[Federal Register Volume 73, Number 106 (Monday, June 2, 2008)]
[Rules and Regulations]
[Pages 31368-31372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12091]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2005-SC-0004-200809; FRL-8573-2]


Approval and Promulgation of Implementation Plans; South 
Carolina; Prevention of Significant Deterioration and Nonattainment New 
Source Review Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to partially approve, disapprove, 
and conditionally approve revisions to the South Carolina State 
Implementation Plan (SIP) submitted by the State of South Carolina on 
July 1, 2005. The SIP revisions modify the South Carolina Prevention of 
Significant Deterioration (PSD) program to address changes to the 
federal New Source Review (NSR) regulations, which were promulgated by 
EPA on December 31, 2002, and reconsidered with minor changes on 
November 7, 2003 (commonly referred to as the ``2002 NSR Reform 
Rules''). The revisions also provide for new Nonattainment New Source 
Review

[[Page 31369]]

(NNSR) regulations in the South Carolina SIP. EPA proposed action on 
these revisions on September 12, 2007; no comments were received on 
that proposal.

DATES: Effective Date: This rule will be effective July 2, 2008.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R04-OAR-2005-SC-0004. All documents in the 
docket are listed on the http://www.regulations.gov Web site. Although 
listed in the index, some information may not be publicly available, 
i.e., Confidential Business Information or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at the Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all 
possible, you contact the person listed in the FOR FURTHER INFORMATION 
CONTACT section to schedule your inspection. The Regional Office's 
official hours of business are Monday through Friday, 8:30 to 4:30, 
excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the South 
Carolina State Implementation Plan, contact Ms. Nacosta Ward, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The 
telephone number is (404) 562-9140. Ms. Ward can also be reached via 
electronic mail at [email protected]. For information regarding New 
Source Review, contact Ms. Kelly Fortin, Air Permits Section, at the 
same address above. The telephone number is (404) 562-9117. Ms. Fortin 
can also be reached via electronic mail at [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Background for This Action?
III. Final Action
IV. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is taking final action to partially approve, disapprove, and 
conditionally approve revisions to the South Carolina SIP (Regulation 
61-62.1, Regulation 61-62.5 Standard No. 7, and Regulation 61-62.5 
Standard No. 7.1) as submitted by South Carolina Department of Health 
and Environmental Control (DHEC) on July 1, 2005, which include changes 
to South Carolina's PSD and NNSR programs. EPA is now taking the 
following related actions:

--Approving the entirety of South Carolina's PSD program with the 
exception of any references to Pollution Control Projects (PCPs) and 
clean units, those provisions are disapproved;
--Approving Regulation 61-61.2, regarding synthetic minor sources, 
which is part of the State's minor source preconstruction permitting 
program;
--Disapproving all rules referencing clean units and PCPs in South 
Carolina's NNSR program; and
--Conditionally approving South Carolina's NNSR program. As part of the 
current conditional approval, South Carolina has agreed to: (a) Revise 
the State NNSR program to include a provision that emission reductions 
must be surplus and are not to be used as offsets if they are otherwise 
required by the SIP, New Source Performance Standards (NSPS), National 
Emissions Standards for Hazardous Air Pollutants (NESHAP), including 
Maximum Achievable Control Technology (MACT) standards, or other 
federal requirements; (b) revise the State NNSR program to include a 
methodology for calculating offsets; (c) submit the required SIP 
revisions to EPA within twelve months; and (d) utilize the provisions 
of 40 CFR part 51, Appendix S to supplement the State NNSR program as 
necessary until the NNSR program is approved by EPA.

    On September 12, 2007 (72 FR 52037), EPA published a notice of 
proposed rulemaking (NPR) in the Federal Register, proposing to 
partially approve, disapprove, and conditionally approve revisions to 
the South Carolina SIP submitted by the State of South Carolina on July 
1, 2005. The September 12, 2007, NPR provides additional information 
about the proposed South Carolina SIP revisions and the rationale for 
this final action. The public comment period for the proposed action 
ended on October 12, 2007. No comments were received on EPA's proposed 
action. Consistent with section 110(k) of the Clean Air Act (CAA), EPA 
is now taking final action to partially approve, disapprove and 
conditionally approve the July 1, 2005, SIP revision from South 
Carolina.

II. What Is the Background for This Action?

    On December 31, 2002 (67 FR 80186), EPA published final rule 
changes to 40 Code of Federal Regulations (CFR) parts 51 and 52, 
regarding the CAA PSD and NNSR programs. On November 7, 2003 (68 FR 
63021), EPA published a notice of final action on its reconsideration 
of the December 31, 2002, final rule changes. In that November 7, 2003, 
final action, EPA added the definition of ``replacement unit,'' and 
clarified an issue regarding plant-wide applicability limitations. 
Collectively, these EPA final actions are referred to as the ``2002 NSR 
Reform Rules.'' On June 13, 2007 (72 FR 32526), EPA took final action 
to revise the 2002 NSR Reform Rules to exclude the clean units and PCP 
provisions that were vacated by the United States Court of Appeals for 
the District of Columbia Circuit (DC Circuit Court) on June 24, 2005. 
Further, on December 21, 2007, EPA took final action on the portion of 
the 2002 NSR Reform Rules remanded by the DC Circuit Court, regarding 
the reasonable possibility and recordkeeping provision. The 
``reasonable possibility'' provision identifies, for sources and 
reviewing authorities, the circumstances under which a major stationary 
source undergoing a modification that does not trigger major NSR must 
keep records. On December 21, 2007, EPA established that ``reasonable 
possibility'' exists where source emissions equal or exceed 50 percent 
of the CAA NSR significance levels for any pollutant (72 FR 72607). 
These changes became effective on January 22, 2008, and the final 
action on that provision explains the process that states should follow 
if a SIP revision is necessary.\1\
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    \1\ South Carolina's reasonable possibility and recordkeeping 
requirements, now being included in the SIP, are at least as 
stringent as those set forth in EPA's December 21, 2007, final rule 
on reasonable possibility due to language in South Carolina's PSD 
program requiring all source to maintain records required by federal 
law.
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    The July 1, 2005, submittal consists of changes to the South 
Carolina Air Pollution Control Regulations and Standards (South 
Carolina Regulations). Specifically, the proposed SIP revisions include 
changes to South Carolina Regulation 61-62.1 entitled ``Definitions and 
General Standards;'' Regulation 61-62.5, Standard No. 7 entitled 
``Prevention of Significant Deterioration;'' and Regulation 61-62.5,

[[Page 31370]]

Standard No. 7.1 entitled ``Nonattainment New Source Review.'' DHEC 
submitted this SIP revision in response to EPA's December 31, 2002, 
changes to the federal NSR program. EPA is now partially approving and 
disapproving certain portions of the July 1, 2005, SIP submittal, 
consistent with section 110(k)(3) of the CAA. EPA is also conditionally 
approving provisions of the July 1, 2005, SIP submittal consistent with 
section 110(k)(4) of the CAA. As part of the conditional approval, 
South Carolina will have twelve months from the date of EPA's final 
conditional approval of the SIP revisions in which to further revise 
its NNSR rules, as described herein, to be consistent with existing 
federal law.
    More specifically, pursuant to section 110(k)(3), EPA is taking 
final action to: (1) Approve Section II of South Carolina Regulation 
61-62.1 to allow for synthetic minor permits to be issued in 
nonattainment areas; (2) partially approve South Carolina's PSD 
program; and (3) disapprove all references to PCPs and clean units in 
South Carolina's PSD and NNSR programs. The PCP and clean unit 
references are all severable from the other provisions of South 
Carolina's PSD and NNSR programs. EPA is not approving any portion of 
South Carolina's rules regarding PCPs and clean units. Further, any use 
by South Carolina of the PCP, clean unit, or similar provisions, is, 
according to a federal appeals court, contrary to the CAA.
    Pursuant to section 110(k)(4) of the CAA, EPA may conditionally 
approve a portion of a SIP revision based on a commitment from the 
State to adopt specific, enforceable measures no later than twelve 
months from the approval date of final conditional approval. If the 
State fails to make the changes within the twelve month period, EPA 
will issue a finding of disapproval. EPA is not required to propose the 
finding of disapproval. The necessary revisions to the South Carolina 
SIP will materially alter the existing SIP-approved rule, and, as a 
result, the State must also make a new SIP submittal to EPA for 
approval that includes the rule changes. As with any SIP revision, 
South Carolina must provide an opportunity for public notice and 
comment and allow for a public hearing (and any other procedures 
required by State law) on the proposed rule changes. If South Carolina 
timely revises its rules and submits the revised SIP submittal, EPA 
will process that SIP revision consistent with the CAA.
    With regard to the conditional approval of the NNSR program, South 
Carolina must revise its rules to include a methodology for calculating 
emissions reductions to be used as offsets that includes a baseline for 
determining credit for emissions offsets that, at a minimum, meets the 
requirements set out in 40 CFR 51.165(a)(3)(i) and Appendix S section 
IV.C. The emission offsets provisions must also specify that the 
reductions must be surplus and cannot be used for offsets if they are 
otherwise required by the South Carolina SIP or other federal 
standards, such as the NSPS and NESHAP, including the MACT standards. 
As part of the conditional approval, South Carolina has committed to 
make these changes within the twelve month timeframe. Further, in the 
interim until the required State NNSR program changes are in effect, 
South Carolina has committed to utilize the requirements of the federal 
NNSR program outlined in 40 CFR part 51, Appendix S (see, Letter of 
Commitment from M. Reece, DHEC, to B. Banister, EPA, November 20, 2007, 
included in the docket for this action).
    The September 12, 2007, NPR and the docket for this action provide 
more details about the SIP revisions being approved and the rationale 
for EPA's final action. For additional information on EPA's 2002 NSR 
Reform Rules, see, 67 FR 80186 (December 31, 2002), and http://www.epa.gov/nsr.

III. Final Action

    EPA is taking final action to partially approve, disapprove, and 
conditionally approve changes to the South Carolina Air Pollution 
Control Regulation 61-62.1 entitled ``Definitions and General 
Standards;'' Regulation 61-62.5, Standard No. 7 entitled ``Prevention 
of Significant Deterioration;'' and Regulation 61-62.5, Standard No. 
7.1 entitled ``Nonattainment New Source Review,'' as submitted by the 
State of South Carolina on July 1, 2005, as revisions to the South 
Carolina SIP.

IV. Statutory and Executive Order Reviews

    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 final 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 (59 FR 22951, 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 state and local rules implementing a Federal standard, 
and does not alter the relationship or the distribution of power and 
responsibilities established in the CAA. 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 approves a state rule implementing a Federal standard.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. 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 CAA. 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

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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 CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 1, 2008. 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, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: May 21, 2008.
J.I. Palmer, Jr.,
Regional Administrator, Region 4.

0
40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart PP--South Carolina

0
2. A new Sec.  52.2119 is added to read as follows:


Sec.  52.2119  Identification of plan-conditional approval.

    EPA is conditionally approving a revision to the South Carolina 
State Implementation Plan (SIP) consisting of a new Standard (South 
Carolina Regulation 61-62.5 Standard No. 7.1). Based upon a commitment 
from the State, South Carolina must:
    (a) Revise the Nonattainment New Source Review (NNSR) program to 
include a provision that emission reductions must be surplus and are 
not to be used as offsets if they are otherwise required by the SIP, 
New Source Performance Standards and National Emissions Standards for 
Hazardous Air Pollutants including the Maximum Achievable Control 
Technology standards, or other federal requirements and submit to EPA a 
SIP revision with the revised rule;
    (b) Revise the State NNSR program to include a methodology for 
calculating offsets, and submit to EPA a SIP revision with the revised 
rule; and
    (c) Utilize the provisions of 40 CFR part 51, Appendix S to 
supplement its NNSR program until South Carolina's NNSR program is 
approved by EPA. If the State fails to meet its commitment by June 2, 
2009 the approval is treated as a disapproval. Also, EPA is 
disapproving two provisions of South Carolina's NNSR program (submitted 
on July 1, 2005) that relate to provisions that were vacated from the 
federal program by the United States Court of Appeals for the District 
of Columbia Circuit on June 24, 2005. The two provisions vacated from 
the federal rules pertain to Pollution Control Projects (PCPs) and 
clean units. The PCP and clean unit references are severable from the 
remainder of the NNSR program. Specifically, the following sections of 
South Carolina Regulation 61-62.5 Standard No. 7.1 are being 
disapproved: (b)(5); (b)(6)--Second sentence only; (b)(8); (c)(4); 
(c)(6)(C)(viii); (c)(8)(C)(iii); (c)(8)(E)(v); (c)(10); (d)(1)(C)(ix); 
(d)(1)(C)(x); (d)(3)--Only the reference to the term ``clean unit'' is 
being disapproved. The remainder of this regulatory provision is being 
approved; (d)(4)--Only the reference to the term ``clean unit'' is 
being disapproved. The remainder of this regulatory provision is being 
approved; (f); (g) and (h).

0
3. Section 52.2120 is amended by revising the entries under Regulation 
No. 62.1 for ``Section II'' and ``Regulation No. 62.5, Standard 7'' to 
read as follows:


Sec.  52.2120  Identification of plan.

* * * * *
    (c) * * *

                              Air Pollution Control Regulations for South Carolina
 
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                                                                State       EPA approval      Federal Register
          State citation                Title/subject      effective date       date               notice
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                            Regulation No. 62.1 Definitions and General Requirements
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                                                  * * * * * * *
Section II.......................  Permit Requirements...        06/24/05        06/02/08  [Insert citation of
                                                                                            publication].
 
                                                  * * * * * * *
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                           Standard No. 7 Prevention of Significant Deterioration \1\
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                                                                 06/24/05        06/02/08  [Insert citation of
                                                                                            publication].
 
                                                  * * * * * * *
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\1\ This regulation (submitted on July 1, 2005) includes two portions of EPA's 2002 NSR Reform Rules that were
  vacated by the D.C. Circuit Court--Pollution Control Projects (PCPs) and clean units. As a result, EPA is
  disapproving all rules and/or rule sections in the South Carolina PSD rules referencing clean units or PCPs.
  Specifically, the following South Carolina rules are being disapproved: (a)(2)(iv)(e); (a)(2)(iv)(f) (second
  sentence only); (a)(2)(vi); (b)(12); (b)(30)(iii)(h); (b)(34)(iii)(b); (b)(34)(vi)(d); (b)(35); (r)(6) (only
  the reference to the term ``clean unit'' is being disapproved. The remainder of this regulatory provision is
  being approved); (r)(7) (only the reference to the term ``clean unit'' is being disapproved. The remainder of
  this regulatory provision is being approved); (x); (y) and (z).


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 [FR Doc. E8-12091 Filed 5-30-08; 8:45 am]
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