[Federal Register Volume 64, Number 54 (Monday, March 22, 1999)]
[Proposed Rules]
[Pages 13753-13756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6899]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DE011/021-1031; FRL-6313-1]
Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Reasonably Available Control Technology Requirements for
Nitrogen Oxide Sources
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing conditional limited approval of a State
Implementation Plan (SIP) revision submitted by the State of Delaware.
This revision requires major sources of nitrogen oxides
(NOX) in the State of Delaware to implement reasonably
available control technology (RACT). The intended effect of this action
is to propose conditional limited approval of Delaware regulation for
imposing RACT on major sources of NOX.
DATES: Comments must be received on or before April 21, 1999.
ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone &
Mobile Sources Branch, Mailcode 3AP21, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
Copies of the documents relevant to this action are available for
public inspection during normal business hours at the Air Protection
Division, Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103; the Air and Radiation Docket
and Information Center, Environmental Protection Agency, 401 M. Street,
S.W., Washington, D.C. 20460; and Delaware Department of Natural
Resources & Environmental Control, Richardson & Robins, 89 Kings
Highway, Dover, Delaware 19901.
FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, at the
EPA Region III address above, or via e-mail at quinto.rose@epa.gov.
While information may be requested via e-mail, any comments must be
submitted in writing to the EPA Region III address in accordance with
the procedures provided above.
SUPPLEMENTARY INFORMATION: On January 11, 1993, the Delaware Department
of Natural Resources and Environmental Control (DNREC) submitted
Regulation No. 12 CONTROL OF NITROGEN OXIDE EMISSIONS as a revision to
its SIP. On November 26, 1993 (58 FR 62307), EPA published a Notice of
Proposed Rulemaking (NPR) for the State of Delaware. The NPR proposed
limited approval/limited disapproval of Regulation No. 12 pertaining to
the control of NOX emissions at major sources in the state.
On January 20, 1994, DNREC submitted a SIP revision which amended
Regulation No. 12. EPA is hereby withdrawing the NPR published on
November 26, 1993 and reproposing conditional limited approval of this
Delaware SIP revision. This action is being taken under Section 110 of
the Clean Air Act (CAA).
I. Background
Pursuant to Part D, Sections 182 and 184 of the CAA, RACT is to be
implemented at all major NOX sources by no later than May
31, 1995. A major source of NOX is defined by the
classification of the ozone nonattainment area in which it is located
and/or whether it is located in the ozone transport region (OTR)
established by the CAA. The entire State of Delaware is located in the
OTR, and RACT applies statewide. New Castle and Kent Counties are part
of the Philadelphia-Wilmington-Trenton ozone nonattainment area which
is classified as severe. For New Castle and Kent Counties, CAA Section
182 defines all stationary sources with the potential to emit 25 tons
per year (TPY) or more of NOX as major and requires that
RACT be implemented at such sources by no later than May 31, 1995. For
Sussex County, CAA Section 184 defines all stationary sources with the
potential to emit 100 TPY or more of NOX as major and
requires that RACT be implemented at such sources by no later than May
31, 1995.
II. Description of the Delaware Regulation No. 12 Imposing RACT on
Major Sources of NOX
NOX Emission Standards Requirements
Delaware Regulation No. 12, Section 3.2 contains specific emission
limits for fuel burning equipment with a rated heat capacity of 100
million BTU (MMBTU) per hour or greater. Gas fired face and tangential
units are required to meet an emission limit of 0.20 lbs of
NOX/MMBTU input. Oil or gas fired face and tangential units
are required to meet an emission limit of 0.25 lbs of NOX/
MMBTU input. Oil or gas fired cyclones are required to meet an emission
limit of 0.43 lbs of NOX/MMBTU input. Dry bottom coal fired
face and tangential units are required to meet an emission limit of
0.38 lbs of NOX/MMBTU input. Dry bottom coal fired stokers
are required to meet an emission limit of 0.40 lbs of NOX/
MMBTU input. These numerical emission limits are supported by data
gathered by the State and Territorial Air Pollution Program
Administrators (STAPPA) and Association of Local Air Pollution Control
Officials (ALAPCO).
All emission limits are required to be met on a 24-hour rolling
averaging period. For sources with a rated heat input capacity of 250
MMBTU/hr or more compliance shall be determined using continuous
emission monitoring systems (CEMs) approved by DNREC. For sources with
a rated heat input of greater than 150 MMBTU/hr but less than 250
MMBTU/hr compliance shall be determined using continuous emission
monitoring systems (CEMs) approved by DNREC, or by an enhanced
monitoring program approved by DNREC which identifies and correlates
various operating parameters with NOX emission levels
thorough source testing. These parameters will be used as surrogates to
monitor NOX emissions.
[[Page 13754]]
Periodic source testing will be required to verify the validity of
these surrogate parameters.
Regulation No. 12, Section 3.5 also contains specific emission
limits for gas turbines. The emission limit for gas fired simple or
combined cycle gas turbines, corrected to 15% oxygen, is 42 parts per
million (ppm). The emission limit for liquid fired simple or combined
cycle gas turbines, corrected to 15% oxygen, is 88 ppm. Both emission
standards require compliance to be demonstrated using a one hour
averaging period based on CEM or an alternative method approved by
DNREC and EPA.
NOX Technology Standards Requirements
Regulation No. 12, Section 3.2 also includes control technology
provisions for fuel burning equipment with a rated heat input capacity
of 100 MMBTU/hr or greater, existing fuel burning equipment shall be
presumed to be RACT if the owner or operator demonstrates that emission
limitations specified in Section 3.2 (and described above) can be met.
If the owner or operator does not make this demonstration, RACT shall
be installed to meet the specified emission limits of Section 3.2. RACT
for such sources will consist of combustion modification technology
including either low NOX burner technology with low excess
air (including Over Fire Air if technically feasible), or flue gas
recirculation with low excess air. Regulation No. 12, in Section 3.3,
requires that emissions from fuel burning equipment with a rated
capacity of 50 MMBTU/hr or greater shall not exceed those achieved by
installation of either low NOX burner technology with low
excess air, or an equivalent control technology approved by DNREC and
EPA. Section 3.3 requires emissions from fuel burning equipment with a
rated capacity of less than 50 MMBTU/hr shall not exceed those achieved
through an annual tune up performed by a qualified personnel. A log
must be maintained of the tune ups performed on each unit.
Regulation No. 12, Section 3.4 requires stationary internal
combustion engines to limit their emissions to no more than those
emitted using pre-ignition chamber combustion (also referred to as
clean burn technology) for gas fired units and those emitted when using
lean burn technology for diesel fired units, or equivalent control
technology approved by DNREC and EPA.
In Section 3.6, seasonal fuel switching shall be considered RACT
for sources opting to switch to a lower NOX emitting fuel.
Fuel switching is limited to the use of natural gas, liquid petroleum
gas (LPG), or distillate oil.
Case-by-Case RACT Requirements
Regulation No. 12, Section 3.8 covers all other major sources of
NOX (i.e., those not subject to Sections 3.2, 3.3, 3.4, 3.5,
or 3.6). These sources are to notify DNREC of their subject status,
submit a proposal as what constitutes RACT, including technical and
economic support documentation, and provide a schedule acceptable to
DNREC for implementing RACT. The schedule for implementation of RACT
must be by no later than May 31, 1995, and must include interim dates
for the issuance of purchase orders, start and completion of
modifications, and completion of compliance testing. The notification
to DNREC, submittal of a RACT proposal and schedule must be made no
later than November 15, 1993. DNREC will issue permits to these sources
imposing RACT. Section 5 of Regulation No. 12 entitled, Alternative and
Equivalent RACT Determination, also applies to these sources covered by
Section 3.8. It specifies that DNREC will submit the RACT
determinations made for such sources to EPA for approval as SIP
revisions.
Exempted Sources
Under Section 4 of Regulation No. 12, the following source types
and sizes are exempt from RACT requirements:
(1) Any fuel burning equipment used exclusively for providing
residential comfort and hot water.
(2) Any incinerator or thermal/catalytic oxidizer used exclusively
for pollution control.
(3) Any fuel burning equipment with a rated heat input capacity of
less than 15 MMBTU/hour.
(4) Any stationary internal combustion engine with a rated capacity
of less than 450 hp.
(5) Any source operating during the time period from the month of
November to the end of March and operating with a capacity factor of 5%
or less from April 1 to October 31.
(6) Any fuel burning equipment, gas turbine, or internal combustion
engine with an annual capacity factor of less than 5%.
Alternative and Equivalent RACT Requirements
Section 5 of Regulation No. 12 is entitled Alternative and
Equivalent RACT Determinations. It requires that any RACT
determinations made under Section 3.8, and any other alternative or
equivalent RACT measures (emission limits or technology requirements)
determined under Sections 3.2, 3.3, 3.4, or 3.5, must be submitted by
DNREC to EPA and approved as a SIP revisions. Section 5 also includes a
specific provision to allow an owner or operator with more than one
installation subject to Regulation No. 12 to use an alternative method
of achieving an overall source-wide NOX emission reduction
that is equivalent to the NOX emission reduction which would
be achieved if each individual unit complied with the RACT standards in
Section 3.
Compliance Certification, Record Keeping and Reporting Requirements
Section 7 specifies the compliance certification, record keeping
and reporting requirements for NOX sources subject to
Regulation No. 12. Section 7.4 requires that applicable CEMS and
associated data collection meet 40 CFR, Part 60, Appendix F. It also
requires that source stack testing be conducted in accordance with test
methods approved by DNREC and EPA.
III. EPA's Evaluation of Regulation No. 12 Imposing RACT for Major
Sources of NOX
EPA is proposing to approve the emission and control technology
standards required by Delaware Regulation No. 12 as RACT for fuel
burning sources. In the November 26, 1993 limited/limited disapproval
of Regulation No. 12, EPA specifically disapproved the exemptions
listed at Section 4. Since proposing limited approval/limited
disapproval of Regulation No. 12, EPA has reevaluated its position
since control requirements at very small units, such as those exempted
by Section 4, are generally not reasonable considering technological
and economic feasibility. A fuller explanation of this decision is
given in the TSD for this proposed rulemaking. In light of this
reevaluation, EPA no longer has the basis to propose disapproval of
Regulation No. 12 based on the Section 4 exemptions.
However, Regulation No. 12 does not include specific emission
limitations or control technology requirements as RACT for other major
sources of NOX in Delaware. Rather, Regulation No. 12
contains procedures for RACT to be imposed on non-fuel burning sources
on a case-by-case basis as alternative RACT determinations from the
specific RACT requirements for fuel burning sources. These sources are
not subject to specific, ``up-front'' (i.e. immediately ascertainable)
emission limitations. Instead, the regulations establish a process for
the State to review and approve individual RACT emission
[[Page 13755]]
limitations proposed by the sources, which are then to be submitted to
EPA as SIP revisions.
The CAA requires states to implement RACT on all major stationary
sources. Process-oriented generic regulations, such as this, which do
not include specific and ascertainable emission limitations for all
major sources, do not by themselves provide standards for EPA to
approve or disapprove as satisfying the definition of RACT. Therefore,
the CAA's RACT requirements are satisfied only after the specific
limitations imposed by the State on its major sources has been
submitted to EPA as SIP revisions and approved by EPA as RACT for the
subject sources.
In a November 7, 1996 policy memo from Sally Shaver, Director, Air
Quality Strategies and Standards Division of OAQPS, EPA issued a
guidance for approving state generic RACT regulations, like Delaware's,
provided certain criteria are met. This guidance does not exempt any
major source from RACT requirements but instead provides a de minimis
deferral of RACT only for the purposes of approving the state's generic
RACT regulation. The de minimis deferral level is determined by using
the 1990 NOX emissions, excluding the utility boiler
NOX emissions. The remaining 1990 non-utility boiler
emissions are then compared with the amount of non-utility
NOX emissions that have yet to have RACT approved into the
SIP. Generally, EPA expects that all utility boiler RACTs will be
approved prior to application of this de minimis deferral policy and
possible conversion of the generic RACT conditional approval to full
approval. EPA does not expect to defer more than 5% of the emissions
calculated in this manner in order to fully approve Delaware's generic
NOX RACT regulation. In accordance with the November 1996
policy, EPA is requiring that all utility boiler RACT determinations be
approved into the SIP before the limited approval can be converted to
full approval. Full approval of a generic RACT regulation under this
policy does not change the State's statutory obligation to implement
RACT for all major sources. No major NOX source is being
exempted from RACT requirements through this policy or today's
rulemaking.
Because EPA has not received SIP revisions of source-specific RACT
determinations for all major sources of NOX subject to RACT
under the CAA, EPA can at best, according to the November 7, 1996
policy memorandum, propose conditional limited approval of the
NOX generic rule. In support of this proposed rulemaking,
the State committed in a letter dated August 18, 1998 to submit, as SIP
revisions, the case-by-case RACT determinations made under Section 5 of
Regulation No. 12 within 12 months of EPA's final conditional approval
of the generic rule. For this reason, EPA is proposing conditional
limited approval of Regulation No. 12 as explained below.
Conditional Approval
EPA is proposing conditional limited approval of Delaware's
NOX RACT regulation. The proposed conditional approval is
based upon DNREC's commitment to submit all the source-specific RACT
determinations made under Section 5 of Regulation No. 12 as SIP
revisions by a date certain that is no later than 12 months after the
effective date of EPA's final conditional approval of Regulation No.
12. Therefore, to fulfill the condition of this approval, DNREC must,
by no later than 12 months after the effective date of EPA's final
conditional approval of this NOX RACT regulation, certify
that it has submitted all required case-by-case RACT determinations for
all currently known subject sources. Once EPA has determined that
Delaware has satisfied this condition, EPA shall remove the conditional
nature of its approval and Regulation No. 12 will at that time retain
limited approval status. Should Delaware fail to meet the condition as
specified above, the final conditional limited approval of the Delaware
Regulation No. 12 shall convert to a disapproval.
Limited Approval
EPA is also proposing limited approval of Regulation No. 12 on the
basis that it strengthens the Delaware SIP. Once EPA has approved all
of the case-by-case RACT determinations submitted by DNREC in
fulfillment of the conditional approval described above, the limited
approval will convert to a full approval.
EPA is soliciting public comments on the issues discussed in this
notice. 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 document. A more detailed description of the
state submittal and EPA's evaluation are included in a Technical
Support Document (TSD) prepared in support of this rulemaking action. A
copy of the TSD is available, upon request, from the EPA Regional
office listed in the ADDRESSES section of this document.
Proposed Action
EPA is proposing conditional limited approval of Delaware
Regulation No. 12 imposing RACT on major sources of NOX ,
submitted on January 11, 1993 and January 20, 1994. EPA is proposing
conditional limited approval of this SIP revision based upon the
commitment made by DNREC to submit of all the case-by-case RACT
determinations made under Section 5 of Regulation No. 12 for all
subject within one year of the effective date of the final conditional
limited approval of Regulation No. 12. Within one year of the effective
date of the final conditional limited approval of Regulation No. 12,
DNREC must provide a written statement certifying to EPA that to the
best of its knowledge, it has submitted all of the SIP revisions
described above.
IV. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from review under E.O. 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 12875
Under E.O. 12875, EPA may not issue a regulation that is not
required by statute and that creates a mandate upon a state, local, or
tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If EPA complies by consulting, E.O. 12875 requires EPA to
provide to OMB a description of the extent of EPA's prior consultation
with representatives of affected state, local, and tribal governments,
the nature of their concerns, copies of written communications from the
governments, and a statement supporting the need to issue the
regulation. In addition, E.O. 12875 requires EPA to develop an
effective process permitting elected officials and other
representatives of state, local, and tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.'' Today's rule does not
create a mandate on state, local or tribal governments. The rule does
not impose any enforceable duties on these entities. Accordingly, the
requirements of section 1(a) of E.O. 12875 do not apply to this rule.
C. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997),
[[Page 13756]]
applies to any rule that EPA determines (1) is ``economically
significant,'' as defined under Executive Order 12866, and (2) the
environmental health or safety risk addressed by the rule has a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to Executive Order 13045 because
it is not an economically significant regulatory action as defined by
Executive Order 12866, and it does not address an environmental health
and safest risk that would have a disproportionate effect on children.
D. Executive Order 13084
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly affects or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If EPA complies by
consulting, E.O. 13084 requires EPA to provide to OMB, in a separately
identified section of the preamble to the rule, a description of the
extent of EPA's prior consultation with representatives of affected
tribal governments, a summary of the nature of their concerns, and a
statement supporting the need to issue the regulation. In addition, E.
O. 13084 requires EPA to develop an effective process permitting
elected and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.'' Today's rule does not significantly or uniquely affect
the communities of Indian tribal governments. This action does not
involve or impose any requirements that affect Indian Tribes.
Accordingly, the requirements of section 3(b) of E.O. 13084 do not
apply to this rule.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
This proposed rule will not have a significant impact on substantial
number of small entities because SIP approvals under section 110 and
301, 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, I certify that this action will not have a
significant impact on a substantial number of small entities. Moreover,
due to the nature of the Federal-State relationship under the Clean Air
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 conditional approval is converted to 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 proposed disapproval action does 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.
F. 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
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 to propose conditional limited approval of Delaware
Regulation No. 12 for NOX RACT proposes to approve 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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 11, 1999.
W. Michael McCabe,
Regional Administrator, Region III.
[FR Doc. 99-6899 Filed 3-19-99; 8:45 am]
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