[Federal Register Volume 86, Number 143 (Thursday, July 29, 2021)]
[Proposed Rules]
[Pages 40796-40801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15536]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2020-0524; FRL-8762-01-R4]
Air Plan Approval; South Carolina; 2018 General Assembly New
Source Review Update
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 the South Carolina Department of
Health and Environmental Control (SCDHEC or Department), on April 24,
2020. The SIP revisions update the State's Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NNSR)
regulations. Specifically, the SIP revisions add and update several
definitions for consistency with the Federal regulations, update public
participation requirements for PSD, clarify the applicability of
``source impact analysis'' for PSD, add an emissions offset banking
provision for NNSR, and make administrative updates, such as
typographical corrections and renumbering. Finally, the changes
incorporate language that addresses the public notice rule provisions
for NNSR, which removes the mandatory requirements to provide public
notice in a newspaper and instead allows for electronic notice (``e-
notice'') as an alternate noticing option for the State. EPA is
proposing to approve these revisions pursuant to the Clean Air Act (CAA
or Act) and implementing Federal regulations.
DATES: Comments must be received on or before August 30, 2021.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2020-0524 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 a 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: Andres Febres, 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) 562-8966. Mr. Febres can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. What is EPA proposing?
On April 24, 2020, SDHEC submitted SIP revisions to EPA for
approval that include changes to South Carolina's major source New
Source Review (NSR) permitting regulations to make them more closely
align with Federal requirements for PSD and NNSR permitting; correct
typographical errors; and update internal references, including
renumbering throughout both regulations. Specifically, these changes
update South Carolina Regulation 61-62.5, Standard No. 7--Prevention of
Significant Deterioration and Standard No. 7.1--Nonattainment New
Source Review.\1\ In addition to the changes above, the SIP revisions
include an update to the public noticing procedures for South
Carolina's NNSR regulations. The public notice requirement updates
address the Federal rule entitled ``Revisions to Public Notice
Provisions in Clean Air Act Permitting Programs,'' (also referred to as
the e-Notice Rule) that was finalized in 2016. See 81 FR 71613 (October
18, 2016).\2\
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\1\ On April 24, 2020, SDHEC also submitted to EPA SIP revisions
to Regulations 61-62.1, Section I--Definitions; 61-62.1, Section
II--Permit Requirements; 61-62.1, Section III--Emission Inventory
and Emissions Statement; 61-62.1, Section IV--Source Tests; 61-62.1,
Section V--Credible Emissions; 61-62.5, Standard No. 2--Ambient Air
Quality Standards; and 61-62.5, Standard 5.2--Control of Oxides of
Nitrogen (NOX). EPA will address these SIP revisions in separate
actions.
\2\ EPA previously approved e-notice provisions for South
Carolina's PSD program. See 83 FR 64285 (December 14, 2018).
Although the e-notice provisions in the State's NNSR program are
being proposed for incorporation into the SIP for the first time,
the April 24, 2020, SIP revisions also include updates to the
already SIP-approved e-notice provisions in South Carolina's SIP-
approved PSD program.
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With certain exceptions described in Section III below, EPA is
proposing to approve the changes submitted by South Carolina on April
24, 2020, which modify the State's PSD and NNSR programs, as meeting
the requirements of the Federal NSR program and being consistent with
the CAA.
II. Background
This proposed action seeks to revise South Carolina's PSD and NNSR
regulations in the federally-approved SIP. Many of these changes are
administrative in nature, including updating internal references and
correcting typographical errors, but they do include the adoption of
several definitions currently in the Federal NSR regulations, update
public participation requirements for PSD, clarify the applicability of
``source impact
[[Page 40797]]
analysis'' for PSD, and add an emissions offset banking provision for
NNSR, which will be discussed in further detail in Section III below.
Additionally, the April 24, 2020, SIP revisions also adopt e-notice
provisions into the State's NNSR regulations.
On October 5, 2016, EPA finalized the revised public notice rule
provisions for the Federal NSR, Title V, and the Outer Continental
Shelf permitting programs of the CAA. See 81 FR 71613 (October 18,
2016). The new provisions removed the mandatory requirement to provide
public notice of a draft air permit through publication in a local
newspaper. Instead, these provisions allow for an internet-based ``e-
notice'' option for permitting authorities implementing their own SIP-
approved permitting programs and EPA-approved Title V programs.
However, permitting authorities are not required to adopt e-notice.
Nothing in the final rule prevents a permitting authority from
continuing to use newspaper notification and/or from supplementing an
e-notice with newspaper notifications and/or additional means of
notification. When e-notice is provided, EPA's rule requires electronic
access (e-access) to the draft permit. Generally, state and local
agencies intend to post the draft permits and public notices in a
designated location on their agency websites, which is accessible to
anyone in the general public. For the noticing of draft permits issued
by permitting authorities with EPA-approved programs, the rule simply
requires the permitting authority to use ``a consistent noticing
method'' for all permit notices under the specific permitting program.
E-notice is already being practiced by many permitting authorities,
including South Carolina in their PSD program, because it enables them
to communicate permitting and other affected actions to the public more
quickly and efficiently while lowering costs by eliminating or
minimizing newspaper publications. A full description of the Federal e-
notice provisions is available in EPA's October 18, 2016 final
rulemaking notice. See 81 FR 71613.
III. Analysis of State's Submittal
As mentioned above, the April 24, 2020, SIP revisions include
changes to South Carolina's PSD and NNSR regulations. Many of these
changes are administrative in nature, including updating internal
references, correcting typographical errors, and renumbering
paragraphs. However, the SIP revisions do include several changes
intended to make South Carolina's major source NSR regulations more
closely align with the Federal major source NSR regulations, including
the adoption of several definitions, and updating of other definitions,
that are currently in the Federal NSR regulations. Included below in
Sections III.A. and III.B. are more details on the key updates proposed
for adoption into the South Carolina SIP.
A. Regulation 61-62.5, Standard No. 7--Prevention of Significant
Deterioration
The April 24, 2020, SIP revisions include the following key changes
within the State's current SIP-approved PSD regulations in order to
more closely align with the Federal PSD regulations: (1) Updating the
definition of ``Building, structure, facility or installation;'' (2)
Deleting the mention of fugitive emissions from the definition of
``Major modification'' and ``Net emissions increase;'' (3) Adding a
definition for ``Pollution prevention;'' (4) Updating the
``Exceptions'' section to clarify the applicability of the ``Source
Impact Analysis'' section of the PSD regulations in regards to the 2015
8-hour ozone national ambient air quality standards (NAAQS); (5)
Updating the definition of ``Monitoring, recordkeeping and reporting;''
and (6) Updating the public participation requirements for PSD,
including those for plantwide applicability limits (PALs) permits under
PSD. More details are included below.
Under Section (B), Definitions, the definition of ``Building,
structure, facility or installation'' was updated by renumbering the
paragraph from (b)(9) to (B)(9)(a) and adding paragraph (B)(9)(b) to
expand the definition and give more details on the applicability for
onshore activities related to Oil and Gas Extraction. These changes
more closely align the rule with the Federal PSD regulation at 40 CFR
51.166(b)(6)(ii), and EPA is proposing to approve them into the South
Carolina SIP.
Originally found in paragraphs (b)(30)(v) and (b)(34)(iii)(d),
South Carolina's PSD regulations contained a description of fugitive
emissions under the definitions of ``Major modification'' and ``Net
emissions increase.'' In the April 24, 2020, SIP revisions, these two
paragraphs are renumbered to (B)(30)(e) and (B)(34)(c)(ii),
respectively, and the text is removed and replaced with ``[Reserved]''.
The Federal PSD regulation, specifically at 40 CFR 51.166(b)(2)(v) and
(b)(3)(iii)(d), contains the language regarding fugitive emissions that
South Carolina seeks to remove from its SIP; however, this language in
the Federal rules has been stayed indefinitely.\3\ EPA never acted on
the language found in South Carolina's former paragraphs (b)(30)(v) and
(b)(34)(iii)(d), because the State withdrew its request to adopt it
into the SIP through a December 20, 2016, withdrawal letter.\4\ Because
the language was never approved into the SIP and the language in the
Federal PSD regulations is currently stayed, EPA is proposing to add
paragraphs (B)(30)(e) and (B)(34)(c)(ii) to the South Carolina SIP as
submitted in the April 24, 2020, submittal with the ``[Reserved]'' note
in them.
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\3\ Effective September 30, 2009 (74 FR 50115), EPA established
a three-month stay of what is commonly known as the Fugitive
Emissions Rule. The stay was later extended for an additional three
months, effective December 31, 2009 (74 FR 65692). In order to allow
for more time for the reconsideration and for public comment on any
potential revisions to the Fugitive Emissions Rule, EPA established
a longer 18-month stay that became effective on March 31, 2010 (75
FR 16012). Finally, on March 30, 2011, EPA stayed indefinitely
portions of the Fugitive Emissions Rule.
\4\ The December 20, 2016, withdrawal letter can be found in the
docket for this proposed rulemaking.
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Also, under the Definitions section, under paragraph (B)(36), the
State originally had a ``[Reserved]'' note. In the April 24, 2020, SIP
revisions, the State deletes the note and adding a definition of
``Pollution prevention'' in its place. This definition mirrors that of
the Federal PSD regulation, found at 40 CFR 51.166(b)(38), and EPA is
proposing to approve it into the South Carolina SIP.
Under Section (I), Exemptions, the State added new paragraphs at
(I)(11)(a) and (b), which are meant to clarify the applicability of
Section (K), Source impact analysis. The new paragraphs were added to
clarify which permit applications must comply with Section (K) with
respect to the 2015 8-hour ozone NAAQS. Specifically, these new
paragraphs explain that if a permit application was determined by the
State to be complete on or before October 1, 2015, the ozone NAAQS with
respect to which the requirements of Section (K) apply is the ozone
NAAQS in effect on the date the permit application was determined to be
complete and not the 2015 ozone NAAQS. These new paragraphs also
explain that if the State had published a public notice with a
preliminary determination regarding the application before December 28,
2015, the ozone NAAQS with respect to which the requirements of (K)
apply is the ozone NAAQS in effect at the time of first publication of
the public notice of a preliminary determination on the permit
application or public notice of the draft permit and not the 2015 ozone
[[Page 40798]]
NAAQS. The final rule promulgating the 2015 8-hour ozone NAAQS was
signed by the EPA Administrator on October 1, 2015, and became
effective on December 28, 2015. See 80 FR 65292 (October 26, 2015).
Given these dates, South Carolina's October 1, 2015, and December 28,
2015, deadlines in paragraphs (I)(a) and (I)(b), respectively, would be
appropriate cutoff dates for the applicability of Section (K) in regard
to the 2015 ozone NAAQS. Additionally, these changes more closely align
the rule with the Federal PSD regulation at 40 CFR 51.166(i)(11)(i) and
(ii). EPA is therefore proposing to approve these changes into the
South Carolina SIP.
Under Section (R), Source obligations, South Carolina updated the
definition of ``Monitoring, recordkeeping and reporting'' found in
paragraph (R)(6) by adding paragraphs (R)(6)(c), and (R)(6)(g)(i) and
(ii). Paragraph (R)(6)(c) adds an additional requirements for emissions
units that are existing electric utility steam generating units, and
Paragraph (R)(6)(g) adds the definition of ``reasonable possibility''
as that term is used in Paragraph (R)(6). These changes match the
Federal PSD regulations at 40 CFR 51.166(r)(6)(ii) and (r)(6)(vi),
respectively, and EPA is proposing to approve these changes into the
South Carolina SIP.
Finally, under Section (Q), Public Participation, South Carolina
updates the e-notice provisions for PSD. Originally found in paragraph
(q)(2)(ii), the public notice requirements are renumbered to (Q)(2)(c)
and reworded for clarity and consistency with the Federal e-notice
rule. The updates identify website publication on a public website
selected by the Department as the consistent noticing method for draft
permits subject to public notice under its PSD program. The updates
note that other methods, such as newspapers, may be used in addition to
website publication. South Carolina also includes a cross reference to
the new e-notice provisions of Section (Q) under the State's PALs
provisions for PSD to maintain the consistent e-noticing method of
public participation throughout its PSD regulations. The updated
language can be found under Section (AA) of Standard No. 7, in
paragraph (AA)(5). EPA is proposing to approve these changes into the
South Carolina SIP because they are consistent with EPA's e-notice
rule.
All other changes to Standard No. 7 included in the April 24, 2020,
SIP revisions are administrative in nature and are being proposed for
approval into the South Carolina SIP.\5\
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\5\ A description of each of these changes to Standard No. 7
begins on page 354/500 of the April 24, 2020, submittal PDF. The
submittal can be found in the docket for this proposed rulemaking.
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B. Regulation 61-62.5, Standard No. 7.1--Nonattainment New Source
Review
The April 24, 2020, SIP revisions include the following key changes
within the State's current SIP-approved NNSR regulations to more
closely align with the Federal NNSR regulations: (1) Adding multiple
definitions included in the Federal NNSR regulations; (2) Updating and
renumbering existing definitions in South Carolina's SIP; (3) Adopting
language regarding interpollutant trading and banking; and (4) Updating
the ``Public participation'' requirements for NNSR, including those for
PALs permits under NNSR.
Under Section (A), Applicability, South Carolina renumbered former
paragraph (e) to paragraph (A)(10). Although most of paragraph (A)(10)
is appropriate for incorporation into the South Carolina SIP and
matches the current Federal rule, former paragraph (e) had a portion of
the definition for ``Chemical process plants,'' previously found at
paragraph (e)(T), that was never approved in the SIP. In particular,
the language contained after ``Chemical process plant,'' now renumbered
to paragraph (A)(10)(t), which states that ``The term chemical
processing plants shall not include ethanol production facilities that
produce ethanol by natural fermentation included in NAICS codes 325193
or 312140,'' is not currently in the SIP and cannot be incorporated due
to issues with the 2007 Federal Ethanol Rule.\6\ Due to the ongoing
review of the 2007 Ethanol Rule in regards to the Federal NNSR
regulations, South Carolina withdrew its request for EPA to approve the
phrase ``The term chemical processing plants shall not include ethanol
production facilities that produce ethanol by natural fermentation
included in NAICS codes 325193 or 312140'' in the renumbered paragraph
(A)(10) through a letter dated June 21, 2021.7 8
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\6\ On May 1, 2007, EPA published in the Federal Register the
2007 Ethanol Rule (72 FR 24060), which amended EPA's PSD and NNSR
regulations to exclude ethanol manufacturing facilities that produce
ethanol by natural fermentation processes from the ``chemical
process plants'' category under the regulatory definition of ``major
stationary source.'' Shortly thereafter, EPA received a petition for
reconsideration of the 2007 Ethanol Rule provisions from Natural
Resources Defense Council (NRDC), which petition EPA initially
denied on March 27, 2008. See 73 FR 24174 (March 27, 2008). In 2009,
EPA received a second petition for reconsideration from NRDC, and
NRDC also filed a petition for judicial review in the U.S. Court of
Appeals for the District of Columbia Circuit challenging EPA's 2008
denial of its first petition for reconsideration. The court granted
a joint motion to hold the case in abeyance, and the case has
remained in abeyance. On October 21, 2019, EPA partially granted and
partially denied the second petition for reconsideration. See 84 FR
59743 (November 6, 2019). Specifically, EPA granted the request for
reconsideration with regard to the claim that the 2007 Ethanol Rule
did not appropriately address the CAA section 193 anti-backsliding
requirements for nonattainment areas. Concurrently, EPA denied the
remainder of the requests for reconsideration. This means that
states are now able to adopt the Ethanol Rule provisions for their
PSD programs, but are generally not choosing to do the same for
their NNSR programs at this time.
\7\ The June 21, 2021, withdrawal letter can be found in the
docket for this proposed rulemaking.
\8\ Former paragraph (c)(7)(C)(xx) contains the same ethanol
exclusion language as (A)(10)(t). South Carolina renumbered this
paragraph to (B)(22)(c)(xx). The June 21, 2021, withdrawal letter
also withdraws South Carolina's request for EPA to incorporate the
ethanol exclusion language at (B)(22)(c)(xx) into the South Carolina
SIP.
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Under Section (B), Definitions, the State adds several definitions
that are part of the Federal NNSR regulations. The new definitions
include: Allowable emissions; Begin actual construction; Building,
structure, facility, or installation; Temporary clean coal technology
demonstration project; Clean coal technology; Clean coal technology
demonstration project; Commence; Construction; Continuous emissions
monitoring system; Continuous emissions rate monitoring system;
Continuous parameter monitoring system; Electric utility steam
generating unit; Emissions unit; Federal Land Manager; Federally
enforceable; Fugitive emissions; Necessary preconstruction approvals or
permits; Pollution prevention; Potential to emit; Predictive emissions
monitoring system; Project; Replacement unit; Resource recovery
facility; Reviewing authority; Secondary emissions; and Stationary
source. Except for the definition for ``Resource recovery facility,''
the new definitions all match those in the Federal NNSR regulation
found at 40 CFR 51.165, and EPA is proposing to approve them into the
South Carolina SIP.\9\
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\9\ At the time of submission, the definitions for ``Replacement
unit'' and ``Secondary emissions'' in South Carolina's April 24,
2020, SIP revisions matched the then-current Federal NNSR
regulations. On June 22, 2021, the EPA Administrator signed a final
rule amending several NSR regulations, including the definitions for
``Replacement unit'' and ``Secondary emissions.'' This final rule is
available at https://www.epa.gov/nsr/final-error-corrections-rule.
Although the definitions of these two terms in South Carolina's
submittal do not exactly match the revised Federal definitions, EPA
is proposing to approve them into the South Carolina SIP given the
nature of the revisions to these Federal definitions. However, if
South Carolina wishes to have matching definitions, it may submit a
SIP revision in the future to adopt the revised definitions into its
SIP.
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[[Page 40799]]
The new definition for ``Resource recovery facility,'' found in
paragraph (B)(34) of South Carolina's Standard No. 7.1 in the SIP
revision, does not match the Federal NNSR regulations because the
Federal rules do not contain a definition for this kind of facility.
However, the new definition merely clarifies what constitutes a
resource recovery facility and does not create a new exemption or
limitation on the applicability of the State's NNSR regulations.
Therefore, EPA is proposing to approve the definition into the South
Carolina SIP.
Also, under Section (B), South Carolina's April 24, 2020, SIP
revisions update and replace two lists, converting them into a table
format. Specifically, the changes involve paragraph (B)(22)(a),
formerly found in paragraph (c)(7)(A), and paragraph (B)(37), formerly
found in paragraph (c)(14).
Former paragraph (c)(7)(A), which contained the definition of
``Major stationary source,'' used to include a list of emissions
thresholds for sources in certain nonattainment areas under paragraphs
(c)(7)(A)(i)(a) through (d). These thresholds are now recodified in the
table found in paragraph (B)(22)(a)(i) and are expanded for clarity.
The threshold values and list of pollutants are unchanged from the SIP-
approved version of the rule. Although the revision does not add
ammonia as a precursor to fine particulate matter
(PM2.5),\10\ EPA does not believe that this will have any
negative impact on the attainment or maintenance of the
PM2.5 NAAQS in the State. This is due to the fact that South
Carolina does not currently have any PM2.5 nonattainment
areas, and thus, the PM2.5 thresholds in this NNSR rule are
not currently applicable. In the event of an area being designated
nonattainment for PM2.5 in the future, the State would be
required to submit, among other things, a revised NNSR SIP revision
that identifies ammonia as a PM2.5 precursor. For these
reasons, EPA believes that the recodified table in paragraph
(B)(22)(a)(i) is appropriate for approval into the South Carolina SIP.
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\10\ The Federal NNSR definition of ``Major stationary source''
sets a 70 tpy major source threshold for the PM2.5
precursors (Sulfur dioxide, Nitrogen oxides, Volatile Organic
Compounds, and Ammonia) in any serious PM2.5
nonattainment area. See 40 CFR 51.165(a)(1)(iv)(A)(1)(viii) and
(a)(1)(xxxvii)(C)(2).
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Former paragraph (c)(14) contained a definition of ``Significant''
and included a list of emission rates at or above which a net emissions
increase or the potential to emit from a source would be considered
significant. South Carolina renumbered the definition as paragraph
(B)(37) and created a table containing the significant emissions rates.
The rates in the new table generally match the rates in former
paragraph (c)(14), except for the rates for carbon monoxide (CO) and
ozone, which are expanded to include more stringent rates. For CO,
South Carolina's April 24, 2020, SIP revisions maintain the old
emissions rate, now only applicable in marginal and moderate
nonattainment areas, but add a more stringent emissions rate for
serious nonattainment areas. Similarly, for ozone, South Carolina
maintains the old emissions rate, now applicable only for marginal and
moderate nonattainment areas, but adds more stringent rates for serious
and severe nonattainment areas, as well as for extreme nonattainment
areas. Given that these changes are more stringent than the current
SIP-approved rule, EPA believes that they are appropriate for
incorporation into the South Carolina SIP.
Under Section (C), which incorporates parts of former paragraph
(d)--Permit requirements, South Carolina's April 24, 2020, SIP
revisions add additional conditions regarding emissions offsets and
alternative site analysis that need to be met in order to grant a
permit; adds exemptions for ``Temporary emission source'' and
``Secondary emissions;'' and clarifies the requirements of the State's
NNSR regulations, in regards to major sources and major modifications
of PM10.
As part of the changes to Section (C), South Carolina includes two
new paragraphs, (C)(1)(d) and (e). Paragraph (C)(1)(d) adds as a
condition for a permit approval, for the source to obtain a positive
net air quality benefit in the affected area, as determined by 40 CFR
part 51, Appendix S. Paragraph (C)(1)(e) adds a condition for the
source to carry out an alternative sites analysis in order to
demonstrate that benefits of the proposed source significantly outweigh
the environmental and social costs imposed as a result of its location,
construction, or modification.
Under new paragraphs (C)(2) and (C)(3), South Carolina adds new
exemptions for ``Temporary emissions source[s]'' and ``Secondary
emissions.'' The exemption for ``Temporary emissions source'' does not
exempt temporary sources, defined by the State as plants or facilities
that will be relocated outside the nonattainment area after a short
period of time, from obtaining a permit. This change exempts these
types of sources from meeting the requirements of paragraphs (C)(1)(c)
and (C)(1)(d), which require that the source obtain emissions
reductions from other sources to offset the increase in emissions. The
exemption for ``Secondary emissions'' states that if a source is
subject to the NNSR regulation due to direct emissions from the source,
the applicable conditions in paragraph (C)(1) must also be met for
secondary emissions; however, secondary emissions may be exempt from
paragraphs (C)(1)(a) (lowest achievable emissions rate) and (C)(1)(b)
(compliance certification). EPA is proposing to approve the addition of
paragraphs (C)(2) and (C)(3) because they are consistent with the
exemptions in Appendix S of 40 CFR part 51 and still require
preconstruction review for temporary sources and sources subject to
NNSR regulation due to direct emissions.\11\
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\11\ South Carolina's SIP prohibits the issuance of any permit
to construct or modify a source if emissions interfere with
attainment or maintenance of any state or federal standard. See
Regulation 61-62.1, Section II, Paragraph A.4.
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Finally, the changes to Section (C) include a clarification
paragraph in regards to particulate matter (PM10). In
particular, paragraph (C)(4) explains that the requirements of the
State's NNSR regulations, in regards to major sources and major
modifications of PM10, would also apply to major sources and
major modifications of PM10 precursors.
Under new Section (D), Offset standards, South Carolina
incorporates several paragraphs that were previously parts of former
paragraph (d) of the State's NNSR regulations. The SIP revisions also
adds new paragraphs throughout this section for consistency with the
Federal offset provisions found at 40 CFR 51.165(a)(3). New paragraphs
(D)(4), (5), (7), and (8) are consistent with federal requirements
found in 40 CFR 51.165(a)(3)(ii)(C), (G), and (J), all relating to the
baseline for determining credit for emissions reductions.
In the April 24, 2020, SIP revisions, South Carolina adds new
Sections (H) through (K) to the State's NNSR regulations. Sections (J)
and (K) only contain a ``[Reserved]'' note, to leave space for future
updates. Sections (H) and (I) include South Carolina's adoption of
language related to interpollutant offsetting and banking of emission
offsets, respectively. The language generally aligns with that of the
Federal regulations at 40 CFR 51.165(a)(3) and (11), as well as
Appendix S to Part 51, but does not constitute a valid banking and
trading program because it is missing some of the key elements that are
required to ensure that these offsets are traded and banked correctly
and utilizing permanent, quantifiable, and enforceable reductions.
[[Page 40800]]
Additionally, Section (H), Interpollutant offsetting, contains
vacated language from the December 6, 2018, rule ``Implementation of
the 2015 National Ambient Air Quality Standards for Ozone:
Nonattainment Area State Implementation Plan Requirements'' (2018
Implementation Rule).\12\ The Federal interpollutant offsetting
provisions found at 40 CFR 51.165(a)(11), as well as Appendix S to Part
51 (at paragraph IV.G.5), were vacated by the United States Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) through a
January 29, 2021, court decision. See Sierra Club v. EPA, 985 F.3d 1055
(D.C. Cir. 2021). Accordingly, on June 22, 2021, the EPA Administrator
signed a final rule that, among other changes, removes the language
allowing interprecursor trading for ozone and restoring the language in
the NNSR regulations to the form it was in after the EPA's 2008
PM2.5 implementation rule.\13\ As a result, South Carolina
withdrew its request that EPA incorporate Section (H) into the SIP
through a withdrawal letter dated April 20, 2021.\14\
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\12\ See 83 FR 62998.
\13\ The final rule is available at https://www.epa.gov/nsr/final-error-corrections-rule.
\14\ The April 20, 2021, withdrawal letter can be found in the
docket for this proposed rulemaking.
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For the reasons discussed above, EPA is not proposing to
incorporate Section (H) into the South Carolina SIP, and is proposing
to incorporate only the addition of Section (I), Banking of emissions
offsets, with the caveat that this does not create an offset banking
and trading program in the State's SIP. In order for South Carolina to
have an offsets banking and trading program in the SIP, the State must
adopt a full banking and trading rule that covers everything necessary
for the program to operate correctly and EPA must incorporate that rule
into the SIP.
Finally, under Section (M), Public participation, South Carolina
adds e-notice provisions for its NNSR program. Originally found in
paragraph (d)(7)(iv), the public notice requirements are renumbered to
(M)(2)(d) and revised to incorporate EPA's amendments to the Federal
public notice requirements discussed in Section II of this rulemaking.
Specifically, South Carolina's April 24, 2020, SIP revisions for
Standard No. 7.1 identify website publication on a public website
identified by the Department as the consistent noticing method for
draft permits subject to public notice under its NNSR program. South
Carolina's e-notice provisions for NNSR note that other noticing
methods, such as newspapers, may be used in addition (but not as a
substitute) to website publication. South Carolina also includes a
cross-reference to the new e-notice provisions of Section (M) under the
State's PALs provisions for NNSR to maintain the consistent e-noticing
method of public participation throughout its NNSR regulations. The
updated language can be found under Section (N) of Standard No. 7.1, in
paragraph (N)(5). EPA believes that the April 24, 2020, SIP revisions
meet all the requirements of the revised Federal e-notice provisions in
regards to the State's NNSR regulations, and EPA is proposing to
incorporate these changes into South Carolina's SIP.
All other changes for Standard No. 7.1 included in the April 24,
2020, SIP revisions are administrative in nature.\15\ Except for the
parts of subparagraphs (A)(10)(t) and (B)(22)(c)(xx) noted above, as
they relate to the Ethanol Rule Provisions of the Federal NNSR
regulations, and Section (H), as it relates to the Interpollutant
Offsetting, all other changes to Standard No. 7.1 submitted through
South Carolina's April 24, 2020 SIP revisions are being proposed for
incorporation into the State's implementation plan.
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\15\ A description of each of these changes to Standard No. 7.1
begins on page 357/500 of the April 24, 2020, submittal PDF. The
submittal can be found in the docket for this proposed rulemaking.
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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 the requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference South Carolina's Regulation 61-62.5, Standards No. 7--
Prevention of Significant Deterioration, and Standard No. 7.1--
Nonattainment New Source Review, both state effective on April 24,
2020, with the exception of paragraph (H), and a portion of paragraphs
(A)(10)(t), and (B)(22)(c)(xx), from Regulation 61-62.5, Standard No.
7.1, as discussed above. 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).
V. Proposed Action
As described above, EPA is proposing to approve, with some
exceptions, the changes to the South Carolina Regulation 61-62.5,
Standards No. 7--Prevention of Significant Deterioration, and Standard
No. 7.1--Nonattainment New Source Review. These changes were submitted
by South Carolina on April 24, 2020.
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 Act and applicable
Federal regulations. See 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. This action merely
proposes to approve state law as meeting Federal requirements and does
not impose additional requirements beyond those imposed by state law.
For that reason, this proposed action:
Is not a significant regulatory action 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);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is 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
Does 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 this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
[[Page 40801]]
imposed by state law, this SIP approval 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.
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 15, 2021.
John Blevins,
Acting Regional Administrator, Region 4.
[FR Doc. 2021-15536 Filed 7-28-21; 8:45 am]
BILLING CODE 6560-50-P