[Federal Register Volume 85, Number 87 (Tuesday, May 5, 2020)]
[Proposed Rules]
[Pages 26635-26641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08906]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0612; FRL-10008-55-Region 4]
Air Plan Approval; SC; NOX SIP Call and Removal of CAIR
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) revisions submitted by the
State of South Carolina through letters dated April 12, 2019, and July
11, 2019 to establish a SIP-approved state control program to comply
with the Nitrogen Oxides (NOX) SIP call obligations for
electric generating units (EGUs) and
[[Page 26636]]
large non-EGUs. EPA is also proposing to remove the SIP-approved
portions of the State's Clean Air Interstate Rule (CAIR) Program rules
from the South Carolina SIP. In addition, EPA is proposing to approve
into the SIP state regulations that establish an alternative monitoring
option for certain sources.
DATES: Comments must be received on or before June 4, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2019-0612 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Gobeail McKinley, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-9230. Ms. McKinley can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), which
EPA has traditionally termed the good neighbor provision, states are
required to address the interstate transport of air pollution.
Specifically, the good neighbor provision requires that each state's
implementation plan contain adequate provisions to prohibit air
pollutant emissions from within the state that will significantly
contribute to nonattainment of the national ambient air quality
standards (NAAQS), or that will interfere with maintenance of the
NAAQS, in any other state.
In October 1998 (63 FR 57356), EPA finalized the ``Finding of
Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone'' (``NOX SIP Call''). The NOX
SIP Call required eastern states, including South Carolina, to submit
SIPs that prohibit excessive emissions of ozone season NOX
by implementing statewide emissions budgets.\1\ The NOX SIP
Call addressed the good neighbor provision for the 1979 ozone NAAQS and
was designed to mitigate the impact of transported NOX
emissions, one of the precursors of ozone. EPA developed the
NOX Budget Trading Program, an allowance trading program
that states could adopt to meet their obligations under the
NOX SIP Call. This trading program allowed the following
sources to participate in a regional cap and trade program: Generally
EGUs with capacity greater than 25 megawatts (MW); and large industrial
non-EGUs, such as boilers and combustion turbines, with a rated heat
input greater than 250 million British thermal units per hour (MMBtu/
hr). The NOX SIP Call also identified potential reductions
from cement kilns and stationary internal combustion engines.
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\1\ See 63 FR 57356 (October 27, 1998). As originally
promulgated, the NOX SIP Call also addressed good
neighbor obligations under the 1997 8-hour ozone NAAQS, but EPA
subsequently stayed and later rescinded the rule's provisions with
respect to that standard. See 65 FR 56245 (September 18, 2000); 84
FR 8422 (March 8, 2019).
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To comply with the NOX SIP Call requirements, South
Carolina Department of Health and Environmental Control (SC DHEC)
promulgated provisions at Regulation 61-62.96, Subparts A through I.
EPA approved the provisions into the State's SIP in 2002.\2\ The
provisions required EGUs and large non-EGUs in the State to participate
in the NOX Budget Trading Program.
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\2\ See 67 FR 43546 (June 28, 2002).
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In 2005, EPA published CAIR, which required eastern states,
including South Carolina, to submit SIPs that prohibited emissions
consistent with ozone season (and annual) NOX budgets. See
70 FR 25162 (May 12, 2005). CAIR addressed the good neighbor provision
for the 1997 ozone NAAQS and 1997 fine particulate matter
(PM2.5) NAAQS and was designed to mitigate the impact of
transported NOX emissions with respect to not only ozone but
also PM2.5. CAIR established several trading programs that
EPA implemented through federal implementation plans (FIPs) for EGUs
greater than 25 MW in each affected state, but not large non-EGUs;
states could submit SIPs to replace the FIPs that achieved the required
emission reductions from EGUs and/or other types of sources.\3\ When
the CAIR trading program for ozone season NOX was
implemented beginning in 2009, EPA discontinued administration of the
NOX Budget Trading Program; however, the requirements of the
NOX SIP Call continued to apply.
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\3\ CAIR had separate trading programs for annual sulfur dioxide
emissions, seasonal NOX emissions and annual
NOX emissions.
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On October 9, 2007, EPA approved an ``abbreviated SIP'' for South
Carolina, consisting of regulations governing allocation of
NOX allowances to EGUs for use in the trading programs
established pursuant to CAIR, and related rules allowing additional
sources to opt into the CAIR programs. See 72 FR 57209. The abbreviated
SIP was implemented in conjunction with a FIP for South Carolina that
specified requirements for emissions monitoring, permit provisions, and
other elements of CAIR programs.
On October 16, 2009, EPA approved a ``full SIP'' for South
Carolina, through which various CAIR implementation provisions became
governed by State rules rather than federal rules.\4\ Consistent with
CAIR's requirements, EPA approved a SIP revision in which South
Carolina regulations: (1) Sunsetted its NOX Budget Trading
Program requirements, (2) removed NOX SIP Call
implementation requirements (i.e., South Carolina Regulation 61-62.96,
Subparts A through I, ``Nitrogen Oxides (NOX) Budget
Program''), and (3) incorporated CAIR (i.e., South Carolina Regulation
61- 62.96, Subparts AA through II, AAA through III, and AAAA through
IIII, ``Nitrogen Oxides (NOX) and Sulfur Dioxide
(SO2) Budget Trading Program''). See 74 FR 53167 (October
16, 2009). Participation of EGUs in the CAIR ozone season
NOX trading program addressed the State's obligation under
the NOX SIP Call for those units, and South Carolina also
chose to require non-EGUs subject to the NOX SIP Call to
participate in the same CAIR trading program. In this manner, South
Carolina's CAIR rules incorporated into the SIP addressed the State's
obligations under the NOX SIP Call with respect to both EGUs
and non-EGUs.
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\4\ See 74 FR 53167.
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The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately
remanded the rule to EPA without vacatur to preserve the
[[Page 26637]]
environmental benefits provided by CAIR. See North Carolina v. EPA, 531
F.3d 896, modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The
ruling allowed CAIR to remain in effect temporarily until a replacement
rule consistent with the court's opinion was developed. While EPA
worked on developing a replacement rule, the CAIR program continued to
be implemented with the NOX annual and ozone season trading
programs beginning in 2009 and the SO2 annual trading
program beginning in 2010.
Following on the D.C. Circuit's remand of CAIR, EPA promulgated the
Cross-State Air Pollution Rule (CSAPR) to replace CAIR and address the
good neighbor provisions for the 1997 ozone NAAQS, the 1997
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. See 76 FR
48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in eastern
states, including South Carolina, to meet annual and ozone season
NOX emission budgets and annual SO2 emission
budgets implemented through new trading programs. Implementation of
CSAPR began in January 1, 2015.\5\ CSAPR also contained provisions that
would sunset CAIR-related obligations on a schedule coordinated with
the implementation of the CSAPR compliance requirements. Participation
by a state's EGUs in the CSAPR trading program for ozone season
NOX generally addressed the state's obligation under the
NOX SIP Call for EGUs. CSAPR did not initially contain
provisions allowing states to incorporate large non-EGUs into that
trading program to meet the requirements of the NOX SIP Call
for non-EGUs. EPA also stopped administering CAIR trading programs with
respect to emissions occurring after December 31, 2014.\6\
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\5\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March
14, 2016).
\6\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March
14, 2016).
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After litigation that reached the Supreme Court, the D.C. Circuit
generally upheld CSAPR but remanded several state budgets to EPA for
reconsideration, including the Phase 2 ozone season NOX
budget for South Carolina. EME Homer City Generation, L.P. v. EPA, 795
F.3d 118, 129-30 (D.C. Cir. 2015). EPA addressed the remanded ozone
season NOX budgets in the CSAPR Update, which also partially
addressed eastern states' good neighbor obligations for the 2008 ozone
NAAQS. See 81 FR 74504 (October 26, 2016). The air quality modeling for
the CSAPR Update projected that South Carolina would not contribute
significantly to nonattainment or interfere with maintenance in
downwind areas for either the 1997 ozone NAAQS or the 2008 ozone NAAQS
as of 2017, and the EGUs in the state therefore are no longer subject
to a NOX ozone season trading program under either CSAPR or
the CSAPR Update.\7\ The CSAPR Update also reestablished an option for
most states to meet their ongoing obligations for non-EGUs under the
NOX SIP Call by including the units in the CSAPR Update
trading program, but since South Carolina's EGUs do not participate in
that trading program, the option is not available to South Carolina.
Because South Carolina's EGUs and non-EGUs no longer participate in any
CSAPR or CSAPR Update trading program for ozone season NOX
emissions, the NOX SIP Call regulations at 40 CFR
51.121(r)(2) as well as anti-backsliding provisions at 40 CFR 51.905(f)
and 40 CFR 51.1105(e) require these sources to maintain compliance with
NOX SIP Call requirements in some other way.
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\7\ In the CSAPR Update, EPA relieved EGUs in South Carolina
from the obligation to participate in the original CSAPR
NOX ozone season trading program for purposes of
addressing the good neighbor requirements for the 1997 ozone NAAQS
and did not require the EGUs to participate in the new CSAPR Update
trading program for purposes of addressing the 2008 ozone NAAQS. See
40 CFR 52.38(b)(2)(ii)-(iii). EGUs in South Carolina remain subject
to CSAPR state trading programs for annual NOX and
SO2 emissions for purposes of addressing the
PM2.5 NAAQS under the state trading program rules
codified in South Carolina regulation 61-62.97 that were adopted
into the State's SIP. See 82 FR 47936. EPA acknowledges the D.C.
Circuit's decision in Wisconsin v. EPA, 938 F.3d 303 (Sept. 13,
2019), remanding the CSAPR Update with respect to the adequacy of
the rulemaking to address the good neighbor obligations with respect
to the 2008 ozone NAAQS; however, the court's decision does not
address the determinations made in the CSAPR Update regarding
state's obligations with respect to the 1997 ozone NAAQS as those
determinations were not challenged in the course of the litigation.
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Under 40 CFR 51.121(i)(4) of the NOX SIP Call
regulations as originally promulgated, where a state's SIP contains
control measures for EGUs and large non-EGUs, the SIP must also require
these sources to monitor emissions according to the provisions of 40
CFR part 75, which generally entails the use of continuous emission
monitoring systems (CEMS). South Carolina triggered this requirement by
including control measures in their SIP for these types of sources, and
the requirement has remained in effect despite the discontinuation of
the NOX Budget Trading Program after the 2008 ozone season.
On March 8, 2019, EPA revised some of the regulations that were
originally promulgated in 1998 to implement the NOX SIP
Call.\8\ The revision gave states covered by the NOX SIP
Call greater flexibility concerning the form of the NOX
emissions monitoring requirements that the states must include in their
SIPs for certain emissions sources. The revision amends 40 CFR
51.121(i)(4) to make Part 75 monitoring, recordkeeping, and reporting
optional, such that SIPs may establish alternative monitoring
requirements for NOX SIP Call budget units that meet the
general requirements of 40 CFR 51.121(f)(1) and (i)(1). Under the
updated provision, a state's implementation plan would still need to
include some form of emissions monitoring requirements for these types
of sources, consistent with the NOX SIP Call's general
enforceability and monitoring requirements at Sec. 51.121(f)(1) and
(i)(1), respectively, but states would no longer be required to satisfy
these general NOX SIP Call requirements specifically through
the adoption of 40 CFR part 75 monitoring requirements.
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\8\ See ``Emissions Monitoring Provisions in State
Implementation Plans Required Under the NOX SIP Call,''
84 FR 8422.
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II. Why is EPA proposing these actions?
SC DHEC's April 12, 2019, and July 11, 2019 \9\ letters request
that EPA update South Carolina's SIP to reflect the reinstated
NOX SIP Call requirements at Regulation 61-62, ``Air
Pollution Control Regulations and Standards,'' provide additional
monitoring flexibilities for certain units subject to the State's
NOX SIP Call regulations, and remove CAIR requirements.
Additionally, the July 11, 2019 submission includes a demonstration
under CAA section 110(l) intended to show that the April 12, 2019 SIP
revision does not interfere with any applicable CAA requirements. As
discussed further below, EPA has reviewed these submittals,
preliminarily finds them consistent with the CAA and regulations
governing the NOX SIP Call, and is proposing to approve
them, incorporate the NOX SIP call regulations into the
State's SIP, and remove the CAIR regulations from the SIP.
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\9\ This submission also includes amended regulations which are
not part of the federally-approved SIP and are not addressed in this
document such as: Amended Regulation 61-62.61, ``South Carolina
Designated Facility Plan and New Source Performance Standards;''
amended Regulation 61-62.63, ``National Emission Standards for
Hazardous Air Pollutants (``NESHAP'') for Source Categories;''
amended Regulation 61-62.68, ``Chemical Accident Prevention
Provisions;'' and amended Regulation 61-62.70, ``Title V Operating
Permit Program.''
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[[Page 26638]]
III. Analysis of South Carolina's Submittals
South Carolina's submittals request EPA approve revisions to the
State's SIP that: (1) Address the State's ongoing NOX SIP
Call obligations for existing and new large non-EGUs and EGUs by
reinstating applicable portions of the State's original NOX
SIP Call regulations at South Carolina Regulation 61-62.96, Subparts A
through I; (2) rescind CAIR regulations at South Carolina Regulations
61-62.96, Subparts AA through II, AAA through III, and AAAA through
IIII; and (3) adopt an alternative monitoring option for certain large
non-EGUs at South Carolina Regulation 61-62.96, Subpart H, Section
96.70. Specifically, SC DHEC updated the reinstated regulations to make
the portion of the budget assigned to large non-EGUs and EGUs under the
NOX Budget Trading Program enforceable without an allowance
trading mechanism (i.e., rescinded portions of its NOX
Budget Trading Program regulations pertaining to individual unit
allowance allocations and trading). Also included in the regulations
are provisions that require continued monitoring and reporting of ozone
season NOX mass emissions under 40 CFR part 75, with the
following exception. Specifically, the regulations provide any
NOX SIP Call budget units that (1) are not required by 40
CFR 51.121, South Carolina Regulation 61-62.97, or other regulation to
comply with part 75 and (2) are subject to new source performance
standards (NSPS) under 40 CFR part 60, subpart D or subpart Db, the
option to instead monitor and report their ozone season NOX
mass emissions in accordance with the applicable NSPS subpart.\10\
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\10\ South Carolina adopted this alternative monitoring and
reporting option to be consistent with the NOX SIP Call
revision. See 84 FR 8422.
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1. Revisions Related to the NOX SIP Call
SC DHEC has revised Regulation 61-62 to address the NOX
SIP Call's requirements with respect to existing and new large EGUs and
large non-EGUs, and has requested EPA approve these revisions into the
SIP. EPA proposes to find that South Carolina's revised rules at
Regulation 61-62.96, Subparts A through I, ``Nitrogen Oxides
(NOX) Budget Program'' are consistent with South Carolina's
obligation to demonstrate continued compliance with NOX SIP
Call requirements for large EGUs and large non-EGUs and EPA's
discontinuation of the trading program under the NOX SIP
Call. Under the ongoing requirements of the NOX SIP Call,
the South Carolina SIP must: (1) Include enforceable control measures
for ozone season NOX mass emissions from existing and new
large EGUs and large non-EGUs, and (2) require those sources to monitor
and report ozone season NOX emissions. See 40 CFR
51.121(f)(2) and (i).
a. NOX SIP Call
As discussed above, the State regulations addressing the
NOX SIP Call were formerly established at South Carolina
Regulation 61-62.96, Subparts A through I, ``Nitrogen Oxides
(NOX) Budget Program'' and South Carolina Regulation 61-
62.99, ``Nitrogen Oxides (NOX) Budget Program Requirements
for Stationary Sources Not in the Trading Program'' (i.e., cement
kilns). The requirements under South Carolina Regulation 61-62.96
affect EGUs and non-EGUs. South Carolina Regulation 61-62.96,
``NOX Budget Trading Program'' initially had nine 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; and Subpart
I--Individual Unit Opt-ins. Because EPA discontinued administration of
the NOX Budget trading program in 2009 in coordination with
the start of CAIR implementation, the NOX Budget trading
program can no longer be implemented. Consistent with CAIR's
provisions, South Carolina revised certain portions of South Carolina
Regulation 61-62.96 to reflect CAIR annual NOX, annual
SO2 and ozone season NOX emissions budget trading
program requirements. This revision removed South Carolina's
NOX Budget Program, Regulation 61-62.96, Subparts A through
I, and the NOX SIP Call requirements for EGUs were addressed
by South Carolina's CAIR NOX Ozone Season Program,
Regulations 61-62.96, Subparts AAAA through IIII. Further, as noted
above, the State exercised its option to include non-EGUs from the
State's NOX Budget Trading Program in the CAIR
NOX Ozone Season Trading Program.
If approved into the SIP, the April 12, 2019, SIP submittal will
reinstate portions of South Carolina Regulation 61-62.96 to address
NOX SIP Call requirements with the new South Carolina
Regulation, ``Nitrogen Oxides (NOX) Budget Program.''
Specifically, the submittal reinstates previously repealed Subparts A
through I, including the applicable NOX SIP Call model rule
provisions from 40 CFR part 96, with amendments reflecting the
discontinuation of EPA's NOX SIP Call trading program and
other changes as necessary. The new and reinstated NOX SIP
Call regulation includes provisions to ensure that the State's EGUs and
large non-EGUs will continue to satisfy NOX SIP Call
requirements. South Carolina Regulation 61-62.96.40 sets the State's
EGU ozone season budget at 16,199 tons per year (tpy) and large non-EGU
ozone season budget at 3,479 tpy. It specifies that collective
emissions from all EGUs and all large non-EGUs may not exceed their
respective budgets during each control period. Regulations 61-62.96.6
and 61-62.96.70 ensure continued monitoring and reporting of
NOX emissions from covered units in accordance with 40 CFR
51.121(i). Also, SC DHEC commits in its submission to conduct an annual
review of its emission inventory data for both EGUs and large non-EGUs,
including emissions from any applicable new units, to verify the
NOX SIP Call EGU and large non-EGU ozone-season
NOX emission budgets have not been exceeded.\11\
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\11\ By September 30 of each year, SC DHEC will conduct an
annual review of actual NOX emissions from all covered
EGUs and large non-EGUs during the previous control period,
including any new units, to ensure that the total emissions remain
below the ozone season NOX budgets.
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Section 61-62.96.70 of the South Carolina's reinstated
NOX SIP Call regulation requires all owners and operators of
covered NOX budget units to implement a monitoring and
reporting system necessary to attribute ozone season NOX
mass emissions to each unit in accordance with 40 CFR part 75.\12\ In
addition, the State regulation allows flexibility for a NOX
budget unit that (1) is not required by 40 CFR 51.121, South Carolina
Regulation 61-62.97, or other regulation to comply with Part 75, and
(2) is subject to Subpart D or Subpart Db of 40 CFR part 60, to instead
monitor and report ozone season NOX mass emissions in
accordance with Subpart D or Subpart Db, as applicable. Additional
information regarding increased flexibility in monitoring is discussed
in section III.1.b.
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\12\ SC DHEC states that all of South Carolina's EGUs must
continue Part 75 monitoring and reporting pursuant to applicable
CSAPR requirements. See 81 FR 74583 (October 26, 2016). In addition,
SC DHEC states that any affected boiler that is not subject to
Subpart D or Db (due to grandfathering or otherwise) must continue
to comply with Part 75 monitoring requirements.
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Lastly, SC DHEC includes several administrative changes in its
revised regulation. In South Carolina's original NOX SIP
Call regulation, SC DHEC
[[Page 26639]]
excluded Standard Industrial Classification (SIC) codes 4911 and 4931
in Section 96.4(a)(1)(i) from the NOX Budget Program. The
July 11, 2019 SIP revision contains a list of all affected EGUs and
large non-EGUs covered under the NOX SIP Call and clarifies
its intention for the regulation to apply, as originally applied, to
EGU and large non-EGU units listed in its CAA section 110(l) analysis.
SC DHEC further clarified that it interprets the language in Section
96.4(b)(4) such that a unit would lose an exemption under 69.4(b)
(i.e., an exemption to the applicability of 61-62.96 Nitrogen Oxides
(NOX) Budget Program based on fuel use and operating hour
limitations) if it fails to comply with restrictions on fuel use or
operating hours. Further, SC DHEC states that the exemption in Section
96.4(b)(2)(ii) is not retroactive to the beginning of the ozone season
if a source takes an emission limit during a particular ozone season.
EPA proposes to find that, as revised, South Carolina Regulation
61-62.96 meets the State's ongoing obligations under the NOX
SIP Call. Specifically, EPA proposes to find that the revised rules
meet the requirement under 40 CFR 51.121(f)(2) for enforceable limits
on the subject units' collective emissions of ozone season
NOX mass emissions. In the next section, EPA discusses South
Carolina's revisions to meet the requirements under 40 CFR 51.121(f)(1)
and (i)(1) for monitoring sufficient to ensure compliance with those
limits.
b. Revisions Related to NOX SIP Call Monitoring
As discussed above, Section 61-62.96.70 of South Carolina's
reinstated NOX SIP Call regulation requires all owners and
operators of covered NOX budget units to implement a
monitoring and reporting system necessary to attribute ozone season
NOX mass emissions to each unit in accordance with 40 CFR
part 75 with the following exception. The regulation provides any South
Carolina NOX SIP Call budget units that (1) are not required
by 40 CFR 51.121, South Carolina Regulation 61-62.97, or other
regulation to comply with Part 75 and (2) are subject to new source
performance standards (NSPS) under 40 CFR part 60, subpart D or subpart
Db, the option to instead monitor and report their ozone season
NOX mass emissions in accordance with the applicable NSPS
subpart.\13\ The monitoring requirements for each source will be
specified in each source's NOX SIP Call permit condition.
More specifically, SC DHEC will require facilities with large non-EGUs
requesting the alternative monitoring to calculate the NOX
mass emissions (in tons) for each ozone season using NOX
emission rate data obtained in accordance with the applicable NSPS
subpart and to report the total to SC DHEC no later than March 31
following that ozone season. The reporting time period aligns with
annual emissions inventory reporting as required by South Carolina
Regulation 61-62.1, Section III(B)(1). The NOX emission rate
would be calculated from Part 60 Continuous Emission Monitoring System
(CEMS) measurements using Method 19 in Appendix A to 40 CFR part 60.
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\13\ Those state sources otherwise required to comply with Part
75 monitoring requirements (including all covered EGUs) will
continue to do so.
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In the July 11, 2019 SIP submittal, South Carolina provided an
analysis to demonstrate that the monitoring flexibilities comply with
CAA section 110(l). CAA section 110(l) provides that EPA cannot approve
a SIP revision if the revision would interfere with any applicable
requirement concerning attainment or reasonable further progress (RFP),
or any other applicable requirement of the CAA. Additionally, section
110(l) makes clear that each SIP revision is subject to the
requirements of section 110(l). EPA generally considers whether the SIP
revision would worsen, preserve, or improve the status quo in air
quality.
EPA does not anticipate emissions increases from the revisions to
the South Carolina SIP a result of the alternative monitoring
flexibilities. Several of the original large non-EGU sources have shut
down and the remaining existing facilities, through compliance with
federal permit restrictions, have combined potentials-to-emit that are
well below the NOX SIP Call budget levels. The large non-EGU
ozone season emissions have been low relative to the State's
NOX SIP Call budget.\14\ For example, as indicated in EPA's
NOX SIP Call amendment proposal, total 2017 emissions from
NOX SIP Call budget units not otherwise subject to Part 75
represent only 5.3 percent of South Carolina's NOX SIP Call
annual emission budget.\15\ With the total potentials-to-emit for units
covered by the NOX SIP Call well below the NOX
SIP Call budgeted levels, SC DHEC notes that the preexisting
NOX SIP Call budgets and Part 75 monitoring and reporting
requirements have not themselves been a key factor in limiting
emissions, and EPA believes that the budgets or the Part 75 monitoring
and reporting requirements are not limiting emissions from affected
units. SC DHEC also cites to the small amount of emissions attributable
to sources that will be able to use the additional flexibilities, as
well as the general effectiveness of Part 60 monitoring. SC DHEC states
the alternative Part 60 monitoring flexibility allowed under the
reinstated NOX SIP Call provisions will not interfere with
continued attainment of the NAAQS or any other applicable requirement
of the CAA.
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\14\ SC DHEC estimated that the maximum ozone-season emissions
total from all 14 large non-EGU units, if operated for the entire
ozone season, would be 2,419 tons, well below the 3,479 tpy budget.
\15\ 82 FR 41620, 41621 (September 1, 2017).
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EPA's analysis of South Carolina's regulations concerning
monitoring to comply with the NOX SIP Call follows the
requirements outlined in EPA's March 8, 2019 rule amending the
NOX SIP Call's monitoring requirements at 40 CFR
51.121(i)(4). In that rule, EPA observed that, under 40 CFR 51.121(i),
the principal criterion for approval of monitoring and reporting
requirements for purposes of the NOX SIP Call following the
amendments would be that the requirements must be sufficient to
determine whether sources are in compliance with the control measures
adopted to achieve the required emissions reductions.\16\ EPA noted
that for purposes of demonstrating the sufficiency of the monitoring
and reporting requirements, a state generally would be able to cite the
same types of data (e.g., data indicating substantial compliance
margins) that EPA cited to support finalizing the amendments to the
NOX SIP Call regulations.\17\ In addition, EPA pointed out
the need to consider whether the regulation contains provisions to
avoid gaps in required monitoring and whether any monitoring approach
that uses emissions factors is designed to avoid any bias toward
understatement of emissions.\18\
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\16\ See 84 FR at 8428-29.
\17\ Id. n.30.
\18\ Id.
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In this document, EPA proposes to find that, as revised, South
Carolina Regulation 61-62.96 meets the State's ongoing obligations
under the NOX SIP Call with respect to monitoring to ensure
compliance with required limitations and proposes to approve the
alternate monitoring approach described above into South Carolina's
SIP. If finalized, South Carolina's adopted monitoring flexibility
would be available only to those large non-EGU sources that are not
otherwise required to continue Part 75 monitoring and reporting. EPA's
review preliminarily
[[Page 26640]]
concludes that South Carolina's revised regulations are sufficient to
determine whether sources are in compliance with the control measures
adopted to achieve the required emissions reductions; South Carolina
has cited to data indicating substantial compliance margins; South
Carolina's regulations avoid gaps in required monitoring; and South
Carolina's regulations do not use emissions factors for alternative
monitoring. In addition, EPA agrees with SC DHEC's conclusion that,
because the large non-EGUs' combined maximum allowable emissions are
well below the NOX SIP Call budget, neither the
NOX SIP Call nor the previous monitoring requirements have
been driving current emission levels down. EPA therefore agrees that no
increase in emissions will result from the added option to monitor and
report under Part 60 in lieu of Part 75. Thus, EPA proposes to conclude
that South Carolina's monitoring regulations are sufficient to provide
adequate monitoring under the NOX SIP call and comply with
40 CFR 51.121(f)(1) and (i). EPA also preliminarily concludes that
South Carolina's monitoring regulations will not interfere with
continued attainment of the NAAQS, RFP or any other applicable
requirement of the Clean Air Act.
2. Removal of CAIR
South Carolina's April 12, 2019 submission also seeks to remove the
SIP-approved portions of the State trading program rules adopted to
implement CAIR from South Carolina Regulation 61-62.96 Subparts AA
through II, AAA through III, and AAAA through IIII. With regard to the
annual programs, the State requests removal because the CAIR annual
programs have been replaced by the CSAPR annual programs. With respect
to the ozone season program, South Carolina's April 12, 2019 submission
seeks to remove the SIP-approved portions of the State's trading
program rules because, if approved, South Carolina's state control
program would address outstanding NOX SIP Call requirements.
Further, South Carolina's July 11, 2019 SIP submission contains a
technical demonstration showing that no increase in NOX
ozone season emissions is expected to result from the removal of CAIR
because the combined potential to emit from covered sources remains
below CAIR budget levels, and historical data shows that covered
sources' emissions have remained well below budgeted levels.
In this document, EPA proposes to approve the removal of these
CAIR-related provisions from South Carolina's SIP. As explained above,
the D.C. Circuit remanded CAIR to EPA in 2008, however, the court left
CAIR in place while EPA worked to develop a new interstate transport
rule. CSAPR was promulgated to respond to the court's concerns and to
replace CAIR. CAIR was implemented through the 2014 compliance periods
and was replaced by CSAPR on January 1, 2015. EPA promulgated
regulations to sunset the CAIR trading programs and is no longer
administering those trading programs, and the programs therefore can no
longer be implemented for South Carolina sources. Further, EPA has
reviewed South Carolina's demonstration and preliminarily agrees that
no emissions increase is expected to result from removal of CAIR. In
particular, ozone season NOX mass emissions data reported to
EPA for South Carolina's large EGUs and large non-EGUs indicate that
collective emissions have consistently been less than 10,000 tons in
every year since 2012, well below the state's budgets for these units
under both the NOX SIP Call and CAIR, indicating that the
state's CAIR rules for ozone season NOX would not be driving
current emission levels even if they were capable of implementation.
EPA therefore preliminarily concludes that removal of CAIR from South
Carolina's SIP will not result in any increase in emissions and
therefore will not interfere with continued attainment of the NAAQS or
any other applicable requirement of the Clean Air Act, and proposes to
approve the removal of South Carolina's SIP provisions related to CAIR.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference South Carolina Regulation 61-62.96 entitled, ``Nitrogen
Oxides (NOX) Budget Program,'' effective January 25, 2019,
which reinstates applicable portions of EPA's 40 CFR part 96
NOX SIP Call regulations and establishes alternative
emission monitoring requirements for certain units. Also, in this
document, EPA is proposing to remove South Carolina Regulation 61-62.96
Subparts AA through II, AAA through III, and AAAA through IIII
entitled, ``Nitrogen Oxides (NOX) and Sulfur Dioxide
(SO2) Budget Trading Program,'' from the South Carolina
State Implementation Plan, which is incorporated by reference in
accordance with the requirements of 1 CFR part 51. EPA has made, and
will continue to make the State Implementation Plan generally available
through www.regulations.gov and at the EPA Region 4 Office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
V. Proposed Actions
EPA is proposing to approve South Carolina's SIP April 12, 2019 and
July 11, 2019 SIP revisions and to incorporate Regulation 61-62.96
entitled, ``Nitrogen Oxides (NOX) Budget Program,'' and
Regulation 61-62.96, Subpart H, Section 96.70 into the SIP. In
addition, EPA is proposing to remove the State's CAIR regulations at
Regulation 61-62.96 Subparts AA through II, AAA through III, and AAAA
through IIII entitled, ``Nitrogen Oxides (NOX) and Sulfur
Dioxide (SO2) Budget Trading Program,'' from the SIP. EPA is
proposing to conclude that these revisions will not interfere with
attainment and maintenance of the NAAQS, RFP, or any other applicable
requirement of the CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, these
actions merely propose to approve state law as meeting Federal
requirements and do not impose additional requirements beyond those
imposed by state law. For that reason, these proposed actions:
Are not significant regulatory actions subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Are not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory actions because SIP approvals are exempted under
Executive Order 12866;
Do not impose information collection burdens under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having significant economic impacts
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do not contain any unfunded mandates or significantly or
uniquely affect small governments, as described
[[Page 26641]]
in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
Because these actions merely approve state law as meeting Federal
requirements and do not impose additional requirements beyond those
imposed by state law, this proposed action for the State of South
Carolina does not have Tribal implications as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action
will not impose substantial direct costs on Tribal governments or
preempt Trial law. The Catawba Indian Nation (CIN) Reservation is
located within the boundary of York County, South Carolina. Pursuant to
the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120
(Settlement Act), ``all state and local environmental laws and
regulations apply to the [Catawba Indian Nation] and Reservation and
are fully enforceable by all relevant state and local agencies and
authorities.'' The CIN also retains authority to impose regulations
applying higher environmental standards to the Reservation than those
imposed by state law or local governing bodies, in accordance with the
Settlement Act.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Authority: 42 U.S.C. 7401 et seq.
Mary Walker,
Regional Administrator, Region 4.
[FR Doc. 2020-08906 Filed 5-4-20; 8:45 am]
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