Air Plan Approval; South Carolina: New Source Review Updates, 68465-68469 [2023-21722]
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Rules and Regulations
and/or Safety Marine Information
Broadcast (SMIB) as appropriate.
Dated: September 27, 2023.
A.R. Bender,
Captain, U.S. Coast Guard, Captain of the
Port Sector Upper Mississippi River.
[FR Doc. 2023–21885 Filed 10–3–23; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2022–0397; FRL–10011–
03–R4]
Air Plan Approval; South Carolina:
New Source Review Updates
I. Overview
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing approval of
a State Implementation Plan (SIP)
revision submitted by the State of South
Carolina, through the South Carolina
Department of Health and
Environmental Control (hereinafter
referred to as SC DHEC or South
Carolina) via a letter dated February 3,
2022. The SIP revision updates portions
of South Carolina’s Prevention of
Significant Deterioration (PSD) and
Nonattainment New Source Review
(NNSR) regulations that pertain to
Project Emissions Accounting (PEA)
provisions. EPA is approving these
changes pursuant to the Clean Air Act
(CAA or Act) and implementing Federal
regulations.
DATES: This rule is effective November
3, 2023.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2022–0397. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that,
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if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Sarah LaRocca, Air Planning and
Implementation Branch, Air and
Radiation Division, Region 4, U.S.
Environmental Protection Agency, 61
Forsyth Street SW, Atlanta, Georgia
30303–8960. The telephone number is
(404) 562–8994. Ms. LaRocca can also
be reached via electronic mail at
LaRocca.Sarah@epa.gov.
SUPPLEMENTARY INFORMATION:
EPA is approving a SIP revision
submitted by South Carolina on
February 3, 2022,1 which updates the
State’s PSD and NNSR rules.
Specifically, EPA is incorporating the
PEA provisions in paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South
Carolina’s Regulation 61–62.5, Standard
No. 7—Prevention of Significant
Deterioration, and the PEA provisions in
paragraphs (A)(8) and (A)(9) of South
Carolina’s Regulation 61–62.5, Standard
No. 7.1—Nonattainment New Source
Review into the South Carolina SIP.2 3
Through a notice of proposed
rulemaking (NPRM), published on July
26, 2022 (87 FR 44314), EPA proposed
to approve the February 3, 2022, SIP
revision as meeting the requirements of
the Federal PSD and NNSR programs
and as being consistent with the CAA.4
1 EPA notes that the February 3, 2022, submittal
was received by EPA on February 4, 2022. For
clarity, EPA will refer to this submittal based on the
date of the letter.
2 EPA notes that under the February 3, 2022,
cover letter, SC DHEC also submitted updates to the
following State Regulations: 61–62.60, South
Carolina Designated Facility Plan and New Source
Performance Standards; Regulation 61–62.63,
National Emission Standards for Hazardous Air
Pollutants (NESHAPs) for Source Categories; and
Regulation 61–62.70, Title V Operating Permit
Program. However, South Carolina explains in the
February 3, 2022, cover letter that these regulations
are not part of the SIP, and they are not being
requested for approval by EPA into the South
Carolina SIP at this time.
3 South Carolina’s February 3, 2022, cover letter
additionally references a June 21, 2021, withdrawal
letter, which was sent to EPA while the Agency was
in the process of approving the State’s last update
to the NSR regulations into the SIP. In the February
3, 2022, letter, SC DHEC confirms that the intention
of the June 21, 2021, withdrawal letter remains the
same and that it is not requesting EPA to approve
the Ethanol Rule provisions, found in Regulation
61–62.5, Standard No. 7.1, at this time.
4 Following the July 26, 2022, NPRM, EPA
approved portions of South Carolina’s PSD and
NNSR regulations, including changes to reflect the
regulation of greenhouse gases (GHGs) pursuant to
the Tailoring Rule and updates promulgated in the
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Additional details on South Carolina’s
February 3, 2022, revision and EPA’s
analysis of the changes can be found in
the July 26, 2022, NPRM. Comments on
the July 26, 2022, NPRM were due on
or before August 25, 2022.
II. Response to Comments
EPA received comments on the July
26, 2022, NPRM, which are included in
the docket of this rulemaking. The
comments arrived in a letter dated
August 25, 2022, and originate from one
commenter, the Center for Biological
Diversity. The Commenter provided
supplemental documentation to support
the comments submitted. The comments
generally oppose approval of the
changes in the February 3, 2022, SIP
revision that incorporate the Federal
PEA provisions at 40 CFR 51.165 and 40
CFR 51.166 5 into South Carolina’s SIP.
Below, EPA briefly summarizes the PEA
Rule, which the Agency finalized on
November 24, 2020 (85 FR 74890), and
responds to the comments received on
the July 26, 2022, NPRM.
An existing major stationary source
proposing a physical change or a change
in its method of operation must
determine whether that project is a
major modification subject to new
source review (NSR) preconstruction
permitting requirements by following a
two-step test. The first step is to
determine if there is a ‘‘significant
emission increase’’ of a regulated NSR
pollutant from the proposed
modification. If there is, the second step
is to determine if there is a ‘‘significant
net emission increase’’ of that pollutant.
The PEA Rule maintained this twostep test while clarifying that emissions
increases and decreases for projects that
involve new and existing emissions
units can be considered in the same
manner as emissions increases and
decreases for projects that only involve
new units or only involve existing units
in Step 1 of the NSR major modification
applicability test.6 More specifically, the
PEA Rule made this clarification in
language addressing the ‘‘hybrid test’’
for projects that involve a combination
recent NSR Corrections Rule, on August 23, 2023.
See 88 FR 57358 (August 23, 2023). At that time,
EPA took no action on the PEA provisions in
paragraphs (A)(2)(d)(vi) and (A)(2)(d)(vii) of South
Carolina’s Regulation 61–62.5, Standard No. 7—
Prevention of Significant Deterioration, the PEA
provisions in paragraphs (A)(8) and (A)(9) of South
Carolina’s Regulation 61–62.5, Standard No. 7.1—
Nonattainment New Source Review, and the
portions of paragraphs (A)(11)(t) and (B)(22)(c)(xx)
related to the Ethanol Rule Provisions found in
Regulation 61–62.5, Standard No. 7.1.
5 Some States, including South Carolina, choose
to meet minimum PSD requirements within 40 CFR
51.166 by adopting language within the Federal
PSD plan codified at 40 CFR 52.21.
6 88 FR at 74893.
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of new and existing units by replacing
the phrase ‘‘sum of the increases’’ with
the phrase ‘‘sum of the difference.’’ 7
The Rule also explained that the revised
term ‘‘sum of the difference,’’ would
apply to ‘‘all emissions units’’ instead of
‘‘for each emissions unit’’ to better
account for projects that involve
multiple emission units.8 Finally, the
Rule added regulatory text to clarify that
the term ‘‘sum of the difference’’ as used
in the referenced subparagraphs shall
include both increases and decreases in
emissions as calculated in accordance
with those subparagraphs.9
When EPA finalized changes in the
PEA Rule, the Agency responded to
adverse comments received on the
changes as proposed. Since that time, a
petition for judicial review of the PEA
Rule was filed in the United States
Court of Appeals for the District of
Columbia Circuit (D.C. Circuit).10
However, this does not impede
finalization of separate actions,
including today’s rulemaking approving
revisions to the South Carolina’s PSD
and NNSR regulations. EPA provides
further explanation below to address the
Commenter’s concerns.
Comment 1: The Commenter states
that ‘‘[e]ven under the EPA’s 2020 [PEA]
rule, EPA cannot approve [South
Carolina’s] plan revision without a
requirement that a project consist of
‘substantially related’ activities.’’ The
Commenter suggests that the February 3,
2022, submission fails to include a
requirement that projects consist of
substantially related activities.
The Commenter states that EPA relies
on its January 1, 2009, rulemaking 11
(hereafter referred to as the 2009 NSR
Aggregation Action, or the 2009 Action)
in the PEA Rule to interpret ‘‘major NSR
regulations as requiring that a project
consist of ‘substantially related’
activities.’’ The Commenter asserts that
EPA cannot approve South Carolina’s
SIP revision without requiring the State
to revise its SIP to conform with EPA’s
interpretation of the 2009 action
referenced in the PEA Rule. The
Commenter further asserts that this
requirement must be made part of the
SIP so that it can be enforced by EPA
and citizens pursuant to CAA sections
113 and 304. In the background section
of its comments, the Commenter also
states that this concern is ‘‘primarily a
matter for the D.C. Circuit Court of
7 Id.
at 74894.
8 Id.
9 Id.
10 See State of New Jersey v. EPA, 21–1033 (D.C.
Cir. 2021).
11 See 74 FR 2376.
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Appeals,’’ where the PEA Rule is
currently being challenged.
Response 1: EPA requires NNSR and
PSD SIP revisions to meet or exceed the
minimum requirements codified at 40
CFR 51.165 and 51.166, respectively.
Some States, including South Carolina,
choose to meet minimum PSD
requirements by adopting certain
language within the Federal PSD plan
codified at 40 CFR 52.21. The PEA Rule
has been adopted into 40 CFR 51.165,
40 CFR 51.166, 40 CFR 52.21, and
Appendix S to 40 CFR part 51. South
Carolina adopted the PEA Rule changes
within these rules verbatim, as
described more fully in its February 3,
2022, submittal.
In this comment, the Commenter
focuses not on whether South Carolina’s
proposed PSD and NNSR SIP revisions
comply with EPA’s minimum standards
for PSD and NNSR plans codified at 40
CFR 51.165 and 40 CFR 51.166, which
have also been adopted into 40 CFR
52.21 and Appendix S to 40 CFR part
51. Rather, the comments are directed at
the substance of the PEA Rule itself. The
Commenter, for example, explicitly
takes the position that ‘‘EPA’s 2020 Rule
is unlawful.’’
The time for submitting comments on
the PEA Rule was when EPA notified
the public that it was considering
adopting that rule and requested the
public’s input.12 EPA notes that the
Commenter did not submit comments
on the PEA Rule. EPA thus views the
comments as untimely comments on the
PEA Rule itself.13 EPA addressed
concerns regarding project aggregation
in response to comments by other
parties in that rulemaking action. See 85
FR 74890, 74898–900 (November 24,
2020). As noted by the Commenter,
these concerns are ‘‘primarily a matter
for the D.C. Circuit Court of Appeals,’’
where the PEA Rule is currently being
challenged by States and organizations
other than the Commenter.
In EPA’s July 26, 2022, NPRM, EPA
did not propose to revise the minimum
12 See
84 FR 39244 (August 9, 2019).
the Commenter also notes, litigation
regarding the PEA Rule has been filed in the D.C.
Circuit. The Commenter is not a party to that suit.
Congress established a jurisdictional bar for judicial
review to EPA rulemakings which states that ‘‘[a]ny
petition for review under this subsection shall be
filed within sixty days from the date notice of such
promulgation, approval, or action appears in the
Federal Register, except that if such petition is
based solely on grounds arising after such sixtieth
day, then any petition for review under this
subsection shall be filed within sixty days after
such grounds arise.’’ CAA Subsection 307(b)(1).
This language further indicates that submitting
comments on a State’s implementation of a
preexisting EPA rule is an improper method to
challenge EPA’s underlying rule—such comments
(and any related judicial review) must be submitted
on the underlying rule itself.
13 As
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standards within 40 CFR 51.165 or
51.166, and EPA did not seek comment
on the PEA Rule, which EPA finalized
in 2020. Rather, EPA explained that
‘‘EPA is proposing to approve [changes
to South Carolina’s SIP] as meeting the
requirements of the Federal PSD and
NNSR programs and as being consistent
with the CAA,’’ and EPA sought the
public’s comments on this preliminary
determination. See 87 FR 44315. The
Commenter does not engage with the
question of whether South Carolina’s
proposed SIP revision (and EPA’s
proposal to approve this SIP revision)
complies with EPA’s minimum NSR
standards, and therefore, these
comments do not demonstrate that EPA
may not approve the SIP revision.
The Commenter’s position is also
based on an erroneous reading of the
PEA rule. The PEA Rule preamble states
‘‘that state and local air agencies with
approved SIPs are and were not
required to amend their plans to adopt
the interpretation that projects should
be aggregated when ‘substantially
related.’ ’’ See 85 FR at 74895, FN 57
(November 24, 2020).14
Comment 2: The Commenter states
that EPA’s proposed approval violates
the anti-backsliding provisions of the
Act. Specifically, the Commenter asserts
that adopting the PEA Rule would
weaken the stringency of South
Carolina’s SIP by allowing emission
reductions to be considered at Step 1 of
the NSR applicability process for the
hybrid test for projects involving a
combination of new and existing units;
by not requiring that a project consist of
‘‘substantially related’’ activities; and by
not ensuring that emission decreases
considered at Step 1 will be
‘‘contemporaneous’’ with emission
increases resulting from the project. The
Commenter thus takes the position that
South Carolina’s rules are more
stringent without the adoption of the
language from the PEA Rule. The
Commenter asserts that South Carolina’s
revision to the project emissions
accounting portion of its rules is
substantive and that EPA must therefore
provide analysis demonstrating that the
change to the South Carolina SIP will
not violate section 110(l) and section
193 of the Act.
Response 2: EPA addressed the topic
of anti-backsliding in the response to
comments document for the PEA Rule.
14 Footnote 57 cites to the memorandum from the
EPA Administrator E. Scott Pruitt, to Regional
Administrators, titled ‘‘Project Emissions
Accounting Under the New Source Review
Preconstruction Permitting Program,’’ March 13,
2018 (‘‘March 2018 Memorandum’’) available at:
https://www.epa.gov/sites/production/files/201803/documents/nsr_memo_03-13-2018.pdf.
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In that document, EPA stated that
‘‘implementation of this rule will not
cause States to violate the antibacksliding requirements of the Clean
Air Act. Allowing for PEA is consistent
with the intent of the 2002 NSR Reform
Rule and is more consistent with the
Act than implementing Step 1 without
PEA. That is because PEA would not
subject a project which does not
significantly increase emissions in and
of itself, or actually result in a decrease
[in] emissions, from being subject to
NSR.’’ 15
Regarding section 110(l) of the CAA,
the nature of this revision to the South
Carolina SIP does not provide cause for
EPA to find that this revision would
interfere with any applicable
requirement of the South Carolina SIP
concerning attainment and reasonable
further progress or any other
requirement of the CAA. The relevant
South Carolina regulations are identical
to those adopted by EPA, and South
Carolina has been applying the prior
version of its SIP-approved regulations
consistent with EPA’s interpretation of
its pre-PEA regulations, as articulated in
the March 2018 EPA memorandum.16
Like EPA’s regulations, South Carolina’s
prior regulations included the term
‘‘sum of the difference.’’ 17 As explained
in the March 2018 Memorandum, ‘‘the
use of the phrase ‘sum of the
difference’ ’’ allowed for the inclusion of
both emission increases and
decreases.18 ‘‘The ‘difference’ between a
unit’s projected actual emissions or
potential to emit (following the
completion of the project) and its
baseline actual emissions (prior to the
project) may be either a positive number
(representing a projected increase) or a
negative number (representing a
projected decrease). In either case, the
values that result from ‘summing’ the
‘difference’ could have been taken into
15 See ‘‘Response to Comments Document on
Proposed Rule: ‘‘Prevention of Significant
Deterioration (PSD) and Nonattainment New Source
Review (NNSR): Project Emissions Accounting’’—
84 FR 39244, August 9, 2019’’ (October 2020), at p.
114.
16 The March 2018 Memorandum explained that
EPA interpreted the pre-2020 PEA Rule NSR
regulations as ‘‘provid[ing] that emissions decreases
as well as increases are to be considered at Step 1
of the NSR applicability process, provided they are
part of a single project.’’ March 2018 Memorandum,
at p. 1. More specifically, in the March 2018
Memorandum, EPA interpreted the pre-2020 PEA
Rule major NSR regulations to mean that emissions
increases and decreases could be considered in Step
1 for projects that involve multiple types of
emissions units in the same manner as they are
considered for projects that only involve new or
only involve existing emissions units.
17 See Regulation 61–62.5, Standard No. 7
subparagraphs (a)(2)(iv)(c and d) and Standard No.
7.1 subparagraphs (b)(3 and 4) (2020).
18 March 2018 Memorandum at 6–8.
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consideration at Step 1 in determining
the emissions impact of the project.’’ 19
Thus, this SIP action does not reflect a
substantive change to South Carolina’s
applicability requirements for NSR.20
As was the case with the PEA Rule, this
SIP revision only clarifies that PEA is
allowed by removing any ambiguity.
South Carolina’s regulations already
allow for PEA, and the State has
implemented the regulations
accordingly, without interfering with
attainment of the NAAQS. No areas
within the State are designated as
nonattainment.
Likewise, section 193 of the CAA does
not prohibit EPA’s approval of this
South Carolina’s SIP revision to
incorporate the 2020 PEA Rule. This
section of the Act requires analysis of a
plan’s changes to ensure that an
equivalent or greater emission reduction
of a given pollutant is achieved within
a given nonattainment area. For the
reasons discussed above, the revised
NSR provisions of the SIP should
achieve equivalent emissions reduction
as the pre-existing NSR provisions of
the SIP. Moreover, although EPA is
approving revisions to South Carolina’s
NNSR provisions to be consistent with
EPA’s NNSR regulations, there are
currently no nonattainment areas in
South Carolina to which these
regulations apply, and these rules
would therefore currently have no
effect.21 EPA designated and classified a
portion of York County, South Carolina,
within the Rock Hill-Fort Mill area as a
moderate nonattainment area for the 8hour ozone NAAQS of 0.08 parts per
million set in 1997. Since then,
however, EPA redesignated the area to
attainment and, thus, South Carolina no
longer has nonattainment areas that can
be specifically considered under section
193 of the CAA. See 80 FR 76,865
(December 11, 2015).
Comment 3: The Commenter asserts
that EPA should not act on South
Carolina’s February 3, 2022, revision
related to the South Carolina NNSR and
19 Id.
20 Permitting materials from a February 21, 2019,
SC DHEC permitting decision have been added to
the docket for this action as an example showing
that South Carolina has already been implementing
project emissions accounting and this action will
not result in a substantive change to South
Carolina’s PSD and NNSR programs. In this
example, the source applied project emissions
accounting at Step 1 of the PSD process. South
Carolina then determined that the project in
question was a major modification for volatile
organic compounds (VOCs) and it applied the
reasonable possibility provisions for all NSR
pollutants calculated to have any increase above
baseline actual emissions.
21 South Carolina’s SIP-approved NNSR rules
have a state-effective date of April 24, 2020. See 86
FR 59646 (October 28, 2021).
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PSD rules in the SIP while pending
litigation exists concerning the PEA
Rule. The Commenter states that EPA
provides no explanation of the manner
at which it would reverse an approved
revision should EPA rescind, or a court
vacate, the PEA Rule.
Response 3: EPA disagrees with the
Commenter that, while litigation is
incomplete on the PEA Rule, EPA
should not act on the South Carolina’s
plan revision. The PEA Rule,
promulgated November 24, 2020, is a
current Federal regulation addressing
major new source review. South
Carolina’s February 3, 2022, submission
merely adopts federally approved
regulations. Should EPA rescind, or a
court vacate, the PEA Rule, EPA has
tools available to ensure that SIPs
remain compliant with EPA’s rules.
III. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with requirements of 1 CFR
51.5, and as discussed in Sections I and
II of this preamble, EPA is finalizing the
incorporation by reference of paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South
Carolina’s Regulation 61–62.5, Standard
No. 7—Prevention of Significant
Deterioration, and paragraphs (A)(8) and
(A)(9) of South Carolina’s Regulation
61–62.5, Standard No. 7.1—
Nonattainment New Source Review, all
state effective on November 26, 2021.
EPA has made, and will continue to
make, these materials generally
available through www.regulations.gov
and at the EPA Region 4 Office (please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section of
this preamble for more information).
Therefore, these materials have been
approved by EPA for inclusion in the
SIP, have been incorporated by
reference by EPA into that plan, are
fully federally enforceable under
sections 110 and 113 of the CAA as of
the effective date of the final rulemaking
of EPA’s approval, and will be
incorporated by reference in the next
update to the SIP compilation.22
IV. Final Action
EPA is approving the SIP revision
adopting the PEA Rule provisions of
South Carolina Regulation 61–62.5,
Standards No. 7—Prevention of
Significant Deterioration, and Standard
No. 7.1—Nonattainment New Source
Review, both state effective on
November 26, 2021, into the SIP. These
changes were submitted by South
Carolina on February 3, 2022.
22 See
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V. 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 approves
State law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by State law. For that reason,
this 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 14094 (88 FR
21879, April 11, 2023);
• 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 subject to Executive Order
13045 (62 FR 19885, April 23, 1997)
because it approves a State program;
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001); and
• 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.
Because this final rule merely
approves State law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by State law, this final rule 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
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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.
Executive Order 12898 (Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal
agencies to identify and address
‘‘disproportionately high and adverse
human health or environmental effects’’
of their actions on minority populations
and low-income populations to the
greatest extent practicable and
permitted by law. EPA defines
environmental justice (EJ) as ‘‘the fair
treatment and meaningful involvement
of all people regardless of race, color,
national origin, or income with respect
to the development, implementation,
and enforcement of environmental laws,
regulations, and policies.’’ EPA further
defines the term fair treatment to mean
that ‘‘no group of people should bear a
disproportionate burden of
environmental harms and risks,
including those resulting from the
negative environmental consequences of
industrial, governmental, and
commercial operations or programs and
policies.’’
SC DHEC did not evaluate EJ
considerations as part of its SIP
submittal; the CAA and applicable
implementing regulations neither
prohibit nor require such an evaluation.
EPA did not perform an EJ analysis and
did not consider EJ in this action. Due
to the nature of the action being taken
here, this action is expected to have a
neutral to positive impact on the air
quality of the affected area.
Consideration of EJ is not required as
part of this action, and there is no
information in the record inconsistent
with the stated goal of E.O. 12898 of
achieving EJ for people of color, low-
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income populations, and Indigenous
peoples.
This action is subject to the
Congressional Review Act, and EPA will
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. This action
is not a ‘‘major rule’’ as defined by 5
U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by December 4, 2023. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed and
shall not postpone the effectiveness of
such rule or action. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: September 27, 2023.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart PP—South Carolina
2. In § 52.2120, in table 1 to paragraph
(c), under ‘‘Regulation No. 62.5’’ revise
the entries for ‘‘Standard No. 7’’ and
‘‘Standard No. 7.1’’ to read as follows:
■
§ 52.2120
*
Identification of plan.
*
*
(c) * * *
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68469
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Rules and Regulations
TABLE 1 TO PARAGRAPH (c)—EPA-APPROVED SOUTH CAROLINA REGULATIONS
State citation
Title/subject
State effective
date
*
*
*
Regulation No. 62.5 ................ Air Pollution Control Standards.
*
*
*
Standard No. 7 ....................... Prevention of Significant Deterioration.
Standard No. 7.1 .................... Nonattainment New Source
Review.
*
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*
*
*
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2023–0403; FRL–11259–
02–R7]
Air Plan Approval; MO; Control of
Emissions From Volatile Organic
Liquid Storage
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve revisions to the Missouri State
Implementation Plan (SIP) related to the
control of emissions from volatile
organic liquid storage. These revisions
do not impact the stringency of the SIP
or have an adverse effect on air quality.
The EPA’s approval of this rule revision
is being done in accordance with the
requirements of the Clean Air Act
(CAA).
This final rule is effective on
November 3, 2023.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2023–0403. All
documents in the docket are listed on
the www.regulations.govwebsite.
Although listed in the index, some
information is not publicly available,
i.e., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through www.regulations.gov
lotter on DSK11XQN23PROD with RULES1
17:03 Oct 03, 2023
11/26/2021
Jkt 262001
*
*
10/4/2023, [Insert citation of
publication].
10/4/2023, [Insert citation of
publication].
*
or please contact the person identified
in the FOR FURTHER INFORMATION
CONTACT section for additional
information.
FOR FURTHER INFORMATION CONTACT:
Bethany Olson, Environmental
Protection Agency, Region 7 Office, Air
Permitting and Planning Branch, 11201
Renner Boulevard, Lenexa, Kansas
66219; telephone number: (913) 551–
7905; email address: olson.bethany@
epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA.
Table of Contents
SUMMARY:
DATES:
*
*
11/26/2021
*
[FR Doc. 2023–21722 Filed 10–3–23; 8:45 am]
VerDate Sep<11>2014
*
EPA approval date
I. What is being addressed in this document?
II. Have the requirements for approval of a
SIP revision been met?
III. What action is the EPA taking?
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. What is being addressed in this
document?
The EPA is approving revisions to the
Missouri SIP received on February 15,
2019, and June 10, 2021, and a
supplemental submission on April 24,
2023. The revisions are to Title 10,
Division 10 of the Code of State
Regulations (CSR), 10 CSR 10–5.500
‘‘Control of Emissions from Volatile
Organic Liquid Storage.’’ The purpose of
the state regulation is to limit the
volatile organic compound (VOC)
emissions from installations with
volatile organic liquid storage vessels in
the St. Louis 1997 eight (8)-hour ozone
nonattainment area by incorporating
reasonably available control technology
(RACT) as required by the Clean Air Act
Amendments (CAAA) of 1990. Missouri
made multiple revisions to the rule. The
revisions add incorporations by
reference to other state rules, add
definitions specific to the rule, revise
unnecessarily restrictive or duplicative
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Explanation
*
*
*
*
Except for the ethanol production facilities exclusion
in paragraphs (A)(11)(t)
and (B)(22)(c)(xx).
*
*
language, and make administrative
wording changes. EPA finds that these
revisions meet the requirements of the
Clean Air Act, do not impact the
stringency of the SIP, and do not
adversely impact air quality. The full
text of the rule revisions as well as
EPA’s analysis of the revisions can be
found in the technical support
document (TSD) included in the docket
for this action.
II. Have the requirements for approval
of a SIP revision been met?
The State’s submission has met the
public notice requirements for SIP
submissions in accordance with 40 CFR
51.102. The submission also satisfied
the completeness criteria of 40 CFR part
51, appendix V. The State provided
public notice on the first SIP revision
from June 15, 2018, to September 6,
2018, and held a public hearing on
August 30, 2018. Missouri received ten
comments from two sources during the
comment period on 10 CSR 10–5.500.
The EPA provided nine comments.
Missouri responded to all comments
and revised the rule based on public
comments prior to submitting to EPA, as
noted in the State submission included
in the docket for this action. The State
provided public notice on the second
SIP revision from November 15, 2019, to
February 6, 2020, and held a public
hearing on January 30, 2018. Missouri
received one comment from a staff
member during the comment period.
The State revised the rule purpose
statement based on the comment prior
to submitting to EPA.
The EPA’s Notice of Proposed
Rulemaking and supporting information
contained in the docket were made
available for public comment from
August 22, 2023, to September 21, 2023.
The EPA received no comments. In
addition, as explained above and in
more detail in the technical support
E:\FR\FM\04OCR1.SGM
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]]>Agencies
[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Rules and Regulations]
[Pages 68465-68469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21722]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2022-0397; FRL-10011-03-R4]
Air Plan Approval; South Carolina: New Source Review Updates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is finalizing
approval of a State Implementation Plan (SIP) revision submitted by the
State of South Carolina, through the South Carolina Department of
Health and Environmental Control (hereinafter referred to as SC DHEC or
South Carolina) via a letter dated February 3, 2022. The SIP revision
updates portions of South Carolina's Prevention of Significant
Deterioration (PSD) and Nonattainment New Source Review (NNSR)
regulations that pertain to Project Emissions Accounting (PEA)
provisions. EPA is approving these changes pursuant to the Clean Air
Act (CAA or Act) and implementing Federal regulations.
DATES: This rule is effective November 3, 2023.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R04-OAR-2022-0397. All documents in the docket
are listed on the www.regulations.gov website. Although listed in the
index, some information may not be publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy at the Air Regulatory Management Section, Air Planning and
Implementation Branch, Air and Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. EPA requests that, if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Sarah LaRocca, Air Planning and
Implementation Branch, Air and Radiation Division, Region 4, U.S.
Environmental Protection Agency, 61 Forsyth Street SW, Atlanta, Georgia
30303-8960. The telephone number is (404) 562-8994. Ms. LaRocca can
also be reached via electronic mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Overview
EPA is approving a SIP revision submitted by South Carolina on
February 3, 2022,\1\ which updates the State's PSD and NNSR rules.
Specifically, EPA is incorporating the PEA provisions in paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South Carolina's Regulation 61-
62.5, Standard No. 7--Prevention of Significant Deterioration, and the
PEA provisions in paragraphs (A)(8) and (A)(9) of South Carolina's
Regulation 61-62.5, Standard No. 7.1--Nonattainment New Source Review
into the South Carolina SIP.2 3
---------------------------------------------------------------------------
\1\ EPA notes that the February 3, 2022, submittal was received
by EPA on February 4, 2022. For clarity, EPA will refer to this
submittal based on the date of the letter.
\2\ EPA notes that under the February 3, 2022, cover letter, SC
DHEC also submitted updates to the following State Regulations: 61-
62.60, South Carolina Designated Facility Plan and New Source
Performance Standards; Regulation 61-62.63, National Emission
Standards for Hazardous Air Pollutants (NESHAPs) for Source
Categories; and Regulation 61-62.70, Title V Operating Permit
Program. However, South Carolina explains in the February 3, 2022,
cover letter that these regulations are not part of the SIP, and
they are not being requested for approval by EPA into the South
Carolina SIP at this time.
\3\ South Carolina's February 3, 2022, cover letter additionally
references a June 21, 2021, withdrawal letter, which was sent to EPA
while the Agency was in the process of approving the State's last
update to the NSR regulations into the SIP. In the February 3, 2022,
letter, SC DHEC confirms that the intention of the June 21, 2021,
withdrawal letter remains the same and that it is not requesting EPA
to approve the Ethanol Rule provisions, found in Regulation 61-62.5,
Standard No. 7.1, at this time.
---------------------------------------------------------------------------
Through a notice of proposed rulemaking (NPRM), published on July
26, 2022 (87 FR 44314), EPA proposed to approve the February 3, 2022,
SIP revision as meeting the requirements of the Federal PSD and NNSR
programs and as being consistent with the CAA.\4\ Additional details on
South Carolina's February 3, 2022, revision and EPA's analysis of the
changes can be found in the July 26, 2022, NPRM. Comments on the July
26, 2022, NPRM were due on or before August 25, 2022.
---------------------------------------------------------------------------
\4\ Following the July 26, 2022, NPRM, EPA approved portions of
South Carolina's PSD and NNSR regulations, including changes to
reflect the regulation of greenhouse gases (GHGs) pursuant to the
Tailoring Rule and updates promulgated in the recent NSR Corrections
Rule, on August 23, 2023. See 88 FR 57358 (August 23, 2023). At that
time, EPA took no action on the PEA provisions in paragraphs
(A)(2)(d)(vi) and (A)(2)(d)(vii) of South Carolina's Regulation 61-
62.5, Standard No. 7--Prevention of Significant Deterioration, the
PEA provisions in paragraphs (A)(8) and (A)(9) of South Carolina's
Regulation 61-62.5, Standard No. 7.1--Nonattainment New Source
Review, and the portions of paragraphs (A)(11)(t) and (B)(22)(c)(xx)
related to the Ethanol Rule Provisions found in Regulation 61-62.5,
Standard No. 7.1.
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II. Response to Comments
EPA received comments on the July 26, 2022, NPRM, which are
included in the docket of this rulemaking. The comments arrived in a
letter dated August 25, 2022, and originate from one commenter, the
Center for Biological Diversity. The Commenter provided supplemental
documentation to support the comments submitted. The comments generally
oppose approval of the changes in the February 3, 2022, SIP revision
that incorporate the Federal PEA provisions at 40 CFR 51.165 and 40 CFR
51.166 \5\ into South Carolina's SIP. Below, EPA briefly summarizes the
PEA Rule, which the Agency finalized on November 24, 2020 (85 FR
74890), and responds to the comments received on the July 26, 2022,
NPRM.
---------------------------------------------------------------------------
\5\ Some States, including South Carolina, choose to meet
minimum PSD requirements within 40 CFR 51.166 by adopting language
within the Federal PSD plan codified at 40 CFR 52.21.
---------------------------------------------------------------------------
An existing major stationary source proposing a physical change or
a change in its method of operation must determine whether that project
is a major modification subject to new source review (NSR)
preconstruction permitting requirements by following a two-step test.
The first step is to determine if there is a ``significant emission
increase'' of a regulated NSR pollutant from the proposed modification.
If there is, the second step is to determine if there is a
``significant net emission increase'' of that pollutant.
The PEA Rule maintained this two-step test while clarifying that
emissions increases and decreases for projects that involve new and
existing emissions units can be considered in the same manner as
emissions increases and decreases for projects that only involve new
units or only involve existing units in Step 1 of the NSR major
modification applicability test.\6\ More specifically, the PEA Rule
made this clarification in language addressing the ``hybrid test'' for
projects that involve a combination
[[Page 68466]]
of new and existing units by replacing the phrase ``sum of the
increases'' with the phrase ``sum of the difference.'' \7\ The Rule
also explained that the revised term ``sum of the difference,'' would
apply to ``all emissions units'' instead of ``for each emissions unit''
to better account for projects that involve multiple emission units.\8\
Finally, the Rule added regulatory text to clarify that the term ``sum
of the difference'' as used in the referenced subparagraphs shall
include both increases and decreases in emissions as calculated in
accordance with those subparagraphs.\9\
---------------------------------------------------------------------------
\6\ 88 FR at 74893.
\7\ Id. at 74894.
\8\ Id.
\9\ Id.
---------------------------------------------------------------------------
When EPA finalized changes in the PEA Rule, the Agency responded to
adverse comments received on the changes as proposed. Since that time,
a petition for judicial review of the PEA Rule was filed in the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit).\10\ However, this does not impede finalization of separate
actions, including today's rulemaking approving revisions to the South
Carolina's PSD and NNSR regulations. EPA provides further explanation
below to address the Commenter's concerns.
---------------------------------------------------------------------------
\10\ See State of New Jersey v. EPA, 21-1033 (D.C. Cir. 2021).
---------------------------------------------------------------------------
Comment 1: The Commenter states that ``[e]ven under the EPA's 2020
[PEA] rule, EPA cannot approve [South Carolina's] plan revision without
a requirement that a project consist of `substantially related'
activities.'' The Commenter suggests that the February 3, 2022,
submission fails to include a requirement that projects consist of
substantially related activities.
The Commenter states that EPA relies on its January 1, 2009,
rulemaking \11\ (hereafter referred to as the 2009 NSR Aggregation
Action, or the 2009 Action) in the PEA Rule to interpret ``major NSR
regulations as requiring that a project consist of `substantially
related' activities.'' The Commenter asserts that EPA cannot approve
South Carolina's SIP revision without requiring the State to revise its
SIP to conform with EPA's interpretation of the 2009 action referenced
in the PEA Rule. The Commenter further asserts that this requirement
must be made part of the SIP so that it can be enforced by EPA and
citizens pursuant to CAA sections 113 and 304. In the background
section of its comments, the Commenter also states that this concern is
``primarily a matter for the D.C. Circuit Court of Appeals,'' where the
PEA Rule is currently being challenged.
---------------------------------------------------------------------------
\11\ See 74 FR 2376.
---------------------------------------------------------------------------
Response 1: EPA requires NNSR and PSD SIP revisions to meet or
exceed the minimum requirements codified at 40 CFR 51.165 and 51.166,
respectively. Some States, including South Carolina, choose to meet
minimum PSD requirements by adopting certain language within the
Federal PSD plan codified at 40 CFR 52.21. The PEA Rule has been
adopted into 40 CFR 51.165, 40 CFR 51.166, 40 CFR 52.21, and Appendix S
to 40 CFR part 51. South Carolina adopted the PEA Rule changes within
these rules verbatim, as described more fully in its February 3, 2022,
submittal.
In this comment, the Commenter focuses not on whether South
Carolina's proposed PSD and NNSR SIP revisions comply with EPA's
minimum standards for PSD and NNSR plans codified at 40 CFR 51.165 and
40 CFR 51.166, which have also been adopted into 40 CFR 52.21 and
Appendix S to 40 CFR part 51. Rather, the comments are directed at the
substance of the PEA Rule itself. The Commenter, for example,
explicitly takes the position that ``EPA's 2020 Rule is unlawful.''
The time for submitting comments on the PEA Rule was when EPA
notified the public that it was considering adopting that rule and
requested the public's input.\12\ EPA notes that the Commenter did not
submit comments on the PEA Rule. EPA thus views the comments as
untimely comments on the PEA Rule itself.\13\ EPA addressed concerns
regarding project aggregation in response to comments by other parties
in that rulemaking action. See 85 FR 74890, 74898-900 (November 24,
2020). As noted by the Commenter, these concerns are ``primarily a
matter for the D.C. Circuit Court of Appeals,'' where the PEA Rule is
currently being challenged by States and organizations other than the
Commenter.
---------------------------------------------------------------------------
\12\ See 84 FR 39244 (August 9, 2019).
\13\ As the Commenter also notes, litigation regarding the PEA
Rule has been filed in the D.C. Circuit. The Commenter is not a
party to that suit. Congress established a jurisdictional bar for
judicial review to EPA rulemakings which states that ``[a]ny
petition for review under this subsection shall be filed within
sixty days from the date notice of such promulgation, approval, or
action appears in the Federal Register, except that if such petition
is based solely on grounds arising after such sixtieth day, then any
petition for review under this subsection shall be filed within
sixty days after such grounds arise.'' CAA Subsection 307(b)(1).
This language further indicates that submitting comments on a
State's implementation of a preexisting EPA rule is an improper
method to challenge EPA's underlying rule--such comments (and any
related judicial review) must be submitted on the underlying rule
itself.
---------------------------------------------------------------------------
In EPA's July 26, 2022, NPRM, EPA did not propose to revise the
minimum standards within 40 CFR 51.165 or 51.166, and EPA did not seek
comment on the PEA Rule, which EPA finalized in 2020. Rather, EPA
explained that ``EPA is proposing to approve [changes to South
Carolina's SIP] as meeting the requirements of the Federal PSD and NNSR
programs and as being consistent with the CAA,'' and EPA sought the
public's comments on this preliminary determination. See 87 FR 44315.
The Commenter does not engage with the question of whether South
Carolina's proposed SIP revision (and EPA's proposal to approve this
SIP revision) complies with EPA's minimum NSR standards, and therefore,
these comments do not demonstrate that EPA may not approve the SIP
revision.
The Commenter's position is also based on an erroneous reading of
the PEA rule. The PEA Rule preamble states ``that state and local air
agencies with approved SIPs are and were not required to amend their
plans to adopt the interpretation that projects should be aggregated
when `substantially related.' '' See 85 FR at 74895, FN 57 (November
24, 2020).\14\
---------------------------------------------------------------------------
\14\ Footnote 57 cites to the memorandum from the EPA
Administrator E. Scott Pruitt, to Regional Administrators, titled
``Project Emissions Accounting Under the New Source Review
Preconstruction Permitting Program,'' March 13, 2018 (``March 2018
Memorandum'') available at: https://www.epa.gov/sites/production/files/2018-03/documents/nsr_memo_03-13-2018.pdf.
---------------------------------------------------------------------------
Comment 2: The Commenter states that EPA's proposed approval
violates the anti-backsliding provisions of the Act. Specifically, the
Commenter asserts that adopting the PEA Rule would weaken the
stringency of South Carolina's SIP by allowing emission reductions to
be considered at Step 1 of the NSR applicability process for the hybrid
test for projects involving a combination of new and existing units; by
not requiring that a project consist of ``substantially related''
activities; and by not ensuring that emission decreases considered at
Step 1 will be ``contemporaneous'' with emission increases resulting
from the project. The Commenter thus takes the position that South
Carolina's rules are more stringent without the adoption of the
language from the PEA Rule. The Commenter asserts that South Carolina's
revision to the project emissions accounting portion of its rules is
substantive and that EPA must therefore provide analysis demonstrating
that the change to the South Carolina SIP will not violate section
110(l) and section 193 of the Act.
Response 2: EPA addressed the topic of anti-backsliding in the
response to comments document for the PEA Rule.
[[Page 68467]]
In that document, EPA stated that ``implementation of this rule will
not cause States to violate the anti-backsliding requirements of the
Clean Air Act. Allowing for PEA is consistent with the intent of the
2002 NSR Reform Rule and is more consistent with the Act than
implementing Step 1 without PEA. That is because PEA would not subject
a project which does not significantly increase emissions in and of
itself, or actually result in a decrease [in] emissions, from being
subject to NSR.'' \15\
---------------------------------------------------------------------------
\15\ See ``Response to Comments Document on Proposed Rule:
``Prevention of Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR): Project Emissions Accounting''--84 FR
39244, August 9, 2019'' (October 2020), at p. 114.
---------------------------------------------------------------------------
Regarding section 110(l) of the CAA, the nature of this revision to
the South Carolina SIP does not provide cause for EPA to find that this
revision would interfere with any applicable requirement of the South
Carolina SIP concerning attainment and reasonable further progress or
any other requirement of the CAA. The relevant South Carolina
regulations are identical to those adopted by EPA, and South Carolina
has been applying the prior version of its SIP-approved regulations
consistent with EPA's interpretation of its pre-PEA regulations, as
articulated in the March 2018 EPA memorandum.\16\ Like EPA's
regulations, South Carolina's prior regulations included the term ``sum
of the difference.'' \17\ As explained in the March 2018 Memorandum,
``the use of the phrase `sum of the difference' '' allowed for the
inclusion of both emission increases and decreases.\18\ ``The
`difference' between a unit's projected actual emissions or potential
to emit (following the completion of the project) and its baseline
actual emissions (prior to the project) may be either a positive number
(representing a projected increase) or a negative number (representing
a projected decrease). In either case, the values that result from
`summing' the `difference' could have been taken into consideration at
Step 1 in determining the emissions impact of the project.'' \19\ Thus,
this SIP action does not reflect a substantive change to South
Carolina's applicability requirements for NSR.\20\ As was the case with
the PEA Rule, this SIP revision only clarifies that PEA is allowed by
removing any ambiguity. South Carolina's regulations already allow for
PEA, and the State has implemented the regulations accordingly, without
interfering with attainment of the NAAQS. No areas within the State are
designated as nonattainment.
---------------------------------------------------------------------------
\16\ The March 2018 Memorandum explained that EPA interpreted
the pre-2020 PEA Rule NSR regulations as ``provid[ing] that
emissions decreases as well as increases are to be considered at
Step 1 of the NSR applicability process, provided they are part of a
single project.'' March 2018 Memorandum, at p. 1. More specifically,
in the March 2018 Memorandum, EPA interpreted the pre-2020 PEA Rule
major NSR regulations to mean that emissions increases and decreases
could be considered in Step 1 for projects that involve multiple
types of emissions units in the same manner as they are considered
for projects that only involve new or only involve existing
emissions units.
\17\ See Regulation 61-62.5, Standard No. 7 subparagraphs
(a)(2)(iv)(c and d) and Standard No. 7.1 subparagraphs (b)(3 and 4)
(2020).
\18\ March 2018 Memorandum at 6-8.
\19\ Id.
\20\ Permitting materials from a February 21, 2019, SC DHEC
permitting decision have been added to the docket for this action as
an example showing that South Carolina has already been implementing
project emissions accounting and this action will not result in a
substantive change to South Carolina's PSD and NNSR programs. In
this example, the source applied project emissions accounting at
Step 1 of the PSD process. South Carolina then determined that the
project in question was a major modification for volatile organic
compounds (VOCs) and it applied the reasonable possibility
provisions for all NSR pollutants calculated to have any increase
above baseline actual emissions.
---------------------------------------------------------------------------
Likewise, section 193 of the CAA does not prohibit EPA's approval
of this South Carolina's SIP revision to incorporate the 2020 PEA Rule.
This section of the Act requires analysis of a plan's changes to ensure
that an equivalent or greater emission reduction of a given pollutant
is achieved within a given nonattainment area. For the reasons
discussed above, the revised NSR provisions of the SIP should achieve
equivalent emissions reduction as the pre-existing NSR provisions of
the SIP. Moreover, although EPA is approving revisions to South
Carolina's NNSR provisions to be consistent with EPA's NNSR
regulations, there are currently no nonattainment areas in South
Carolina to which these regulations apply, and these rules would
therefore currently have no effect.\21\ EPA designated and classified a
portion of York County, South Carolina, within the Rock Hill-Fort Mill
area as a moderate nonattainment area for the 8-hour ozone NAAQS of
0.08 parts per million set in 1997. Since then, however, EPA
redesignated the area to attainment and, thus, South Carolina no longer
has nonattainment areas that can be specifically considered under
section 193 of the CAA. See 80 FR 76,865 (December 11, 2015).
---------------------------------------------------------------------------
\21\ South Carolina's SIP-approved NNSR rules have a state-
effective date of April 24, 2020. See 86 FR 59646 (October 28,
2021).
---------------------------------------------------------------------------
Comment 3: The Commenter asserts that EPA should not act on South
Carolina's February 3, 2022, revision related to the South Carolina
NNSR and PSD rules in the SIP while pending litigation exists
concerning the PEA Rule. The Commenter states that EPA provides no
explanation of the manner at which it would reverse an approved
revision should EPA rescind, or a court vacate, the PEA Rule.
Response 3: EPA disagrees with the Commenter that, while litigation
is incomplete on the PEA Rule, EPA should not act on the South
Carolina's plan revision. The PEA Rule, promulgated November 24, 2020,
is a current Federal regulation addressing major new source review.
South Carolina's February 3, 2022, submission merely adopts federally
approved regulations. Should EPA rescind, or a court vacate, the PEA
Rule, EPA has tools available to ensure that SIPs remain compliant with
EPA's rules.
III. Incorporation by Reference
In this document, EPA is finalizing regulatory text that includes
incorporation by reference. In accordance with requirements of 1 CFR
51.5, and as discussed in Sections I and II of this preamble, EPA is
finalizing the incorporation by reference of paragraphs (A)(2)(d)(vi)
and (A)(2)(d)(vii) of South Carolina's Regulation 61-62.5, Standard No.
7--Prevention of Significant Deterioration, and paragraphs (A)(8) and
(A)(9) of South Carolina's Regulation 61-62.5, Standard No. 7.1--
Nonattainment New Source Review, all state effective on November 26,
2021. EPA has made, and will continue to make, these materials
generally available through www.regulations.gov and at the EPA Region 4
Office (please contact the person identified in the FOR fURTHER
iNFORMATION cONTACT section of this preamble for more information).
Therefore, these materials have been approved by EPA for inclusion in
the SIP, have been incorporated by reference by EPA into that plan, are
fully federally enforceable under sections 110 and 113 of the CAA as of
the effective date of the final rulemaking of EPA's approval, and will
be incorporated by reference in the next update to the SIP
compilation.\22\
---------------------------------------------------------------------------
\22\ See 62 FR 27968 (May 22, 1997).
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IV. Final Action
EPA is approving the SIP revision adopting the PEA Rule provisions
of South Carolina Regulation 61-62.5, Standards No. 7--Prevention of
Significant Deterioration, and Standard No. 7.1--Nonattainment New
Source Review, both state effective on November 26, 2021, into the SIP.
These changes were submitted by South Carolina on February 3, 2022.
[[Page 68468]]
V. 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
approves State law as meeting Federal requirements and does not impose
additional requirements beyond those imposed by State law. For that
reason, this 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 14094 (88 FR 21879, April 11, 2023);
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 subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because it approves a State program;
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001); and
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.
Because this final rule merely approves State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law, this final rule 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.
Executive Order 12898 (Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, 59 FR 7629,
February 16, 1994) directs Federal agencies to identify and address
``disproportionately high and adverse human health or environmental
effects'' of their actions on minority populations and low-income
populations to the greatest extent practicable and permitted by law.
EPA defines environmental justice (EJ) as ``the fair treatment and
meaningful involvement of all people regardless of race, color,
national origin, or income with respect to the development,
implementation, and enforcement of environmental laws, regulations, and
policies.'' EPA further defines the term fair treatment to mean that
``no group of people should bear a disproportionate burden of
environmental harms and risks, including those resulting from the
negative environmental consequences of industrial, governmental, and
commercial operations or programs and policies.''
SC DHEC did not evaluate EJ considerations as part of its SIP
submittal; the CAA and applicable implementing regulations neither
prohibit nor require such an evaluation. EPA did not perform an EJ
analysis and did not consider EJ in this action. Due to the nature of
the action being taken here, this action is expected to have a neutral
to positive impact on the air quality of the affected area.
Consideration of EJ is not required as part of this action, and there
is no information in the record inconsistent with the stated goal of
E.O. 12898 of achieving EJ for people of color, low-income populations,
and Indigenous peoples.
This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is not a ``major
rule'' as defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 4, 2023. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 27, 2023.
Jeaneanne Gettle,
Acting Regional Administrator, Region 4.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart PP--South Carolina
0
2. In Sec. 52.2120, in table 1 to paragraph (c), under ``Regulation
No. 62.5'' revise the entries for ``Standard No. 7'' and ``Standard No.
7.1'' to read as follows:
Sec. 52.2120 Identification of plan.
* * * * *
(c) * * *
[[Page 68469]]
Table 1 to Paragraph (c)--EPA-Approved South Carolina Regulations
----------------------------------------------------------------------------------------------------------------
State
State citation Title/subject effective date EPA approval date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Regulation No. 62.5.............. Air Pollution
Control Standards.
* * * * * * *
Standard No. 7................... Prevention of 11/26/2021 10/4/2023, [Insert
Significant citation of
Deterioration. publication].
Standard No. 7.1................. Nonattainment New 11/26/2021 10/4/2023, [Insert Except for the
Source Review. citation of ethanol production
publication]. facilities
exclusion in
paragraphs
(A)(11)(t) and
(B)(22)(c)(xx).
* * * * * * *
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* * * * *
[FR Doc. 2023-21722 Filed 10-3-23; 8:45 am]
BILLING CODE 6560-50-P
