BOARD: R Kenyon Wells BOARD; Allen Amsler Chaiiman
Mark S. Lue Vice Chairman

Catherine B. Templeton, Director Promoting andprotecting the health ofthepublic and the environment L Clarence Batts, Jr.

Ann B. Kirol, DDS

John 0.Hutto, Sr., MD



### April 3,2012

Ms. Gwendolyn Keyes Fleming Regional Administrator United States Environmental Protection Agency, Region 4 Sam Nunn Federal Center 6 1 Forsyth Street, SW Atlanta, Georgia 30303-8960



### Re: Final Amendment: South Carolina Air Quality Implementation Plan (Certification for PMze5 Infrastructure and Section 128 Requirements)
Dear Ms. Fleming:
The United States Environmental Protection Agency ("EPA") has recently informed the South Carolina Department of Health and Environmental Control ("Department," or "DHEC") ofthe need to address two matters before it can approve certain previously submitted State Implementation Plan ("SIP") amendments. This SIP amendment addresses both matters.
The Department is submittingthis SIP amendment through the parallel processing procedure. Under this procedure, the EPA works closely with the state during the development ofthe SIP amendment and solicits public comment in approximately the same time frame that the state notices its proposed revisions and holds its public hearing.


### 1)November 3, 2009, 

### Certzfication for Particulate Matter Infrastructure SIPs
The EPA notified the Department in January 2012 that it was requiring public notice of a clarification letter that the Department submitted to the EPA on November 3,2009,to address one element of the "infrastructure" SIPs required under Clean Air Act ("CAA") Section 1lO(a)(l) and (2)' for the 1997 and 2006 PM2.5 (particulate matter 2.5 micrometers in diameter and smaller) National Ambient Air Quality Standards ("NAAQS"). These infrastructure SIPs provide for the implementation, maintenance, and enforcement ofthe NAAQS. On March 14,2008,the Department submitted the infrastructure SIP for the 1997PM2.5NAAQS to the EPA. On September 18,2009,the Department submitted the infrastructure SIP for the 2006 PM2.5 NAAQS to the EPA. On September 24, 2009, the EPA submitted a letter to the Department stating that it had no comments on the 1997 and 2006 PM2.5infrastructure SIPs.

42 U.S.C. 

### 5 7410 (2010)

SOU'TH CAROLINA DEPARTMENT OFHEAL.?'H AND ENVIKONMEN'I'AL CON'I'KOL, 2600BullStreet Columbia, SC 29201 Phone:(803) 898-3432 wwwscdhecgovSIP Amendment: Section 128Requirements & Certification for PM2 Infrastructure April 3, 2012 Page 2

Following further discussions with the EPA, the Department submitted the aforementioned letter to the EPA on November 3,2009. See Attachment A for this letter. Based onthe EPA memorandum entitled Emergency Episode Plan Requirements, dated March 24, 2008, this letter certified that the Department is not required to adopt an emergency episode plan for PM2.5 because no area of South Carolina has exceeded 140~~1m~ for the 1997and 2006 PM2.5NAAQS, which is the threshold for such a plan. In accordance with CAA Section 110(k),in order to act on the Department's infrastructure SIP amendments addressing the requirements of CAA Section 1lO(a)(l) and (2) for the 1997and 2006 PM2.5NAAQS, the EPA is requiring that the Department provide the public with the ability to comment on this certification. Pursuant to a consent decree, the EPA has agreed to act on the 2006 PM2.5 infrastructure SIPs for twenty states, including South Carolina, by September 30, 2012. This submissionis the final SIP-amendment from the Department that addresses the required public notice for this certification.


### 2) CleanAir Act Section 128,State Boards
The EPA has also recently informed states of the need to address Section 128of the CAA, which requires that SIPs include conflict of interest provisions for state boards that oversee CAA permits and enforcement orders. The EPA is making this request based on comments that it has received on other states' proposed SIP amendments. This submission is the proposed SIPamendment from the Department to address CAA Section 128. The Department is concluding that an existing state statute meets the requirements of CAA Section 128.

The CAA Amendments of 1977 added Section 128, "State Boards": (a) Not later than the date one year after August 7, 1977, each applicable implementation plan shall contain requirements that- (1) any board or body which approves permits or enforcement orders under this chapter shall have at least a majority of members who represent the public interest and do not derive any significant portion of their income from persons subject to permits or enforcement orders under this chapter, and (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. A State may adopt any requirements respecting conflicts of interest for suchboards or bodies or heads of executive agencies, or any other entities which are more stringent than the requirements of paragraph (1) and (2), and the Administrator shall approve any such more stringent requirements submitted as part of an implementationplan.2
The Department addressed the requirements of CAA Section 128in its November 12, 1993, submittal to the EPA requesting Title V permitting authority. This submittal included a South

Clean Air Act, 42 U.S.C. 

### 9 7428 (2010). EPA elaborated on the requirements of CAA Section 128 in a guidance memorandum: David 0. Bickhart, EPA, Guidance to States for Meeting Conflict of Interest Requirements of 4128 (March 2, 1978).SIPAmendment: Section 128Requirements& Certificationfor PMI5Infrastructure April 3: 2012 Page 3

Carolina Attorney General's opinion ("Opinion") that among other things addressed the requirements of CAA Section 128.' See Attachment B for the Opinion, and the cover letter under which it was submitted. The Attorney General concluded in the Opinion that the South Carolina Ethics, Government Accountability and Campaign Reform Act of 1991 ("Ethics Reform ~ct")~ in effect met the requirements of CAA Section 128.
The Ethics Reform Act satisfies the requirements of CAA Section 128 for the DHEC Board, which is the "board or body which approves permits and enforcement orders" under the Clean Air Act in South Carolina. S.C. Code 

### Ann. Section 8-13-100(31)defines "State board, commission, or council..



### . [as] an agency created by legislation which has statewide jurisdiction andwhich exercises some of the sovereign power of the State." This definition, along with the following three sections ofthe Ethics Reform Act, meet the CAA Section 128(a)(l)requirement that Board members represent the public interest and do not derive any significant portion of their income from persons subjectto CAA permits or enforcement orders. 1) S.C. Code Ann. Section 8- 13-730 provides that "[u]nless otherwise provided by law,

no person may serve as a member of a governmental regulatory agency that regulates any business with which that person is associated." 2) S.C. Code Ann. Section 8-13-700(A)provides in part that "[nlo public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family,

an individual with whom he is associated, or a business with which he is associated." 3) S.C. Code Ann. Section 8-13-700(B)provides inpart that "[nlo public official, public member, or public employee may make, participate in making, or in any way attempt to use his official office, membership, or employment to influence a governmental decision in which he, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated has an economic interest." S.C. Code Ann. Section 8-13-700(B)(l)-(5)provides for disclosure of any conflicts of interest by public official, public members or public employee, which meets the requirement of CAA Section 128(a)(2)that "any potential conflicts of interest



### ...be adequately disclosed." Therefore, the Ethics Reform Act meets the two requirements of CAA Section 128,and by its very definition, the DHEC Board serves the public interest of the State.

On February 24,2012, the Department published a notice in the South Carolina State Register notifying the public of this proposed SIP amendment, and providing the public the opportunity to request a public hearing on the proposed SIP amendment. See Attachment C for this Notice. The comment period for this notice ended on March 26,2012. The Department received two comments. SeeAttachment D for the comments and the Department's response. The Department did not receive a request for a public hearing by the close of the public comment period, so it can3 The EPA approved the delegation of Title V permitting authority effective July 26, 1995.40 C.F.R. $ 70, Appendix A to Part 70 (20 11).The Title V submittal is not a part of the SIP.

S.C. Code Ann. 

### 4 8-13-700 (201 1).SIPAmendment: Section 128 Requirements & Certification for PM, Infrastructure April 3,2012 Page 4

celed the public hearing, pursuant to 40 C.F.R. Section 5 1.102 (20 1 1). I certify that the digital copies ofthis letter and the attached documentson the enclosed CD are an exact duplicate of the 

### paper copies.

We appreciate the EPAYs assistance in the formulation ofthis amendment. Shouldyou have any questions concerning this proposed SIP amendment, please contact Alan M. Hancock of my staff at (803) 898-4139 or hancocam@,dhec.sc.gov.

Robert W. King, Jr., P.E.

## I Deputy Commissioner Environmental Quality Control

ec: Adam Dilts, Office of Environmental Accountability,EPA Region 4 Scott Davis, Chief, Air Planning Branch, EPA Region 4 Lynorae Benjamin, Chief, Regulatory Development Section,EPA Region 4 Nacosta Ward, Regulatory Development Section,EPA Region 4 Richard Wong, Regulatory Development Section,EPA Region 4 Myra Reece, Chief, Bureau ofAir Quality, SC DHEC Rhonda Banks Thompson, Assistant Bureau Chief, Bureau of Air Quality, SC DHEC Robert J. Brown, Jr., Director, Division ofAir Assessment, Innovation, and Regulation, Bureau of Air Quality, SC DHEC Maeve Mason, Manager, Regulation and SIP Management Section, SC DHEC

Attachment A 

### - November 3,2009, Certification for PM Infrastructure SIPS Attachment B 

### - S.C. Attorney General's November 5, 1993, Opinion in the Title V Submittal Attachment C 

### - South Carolina State Register Notice of Intent to Revise the SIP, February 24, 2012 Attachment D- Comment-Response Summary and Comments Attachment E 

### - Legal Authority