[Federal Register Volume 61, Number 57 (Friday, March 22, 1996)]
[Rules and Regulations]
[Pages 11731-11735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6601]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MA-18-01-7262a; A-1-FRL-5427-8]
Approval and Promulgation of Air Quality Implementation Plans;
Rhode Island: Emissions Caps
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving a State Implementation Plan (SIP)
revision submitted by the State of Rhode Island. This revision approves
Air Pollution Control Act (APC) 29.3 entitled ``Emissions Caps,'' into
the Rhode Island SIP. The intended effect of this action is to approve
a SIP revision by the State of Rhode Island to incorporate regulations
for the issuance of federally enforceable operating permits which
restrict sources' potential to emit criteria
[[Page 11732]]
pollutants such that sources can avoid reasonably available control
technology (RACT), title V operating permit requirements, or otherwise
applicable requirements. This action also extends federal
enforceability to limits on hazardous air pollutants (HAPs). This
action is being taken in accordance with sections 110 and 112(l) of the
Clean Air Act.
DATES: This action is effective May 21, 1996, unless notice is received
April 22, 1996, that adverse or critical comments will be submitted. If
the effective date is delayed, timely notice will be published in the
Federal Register.
ADDRESSES: Comments may be mailed to Dave Fierra Director, Office of
Ecosystem Protection, U.S. Environmental Protection Agency, Region I,
JFK Federal Building, Boston, MA 02203-2211. Copies of the documents
relevant to this action are available for public inspection during
normal business hours, by appointment at the Office of Ecosystem
Protection, U.S. Environmental Protection Agency, Region I, One
Congress Street, 11th floor, Boston, MA; Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, 401 M Street,
S.W., (LE-131), Washington, D.C. 20460; and Division of Air and
Hazardous Materials Division of Rhode Island Department of
Environmental Management, 291 Promenade Street, Providence, Rhode
Island 02908.
FOR FURTHER INFORMATION CONTACT: Ida Gagnon (617) 565-3500.
SUPPLEMENTARY INFORMATION: On May 22, 1995, the State of Rhode Island
submitted a formal revision to its State Implementation Plan (SIP) to
incorporate regulations for the issuance of federally enforceable
operating permits. The revision consists of the addition of APC 23.9
entitled ``Emissions Caps.'' The State of Rhode Island adopted these
regulations in order to have the authority to issue federally
enforceable operating permits under its SIP. In order to extend the
federal enforceability of state operating permits to hazardous air
pollutants (HAPs), EPA is also approving this regulation pursuant to
section 112(l) of the Act.
Summary of SIP Revision
The State of Rhode Island's principal purpose for adopting the
operating permit regulations of APC 29.3 is to have a federally
enforceable means of expeditiously restricting potential emissions such
that sources can avoid RACT, title V operating permit requirements, or
otherwise applicable requirements, as well as reduce annual compliance
fees. The operating permit provisions in title V of the Clean Air Act
Amendments of 1990 have created additional interest in mechanisms for
limiting sources' potential to emit, thereby allowing the sources to
avoid being defined as ``major'' with respect to title V operating
permit programs. A key mechanism for such limitations is the use of
federally enforceable state operating permits (FESOPs). The EPA issued
general guidance on FESOPs in the Federal Register on June 28, 1989 (54
FR 27274). This rule making evaluates whether Rhode Island has
satisfied the requirements for this type of federally enforceable
limitation on potential to emit. Each of the five criteria, as
specified in the Federal Register of June 28, 1989, for approval of a
state's program for the issuance of FESOPs under its SIP and how the
state's submittal satisfies those criteria are presented below:
Criterion 1. The state's operating permit program (i.e. the
regulations or other administrative framework describing how such
permits are issued) must be submitted to and approved by EPA as a SIP
revision: On May 22, 1995, the State of Rhode Island submitted an
administratively and technically complete SIP revision request to EPA
consisting of Air Pollution Control Regulation No. 29.3 ``Emissions
Caps.'' That SIP revision is the subject of this rule making action.
Criterion 2. The SIP revision must impose a legal obligation that
operating permit holders adhere to the terms and limitations of such
permits (or subsequent revisions of the permit made in accordance with
the approved operating permit program) and provide that permits which
do not conform to the operating permit program requirements and the
requirements of EPA's underlying regulations may be deemed not
``federally enforceable'' by EPA: APC 29.3.5(b) requires sources to
obtain permits to operate and authorizes Rhode Island to establish
terms and conditions in these permits that are federally enforceable to
``ensure that emissions are limited by quantifiable and enforceable
means.'' Additionally, 29.3.9 requires that no source may operate after
the time it is required to submit a timely and complete application for
an operating permit under APC 29, except in compliance with an
emissions cap or an operating permit.
Criterion 3. The state operating permit program must require that
all emission limitations, controls, and other requirements imposed by
such permits will be at least as stringent as any applicable
limitations and requirements contained in the SIP, or enforceable under
the SIP, and that 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 Section 111 and 112 of the Clean Air
Act): APC 29.3.5 contains regulatory provisions which state the
emissions cap issued by the Division will be at least as stringent as
any applicable requirement and the emissions cap will not waive or make
less stringent any applicable requirement. Applicable requirement is
defined in APC 29 to include all SIP requirements.
Criterion 4. The limitations, controls, and requirements of the
state's operating permits must be permanent, quantifiable, and
otherwise enforceable as a practical matter: APC 29.3.5 and 29.3.7
contain regulatory provisions which satisfy this criterion. Emission
cap permits must be renewed every five years, but remain enforceable
pending DEM's action and timely renewal application. In addition,
subparagraphs 29.3.5(b) and (c) require that permit restrictions
contain combinations of production and/or operational limitations to
ensure emissions are limited by quantifiable and enforceable means,
including keeping sufficient records to show limitations are followed.
Criterion 5. The state operating permits must be issued subject to
public participation. This means that the state agrees, as part of its
program, to provide EPA and the public with timely notice of the
proposal and issuance of such permits, and to provide 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 permits: APC 29.3.6
contains provisions that the Division will either deny the emissions
cap or give public notice of its intention to issue an emissions cap.
The general public will be notified of DEM's intention to issue an
emissions cap by publishing a notice in a newspaper. The applicant,
EPA, city or town executives where a source is located, and persons who
request to be on a mailing list will be sent a copy of the notice.
The State of Rhode Island has also requested approval of its
Emissions Caps program under section 112(l) of the Act for the purpose
of creating federally enforceable limitations on the potential to emit
of HAPs. Approval under section 112(l) is necessary
[[Page 11733]]
because the SIP approval discussed above only extends to criteria
pollutants for which EPA has established national ambient air quality
standards under section 109 of the Act. Federally enforceable limits on
criteria pollutants or their precursors (i.e., VOCs or PM-10) may have
the incidental effect of limiting certain HAPs listed pursuant to
section 112(b).1 As a legal matter, no additional program approval
by the EPA is required beyond SIP approval under section 110 in order
for these criteria pollutant limits to be recognized as federally
enforceable. However, section 112 of the Act provides the underlying
authority for controlling all HAP emissions, regardless of their
relationship to criteria pollutant controls.
\1\ The EPA issued guidance on January 25, 1995 addressing the
technical aspects of how these criteria pollutant limits may be
recognized for purposes of limiting a source's potential to emit of
HAP to below section 112 major source levels.
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The EPA has determined that the five approval criteria for
approving FESOP programs into the SIP, as specified in the June 28,
1989 Federal Register notice, are also appropriate for evaluating and
approving the programs under section 112(l). The June 28, 1989 notice
does not address HAPs because it was written prior to the 1990
amendments to section 112. The June 28, 1989 criteria are basic
principles which are not unique to criteria pollutants. Therefore, the
five criteria discussed above are applicable to FESOP approvals under
section 112(l) as well as under section 110.
In addition to meeting the criteria in the June 28, 1989 notice, a
FESOP program for HAPs must meet the statutory criteria for approval
under section 112(l)(5). Section 112(l) allows the EPA to approve a
program only if the program: (1) Contains adequate authority to assure
compliance with any section 112 standard or requirement; (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 Act.
The EPA plans to codify the approval criteria for programs limiting
potential to emit HAPs, in Subpart E of Part 63, the regulations
promulgated to implement section 112(l) of the Act. (See 58 FR 62262,
November 26, 1993.) The EPA currently anticipates that these regulatory
criteria, as they apply to FESOP programs, will mirror those set forth
in the June 28, 1989 notice. FESOP programs approved pursuant to
section 112(l) prior to the planned Subpart E revisions will be
approved as meeting the criteria in EPA's June, 1989 notice. Therefore,
further approval actions for those programs will not be necessary.
The EPA believes it has authority under section 112(l) to approve
programs to limit potential to emit HAPs directly under section 112(l)
prior to this revision to Subpart E. EPA is therefore approving Rhode
Island's Emissions Caps program now so that Rhode Island may begin to
issue federally enforceable synthetic minor permits as soon as
possible.
Regarding the statutory criteria of section 112(l)(5) referred to
above, the EPA believes Rhode Island's Emissions Caps program contains
adequate authority to assure compliance with section 112 requirements
since the third criterion of the June 28, 1989 notice is met, that is,
the program in APC 29.3.5 states that all requirements in the Emissions
Caps program must be at least as stringent as all other applicable
federally enforceable requirements. In connection with EPA's review of
Rhode Island's title V operating permit program, EPA has also conducted
an extensive analysis of Rhode Island's underlying authority to enforce
HAP limits. Please note that a source which receives an Emissions Caps
permit may still need a title V operating permit under APC 29 if EPA
promulgates a MACT standard which requires non-major sources to obtain
title V permits.
Regarding the requirement for adequate resources, the EPA believes
Rhode Island has demonstrated that it can provide for adequate
resources to support the Emissions Caps program through an annual
compliance/assurance fee and a permit fee. EPA believes this mechanism
will be sufficient to provide for adequate resources to implement this
program. For more information regarding the fees program, refer to the
Technical Support Document.
The EPA also believes that Rhode Island's Emissions Cap program
provides for an expeditious schedule which assures 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 Rhode Island's 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, the EPA
believes it is consistent with the intent of section 112 and the Act
for States to provide a mechanism through which sources may avoid
classification as a major source by obtaining a federally enforceable
limit on potential to emit. EPA has long recognized federally-
enforceable emissions or operational limits as a means to stay below
major source thresholds under the Act. This approval merely applies the
same principles to another set of pollutants and regulatory
requirements under the Act.
The EPA's review of this SIP revision indicates the criteria for
approval as provided in the June 28, 1989 Federal Register notice (54
FR 27282) and in section 112(l)(5) of the Act have been satisfied.
During the development of this rule, EPA and Rhode Island have been
asked whether permits the State has issued pursuant to these
regulations prior to today's action approving this program into the SIP
are nevertheless federally enforceable. In the preamble to the
regulations that EPA promulgated on June 28, 1989 (54 FR 27274), which
set forth the five criteria outlined above for a federally enforceable
operating permit program, EPA indicated that it would ``consult with
States on methods by which existing operating permits could be made
federally enforceable under a subsequently approved State operating
permits program.'' 54 FR at 27284. The preamble went on to discuss
options for securing EPA approval of previously issued permits. As EPA
concluded in its approval of the Illinois FESOP program (57 FR at 59931
(Dec. 17, 1992)), these options were not intended to be a complete list
of alternatives. To avoid burdensome requirements to reprocess each
previously issued permit, EPA will use the same approach announced in
that Illinois approval for determining whether such permits are
federally enforceable and for ratifying their status as enforceable
under the approved SIP.
EPA today finds the existing Rhode Island regulations to be
consistent with federal requirements. If the State followed its own
procedures, each permit issued under this regulation was subject to
public notice and comment, with notice to EPA. Moreover, the regulation
requires each permit to be enforceable as a practical matter.
Therefore, EPA will consider all previously issued operating permits
which were processed in a manner consistent with the State regulations
federally enforceable with the promulgation of this rule, provided that
any permits the State wishes to make federally enforceable are
submitted to EPA and are accompanied by documentation that the
procedures approved today were followed in issuing the permit.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial amendment and anticipates
no adverse
[[Page 11734]]
comments. However, in a separate document in this Federal Register
publication, EPA is proposing to approve the SIP revision should
adverse or critical comments be filed. This action will be effective
May 21, 1996, unless adverse or critical comments are received by April
22, 1996.
If EPA receives such comments, this action will be withdrawn before
the effective date by simultaneously 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. The 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 on May 21, 1996.
Final Action
EPA is approving APC 29.3 ``Emissions Caps'' effective in the State
of Rhode Island on May 18, 1995 under sections 110 and 112(l) of the
CAAA.
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 approvals under section 110, section 112(l), 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. 7410 (a)(2).
This action has been classified as a Table 3 action by the Regional
Administrator under the procedures published in the Federal Register on
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993,
memorandum from Michael H. Shapiro, Acting Assistant Administrator for
Air and Radiation. A future document will inform the general public of
these tables.
The OMB has exempted this action from review under Executive Order
12866.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
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 section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 21, 1996. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule 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).)
Unfunded Mandates
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 action promulgated today does not
include a Federal mandate that may result in estimated costs of $100
million or more to either 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,
Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides.
Note: Incorporation by reference of the State Implementation
Plan for the State of Rhode Island was approved by the Director of
the Federal Register on July 1, 1982.
Dated: January 30, 1996.
John P. DeVillars,
Regional Administrator, Region I.
Part 52 of chapter I, title 40 of the 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 OO--Rhode Island
2. Section 52.2070 is amended by adding paragraph (c)(45) to read
as follows:
Sec. 52.2070 Identification of plan.
* * * * *
(c) * * *
(45) Revisions to the State Implementation Plan submitted by the
Rhode Island Department of Environmental Management on May 15, 1995
(i) Incorporation by reference.
(A) Letter from the Rhode Island Department of Environmental
Protection dated May 15, 1995 submitting a revision to the Rhode Island
State Implementation Plan.
(B) Air Pollution Control Regulation 29.3 ``Emissions Caps'';
effective in the State of Rhode Island on May 18, 1995.
(ii) Additional materials.
(A) Non-regulatory portions of the submittal.
3. In Sec. 52.2081 Table 52.2081 is amended by adding new entry for
state citation APC 29.3 to read as follows:
Sec. 52.2081 EPA-Approved Rhode Island State regulations.
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52.2070 (45)
Date ---------------------------
State citation Title/subject adopted by Date approved by EPA Federal Register citation Comments/unapproved
State sections
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* * * * * * *
No. 29.3............ EMISSIONS...................... 4/28/95 March 22, 1996............. [Insert FR citation from This rule limits a
published date]. source's potential to
emit, therefore avoiding
RACT, title V operating
permits.
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[FR Doc. 96-6601 Filed 3-21-96; 8:45 am]
BILLING CODE 6560-50-P
