[Federal Register Volume 85, Number 146 (Wednesday, July 29, 2020)]
[Rules and Regulations]
[Pages 45541-45544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15534]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2019-0612; FRL-10012-02-Region 4]
Air Plan Approval; SC; NOX SIP Call and Removal of CAIR
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving 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 large non-EGUs. EPA is also approving the
removal of the SIP-approved portions of the State's Clean Air
Interstate Rule (CAIR) Program rules from the South Carolina SIP. In
addition, EPA is approving into the SIP state regulations that
establish an alternative monitoring option for certain sources.
DATES: This rule is effective August 28, 2020.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2019-0612. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information is not 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 can either
be retrieved electronically via www.regulations.gov or in hard copy at
the 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.
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 a.m. to 4:30 p.m., excluding Federal holidays.
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 South Carolina'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
[[Page 45542]]
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 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 entail the use of continuous emission
monitoring systems (CEMS). South
[[Page 45543]]
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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On April 12, 2019, and July 11, 2019,\9\ SC DHEC's letters
requested 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. On
May 5, 2020 (85 FR 26635), EPA published a notice of proposed
rulemaking (NPRM) proposing to establish a SIP-approved state control
program to comply with NOX SIP call obligations for EGUs and
large non-EGUs. EPA also proposed approving the removal of the SIP-
approved portions of the CAIR Program rules from the South Carolina SIP
and approve into the SIP state regulations that establish an
alternative monitoring option for certain sources.
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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
notice 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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See EPA's May 5, 2020 (85 FR 26635), NPRM for further detail on
these changes and EPA's rationale for approving them. EPA did not
receive public comments on the May 5, 2020, NPRM.
II. Incorporation by Reference
In this rule, the EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, EPA is finalizing the incorporation by reference of South
Carolina Regulation 61-62.96 titled, ``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 rule, EPA is finalizing
the removal of 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, these materials
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).
Therefore, the these materials have been approved by EPA for inclusion
in the SIP, have been incorporated by reference by EPA into that plan,
are fully federally enforceable under sections 110 and 113 of the CAA
as of the effective date of the final rulemaking of EPA's approval, and
will be incorporated by reference by the Director of the Federal
Register in the next update to the SIP compilation.\10\
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\10\ See 62 FR 27968 (May 22, 1997).
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III. Final Actions
EPA is approving South Carolina's SIP April 12, 2019, and July 11,
2019, SIP revisions and incorporating 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
approving removal of 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 has
concluded that these revisions will not interfere with attainment and
maintenance of the NAAQS, reasonable further progress, or any other
applicable requirement of the CAA.
IV. 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 approve state law as meeting Federal requirements and do
not impose additional requirements beyond those imposed by state law.
For that reason, these 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 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 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
[[Page 45544]]
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 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 Tribal 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.
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 action 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 September 28, 2020. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action 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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: July 13, 2020.
Mary Walker,
Regional Administrator, Region 4.
Accordingly, 40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
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. Section 52.2120(c) is amended by revising the entry for ``Regulation
No. 62.96'' to read as follows:
Sec. 52.2120 Identification of plan.
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(c) * * *
EPA-Approved South Carolina Regulations
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State
State citation Title/subject effective EPA approval date Explanation
date
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* * * * * * *
Regulation No. 62.96............. Nitrogen Oxides 1/25/2019 7/29/2020, [Insert
(NOX) Budget citation of
Program. publication].
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[FR Doc. 2020-15534 Filed 7-28-20; 8:45 am]
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