[Federal Register Volume 61, Number 25 (Tuesday, February 6, 1996)]
[Rules and Regulations]
[Pages 4353-4357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2226]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[RI-16-01-6673a; A-1-FRL-5337-6]
Approval and Promulgation of Air Quality Implementation Plans;
Rhode Island: Revisions to the Requirements and Procedures for NSR/PSD
Permit Applications
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is approving the State implementation plan (SIP)
revisions submitted by the State of Rhode Island for the purpose of
meeting requirements of the Clean Air Act Amendments of 1990 (CAAA)
with regard to New Source Review (NSR) in areas that have not attained
the National Ambient Air Quality Standards (NAAQS). In addition, EPA is
approving revisions to Rhode Island's SIP pertaining to Prevention of
Significant Deterioration (PSD) program in attainment areas and other
miscellaneous requirements. In general, these revisions make the Rhode
Island PSD program more consistent with the current Federal
requirements. The intended effect of this action is to approve the
State's request to amend its SIP to satisfy the Federal requirements.
This action is being taken in accordance with the Clean Air Act.
DATES: This action is effective April 8, 1996, unless notice is
received within 30 days 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 Susan Studlien, Acting Director,
Air, Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, JFK Federal Building, Boston, MA 02203.
Copies of the documents relevant to this action are available for
public inspection during normal business hours, by appointment, at the
Air, Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region I, One Congress Street, 10th 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 the Division of Air and Hazardous Materials, Department of
Environmental Management, 291 Promenade Street, Providence, RI 02908-
5767.
FOR FURTHER INFORMATION CONTACT: Brendan McCahill, (617) 565-3262.
SUPPLEMENTARY INFORMATION: On March 11, 1993, the Rhode Island
Department of Environmental Management (DEM) submitted revisions to its
SIP pertaining to the requirements and procedures for the processing
and approval of permit applications for new or modified stationary
sources of air pollution. The revisions consist of modifications to
Rhode Island's Air Pollution Control Regulation #9, ``Air Pollution
Control Permits,'' and affect the following elements : (1) major source
permitting in nonattainment areas, including ozone nonattainment areas;
(2) PSD program; (3) minor source construction permitting; and (4)
general administrative requirements of the permitting program.
This notice is divided into five sections for clarity. Section I
discusses the procedural background concerning Rhode Island's SIP
submittal. Section II discusses the revisions to the general
requirements for nonattainment NSR. Section III discusses the revisions
to the specific requirements for NSR in the ozone nonattainment areas.
Section IV discusses the revisions to the general requirements for the
PSD program, minor source permitting requirements and general
administrative requirements of the permitting program. Section V
discusses the EPA's final action.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse 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 April 8, 1996 unless, by March 7, 1996, adverse or critical
comments are received.
[[Page 4354]]
If the EPA receives such comments, this action will be withdrawn
before the effective date by simultaneously publishing a subsequent
notice 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 April 8, 1996.
Section I
Procedural Background
Section 110(k) of the CAA sets out provisions governing EPA's
review of SIP submittals (see 57 FR 13565-66, April 16, 1992). The CAA
requires States to observe certain procedural requirements in
developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a State must be adopted after reasonable notice and
public hearing.1 Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a State under the
Act must be adopted by such State after reasonable notice and public
hearing.
\1\ Section 172(c)(7) of the Act provides that plan provisions
for nonattainment areas shall meet the applicable provisions of
Sec. 110(a)(2).
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The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action [see Sec. 110(k)(1)
and 57 FR 13565, April 16, 1992]. The EPA's completeness criteria for
SIP submittals are set out at 40 CFR part 51, Appendix V (1991), as
amended by 57 FR 42216 (August 26, 1991). The EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law under
section 110(k)(1)(B) if a completeness determination is not made by EPA
within 6 months after receipt of the submission.
The State of Rhode Island held a public hearing on October 19,
1992, to entertain public comment on the new source review
implementation plan. Following the public hearing, the plan was filed
with the Secretary of State on March 4, 1993, and became effective on
March 24, 1993. The plan was submitted to EPA on March 11, 1993 as a
proposed revision to the SIP.
The SIP revision was reviewed by EPA to determine completeness
shortly after its submittal, in accordance with the completeness
criteria referenced above. The submittal was found to be complete on
May 6, 1993 and a letter dated May 10, 1993 was forwarded to Steve
Majkut, Acting Chief, Division of Air Resources, DEM, indicating the
completeness of the submittal and the next steps to be taken in the
review process.
Section II
General Requirements for Nonattainment NSR
A. Background
The air quality planning requirements for nonattainment new source
review are set out in part D of subchapter I of the Act. The EPA has
issued a ``General Preamble'' describing EPA's preliminary views on how
EPA intends to review SIPs and SIP revisions submitted under part D,
including those State submittals containing nonattainment area NSR SIP
requirements [see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April
28, 1992)]. Because EPA is describing its interpretations here only in
broad terms, the reader should refer to the General Preamble for a more
detailed discussion of the interpretations of part D advanced in
today's proposal and the supporting rationale.
B. Summary of Rhode Island's Regulation
The general nonattainment NSR requirements are found in Secs. 172
and 173 of part D of subchapter I of the Act and must be met by all
nonattainment areas. The following paragraphs reference the
nonattainment NSR requirements that were required to be submitted to
EPA by November 15, 1992 and explain how Rhode Island's rules meet
those requirements. Some of these provisions were already contained in
Rhode Island's existing SIP while others are being approved today.
a. Rhode Island regulation 9.4.3(a) establishes provisions in
accordance with Sec. 173(a)(1)(A) of the CAA to assure that
calculations of emissions offsets are based on the same emissions
baseline used in the demonstration of Reasonable Further Progress
(RFP).
b. Rhode Island regulation 9.4.2(d)(5) establishes provisions in
accordance with Sec. 173(c)(1) of the CAA to allow offsets to be
obtained in another nonattainment area if: i) the area has an equal or
higher nonattainment classification and ii) emissions from the other
nonattainment area contribute to a NAAQS violation in the area in which
the source would construct.
c. Rhode Island regulation 9.4.2(d)(2-3) establishes provisions in
accordance with Sec. 173(c)(1) of the CAA that any emissions offsets
obtained in conjunction with the issuance of a permit to a new or
modified source must be in effect and enforceable by the time the new
or modified source commences operation.
d. Rhode Island regulation 9.4.2(c) establishes provisions in
accordance with Sec. 173(c)(1) of the CAA to assure that emissions
increases from new or modified sources are offset by real reductions in
actual emissions.
e. Rhode Island regulation 9.4.3(a) establishes provisions in
accordance with Sec. 173(c)(2) of the CAA to prevent emissions
reductions otherwise required by the Act from being credited for
purposes of satisfying part D offset requirements.
f. The 1990 CAAA modified the Act's provisions on growth allowances
in nonattainment areas by (1) Eliminating existing growth allowances in
any nonattainment area that received a notice prior or subsequent to
the Amendments that the SIP was substantially inadequate, and (2)
restricting growth allowances to only those portions of nonattainment
areas formally targeted as special zones for economic growth. Section
173(b) and 173(a)(1)(B) of the CAA. Consistent with these changes,
Rhode Island has removed from its SIP NSR regulations the growth
allowance provisions. There are no zones currently in Rhode Island that
are targeted for economic development.
g. Rhode Island regulation 9.4.2(e) establishes provisions in
accordance with Sec. 173(a)(5) of the CAA that, as a prerequisite to
issuing any part D permit, require an analysis of alternative sites,
sizes, production processes, and environmental control techniques for
proposed sources that demonstrates that the benefits of the proposed
source significantly outweigh the environmental and social costs
imposed as a result of its location, construction, or modification.
h. Rhode Island and the EPA-New England office have established a
mechanism through the Regional grants program to supply information
from nonattainment new source review permits to EPA's RACT/BACT/LAER
clearinghouse in accordance with Sec. 173(d) of the CAA.
i. Rhode Island regulation 9.1.39 establishes, in accordance with
Secs. 302(z) and 111(a)(3) of the CAA, a definition of ``stationary
source'' that includes certain internal combustion engines other than
the newly defined category of ``nonroad engines.''
j. Rhode Island regulation 9.4.2(b) establishes provisions in
accordance
[[Page 4355]]
with Sec. 173(a)(3) of the CAA that require owners or operators of each
proposed new or modified major stationary source to demonstrate, as a
condition of permit issuance, that all other major stationary sources
under the same ownership in the State are in compliance with the CAA.
Section III
General Requirements for Ozone Nonattainment NSR
A. Background
The general nonattainment NSR requirements are found in Secs. 172
and 173 of Part D of subchapter I of the Act and must be met by all
nonattainment areas. The requirements for ozone that supplement or
supersede these requirements are found in subpart 2 of part D. In
addition to requirements for ozone nonattainment areas, subpart 2
includes Sec. 182(f), which states that requirements for major
stationary sources of VOC shall apply to major stationary sources of
oxides of nitrogen (NOX) unless the Administrator makes certain
determinations related to the benefits or contribution of NOX
control to air quality, ozone attainment, or ozone air quality. States
were required under section 182(a)(2)(C) to adopt new NSR rules for
ozone nonattainment areas by November 15, 1992.
B. Summary of Rhode Islands Submittal
Pursuant to Sec. 172(c)(5) of the CAA, SIPs must require permits
for the construction and operation of new or modified major stationary
sources. The federal statutory permit requirements for ozone
nonattainment areas are generally contained in revised Sec. 173, and in
subpart 2 of subchapter I, part D of the CAA. These are the minimum
requirements that States must include in an approvable implementation
plan. For all classifications of ozone nonattainment areas and for
ozone transport regions (OTRs), States must adopt the appropriate major
source thresholds and offset ratios, and must adopt provisions to
ensure that any new or modified major stationary source of NOX
satisfies the requirements applicable to any major source of VOC,
unless a special NOX exemption is granted by the Administrator
under the provision of Sec. 182(f). For serious and severe ozone
nonattainment areas, State plans must also implement Secs. 182(c) (6),
(7) and (8) with regard to modifications. The entire state of Rhode
Island is currently classified as a serious ozone nonattainment area.
The following paragraphs reference the ozone nonattainment and OTR
NSR requirements that Rhode Island was required to submit to EPA by
November 15, 1992 and how Rhode Island has met those requirements.
a. Rhode Island Regulations 9.4.1(b)(1) and 9.4.2 establish, in
accordance with Secs. 182(c) and 182(f) of the CAA, major source
thresholds for serious areas of 50 tons per year (tpy) for VOC and for
NOX.
b. Rhode Island Regulation 9.4.2(d)(4) establishes, in accordance
with Secs. 183(c)(10) and 182(f) of the CAA, an offset ratio of 1.2 to
1 for major sources or major modifications of VOC or NOX in
serious areas.
c. In combination, Rhode Island Regulations 9.1.25 and 9.1.37
establish provisions that are consistent with the requirements of
Sec. 182(c)(6) of the CAA, the De Minimis Ruling.
d. Rhode Island Regulation 9.4.2 (a)(3) and (a)(4) establish
provisions which are at least as stringent as the Federal special rules
for modifications in Sec. 182(c) (7) and (8) of the CAA.
Section IV
Revisions to PSD Program, Minor Source Permitting, and General
Requirements
A. Background
Requirements for attainment NSR are set out in part C of subchapter
I of the CAA and in 40 CFR 51.166 and must be met by all State PSD
program SIPs. Minor source construction permitting requirements are
contained in section 110(a)(2)(c) and 40 CFR 51.100-165. Rhode Island
has revised various provisions in its PSD program and in its
construction permitting regulation.
B. Summary of Rhode Island's Submittal
In general, the revisions clarified the current procedures used by
the DEM or implemented procedures consistent with current federal
rules. A brief description of the revisions is as follows:
--The definition of significant net emissions increase for NOX in
NOX attainment areas has been changed from 40 to 25 tpy.
--The threshold level for municipal incinerators in the definition of
major source has been lowered from 250 to 50 tons of charged refuse per
day. Municipal incinerators below the threshold level do not include
fugitive emissions in determining whether the source is a major source.
--The definition of ``significant'' has been changed to include the
significant net emission threshold levels for municipal waste combustor
pollutants.
--The definitions for nonroad engines and nonroad vehicles have been
added to the regulation.
--The limits to the percentage of increment consumed by a source or
modification now applies only to major sources or major modifications.
--Sources are required to obtain a major source permit or a minor
source permit, whichever applies.
--Certain air pollution control equipment have been exempted from minor
source permitting requirements.
--The requirements for public participation in the review of major
source permit applications have been added to the body of the
regulation.
--The requirements for operating permits have been removed from the
regulation.
--The time limit for a source to commence construct after issuance of a
permit has been increased from 1 year to 18 months.
--The definition for ``State recovery facility'' has been removed from
the regulation.
For further details concerning the revisions to Rhode Island's Air
Pollution #9 and EPA's evaluation, please refer to the memorandum
entitled ``Technical Support Document--Rhode Island New Source Review
Revisions.''
Section V
Final Action
EPA is approving the revisions to the Rhode Island Air Pollution
Control Regulation No. 9, ``Air Pollution Control Permits,'' except for
Chapter 9.13, Application for an Air Toxics Operating Permit; Chapter
9.14, Administrative Action: Air Toxics Operating Permits; Chapter
9.15, Transfer of an Air Toxics Operating Permit; and Appendix A,
Toxics Air Pollutants, Minimum Quantities. This regulation was
effective in the State of Rhode Island on March 24, 1993. These
revisions meet the nonattainment area NSR provisions of Part D of the
CAA as well as the requirements of the General Preamble and other
miscellaneous requirements.
Under the Regulatory Flexibility Act, 5 U.S.C. Sec. 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. Secs. 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.
[[Page 4356]]
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this state implementation plan or plan
revision, the State and any affected local or tribal governments have
elected to adopt the program provided for under Section 110 of the
Clean Air Act. These rules may bind State, local and tribal governments
to perform certain actions and also require the private sector to
perform certain duties. To the extent that the rules being approved by
this action will impose no new requirements; such sources are already
subject to these regulations under State law. Accordingly, no
additional costs to State, local, or tribal governments, or to the
private sector, result from this action. EPA has also determined that
this final action does not include a mandate that may result in
estimated costs of $100 million or more to State, local, or tribal
governments in the aggregate or to the private sector.
The OMB has exempted this action from review under Executive Order
12866.
SIP approvals under section 110 and subchapter I, Part D of the CAA
do not create any new requirements, but simply approve requirements
that the State is already imposing. Therefore, because the federal SIP-
approval does not impose any new requirements, I certify that it does
not have a significant impact on any small entities affected. Moreover,
due to the nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness of state action. The
CAA forbids EPA to base its actions concerning SIPs on such grounds.
Union Electric Co. v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976);
42 U.S.C. 7410(a)(2).
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from 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 April 8, 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).)
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Environmental protection,
Hydrocarbons, Incorporation by reference, 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: September 11, 1995.
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)(41) to read
as follows:
Sec. 52.2070 Identification of plan.
* * * * * *
(c) * * *
(41) Revisions to the State Implementation Plan submitted by the
Rhode Island Department of Environmental Management on March 11, 1993.
(i) Incorporation by reference.
(A) Letter from the Rhode Island Department of Environmental
Management dated March 5, 1993 submitting a revision to the Rhode
Island State Implementation Plan.
(B) Rhode Island's Air Pollution Control Regulation No. 9 entitled,
``Air Pollution Control Permits,'' except for Chapter 9.13, Application
for an Air Toxics Operating Permit; Chapter 9.14, Administrative
Action: Air Toxics Operating Permits; and Chapter 9.15, Transfer of an
Air Toxics Operating Permit; and Appendix A, Toxic Air Pollutants,
Minimum Quantities. This regulation was effective in the State of Rhode
Island on March 24, 1993.
(ii) Additional materials.
(A) A fact sheet on the proposed amendments to Regulation No. 9
entitled, ``Approval to Construct, Install, Modify or Operate''.
(B) Nonregulatory portions of the State submittal.
3. In Sec. 52.2081 Table 52.2081 is amended by adding new entries
to existing state citations for Chapter No. 9, to read as follows:
Sec. 52.208 EPA-approved EPA Rhode Island State regulations.
[[Page 4357]]
Table 52.2081.--EPA-Approved Rules and Regulations
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Comments/Unapproved
State citation Title/subject Date adopted by State Date approved by EPA FR citation 52.2070 sections
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* * * * * * *
No. 9............. Air Pollution March 4, 1993............ February 6, 1996......... 61 FR 4353....... (c)(41) Addition of NSR and
Control Permits. other CAAA
requirements under
Amended Regulation
No. 9 except for
Chapters 9.13, 9.14,
9.15, and Appendix A.
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[FR Doc. 96-2226 Filed 2-5-96; 8:45 am]
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