[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Rules and Regulations]
[Pages 63434-63437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30110]




40 CFR Part 52

[SC-029-1-7177a; FRL-5316-5]


Approval and Promulgation of Implementation Plans: Approval of 
Revisions to the South Carolina State Implementation Plan (SIP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is approving a revision to the South Carolina State 
Implementation Plan (SIP) to incorporate new permitting regulations and 
to allow the State of South Carolina to issue Federally enforceable 
state construction and operating permits (FESCOP). On July 12, 1995, 
the State of South Carolina through the Department of Health and 
Environmental Control (DHEC) submitted a SIP revision which updates the 
procedural rules governing the issuance of air permits in South 
Carolina and fulfills the requirements necessary for a state FESCOP 
program to become Federally enforceable. In order to extend the Federal 
enforceability of South Carolina's FESCOP program to hazardous air 
pollutants (HAPs), EPA is also approving South Carolina's FESCOP 
program pursuant to section 112 of the Clean Air Act as amended in 1990 
(CAA) so that South Carolina may issue Federally enforceable 
construction and operating permits for HAPs.

DATES: This final rule will be effective February 11, 1996, unless 
adverse or critical comments are received by January 10, 1996. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: Written comments should be addressed to Scott Miller at the 
EPA Regional office listed below. Copies of the documents relative to 
this action are available for public inspection during normal business 
hours at the following locations. The interested persons wanting to 
examine these documents should make an appointment with the appropriate 
office at least 24 hours before the visiting day.

Air and Radiation Docket and Information Center (Air Docket 6102), U.S. 
Environmental Protection Agency, 401 M Street SW., Washington, DC 
20460.
Environmental Protection Agency, Region 4 Air Programs Branch, 345 
Courtland Street NE., Atlanta, Georgia 30365.
South Carolina Department of Health and Environmental Control, 2600 
Bull Street, Columbia, South Carolina 29201.

FOR FURTHER INFORMATION CONTACT: Scott Miller, Air Programs Branch, 
Air, Pesticides & Toxics Management Division, Region 4 Environmental 
Protection Agency, 345 Courtland Street NE., Atlanta, Georgia 30365. 
The telephone number is (404) 347-3555 extension 4153. Reference file 
SC029.

SUPPLEMENTARY INFORMATION: On July 12, 1995, the State of South 
Carolina through the DHEC submitted a SIP revision designed to allow 
South Carolina to issue FESCOP which conform to EPA requirements for 
Federal enforceability as specified in a Federal Register notice, 
``Requirements for the preparation, adoption, and submittal of 
implementation plans; air quality, new source review; final rules.'' 
(See 54 FR 22274, June 28, 1989). This voluntary SIP revision allows 
EPA and citizens under the Act to enforce terms and conditions of 
state-issued minor source construction and operating permits. 
Construction and operating permits that are issued under the State's 
minor source construction and operating permit program that is approved 
into the State SIP and under section 112(l) will provide Federally 
enforceable limits to an air pollution source's potential to emit. 
Limiting of a source's potential to emit through Federally enforceable 
construction and operating permits can affect a source's applicability 
to Federal regulations such as title V operating permits, New Source 
Review (NSR) preconstruction permits, Prevention of Significant 
Deterioration (PSD) preconstruction permits for criteria pollutants and 
Federal air toxics requirements. EPA notes that the State will continue 
to issue construction and operating permits that are not intended to be 
Federally enforceable under regulations found at South Carolina Air 
Pollution Control Regulation (SCAPCR) 61-62.1 Section II.A and Section 
II.B.
    In the aforementioned June 28, 1989, Federal Register document, EPA 
listed five criteria necessary to make a state agency's minor source 
construction and operating permit program Federally enforceable and, 
therefore, approvable into the SIP. This revision satisfies the five 
criteria for Federal enforceability of the State's minor source 
construction and operating permit program.
    The first criterion for a State's construction and operating permit 
program to become Federally enforceable is EPA's approval of the permit 
program into the SIP. On July 12, 1995, the State of South Carolina 
submitted through the DHEC a SIP revision designed to meet the five 
criteria for Federal enforceability. This action will approve these 
regulations 

[[Page 63435]]
into the South Carolina SIP, and therefore satisfy the first criterion 
for Federal enforceability.
    The second criterion for a state's construction and operating 
permit program to be Federally enforceable is that the regulations 
approved into the SIP must impose a legal obligation that operating 
permit holders adhere to the terms and limitations of such permits. 
SCAPCR 61-62.1 Section II imposes a legal obligation that construction 
and operating permit holders adhere to the terms and limitations of the 
construction or operating permit intended to be Federally enforceable. 
Every construction and operating permit must include all applicable 
State and Federal requirements. In addition, the permits must include 
monitoring, recordkeeping, efficiency levels for add-on air pollution 
control devices, and other provisions to show compliance with the terms 
and conditions of the construction/operating permit. Hence, the second 
criterion for Federal enforceability is met.
    The third criterion for a state's construction and operating permit 
program to be Federally enforceable is that the state construction and 
operating permit program must require that all emissions limitations, 
controls, and other requirements imposed by the permit be at least as 
stringent as any other applicable limitations and requirements 
contained in the SIP or enforceable under the SIP, and the program may 
not issue permits that waive, or make less stringent, any limitations 
or requirements contained in or issued pursuant to the SIP, or that are 
otherwise ``Federally enforceable'' (e.g. standards established under 
sections 111 and 112 of the Act). SCAPCR 61-62.1 Section II 
G(8)(b)(vii) mandates that every construction and operating permit that 
a facility intends to be Federally enforceable must include all 
applicable State and Federal requirements. SIP requirements are 
applicable Federal requirements and therefore, will not be waived or 
made less stringent since they must be included in any permit intended 
to be Federally enforceable. Therefore, the third criterion for Federal 
enforceability is met.
    The fourth criterion for a state's construction and operating 
permit program to be Federally enforceable is that limitations, 
controls, and requirements in the operating permits be permanent, 
quantifiable, and otherwise enforceable as a practical matter. SCAPCR 
61-62.1 Section II G(4)(f) includes a verbatim incorporation of this 
requirement. Also, with respect to this criterion, enforceability is 
essentially provided on a permit-by-permit basis, particularly by 
writing practical and quantitative enforcement procedures into each 
permit. Therefore, the fourth criterion for Federal enforceability is 
met.
    The fifth criterion for a state's construction and operating permit 
program to be Federally enforceable is providing EPA and the public 
with timely notice of the proposal and issuance of such permits, 
providing EPA, on a timely basis, with a copy of each proposed (or 
draft) and final permit intended to be Federally enforceable. This 
process must also provide for an opportunity for public comment on the 
permit applications prior to issuance of the final permit. SCAPCR 61-
62.1 Section II G(5)(a) requires that a permit intended to be Federally 
enforceable shall be provided to EPA and the public for a period of 30 
days prior to its issuance. In addition, if the State determines that a 
public hearing is required the State will give notice of a public 
hearing 30 days before it occurs. SCAPCR 61-62.1 Section II G(4)(g) 
requires DHEC to provide to EPA on a timely basis a copy of each 
proposed (draft permit) or final permit intended to be Federally 
enforceable. EPA notes that any permit which has not gone through an 
opportunity for public comment and EPA review under the South Carolina 
FESCOP program will not be Federally enforceable. Hence, the fifth 
criteria for Federal enforceability is met.
    In addition to meeting the five criteria for issuance of Federally 
enforceable construction and operating permits, the State provides for 
the issuance of Federally enforceable general permits which may cover 
several air pollution sources in a source category with one permit. 
These regulations mirror the part 70 regulations found at 40 CFR 
70.6(d) which govern the issuance of title V general permits.
    In addition to requesting approval into the SIP, South Carolina 
also requested on July 12, 1995, approval of its FESCOP program under 
section 112(l) of the Act for the purpose of creating Federally 
enforceable limitations on the potential to emit of HAPs through the 
issuance of Federally enforceable state construction and operating 
permits. Approval under section 112(l) is necessary because the 
proposed SIP approval discussed above only extends to the control of 
criteria pollutants.
    EPA believes that the five criteria for Federal enforceability are 
also appropriate for evaluating and approving FESCOP programs under 
section 112(l). The June 28, 1989, Federal Register document did not 
specifically address HAPs because it was written prior to the 1990 
amendments to section 112, not because it establishes requirements 
unique to criteria pollutants.
    In addition to meeting the criteria in the June 28, 1989, document, 
a FESCOP program that addresses HAP must meet the statutory criteria 
for approval under section 112(l)(5). Section 112(l) allows EPA to 
approve a program only if it: (1) Contains adequate authority to assure 
compliance with any section 112 standards or requirements; (2) provides 
for adequate resources; (3) provides for an expeditious schedule for 
assuring compliance with section 112 requirements; and (4) is otherwise 
likely to satisfy the objectives of the CAA.
    EPA plans to codify the approval criteria for programs limiting 
potential to emit of HAP, such as FESCOP programs, through amendments 
to Subpart E of Part 63, the regulations promulgated to implement 
section 112(l) of the CAA. (See 58 FR 62262, November 26, 1993.) EPA 
currently anticipates that these regulatory criteria, as they apply to 
FESCOP programs, will mirror those set forth in the June 28, 1989, 
Federal Register document. The EPA also anticipates that since FESCOP 
programs approved pursuant to section 112(l) prior to the planned 
Subpart E revisions will have been approved as meeting these criteria, 
further approval actions for those programs will not be necessary.
    EPA has authority under section 112(l) to approve programs to limit 
potential to emit of HAPs directly under section 112(l) prior to the 
Subpart E revisions. Section 112(l)(5) requires the EPA to disapprove 
programs that are inconsistent with guidance required to be issued 
under section 112(l)(2). This might be read to suggest that the 
``guidance'' referred to in section 112(l)(2) was intended to be a 
binding rule. Even under this interpretation, EPA does not believe that 
section 112(l) requires this rulemaking to be comprehensive. That is to 
say, it need not address every possible instance of approval under 
section 112(l). EPA has already issued regulations under section 112(l) 
that would satisfy any section 112(l)(2) requirement for rulemaking. 
Given the severe timing problems posed by impending deadlines set forth 
in ``maximum achievable control technology'' (MACT) emission standards 
under section 112 and for submittal of title V permit applications, EPA 
believes it is reasonable to read section 112(l) to allow for approval 
of programs to limit potential to emit prior to promulgation of a rule 
specifically addressing this issue. Therefore, EPA is 

[[Page 63436]]
approving South Carolina's FESCOP program so that South Carolina may 
issue Federally enforceable construction and operating permits as soon 
as possible.
    Regarding the statutory criteria of section 112(l)(5) referred to 
above, EPA believes South Carolina's FESCOP program contains adequate 
authority to assure compliance with section 112 requirements because 
the third criterion of the June 28, 1989, Federal Register document is 
met. That is to say, South Carolina's program does not allow for the 
waiver of any section 112 requirement. Sources that become minor 
through a permit issued pursuant to this program would still be 
required to meet section 112 requirements applicable to non-major 
sources.
    Regarding the requirement for adequate resources, EPA believes 
South Carolina has demonstrated that it will provide for adequate 
resources to support the FESCOP program. EPA expects that resources 
will continue to be adequate to administer that portion of the State's 
minor source construction and operating permit program under which 
Federally enforceable construction and operating permits will be issued 
since South Carolina has administered a minor source construction and 
operating permit program for a number of years. EPA will monitor South 
Carolina's implementation of its FESCOP program to ensure that adequate 
resources are in fact available. EPA also believes that South 
Carolina's FESCOP program provides for an expeditious schedule for 
assuring compliance with section 112 requirements. This program will be 
used to allow a source to establish a voluntary limit on potential to 
emit to avoid being subject to a CAA requirement applicable on a 
particular date. Nothing in South Carolina's FESCOP program would allow 
a source to avoid or delay compliance with a CAA requirement if it 
fails to obtain an appropriate Federally enforceable limit by the 
relevant deadline. Finally, EPA believes South Carolina's program is 
consistent with the intent of section 112 and the CAA for states to 
provide a mechanism through which sources may avoid classification as 
major sources by obtaining Federally enforceable limits on potential to 
emit.
    Eligibility for Federally enforceable permits extends not only to 
permits issued after the effective date of this rule, but also to 
permits issued under the State's current rule prior to the effective 
date of today's rulemaking. If the State followed its own regulation, 
each issued permit that established a title I condition (e.g., for a 
source to have minor source potential to emit) was subject to public 
notice and prior EPA review.
    Therefore, EPA will consider all such construction and operating 
permits which were issued in a manner consistent with both the State 
regulations and the five criteria as Federally enforceable upon the 
effective date of this action provided that any permits that the State 
wishes to make Federally enforceable are submitted to EPA and 
accompanied by documentation that the procedures approved today have 
been followed. EPA will expeditiously review any individual permits so 
submitted to ensure their conformity with program requirements.
    With South Carolina's addition of these provisions and EPA's 
approval of this revision into the SIP, South Carolina's FESCOP program 
satisfies the criteria described in the June 28, 1989, Federal Register 
document.

Final Action

    In this action, EPA is approving South Carolina's air permitting 
regulations as submitted on July 12, 1995. EPA is publishing this 
action without prior proposal because the EPA views this as a 
noncontroversial amendment and anticipates no adverse comments. 
However, in a separate document in the Federal Register publication, 
EPA is proposing to approve the SIP revision should adverse or critical 
comments be filed. This action will be effective February 9, 1996 
unless, within 30 days of its publication, adverse or critical comments 
are received. If EPA receives such comments, this action will be 
withdrawn before the effective date by publishing a subsequent document 
that will withdraw the final action. All public comments received will 
then be addressed in a subsequent final rule based on this action 
serving as a proposed rule. EPA will not institute a second comment 
period on this action. Any parties interested in commenting on this 
action should do so at this time. If no such comments are received, the 
public is advised that this action will be effective February 9, 1996.
    The Agency has reviewed this request for revision of the Federally-
approved SIP for conformance with the provisions of the 1990 Amendments 
enacted on November 15, 1990. EPA has determined that this action 
conforms with those requirements.
    Under Section 307(b)(1) of the Act, 42 U.S.C. 7607 (b)(1), 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by February 
9, 1996. Filing a petition for reconsideration by the Administrator of 
this final rule does not affect the finality of this rule for 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) of the CAA, 42 U.S.C. 7607 (b)(2).)
    This action has been classified as a Table 3 action for signature 
by the Regional Administrator under the procedures published in the 
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a 
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation. The Office of Management and Budget (OMB) has 
exempted this regulatory action from E.O. 12866 review.
    Nothing in this action shall be construed as permitting or allowing 
or establishing a precedent for any future request for a revision to 
any state implementation plan. Each request for revision to the state 
implementation plan shall be considered separately in light of specific 
technical, economic, and environmental factors and in relation to 
relevant statutory and regulatory requirements.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.

SIP Actions

    SIP approvals under 110 and subchapter I, Part D of the CAA do not 
create any new requirements, but simply approve requirements that the 
State is already imposing. Therefore, because the Federal SIP-approval 
does not impose any new requirements, I certify that it does not have a 
significant impact on any small entities affected. Moreover, due to the 
nature of the Federal-state relationship under the CAA, preparation of 
a regulatory flexibility analysis would constitute Federal inquiry into 
the economic reasonableness of state action. The CAA forbids EPA to 
base its actions concerning SIPs on such grounds. Union Electric Co. v. 
U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C. Section 
7410(a)(2). 

[[Page 63437]]


Unfunded Mandates Reform Act of 1995

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate, or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action promulgated today does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to State, local, or tribal governments in the 
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new 
Federal requirements. Accordingly, no additional costs to State, local, 
or tribal governments, or to the private sector, result from this 
action.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon Monoxide, 
Hydrocarbons, Incorporation by Reference, Intergovernmental relations, 
Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
Recordkeeping requirements, Sulfur oxides.

    Dated: September 20, 1995.
Patrick M. Tobin,
Acting Regional Administrator.

    Part 52 of chapter I, title 40, Code of Federal Regulations, is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 continues to read as follows:

    Authority: 42.U.S.C. 7401-7671q.

Subpart PP--South Carolina

    2. Section 52.2120 is amended by adding paragraph (c)(40) to read 
as follows:


Sec. 52.2120  Identification of plan.

* * * * *
    (c) * * *
    (40) The minor source operating permit program for South Carolina, 
submitted by the Department of Health and Environmental Control on July 
12, 1995, and as part of the South Carolina SIP.
    (i) Incorporation by reference.
    (A) Regulation 61-62.1, Section I.3, 13, 19, 50, 72, and 73, 
Section II.F.2, Section II.F.2.e, Section II.G, and Section II.H of the 
South Carolina SIP which became effective on June 23, 1995.
    (ii) Other material. None.

[FR Doc. 95-30110 Filed 12-8-95; 8:45 am]
BILLING CODE 6560-50-P