**Attachment A: Certification of 110(a)(1) and (2) Requirements**



### South Carolina Certification **Clean Air Act Section 110(a)(1) and (2)**

**2006 PM 2.5**  

### NAAQS Requirements

**Each of the basic or infrastructure requirements enumerated in the CAA Section 110(a)(1) and (2) is listed below along with the corresponding State statute granting the Department the**  **necessary authority to implement each State Implementation Plan (SIP) element.**

Emission limits and other control measures: **Section 110(a)(2)(A) of the Clean Air Act (CAA) requires SIPs to include enforceable emission limits and other control measures, means or**  **techniques, schedules for compliance and other related matters. South Carolina Air Pollution Control Regulation 61-62.5, Standard No. 1,**  Emissions form Fuel Burning Operations **; Standard No. 2,**  Ambient Air Quality Standards; **and Standard No. 4,** Emission from Process Industries **serve to establish emission limits for particulate matter (PM), while Regulation 61-62.1,** Definitions and General Requirements **; Regulation 61-62.2,** Prohibition of Open Burning **; and Regulation 61-62.6,**  Control of Fugitive Particulate Matter **address required control measures, means, and techniques for reducing PM. Section 48-1-50(23) of the 1976 South Carolina Code**  **of Laws, as amended (hereinafter referred to as S.C. Code Ann.) provides the Department with the statutory authority to, “Adopt emission and effluent control regulations standards and**  **limitations that are applicable to the entire State, that are applicable only within specified areas or zones of the State, or that are applicable only when a specified class of pollutant is present.”** 

Ambient air quality monitoring/data system: **Section 110(a)(2)(B) of the CAA requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors,**  **collecting and analyzing ambient air quality data, and presentation of these data available to EPA upon request. Regulation 61.62.5, Standard No. 7,**  Prevention of Significant Deterioration **, along**

**with the** South Carolina Network Description and Ambient Air Network Monitoring Plan **(conditionally approved by EPA on October 27, 2008), provide for an ambient air quality monitoring system in the State. S.C. Code Ann. § 48-1-50(14) provides the Department with the**  **necessary statutory authority to “Collect and disseminate information on air and water control.”**

Program for enforcement of control measures: **Section 110(a)(2)(C) of the CAA requires States to include a program that provides for enforcement of all SIP measures and the regulation**  **of construction of new or modified stationary sources to meet prevention of significant deterioration (PSD) and nonattainment new source review (NSR) requirements. Regulation 61-**  **62.5, Standard No. 7,** Prevention of Significant Deterioration **, and Regulation 61-62.5, Standard 7.1,**  Nonattainment New Source Review **, apply to the construction of any new major stationary source or any project at an existing major stationary source in an area designated as attainment or**  **unclassifiable. On July 1, 2005, the Department submitted its PSD/NSR SIP revision to EPA for approval. In August 2007, the EPA sent to the State a draft conditional approval letter that**  **indicated modifications to the State PSD and NSR rules were necessary. On November 20, 2007, the Department sent to the EPA a written response outlining its commitment to making**  **those modifications. On April 14, 2009, the Department submitted a revised SIP to the EPA for approval and is currently awaiting final approval. S.C. Code Ann. § 48-1-50(10) provides the**  **Department with the statutory authority to, “Require to be submitted to it and consider for approval plans for disposal system or source or any parts thereof and inspect the construction** **Attachment A: Certification of 110(a)(1) and (2) Requirements**

**thereof for compliance with the approved plans.” Further, S.C. Code Ann. § 48-1-50(11) provides the Department with the statutory authority to “Administer penalties as otherwise**  **provided herein for violations of this chapter, including any order, permit, regulation or**

**standards.”**

Interstate transport: **Section 110(a)(2)(D) of the CAA requires SIPs to include provisions prohibiting any source or other type of emissions activity in one State from contributing**  **significantly to nonattainment of the NAAQS in another State. States are required to submit 110(a)(2)(D)(i) plans to demonstrate compliance with these provisions. On June 25, 2007, South**  **Carolina submitted its 110(a)(2)(D)(i) plan to EPA. This plan was published as proposed by EPA on May 22, 2008, however, final approval was delayed due to the Clean Air Interstate Rule**  **(CAIR** ) **remand. In this plan, South Carolina made a demonstration that it met the required four pronged set of criteria as outlined below.** 

State SIPs must contain adequate provisions prohibiting any source or other type of emissions activity within the State from emitting any air pollutants in amounts that will:

**1. Contribute significantly to nonattainment of NAQQS for areas in another state. (Prong 1)** 

South Carolina’s CAIR became state-effective on June 22, 2007. On December 10, 2007, EPA’s approval of South Carolina’s CAIR as a direct final rule became effective. However, on July 11, 2008, the United States Court of Appeals for the District of Columbia Circuit (Court of Appeals) vacated CAIR (Case No. 05-1244) after finding “more than several fatal flaws in the rule.” Because theEPA adopted CAIR as an “integral action,” it was vacated in its entirety and remanded to EPA to promulgate a rule that was consistent with the Court of Appeals’ opinion. On September 24, 2008, EPA filed a petition for rehearing or, in the alternative, a remand of the case without vacatur. On October 21, 2008, the Court of Appeals issued a motion directing the parties of the case to file a response to EPA’s petition.

After considering the parties’ respective positions, the Court of Appeals decided to remand the case without vacatur on December 23, 2008. The Court of Appeals’ reasoning was that while CAIR was inherently flawed, allowing it to remain in place until EPA could promulgate another rule would at least temporarily preserve the environmental benefits that CAIR provides. (The Court of Appeals decided not to impose a deadline by which EPA must correct the flaws within CAIR.)

In addition, since the fall of 2008, South Carolina, along with several other CAIR States has been participating in a state collaborative process to address the issues of interstate

transport.

**2. Interfere with maintenance of NAAQS by any other State. (Prong 2)** 

Again South Carolina’s implementation of CAIR and participation in the trading program will satisfy this criterion.**Attachment A: Certification of 110(a)(1) and (2) Requirements**

**3. Interfere with measures required to meet the implementation plan for any other State**  **related to Prevention of Significant Deterioration (PSD). (Prong 3)**

South Carolina’s participation in the CAIR trading program and the state collaborative process; implementation of Regulation 61-62.5, Standard No. 7, and Regulation 61-62.5, Standard No. 7.1 (both of which provide for a preconstruction review and permitting program for major sources of air pollutants) collectively satisfy this criterion.

**4. Interfere with measures required to meet the implementation plan for any other State**  **related to Regional Haze and Visibility. (Prong 4)**

South Carolina has satisfied this criterion through its Regional Haze Implementation Plan (submitted to EPA on December 21, 2007). The Regional Haze Implementation Plan was developed in consultation with other state, Federal Land Managers (FLMs), and regional planning organizations.

Adequate resources: **Section 110(a)(2)(E) of the CAA requires states to provide for adequate personnel, funding and legal authority under State Law to carry out its SIP and related issues.**  **The Department is provided its legal authority to establish a SIP and implement related plans, in general, under S.C. Code Ann. Section 48, Title 1. Specifically, S.C. Code Ann. § 48-1-50(12)**  **grants the Department the statutory authority to, “Accept, receive and administer grants or other funds or gifts for the purpose of carrying out any of the purposes of this chapter; accept, receive**  **and receipt for Federal money given by the Federal government under any Federal law to the State of South Carolina for air or water control activities, surveys or programs.” S.C. Code Ann.**  **Section 48, Title 2 grants the Department statutory authority to establish environmental protection funds. Additionally, Regulation 61-30,**  Environmental Protection Fees **, provides the Department with the ability to assess fees for environmental permitting programs. The**  **Department implements the SIP in accordance with the provisions on S.C. Code Ann. § 1-23-40 and S.C. Code Ann. Section 48, Title 1.** 

Stationary source monitoring system: **Section 110(a)(2)(F) of the CAA requires States to establish a system to monitor emissions from stationary sources and to submit periodic emissions**  **reports. Regulation 61-62.1,** Definitions and General Requirements **, provides for an emission inventory plan that establishes reporting requirements. However, the Department is currently in**  **the process of holding external stakeholder meetings to evaluate proposed revisions to R. 61- 62.1, Section III,**  Emission Inventory **, predicated by the recently promulgated (73 FR 76540) Air Emission Reporting Requirements (AERR). Because these proposed changes may be more**  **stringent than the federal requirements, pursuant to S.C. Code Section, 1-23-120(H)(1), the proposed amendments will require legislative review. The Department intends to complete the**  **revisions and forward the proposed amendments to the legislature in January 2010. In addition, R. 61-62.1, Section IV,**  Source Tests **, also outlines the plan, method, and procedures by which a source should conduct and submit source tests. S.C. Code Ann. § 48-1-22 provides the**  **Department with the necessary statutory authority to “Require the owner of operator of any source or disposal system to establish and maintain such operational records; make reports;**  **install, use and maintain monitoring equipment or methods; samples and analyze emissions or discharges in accordance with prescribed methods, at locations, intervals, and procedures as the** **Attachment A: Certification of 110(a)(1) and (2) Requirements**

**Department shall prescribe; and provide such other information as the Department reasonably may require.”** 

Emergency power: **Section 110(a)(2)(G) of the CAA requires state to provide for authority to address activities causing imminent and substantial endangerment to public health, including**  **contingency plans to implement the emergency episode provisions in their SIPs. Regulation 61- 62.3,**  Air Pollution Episodes **requires that the Department provide for contingency measures when air pollution episode or exceedance that may lead to substantial threat to the health or**  **persons in the State or region. S.C. Code Ann. § 48-1-290 grants the Department the statutory authority as follows: “Whenever the Department finds that an emergency exists requiring**  **immediate action to protect the public health or property, the Department, with concurrent notice to the Governor, may without notice or hearing issue an order reciting the existence of such an**  **emergency and requiring that such action be taken as the Department deems necessary to meet the emergency. Such order shall be effective immediately. Any person to whom such order is**  **directed shall comply therewith immediately, but an application to the Department or by direction of the Governor shall be afforded a hearing within forty-eight hours. On the basis of**  **such hearing the Department shall continue such order in effect, revoke it or modify it. Regardless of whether a hearing is held, the Department shall revoke all emergency orders as**  **soon as conditions or operations change to the extent that an emergency no longer exists.” S.C. Code Ann. § 1-23-130 provides the Department with the statutory authority to establish**  **emergency regulations.**

Future SIP revisions: **Section 110(a)(2)(H) of the CAA requires States to have the authority to revise their SIPs in response to changes in the NAAQS, availability of improved methods for**  **attaining the NAAQS, or in response to an EPA finding that the SIP is substantially inadequate. S.C. Code Ann. Section 48, Title 1 provides the Department the necessary statutory authority to**  **revise the SIP to accommodate changes in the NAAQS.**

Consultation with government officials: **Section 110(a)(2)(J) of the CAA requires States to provide a process for consultation with local governments and FLMs carrying out NAAQS**  **implementation requirements pursuant to section 121 relating to consultation. Regulation 61- 62.5, Standard No. 7,**  Prevention of Significant Deterioration **as well as provisions in separate implementation plans (such as the five-year review process under the Regional Haze**  **Implementation Plan, which allows for consultation between appropriate state, local, and tribal air pollution control agencies as well as the corresponding FLMs) provide for continued**  **consultation with government officials. Additionally, S.C. Code § 48-1-50(8) provides the Department with the necessary statutory authority to “Cooperate with the governments of the**  **United States or other states or State agencies or organizations, officials, or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or**  **agreements.”**

Public notification: **Section 110(a)(2)(J) of the CAA further requires States to notify the public in NAAQS are exceeded in an area and to enhance public awareness of measures that can be**  **taken to prevent exceedances. The Department has several public notice mechanisms in place to notify the public of PM and other pollutant forecasting and has an extensive outreach program to**  **educate the public and promote voluntary emission reduction measures. Regulation 61-62.3,** Air**Attachment A: Certification of 110(a)(1) and (2) Requirements**

Pollution Episodes **requires that the Department notify the public of any air pollution episode or exceedance. S.C. Code Ann. § 48-1-60 established that, “Classification and standards of quality**  **and purity of the environment [are] authorized after notice and hearing.”**

PSD and visibility protection: **Section 110(a)(2)(J) of the CAA also requires State to meet applicable requirements of Part C related to PSD and visibility protection. Regulation 61.62.5,**  **Standard No. 7,** Prevention of Significant Deterioration, **as well as the Regional Haze SIP together address visibility protection.** 

Air quality modeling/data: **Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS**  **pollutants can be predicted and submission of such data to EPA can be made. Regulations 61- 62.5, Standards No. 2,**  Ambient Air Quality Standards **and R. 61-62.5, Standard No. 7,** Prevention of Significant Deterioration **(as adopted in the SIP) require that air modeling be conducted to determine permit applicability.** 

Permitting fees **: Section 110(a)(2)(L) of the CAA requires SIPs to require each major stationary source to pay permitting fees to cover the costs of reviewing, approving,**  **implementing, and enforcing a permit. Pursuant to S.C. Code Ann. § 48-2-50 (1993), the Department shall charge fees for environmental programs it administers pursuant to federal and**  **state law and regulations. Regulation 61-30,** Environmental Protection Fees **, prescribes fees applicable to applicants and holders of permits, licenses, certificates, certifications, and**  **registrations as well as establishes procedures for the payment of fees, provides for the assessment of penalties for nonpayment, and establishes an appeals process for refuting fees.** 

Consultation/participation by affected local entities: **Section 110(a)(2)(M) of the CAA requires States to provide for consultation and participation in SIP development by local political**  **subdivision affected by the SIP. Regulation 61-62.5, Standard No. 7,** Prevention of Significant

Deterioration **(as adopted by the SIP) requires that the Department notify the public of the application, preliminary determination, degree of incremental consumption, and the opportunity**  **for comment prior to making a final permitting decision. Likewise, S.C. Code Ann. § 48-1-50(8) allows the Department to “Cooperate with the governments of the United States or other states or**  **State agencies or organizations, officials, or unofficial, in respect to pollution control matters or for the formulation of interstate pollution control compacts or agreements.” Other provisions**  **regarding public hearings and the regulation development process are included in S.C. Code Ann. Section 48, Title 1 in general, and S.C. Code Ann. § 1-23-40 (the Administrative**  **Procedures Act). The Department has worked closely with local political subdivisions in developing the Transportation Conformity SIP, the Regional Haze Implementation Plan, the**  **Early Action Compacts, and the 8-hour Ozone Attainment Demonstration for the York, County, South Carolina, portion of the Metrolina nonattainment area.** 

Other Notes: **The following SIP related actions, along with those specifically described above have been/will be developed in consultation with many interagency (Federal, State, and local)**  **partners and have been/will be subject to the required public notice requirements. Attachment A: Certification of 110(a)(1) and (2) Requirements** 

• **In November 2009, the Department will re-submit its 8-hour Ozone attainment demonstration for the York County portion of the Metrolina Nonattainment Area.** 

• **In June 2007, the Department submitted its 110(a)(2)(D)(i) plan as final.**

• **In October 2007, the Department submitted a 110(a)(1) 8-hour ozone maintenance plan for Cherokee County, SC (which had previously been subject to a one-hour ozone**  **maintenance plan).**

• **On December 13, 2007, the Department submitted a letter certifying that the**

**infrastructure elements associated with the 8-hour ozone standard have been addressed.**

• **On March 14, 2008, the Department submitted a letter certifying that the infrastructure**

**elements associated with the 1997 PM 2.5**  **standard have been addressed.**

• **On November 19, 2008, to meet the obligations of the “Transportation Conformity Rule Amendments for the New PM2 National Ambient Air Quality Standard: PM2**  **Precursors,” and the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).”** 

• **On February 23, 2009, the Department submitted a negative declaration letter to the EPA certifying that there are no sources (as described by the North American Industry**  **Classification System [NAICS] codes in 72 FR 57215) in the current ozone nonattainment area in South Carolina subject to the Group III Control Techniques**  **Guidelines (CTGs).**

• **On July ##, 2009, the Department submitted a negative declaration letter to the EPA certifying that there are no sources (as described by the NAICS codes in FR 40230**  **) in the current ozone nonattainment areas in South Carolina subject to the Group IV CTGs.** 

**Together these submissions, along with South Carolina's existing Air Quality State Implementation Plan, address the necessary elements of section 110(a)(1) and (2) of the CAA for** 

**the 2006 PM 2.5**  **NAAQS.**