compliance Certification; Subpart E--
NOX Allowance Allocations; Subpart F--NOX 
Allowance Tracking System; Subpart G--NOX Allowance 
Transfers; Subpart H--Monitoring and Reporting; Subpart I--Individual 
Unit Opt-ins.

II. Final Action

    EPA is approving South Carolina's SIP revision, including its 
NOX Reduction and Trading Program and cement kiln rule, 
which was submitted on May 28, 2002. EPA finds that South Carolina's 
submittal is fully approvable because it meets the requirements of the 
NOX SIP Call.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999). This action merely approves a state rule 
implementing a Federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    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. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    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 August 27, 2002. 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 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Dated: June 19, 2002.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.

    Accordingly, chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart PP--South Carolina

    2. Section 52.2120(c) is amended by adding 2 new entries 
``Regulation No. 62.96'' and ``Regulation No. 62.99'' at the end of the 
table to read as follows:

[[Page 43548]]

Sec. 52.2120  Identification of plan

* * * * *
    (c) * * *

                              Air Pollution Control Regulations for South Carolina
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                                                        State effective                        Federal Register
         State citation              Title/subject            date         EPA approval date        notice
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*                  *                  *                  *                  *                  *
                                                        *
Regulation No. 62.96............  NOX Budget Trading            05/24/02  June 28, 2002.....  [Insert citation
                                   Program.                                                    of publication]
Regulation No. 62.99............  Nitrogen Oxides               05/24/02  June 28, 2002.....  [Insert citation
                                   (NOX) Budget                                                of publication]
                                   Program
                                   Requirements for
                                   Stationary Sources
                                   Not in the Trading
                                   Program.
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[FR Doc. 02-16270 Filed 6-27-02; 8:45 am]
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