[Federal Register Volume 63, Number 7 (Monday, January 12, 1998)]
[Proposed Rules]
[Pages 1804-1807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-673]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE-12-1-5886; FRL-5948-9]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware--New Source Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
conditional approval of the State Implementation Plan (SIP) revision
submitted by the State of Delaware for the purpose of meeting certain
requirements of the Clean Air Act (Act), as amended in 1990, with
regard to new source review (NSR) in areas that have not attained the
national ambient air quality standards (NAAQS). The changes primarily
pertain to the ozone precursors, volatile organic compounds (VOCs) and
nitrogen oxides (NOx). This SIP revision was submitted by
Delaware to satisfy certain federal requirements for NSR in the State
of Delaware. The proposed changes to the Delaware NSR regulation
primarily address the definitions of major source size and the increase
in emission offset ratios based upon the classifications of ozone
nonattainment areas. EPA is proposing conditional approval because the
NSR SIP revisions submitted by Delaware strengthen the SIP, but
Delaware failed to revise the NSR regulations to adopt provisions
relating to modifications in serious and severe ozone nonattainment
areas, required by the 1990 Clean Air Act Amendments, and provisions
relating to emission offsets and public participation, required by EPA
regulations prior to the 1990 Clean Air Act Amendments.
DATES: Comments must be received on or before February 11, 1998.
ADDRESSES: Comments may be mailed to Ms. Kathleen Henry, Chief, Permit
Programs Section, Air, Radiation, and Toxics Division (3AT23), U.S.
Environmental Protection Agency, Region III, 841 Chestnut Building,
Philadelphia, Pennsylvania 19107. Copies of the documents relevant to
this action are available for public inspection during normal business
hours at the Air, Radiation, and Toxics Division, U.S. Environmental
Protection Agency, Region III, 841 Chestnut Building, Philadelphia,
Pennsylvania 19107; and Delaware Department of Natural Resources &
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19903.
FOR FURTHER INFORMATION CONTACT: Ms. Robin Moran, (215) 566-2064, at
the EPA Region III address above.
SUPPLEMENTARY INFORMATION:
I. Background
For ozone nonattainment areas and ozone transport regions, sections
182(a)(2)(C) and 184(b) require States to submit to EPA by November 15,
1992, a revision that includes each of the following: (1) Provisions to
require permits, in accordance with sections 172(c)(5) and 173 of the
Act, for the construction and operation of each new or modified major
stationary source
[[Page 1805]]
(with respect to ozone) to be located in the area (section
182(a)(2)(C)(i) of the Act); and (2) provisions to correct requirements
in (or add requirements to) the plan concerning permit programs as were
required under section 172(b)(6) of the Act (as in effect immediately
before November 15, 1990) as interpreted in EPA regulations promulgated
as of November 15, 1990 (section 182(a)(2)(C)(ii) of the Act).
On January 11, 1993, the State of Delaware submitted a revision for
Regulation 25, ``Requirements for Preconstruction Review,'' sections 1
and 2 (pertaining to nonattainment NSR). The NSR-related revision
consists of changes in the definitions of major source size and
increases in the emission offset ratios based on the classifications of
Delaware's ozone nonattainment areas. The changes primarily pertain to
the ozone precursors, VOCs and NOX. The changes apply to New
Castle, Kent, and Sussex Counties. New Castle and Kent Counties are
designated nonattainment for ozone and classified as severe. See 56 FR
56694 (Nov. 6, 1991) and 57 FR 56762 (Nov. 30, 1992), codified at 40
CFR 81.308. Sussex County is designated as nonattainment for ozone and
is classified as marginal. See 40 CFR 81.308. Delaware is located in
the northeast ozone transport region (OTR). See section 184(a) of the
Act. Because Delaware is located in the OTR, at a minimum, the NSR
requirements applicable to moderate ozone nonattainment areas apply.
Therefore, in Sussex County, the Act's NSR requirements for a moderate
area apply and must be made part of the SIP.
II. Summary of Delaware's NSR Revisions
For all classifications of ozone nonattainment areas and for the
OTR, States must adopt the appropriate major source size thresholds and
offset ratios. Under the Act, NOX as well as VOCs is
regulated as an ozone precursor, and states must adopt provisions to
ensure that any new or modified major stationary source of
NOX in an ozone nonattainment area or the OTR satisfies the
NSR requirements applicable to any major source of VOCs, unless a
special NOX exemption is granted by the Administrator under
the provisions of section 182(j).
Delaware has established new major source size thresholds for NSR
applicability and increased offset ratios for subject sources, in
accordance with the Act as follows:
1. Delaware Regulation 25 at section 2.2(B)(2) defines a major
source size applicability threshold in Sussex County (a marginal ozone
nonattainment area required to meet moderate area NSR provisions
because it is located in the OTR) as 50 tons per year (TPY) potential
to emit for VOCs and 100 TPY potential to emit for NOX.
Section 2.3(C)(2) requires an offset ratio of 1.15 to 1 (which means
that for every 1 ton increase in allowable emissions from a new major
stationary source, 1.15 tons of actual emissions must be reduced from
existing sources). These provisions satisfy the Act's NSR requirements
for defining a major stationary source and for establishing the offset
ratios in moderate ozone nonattainment areas.
2. Delaware Regulation 25 at section 2.2(B)(1) defines the major
source size applicability threshold for New Castle and Kent Counties
(which are classified as severe nonattainment areas for ozone) as 25
TPY potential to emit for VOCs and NOX. Section 2.3(C)(1)
requires an offset ratio of 1.3 to 1 (which means that for every 1 ton
increase in allowable emissions from a new major stationary source, 1.3
tons of actual emissions must be reduced from existing sources).
Delaware's plan submittal reflects appropriate modifications to
applicability levels, including a de minimis level of 25 tons, as
provided in Regulation 25, section 1.9(V)(1), definition of
``Significant.'' This section provides that increases in net emissions
shall not exceed 25 tons per year in New Castle and Kent Counties, or
40 tons per year in Sussex County, when aggregated with all other net
increases in emissions from the source over any period of five
consecutive calendar years which includes the calendar year in which
such increases occur. Delaware Regulation 25, section 1.9(V)(1), also
provides that no emission reductions from major stationary sources will
be creditable if they occurred prior to January 1, 1991, by specifying
that no part of the five consecutive calendar year period shall extend
before January 1, 1991.
EPA believes that the above changes to Delaware's NSR regulation
are consistent with the Act and strengthen the SIP. However, Delaware's
SIP revision fails to fully meet the requirements of section
182(a)(2)(C)(i) of the Act, because it does not address the additional
requirements of the Clean Air Act Amendments summarized in section
III.A. Further, EPA finds that Delaware's SIP revision fails to meet
the requirements of section 182(a)(2)(C)(ii) of the Act, because it
does not address several provisions related to emissions offsets and
public participation which were required by the NSR regulations (40 CFR
51.165) prior to the 1990 Clean Air Act Amendments. These deficiencies
are summarized in section III.B.
III. NSR Deficiencies
A. 1990 Clean Air Act Amendment NSR Deficiencies
Section 182(a)(2)(C)(i) requires that states must submit, by
November 15, 1992, a revision to the SIP which contains provisions to
require permits, in accordance with sections 172(c)(5) and 173 of the
Act, for the construction and operation of each new or modified source
(with respect to ozone) to be located in the area. EPA finds that
Delaware's January 11, 1993 submittal does not meet the requirements of
section 182(a)(2)(C)(i) because Regulation No. 25 does not include the
following provisions:
1. Consistent with sections 182(c) (7) and (8) of the Act,
provisions for the special rule for modifications of sources in serious
and severe ozone nonattainment areas. Section 182(c)(7) applies to
facilities with potential emissions of VOC or NOX of less
than 100 TPY, where the modification results in an other than de
minimus increase in emissions. The owner or operator may choose to
offset the emissions of the proposed source with those elsewhere in the
same facility at a ratio of at least 1.3 to 1 in order to avoid having
the proposed source be considered a modification. If the facility does
not offset at the required ratio, the change shall be considered a
modification, but the facility would be required to install Best
Available Control Technology (BACT) instead of Lowest Achievable
Emissions Rate (LAER) technology. Section 182(c)(8) applies to
facilities with potential emissions of 100 TPY or more of VOC or
NOX, where the modification results in an other than de
minimus increase in emissions. The increase shall be considered a
modification, but the source may choose to offset the emissions from
the proposed source with emission reductions elsewhere in the same
facility at an internal offset ratio of 1.3 to 1 in order to avoid
installing LAER.
B. Pre-1990 NSR Deficiencies
Section 182(a)(2)(C)(ii) requires that states must submit, by
November 15, 1992, a revision to the SIP which contains provisions to
correct requirements in (or add requirements to) the plan concerning
permit programs as were required under section 172(b)(6) of the Act (as
in effect immediately before November 15, 1990) as interpreted in EPA
regulations promulgated as of November 15, 1990. EPA finds that
[[Page 1806]]
Delaware's January 11, 1993 submittal does not meet the requirements of
section 182(a)(2)(C)(ii) because Regulation No. 25 does not include the
following provisions:
1. Public participation procedures consistent with 40 CFR 51.161.
While section 3 of Delaware's Regulation No. 25, pertaining to the
Prevention of Significant Deterioration of Air Quality, contains public
participation procedures, Regulation No. 25 does not specify the public
participation procedures to be used in issuing nonattainment NSR
permits.
2. A requirement that where the emissions limit under the SIP
allows greater emissions than the potential to emit of the source,
emission offset credit will be allowed only for control below this
potential. See 40 CFR 51.165(a)(3)(ii)(A).
3. Provisions for granting emission offset credit for fuel
switching, consistent with 40 CFR 51.165(a)(3)(ii)(B).
4. Requirements consistent with 40 CFR 51.165(a)(3)(ii)(C)(1) for
the crediting of emission reductions achieved by shutting down an
existing source or curtailing production or operating hours below
baseline levels (shutdown credits). These requirements must include a
provision that such reductions may be credited if they are permanent,
quantifiable and federally-enforceable, and if the area has an EPA-
approved attainment plan.
Delaware may also include provisions consistent with 40 CFR
51.165(a)(3)(ii)(C)(2) which allow the use of shutdown credits in areas
without an approved attainment demonstration. EPA notes that the Agency
proposed two alternative revisions to these requirements in the NSR
Reform Rulemaking. See 61 FR 38325 (July 23, 1996).
5. A requirement that the shutdown or curtailment is creditable
only if it occurred after the date of the most recent emissions
inventory or attainment demonstration. See 40 CFR
51.165(a)(3)(ii)(C)(1).
6. A requirement that all emission reductions claimed as offset
credit shall be federally enforceable. See 40 CFR 51.165(a)(3)(ii)(E).
7. Requirements for the permissible location of offsetting
emissions. See 40 CFR 51.165(a)(3)(ii)(F) and section 173(c)(1) of the
Act.
8. A requirement that credit for an emission reduction can be
claimed to the extent that the State has not relied on it in issuing
any permit under regulations approved pursuant to 40 CFR part 51 (i.e.,
the SIP), or the State has not relied on it in a demonstration of
attainment or reasonable further progress. See 40 CFR
51.165(a)(3)(ii)(G) and sections 173(c) (1) and (2) of the Act.
Because of the deficiencies identified in Sections III.A. and
III.B. above, EPA is proposing conditional approval of the Delaware SIP
revision for the NSR regulation, amended Delaware Regulation 25,
sections 1 and 2, which was submitted on January 11, 1993. EPA is
soliciting public comments on the issues discussed in this notice or on
other relevant matters. These comments will be considered before taking
final action. Interested parties may participate in the Federal
rulemaking procedure by submitting written comments to the EPA Regional
office listed in the ADDRESSES section of this notice.
Proposed Action
In light of the above deficiencies, EPA is proposing conditional
approval of this SIP revision under section 110(k)(4) of the Act. EPA
is proposing conditional approval of the Delaware NSR SIP if Delaware
commits, in writing, within 30 days of EPA's proposal to correct the
deficiencies identified in this rulemaking. If the State does not make
the required written commitment to EPA within 30 days, EPA will
withdraw this proposed conditional approval action. If the State does
make a timely commitment, but the conditions are not met by the
specified date within one year, EPA is proposing that the rulemaking
will convert to a final disapproval. EPA would notify Delaware by
letter that the conditions have not been met and that the conditional
approval of the NSR SIP has converted to a disapproval. Each of the
conditions must be fulfilled by Delaware and submitted to EPA as an
amendment to the SIP.
If Delaware corrects the deficiencies within one year of
conditional approval, and submits a revised NSR SIP revision, EPA will
conduct rulemaking to fully approve the revision. In order to make this
NSR SIP approvable, Delaware must revise its NSR regulations to include
the provisions described in section III of this document by no later
than 12 months after EPA's final conditional approval.
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.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from E.O. 12866 review.
B. Regulatory Flexibility Act
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.
Conditional approvals of SIP submittals under section 110 and
subchapter I, part D of the Clean Air Act 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, the Administrator certifies 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 Act, preparation
of a flexibility analysis would constitute Federal inquiry into the
economic reasonableness of state action. The Clean Air Act forbids EPA
to base its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).
If the conditional approval is converted to a disapproval under
section 110(k), based on the State's failure to meet the commitment, it
will not affect any existing State requirements applicable to small
entities. Federal disapproval of the State submittal does not affect
its state-enforceability. Moreover, EPA's disapproval of the submittal
does not impose a new Federal requirement. Therefore, EPA certifies
that this disapproval action would not have a significant impact on a
substantial number of small entities because it does not remove
existing requirements nor does it substitute a new federal requirement.
C. 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
[[Page 1807]]
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 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 proposed 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
requirements. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
The Regional Administrator's decision to approve or disapprove this
SIP revision regarding Delaware's NSR program will be based on whether
it meets the requirements of section 110(a)(2)(a)-(K) and part D of the
Clean Air Act, as amended, and EPA regulations in 40 CFR part 51.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, New source review,
Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements,
Volatile organic compounds.
Authority: 42 U.S.C. 7401--7671q.
Dated: December 18, 1997.
Thomas Voltaggio,
Acting Regional Administrator, Region III.
[FR Doc. 98-673 Filed 1-9-98; 8:45 am]
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